BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 (5 February 2025)
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWPIC/2025/34.html
Eligibility for weekly compensation after 130 weeks involves a formal assessment process undertaken by the insurer, outlined in Section 38 of the Workers Compensation Act NSW 1987. The outcome of the assessment determines whether, in the insurer’s view, an injured worker can continue to receive weekly compensation beyond 130 weeks.
Given it is weekly compensation that is at stake, decisions like the recent one of Principal Member John Harris in BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 (5 February 2025) are helpful in ventilating the issues that arise with section 38 and how the provision interacts with vocational and medical evidence in a case.
The injury
The applicant sustained an injury in the course of employment on 24 December 2020 when he fell off a ladder.
The dispute
The insurer in 2024 disputed that the effects of the injury in 2020 were still occurring. Essentially relying on section 33 the insurer took the view the injury had resolved with nil ongoing partial or total incapacity for work (para 5).
Relevantly and by the time of the dispute the applicant had been paid 173 weeks of weekly compensation (para 3). This prompted the insurer to state that if there was a finding the injury had not resolved and there was any residual incapacity for work, the applicant was not eligible for weekly compensation for failing to meet the requirements of section 38 (para 5).
Injury resolved discussion
Some of the alleged injuries were rejected by the Principal Member as having occurred at all, such as a spinal fracture (para 181).
Others such as rib fractures were accepted as being work related (para 189) but it seems also ultimately as accepted by the Principal Member as having resolved (para 194).
The Principal Member did find that there was a psychological injury (somatic form disorder in nature) that occurred and had not resolved (para 236).
After finding against the insurer that the injury had fully resolved (para 240) the Principal Member turned to addressing entitlements under section 38 which begins with making a finding on the applicant’s work capacity (para 242ff)
Finding on work capacity
The Principal Member did not accept the applicant to have “no current work capacity” (parra 244).
Whilst the certificates of capacity stated no capacity, the expert evidence indicated that there was some work capacity and importantly, the applicant had in fact in the lead up to the conciliation arbitration hearing, commenced doing some part time work.
The work being performed at the time of the conciliation arbitration hearing appears to be in two different part time jobs (para 26). It seems the work included one job in hospitality for about 12 hours a week and in another role in stock and sales for about 8 hours a week (para 25). All up, this looks like about 20 hours per week of work being performed.
In the background the applicant was noted to have trained as a civil engineer and had undertaken groundwork in setting up his own business in a work from home environment (para 28). The Principal Member however accepted the applicant was not working in his self-employment at the time of the hearing (para 255).
Ultimately on the issue of capacity for work, the Principal Member found in paragraph 258:
“I accept that the applicant can work in sedentary employment for a significant and majority part of full-time hours.”
Section 38(3)
As the applicant was found to have a current work capacity, the applicant had to meet the various requirements under s38(3) to be eligible for an award after 130 weeks.
The Principal Member accepted that the requirement in s38(3)(a) to return the 130 weeks form was met (para 262).
It was also accepted that the requirement in s38(3)(b) to be working at least 15 hours per week (para 269). At the time of the hearing the applicant was working what looks like roughly 20 hours per week.
This then leads to consideration of s38(3)(c) noting that whilst the applicant was working 20 hours per week, the Principal Member had earlier found the applicant able to work in suitable employment the “majority part of full-time hours.”
Consideration of section 38(3)(c) requires a robust analysis of the Act and the relevant vocational and medical evidence and is often not a straightforward exercise. Another case that ventilates the issues helpfully is Roberts v University of Sydney.
Section 38(3)(c) provides:
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
Unlike in Roberts, in this case, the Principal Member found the requirements in s38(3)(c) were not met.
The Principal Member explained in para 273-274 why the applicant failed to meet this criterion saying:
“273. There is an absence of evidence consistent with my findings as to the extent of the applicant’s ability to undertake additional employment that would increase the worker’s current weekly earnings. The deficiency in this evidence was brought to the applicant’s attention.
274. The applicant has an ability to undertake sedentary work in his profession. The remuneration of a civil engineer will clearly exceed the remuneration of as a casual labourer at a hotel or performing unskilled work in a store.”
Summary
This decision serves as an important reminder about the eligibility requirements imposed by section 38.
An injured worker will not be eligible after 130 weeks if they are found (like the applicant in this case) to:
- Have capacity for work
- Completed the 130-week form
- Have secured suitable employment
- Are working part time in suitable employment at least 15 hours per week (the applicant was working 20 hours)
- Found to be able to work in additional paid employment to the employment actually being performed (the applicant here found to be able to work close to full time hours)
An injured worker in this situation would not be eligible as they could be “undertaking further additional employment or work that would increase the worker's current weekly earnings.”
In this case the Principal Member essentially found the applicant could have worked additional hours as a civil engineer, presumably on a part time basis, adding to the earnings he already was obtaining in the part time work being performed.
There are very few decisions considering section 38(3)(c) and this one reflects the complexities involved. If you have had an eligibility decision made impacting on your weekly compensation and are unsure of the next steps, please reach out to our team.
