Author: Chad Farah
Judgment Date: 17 July 2019
Citation: Hee v State Transit Authority of New South Wales  NSWCA 175
Jurisdiction: NSW Court of Appeal 1
A claim for weekly benefits was brought in the Workers Compensation Commission (the Commission) whereupon the appellant was paid weekly benefits, by way of settlement, for that closed period of wage loss only.
The appellant was subsequently awarded lump sum compensation corresponding with 34% whole person impairment (WPI) of the cervical spine. This meant that he was classified as a 'worker with highest needs' pursuant to Section 32A of the 1987 Act.
On 17 March 2017, the appellant made a further claim for weekly benefits, this time pursuant to Section 38A(1) of the Act.
That Section states:
'If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.'The Insurer disputed the appellant's claim and the matter proceeded to Arbitration before Senior Arbitrator Capel. The Senior Arbitrator ultimately found that the appellant was not earning less than his pre-injury wages and was therefore not entitled to any ordinary weekly benefits in the first place. It followed that, in the Senior Arbitrator's opinion, the operation of Section 38A was not triggered.
On appeal, President Keating found that the 'special benefit' under Section 38A was only payable if there was a ‘determination’ of a weekly amount payable arising out of incapacity that was less than the minimum statutory rate under Section 38A. In dismissing the appeal, the President went on to say at paragraph 144 of his decision:
‘It seems plain that the general purpose of inserting s38A into the legislation is to ensure that workers with highest needs receive additional weekly compensation payments compared to those workers with an impairment of 30% or less. That is not to say that all workers with highest needs receive the additional compensation. Such compensation is only available to those workers who meet the conditions…'A noteworthy aspect of President Keating's decision was that the appellant’s proposition that a calculation of a weekly benefits entitlement in the amount of zero constituted a 'determination of an amount payable’ under Section 38A(1) was rejected.
In a two-to-one decision, the Court of Appeal reluctantly found in favour of the appellant. At paragraph 162 of the judgment, his Honour Simpson AJA summarised the critical error of the Senior Arbitrator in his original decision:
'It appears to have been assumed by the arbitrator that, because Mr Hee had returned, essentially, to his pre-injury work regime, he had returned to his “pre-injury employment”. Contrary to the STA’s submissions, that was not the finding the arbitrator made. That finding was that Mr Hee had “resumed his full pre-injury duties”. The distinction is, in this case, significant. The arbitrator’s assumption failed to take into account Mr Hee’s claim that he was working less overtime than he had pre-injury, and had therefore not returned to his “pre-injury employment”.'The Court of Appeal accepted the proposition that, if such an incapacity existed, the appellant would be entitled to an amount of weekly benefits. It also accepted that, according to the mandatory calculations stipulated under the Act,2 that amount would be zero given that the appellant had returned to his pre-injury ordinary work hours and duties. It then followed that, because zero is 'less than $788.32' as stated under Section 38A(1), the appellant would also be entitled to the minimum weekly amount of $788.32 as indexed.
That is not to say that the appellant was entirely successful on this occasion. The Court expressly stated that the above was all contingent on a finding of fact that there indeed was the alleged ongoing incapacity. Accordingly, the matter was remitted to the Commission for a re-determination on that issue of fact.
His Honour Meagher JA in this instance illustrated the strange effects of the Court's decision at paragraphs 100 to 104 of the judgment, paraphrased as follows:
It remains to be seen whether Section 38A(1) will be rectified by the legislature in light of the above. The writer proposes the following amendment:
'If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the worker will be entitled to additional weekly payments under this Section so that the combined amount of the worker's weekly payments and the worker's earnings from ongoing employment is collectively equivalent to at least $788.32.'
1 Meagher JA, White JA and Simpson AJA.
2 Refer to Section 37 of the 1987 Act ('second entitlement period').