Hee v State Transit Authority of New South Wales

The appeal in *Hee v State Transit Authority of New South Wales* concerned the interpretation and application of section 38A of the *Workers Compensation Act 1987* (NSW). The appellant, a worker with the highest needs, sought compensation under this provision, but the primary dispute revolved around whether the arbitrator had made a finding that the appellant was able to return to their pre-injury employment.

The Court of Appeal was required to determine two key legal issues. Firstly, whether the arbitrator erred in finding that the appellant was not entitled to compensation under section 38A. Secondly, relatedly, whether the arbitrator had made a determination that the appellant was capable of returning to their pre-injury employment, which would preclude compensation under that section.

The majority of the Court found that the arbitrator had misconstrued section 38A. They reasoned that the provision did not require a finding that a worker was unable to return to pre-injury employment as a prerequisite for receiving compensation. Instead, the focus was on whether the worker had the highest needs and whether suitable employment was available. The Court concluded that the arbitrator's approach had been erroneous, leading to an incorrect outcome. Consequently, the appeal was allowed, and the proceedings were remitted to the Workers Compensation Commission for rehearing or redetermination. The respondent was ordered to pay the appellant's costs of the appeal.