Court of Appeal clarifies the operation of s38A
- Published 27.11.2020
Meat Carter Pty Ltd v Melides (NSWCA 2020)
The NSWCA handed down its decision in the matter of Meat Carter Pty Ltd v Melides (NSWCA 2020) on 26 November 2020.
The discrete issue that was considered was whether the special rate of weekly compensation in s38A of the 1987 Act for workers with highest needs is payable from the date of the injury or from the time the worker satisfies the definition of ‘worker with highest needs’.
The NSWCA unanimously held it was the latter – namely, the special rate of weekly compensation is only payable from the time the worker satisfies the definition of a ‘worker with highest needs’ (being from the time they are assessed at more than 30% WPI).
The worker was employed by the appellant as a casual delivery driver. On 14 August 2014, the worker contracted Q fever in the course of his employment at the appellant’s Scone abattoir and subsequently developed a consequential psychological condition.
On 14 December 2015, the Commission awarded the worker weekly compensation to 14 December 2015 and an award for the appellant thereafter.
Associate Professor Haber issued a medical assessment certificate on 9 June 2017 and assessed the worker with 60% WPI. The worker therefore met the definition of a ‘worker with highest needs’.
The payments of weekly compensation to which the worker was entitled under s38A were higher than those the worker had received prior to the issue of the medical assessment certificate on 9 June 2017. Accordingly, there remained a dispute as to whether the worker was entitled retrospectively to increased payments of weekly benefits from 29 October 2014 to 9 June 2017.
Initially an arbitrator of the commission declined to make the order for the period claimed holding that the relevant date for the application of the special rate under s38A was the date that the worker was assessed with greater than 30% whole person impairment.
In a certificate of determination, the Acting Deputy President revoked the Arbitrator’s award and ordered that the appellant pay the worker weekly compensation at the rate prescribed by s38A from 14 August 2014 to 8 July 2017 with credit to be given for weekly compensation for that period.
The determination was appealed on the basis that the Acting Deputy President erred in law in concluding that the higher s38A rate was payable from the time of injury.
Judgment of NSWCA
White JA noted that in determining whether the worker was entitled to payments of weekly compensation pursuant to s38A of the 1987 Act before 9 June 2017, the Acting Deputy President had incorrectly referred to Hee v State Transit Authority of New South Wales (NSWCA 2019) (‘Hee‘), when he stated:
‘The benefit paid under s38A is substituted for the amount of weekly compensation determined under ss36-38. It follows in my view that the entitlement arises at the same time as the entitlement under those sections. That in my view is the date of injury, in this case 14 August 2014.’
White JA explained that the issue in the present matter did not arise in Hee, which was limited to a determination regarding the rate of payments under s38A.
It was White JA’s view that there is a temporal aspect to s38A(1) in that it operates with respect to determined amounts of weekly payments of compensation payable to a worker who meets the criteria for a worker with highest needs at the time the compensation is payable.
On that reasoning, White JA concluded that until the injured worker was a worker with highest needs as defined in s32A, he or she was not entitled to higher amounts of weekly compensation payments under s38A.
It was acknowledged by White JA that if s38A does not apply retrospectively, in some cases a worker who is ultimately assessed as being a worker with highest needs will be disadvantaged by the delay in obtaining an assessment.
The orders of Acting Deputy President on 10 September 2019 were set aside and the appeal was allowed.
The decision provides guidance regarding the operation of s38A.
A worker is precluded from receiving the special rate of workers compensation payments retrospectively. The special rate of compensation is only payable to a worker from the time that they satisfy the definition of a ‘worker with highest needs’.