Employer ordered to pay weekly compo on basis of probable rather than actual earnings


A few weeks ago I stumbled on this interesting NSW legal workers compensation case, whereby the NSW Workers Compensation Commission ordered the employer to pay the worker weekly compensation on the basis of probable earnings rather than actual earnings!

Employer ordered to pay weekly compo on basis of probable rather than actual earnings

Background of the workcover legal case

The [injured] worker (the Applicant) was employed by the Benevolent Society as a full-time Network Manager. In mid-2008, she was incapacitated as a result of a non-work related injury and was granted leave without pay for 12 months.

When the Applicant returned to work she was informed that her position as Network Manager was no longer available because of a “business restructure”. She decided to accept a part-time role as Project Manager. She was paid for her work at a pro-rata amount of her Network Manager wage. At the end of the 3 month probationary period, it was agreed that she would return to full-time work.

However, in September 2009, the applicant injured her shoulder at work while still in her probationary period. The Benevolent Society accepted liability and paid the Applicant weekly compensation on the basis of her part-time earnings.

First Decision

As per “usual”, Arbitrator Connelly found that the injured worker was only entitled to her part-time rate, being the rate applicable immediately prior to her injury. The injured worker was not happy with this outcome and appealed the decision.

Decision on appeal

President Judge Keating revoked Arbitrator Connelly’s decision and held that the injured worker’s weekly rate of pay should have been assessed on the basis of her probable earnings.

Accordingly, the injured worker was entitled to full-time wages because it was likely that she would have recommenced full-time employment after the probationary period!

How very interesting! Here is just wondering… as many of you do, I am sure!


Case: Chung v The Benevolent Society [2012] NSWWCCPD 45


[Post dictated and manually entered on behalf of workcovervictim who is currently totally unable to use the computer to blog due to severe pain and incapacity]



3 Responses to “Employer ordered to pay weekly compo on basis of probable rather than actual earnings”

  1. I think about it all the time ,what about your loss of super contributions you would have accumulated thousands of dollars ,plus all the long service leave entitlements you would be getting if you were not thrown on the section 40 compo train .Lets face it when you are injured at work you lose every which way you look at it .And then for the icing on the cake they send you to a bogus Doctor and he throws you off the compo train and onto the centrelink train , and yes this is all because you went to work and injured yourself. And how stupid of me to think that i was covered under the workers comp system .So I ask you what is  insurance really when they Dont honour there obligations .

  2. When she returned from her leave she was advised that her position as Network Manager was no more available, the reason “business restructure” sounds so like redundancy BS excuse to me firstly because the employer had to advice the employee well in advance so she had the chance to plan her future either fighting the adversarial decision, secondly how the Benevolent thing (they pay no tax!) managed their network structure during the time this employee was on leave? Someone else took her position, bell ring???

    I believe the new prospected role and its probational period offered to the employee were unfair, also it’s clear to me that the employee tried all she could to avoid any escalation so to keep good “fraternity” with the Benevolent thing, AMEN! I think the Judge may have considered the unfair and illegal “dismissal” and then relocation of this employee since it was illegal as well as the Benevolent still have had a very fair outcome.

    Xchangingvictim February 7, 2013 at 2:23 pm
  3. This case makes me also wonder how those “annual weekly pay index raises” work – I mean, for Christ’s sake, they give you a 1% “increase” or thereabouts, which does not even compare with the general increase of living costs… and, what’s more important, do they ever include or estimate what you COULD or WOULD be earning REALLY were you still able to work? Seriously, I have not (yet) come across a single injured worker whose weekly pay has been adjusted to really reflect how much s/he would actually be earning now were s/he still at work (and not unable to work for yonks due to a serious injury).

    Ever thought about it?