Calculating weekly payments of compensation
2nd Nov 2017
In Victoria, an injured employee is entitled to weekly payments of compensation when unable to work, but what figure is used to calculate the amount to be paid?
A recent case has looked at the figure to be used where a teacher didn’t immediately stop work after being injured. The dispute concerned whether the amount to be used in calculations was the wage at the time that the worker first exhibited his symptoms, or when he actually lodged his claim?
The plaintiff worked as a leading teacher at a P-12 College spread across a few campuses. As the e-learning co-ordinator, his role entailed curriculum and timetable planning, coaching other teachers in IT training and liaising with the IT technicians to implement any changes to the schools’ IT system. He commenced his role of leading teacher in around 2011.
Unfortunately, the teacher experienced a significant lack of co-operation and, it seemed at times, obstruction from the IT technicians in implementing changes and conducting regular meetings. This behaviour resulted in the teacher developing a stress-related condition.
In late 2011, he attended a GP to report his stress and was prescribed anti-anxiety medication. In November 2012, he lodged a formal complaint identifying his difficulties with the IT technicians and he also made an allegation of bullying.
Although school management advised that they had spoken with the IT technicians, the problems continued.
The situation became intolerable for the teacher and he resigned from the e-learning committee. However, he was required to continue contact with the IT technicians through his other roles. There continued to be problems on an ongoing basis.
In March 2013, the teacher lodged a second detailed complaint with the school. The local principal denied any bullying and removed him from the technical aspects of IT to minimise his stress.
In May 2013, an informal mediation was arranged to liaise between the plaintiff and the IT technicians. Unfortunately, IT continued to be disruptive, which the plaintiff reported to the school.
In October 2013, the plaintiff sought a demotion to classroom teacher to reduce his stress levels and to avoid extensive contact with the IT technicians. The plaintiff continued as a leading teacher for the remainder of 2013 but swapped to a class-based role in 2014.
The plaintiff lodged a WorkCover claim in January 2015 for a ‘course of employment claim’ while working as a classroom teacher on reduced hours. This claim was accepted and his weekly payments were initially paid according to his Pre-Injury Average Weekly Earnings (PIAWE) as a leading teacher.
The insurer, CGU, later reviewed this decision, in May 2015, and reduced his PIAWE accordingly.
CGU nominated 6 March 2013 as the date of injury. It was submitted on behalf of the teacher that his PIAWE should be calculated from this date as it was when he was diagnosed as having an ongoing work-related stress condition.
The insurer alleged that the plaintiff stood down from his role as a leading teacher due to unrelated family issues rather than because of his work-related stress. It submitted that the PIAWE should be calculated according to the 52 weeks immediately prior to the date that the claim form was lodged and that his PIAWE should be calculated at his classroom teacher pay rate.
Magistrate Wright found in favour of the teacher for the following reasons:
- The medical evidence was not in dispute.
- The plaintiff gave clear evidence of the difficulties experienced with the IT technicians and the impact that this had upon his mental health.
- The plaintiff had made clear complaints of bullying to his manager.
- A co-worker gave evidence that:
- the plaintiff was stressed because of the IT team;
- that his performance decreased because of this;
- she was aware that the plaintiff felt unsupported by the principal; and
- she also believed that he had been bullied by the IT staff.
- The principal gave evidence that the plaintiff had experienced significant stress from November 2012 onwards when dealing with the IT technicians.
- His Honour did not agree that the plaintiff reduced his teaching role due to any family-related reasons.
- The defendant did not present any evidence from the local principal.
- The Magistrate's interpretation of the legislation focused on separating any non-work voluntary action from an action related to an accepted injury; and that the 52-week period is calculated ‘before the injury’.
- The plaintiff did have an 'incapacity for work' as a leading teacher and his resignation from this role and his subsequent work as a classroom teacher is evidence of this incapacity for work.
This case shows that care must be taken when calculating the PIAWE of workers who continue to work despite their injuries. The PIAWE should be calculated according to when their ‘injury’ actually arose, rather than when it all became too much.
Read the judgment here.
Janet Tucci is an Associate at Adviceline Injury Lawyers and is an expert in personal injury law, with a strong focus on workers compensation. With her medical background, Janet can quickly and accurately assess client injuries before advising them of their rights to compensation and then negotiating successful outcomes on their behalf.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).