Meat Carter Pty Ltd v Melides

Case •

[2020] NSWCA 307

•

26 November 2020

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Meat Carter Pty Ltd v Melides [2020] NSWCA 307
Hearing dates: 4 May 2020
Decision date: 26 November 2020
Before: Macfarlan JA at [1];
Gleeson JA at [2];
White JA at [3]
Decision:

1. Appeal allowed.

2. Set aside the orders of the Acting Deputy President of 10 September 2019.

3. In lieu thereof order that the appeal from the orders of the Arbitrator made on 26 February 2019 be dismissed.

4. Order that the respondent pay the appellant’s costs of the appeal.

Catchwords:

WORKERS’ COMPENSATION – Construction of Workers Compensation Act 1987 (NSW) s 38A – Whether payment at special rate pursuant to s 38A payable from time of injury or from time the worker satisfies the definition of “worker with highest needs” – consideration of the defined term ‘worker with highest needs”

Legislation Cited:

Workers Compensation Act 1987 (NSW), ss 9, 32A, 36, 37, 38A, 39, 59A, 60, 65, 82A

Workers Compensation Amendment Act 2015 (NSW), Sch 2

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 321, 322A, 325, 353

Cases Cited:

Ansett Australia v Dale [2001] NSWCA 341; 22 NSWCCR 527

Borovac v Corporate Ventures Pty Ltd t/a New South Wales Department of Agriculture (1995) 12 NSWCCR 84

Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175

Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113

Melides v Meat Carter Pty Ltd [2019] NSWWCCPD 48

State of NSW v Allen [2000] NSWCA 141; 20 NSWCCR 314

TNT Australia Pty Ltd v Estate of Horne (1995) 36 NSWLR 630

Texts Cited:

Herzfeld and Prince, Interpretation, 2nd ed Thomson Reuters

Category:Principal judgment
Parties: Meat Carter Pty Ltd (Appellant)
Steven Melides (Respondent)
Representation:

Counsel:
J Kirk SC with B Lim (Appellant)
B McManamey (Respondent)

Solicitors:
Stiles Lawyers (Appellant)
Peninsula Law (Respondent)
File Number(s): 2019/301298
 Decision under appeal 
Court or tribunal:
Workers Compensation Commission of NSW
Jurisdiction:
n/a
Citation:

[2019] NSWWCCPD 48

Date of Decision:
10 September 2019
Before:
Parker SC ADP of WCC
File Number(s):
A 1-6032/18

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant appeals from orders of a Presidential member of the Workers Compensation Commission who found that the respondent was entitled to payment at the special rate specified in s 38A of the Workers Compensation Act 1987 (NSW) from the time of injury (29 October 2014). Section 38A provides that if a worker with highest needs’ weekly payment of compensation under ss 36, 37 or 38 falls below a prescribed amount that amount is to be treated as the prescribed amount.

The appellant argues that although the respondent is entitled to payment at the special rate, that entitlement only arose from the time that the respondent satisfied the definition of “worker with highest needs” under s 32A. The respondent was assessed pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) as having a degree of permanent impairment of 60 per cent on 9 June 2017. It was on that date he satisfied the definition of “worker with highest needs”.

The Court of Appeal (Macfarlan, Gleeson and White JJA), allowed the appeal, holding:

Per White JA (Macfarlan JA and Gleeson JA agreeing at [1] and [2] respectively)

The respondent’s entitlement to compensation vested on the date of injury however the method for calculating the quantum of that compensation must be determined pursuant to the detailed regime set out in the Act: [18], [27], [44], [46]. The competing objectives of the Act require a construction which gives primacy to the text of the provisions: [56].

Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36; Carr v Western Australia (2007) 231 CLR 138; [2007] HCA 47: applied.

Section 38A does not provide for the substitution of amounts calculated pursuant to ss 36, 37 or 38 prior to the injured worker being a “worker with highest needs”: [34]. The definition includes a temporal element which requires that a worker be at the relevant time a “worker with highest needs” in order to qualify for payment at the higher rate: [40]-[41].

When the definition of “worker with highest needs” is read into s 38A the temporal element of the definition requires that one of the conditions in the definition be met before the entitlement to payment at the special rate arises: [47]-[49]. Prior to 9 June 2017 there was no assessment. This meant that the respondent was not a “worker with highest needs” within the meaning of s 38A: [35]. The use of the defined term stands s 38A in contrast to s 39 considered by this court in Hochbaum.

Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113: considered.

This construction does not require the reading in of words into s 38A to account for the temporal element rather it follows from the use of the defined term and the context and structure of subdivision 2: [49]-[52].

Judgment

  1. MACFARLAN JA: I agree with White JA.

  2. GLEESON JA: I agree with White JA.

  3. WHITE JA:    This is an appeal under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) from a decision of a Presidential member of the Workers Compensation Commission (Acting Deputy President G Parker SC) given on 10 September 2019. The appeal lies to this court on a point of law.

  4. The point of law concerns s 38A of the Workers Compensation Act 1987 (NSW) (“the Act”). That section provides a special rate of payment of weekly compensation for a “worker with highest needs”. That is a defined expression. The point of law is whether the special rate in s 38A is payable from the time of injury or from the time the worker satisfies the definition of “worker with highest needs”.

  5. The facts giving rise to that point of law are in a narrow compass. The respondent was employed by the appellant as a casual delivery driver. On 14 August 2014 he contracted Q fever in the course of his employment at the appellant’s Scone abattoir and subsequently developed a consequential psychological condition.

  6. On 14 December 2015 the Commission made an order by consent that the appellant pay the respondent weekly compensation and that there be an award for the appellant for claims for weekly compensation after 14 December 2015.

  7. On 9 June 2017 a medical assessment certificate was issued by Associate Professor R Haber, pursuant to s 325 of the 1998 Act. He assessed the respondent as having an impairment that was permanent as the result of his injury (as defined) and that the degree of permanent impairment (described as whole person impairment) was 60 per cent.

  8. The respondent claimed higher payments of weekly compensation pursuant to s 38A of the Act. That section was introduced by the Workers Compensation Amendment Act 2015 (NSW), (Sch 2, cl [7]). Section 38A provides:

“38A   Special provision for workers with highest needs

(1)     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.

(2)     If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.”

  1. The effect of subs (2) of 38A is to provide for the indexation of the amount of weekly compensation specified in s 38A according to changes to the Consumer Price Index (s 82A).

  2. The definition of “worker with highest needs” was introduced with the 2015 amendments. Section 32A provides:

“worker with highest needs means a worker whose injury has resulted in permanent impairment and—

(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or

(b)     an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or

Note –

Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.

(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”

  1. Section 9(1) of the Act provides:

“9   Liability of employers for injuries received by workers—general

(cf former s 7 (1) (a))

(1)     A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.”

  1. The payments of weekly workers’ compensation to which the appellant was entitled under s 38A were higher than those he had received prior to the issue of the medical assessment certificate on 9 June 2017. It appears from the reasons of the Arbitrator (Mr A Scarcella) of 26 February 2019 that the appellant sought to appeal against the assessment of Associate Professor Haber of 9 June 2017, but was unsuccessful. The Arbitrator recorded that the appellant’s insurer commenced paying weekly benefits to the respondent at the rate referred to in s 38A, as adjusted, from 8 July 2017. This court was told that subsequently the insurer made an additional payment to adjust the respondent’s benefits as from 9 June 2017.

  2. What remained in dispute was whether the respondent was entitled retrospectively to increased payments of weekly benefits from 29 October 2014 to 9 June 2017.

  3. The appellant accepts that the respondent’s weekly payment should be determined in accordance with s 38A from 9 June 2017. It denies that the respondent is entitled to weekly payments pursuant to ss 36, 37 or 38 at the rate provided for by s 38A prior to the issue of the medical assessment certificate on 9 June 2017.

  4. The Arbitrator declined to order that the respondent receive weekly benefits at the rates provided under s 38A from 14 August 2014 to 8 June 2017. He concluded:

“5. The entitling factor to the special provisions under section 38A of the Workers Compensation Act 1987 is an assessment in excess of 30% whole person impairment in accordance with the definition of worker with highest needs in section 32A of the Workers Compensation Act 1987 and not the date of injury or the date of the assessment by the applicant's forensic medical specialist.”

  1. The Acting Deputy President revoked the Arbitrator’s order and ordered that the appellant pay the respondent weekly compensation at the rate prescribed by s 38A from 14 August 2014 (the date of the injury) to 8 July 2017 with credit to be given for weekly payments of compensation between 14 August 2014 and 8 July 2017 (Melides v Meat Carter Pty Ltd [2019] NSWWCCPD 48).

  2. The appellant submits that the Acting Deputy President erred in law in concluding that the higher s 38A rate was payable from the time of injury.

  3. Section 9 states the principle that a worker’s right to workers’ compensation vests from the time of injury. But the quantum of compensation an injured worker is entitled to receive as a result of his or her injury is governed by the detailed provisions of the Act.

  4. Part 3 of the Act provides for different forms of benefit. Division 1 of Pt 3 provides for compensation payable on death. Division 2 of Pt 3 is headed “Weekly compensation by way of income support”. As the heading suggests, Div 2 contains the sections relevant to the payment of weekly compensation, in particular, for the purposes of this case, ss 36-38A and the definitions in s 32A. Under s 39 weekly compensation payments cease after five years have elapsed from the worker’s injury. But s 39 does not apply to an injured worker whose injury results in permanent impairment of more than 20 per cent. In Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 this court held that a worker who was assessed as having a degree of permanent impairment of more than 20 per cent after five years had elapsed from the injury was entitled to receive continuing payments because the 260-week period in s 39 never applied. His entitlement to continuing payments was not restricted to the period after the assessment.

  5. Division 3 is headed “Compensation for medical, hospital and rehabilitation expenses etc”. Section 59A, which is in Div 3, contains limitations upon an injured worker’s right to be paid for hospital or medical treatment following an injury after two, or in some cases five, years after the injury, but that limitation does not apply to a “worker with high needs (as defined in Division 2)” (s 59A(5)). Subject to those limitations, s 60 provides that the employer is liable to pay an injured worker’s costs of medical or hospital treatment and rehabilitation that were reasonably necessarily incurred as a result of the injury. The Division also provides for compensation for domestic assistance.

  6. Division 4 is headed “Compensation for non-economic loss”. Section 65(1) is in Div 4 of Pt 3. It provides:

“65   Determination of degree of permanent impairment

(1)     For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”

  1. Division 5 of Pt 3 concerns compensation for property damage and is not relevant. Division 6 and Division 6A provide for the indexation of weekly compensation payable under different provisions, either according to changes in the award rates of pay for adult males in New South Wales, or changes in the consumer price index. Benefits payable under s 38A are to be adjusted in accordance with changes to the consumer price index (s 82A).

  2. The definitions of “worker with high needs” and “worker with highest needs” in s 32A refer to a worker whose degree of permanent impairment has been assessed for the purposes of Div 4 to be more than 20 per cent or 30 per cent as the case might be. An assessment for the purposes of Div 4 picks up s 65 that requires that for the purposes of Div 4 the degree of permanent impairment that results from an injury is to be assessed as provided by that section and by Pt 7 (Medical assessment) of Ch 7 of the 1998 Act.

  3. Part 7 of Ch 7 of the 1998 Act provided for the appointment of approved medical specialists to determine a medical dispute. A medical dispute includes a dispute about the degree of permanent impairment of a worker as a result of an injury, whether the impairment is permanent, and whether the degree of permanent impairment of the injured worker is fully ascertainable (s 319). Prior to 1 January 2019 s 321 provided:

“321   Referral of medical dispute for assessment

(1)     A medical dispute may be referred for assessment under this Part by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute. The Registrar is to give the parties notice of the referral.

(2)     The parties to the dispute may agree on the approved medical specialist who is to assess the dispute but if the parties have not agreed within 7 days after the dispute is referred, the Registrar is to choose the approved medical specialist who is to assess the dispute.

(3)     The Commission may not refer for assessment under this Part a medical dispute concerning permanent impairment (including hearing loss) of an injured worker.

(4)     The Registrar may not refer for assessment under this Part:

(a)     a medical dispute concerning permanent impairment (including hearing loss) of an injured worker where liability is in issue and has not been determined by the Commission, or

(b)     a medical dispute other than a dispute concerning permanent impairment (including hearing loss) of an injured worker, except when dealing with the dispute under Part 5 (Expedited assessment).”

  1. Section 322A(1) provides that there can be only one assessment of the degree of permanent impairment of an injured worker. Section 325 provides for the issue by an approved medical specialist to whom a medical dispute is referred of a certificate as to the matters referred for assessment. Section 326 provides for an assessment certified in a medical assessment certificate pursuant to a medical assessment conducted under Pt 7 of Ch 7 to be conclusively presumed to be correct as to certain matters, including the degree of permanent impairment of the worker as a result of an injury and whether the impairment was permanent and whether the degree of permanent impairment was fully ascertainable. As to any other matter the assessment certified is evidence but not conclusive evidence in other proceedings (s 326(2)).

  2. Associate Professor Haber’s medical assessment certificate stated that the respondent’s whole person impairment was 60 per cent. The Act does not refer to whole person impairment. It refers to an injured worker’s degree of permanent impairment. The reference to whole person impairment appears to arise from the Workers Compensation Guidelines under which an assessment of the degree of permanent impairment of an injured worker is required to be made (s 322(1)) and the reference in those Guidelines to AMA5.

  3. As noted above, the Arbitrator held that the respondent was not entitled to payments of weekly compensation pursuant to s 38A of the 1987 Act before 9 June 2017 (being the date of the issue of the medical assessment certificate). The Arbitrator gave detailed reasons for that conclusion. He noted the respondent’s submission that as a general principle rights to workers’ compensation vest on injury (TNT Australia Pty Ltd v Estate of Horne (1995) 36 NSWLR 630 at 641; Ansett Australia v Dale [2001] NSWCA 341; 22 NSWCCR 527; State of NSW v Allen [2000] NSWCA 141; 20 NSWCCR 314; Borovac v Corporate Ventures Pty Ltd t/a New South Wales Department of Agriculture (1995) 12 NSWCCR 84). The respondent submitted that once the worker has been identified as a worker with highest needs the worker is entitled to the benefit of s 38A from the date of injury because that is when the worker’s rights vest.

  4. The Arbitrator did not accept the respondent’s submission. He said that the factor entitling the respondent to the benefit of s 38A was an assessment in excess of 30 per cent whole person impairment in accordance with the definition of “worker with highest needs” in s 32A and that assessment was not provided until 9 June 2017.

  5. The Acting Deputy President revoked that decision. He reasoned as follows:

“50.    In my view Hee No 3 [Hee v State Transit Authority of New South Wales [2019] NSWCA 175; 287 IR 200 (“Hee”)], provides considerable guidance to the correct construction of s 38A. Meagher JA said:

‘[31] The structure and terms of s 38A(1) confirm that it only operates in circumstances where there is an entitlement to an amount of weekly compensation, determined in accordance with ss 36, 37 or 38(6) or (7), and irrespective of whether that amount is zero, or less than zero. If the condition enlivening the “special provision” is satisfied, that provision is to be made by treating the amount which is the outcome of that earlier and necessary “determination” as being the specified amount, initially $788.32. Section 38A does not in terms provide that a worker with highest needs with partial incapacity for work is entitled to weekly compensation at the specified or any other rate. It applies if there is an entitlement to an “amount” determined in accordance with one of the earlier provisions, and then only to specify a minimum amount which is to be payable ....

[32] The “determination” describes the outcome of the calculation of the rate of weekly payments to which an injured worker is entitled under one of the relevant provisions. The use of the word “payable” in s 38A(1) confirms that outcome is the weekly payment to which the injured worker is otherwise entitled under Pt 3 Div 2. As Giles JA observed (Allsop P and Hodgson JA agreeing) in Speirs v Industrial Relations Commission of New South Wales [2011] 81 NSWLR 348; [2011] NSWCA 206 at [76], in this context “an employer's liability to pay compensation and a worker's entitlement to receive compensation each express compensation being payable.”

[33] All of this is consistent with the language of s 33 and the scheme of Pt 3, Div 2. The general provision in s 9 makes clear that the injured worker is entitled to compensation “in accordance with this Act”. Section 33 does not provide for the calculation of any “weekly payments” to which the worker is entitled for partial or total incapacity. It is the other provisions of Div 2, Subdiv 2 that do so. That is confirmed by the language of s 35(1) which defines the integers to be used in those calculations and in doing so describes the operative sections - ss 36, 37 and 38 - as “the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week”. Accordingly, the reference to a 'weekly payment' in s 33 is to a payment determined in accordance with those operative sections. In that context s 38A applies to a “worker with highest needs” entitled to a determination of a weekly payment amount, even if the amount determined is zero.’

51. Section 38A operates in the context of the determination made under ss 36, 37 and 38. Those provisions calculate the entitlement to weekly payments. The special payment under s 38A is substituted for the determined amount under those provisions. It follows that the entitlement to the special payment for workers with highest needs arises at the same time as the entitlement to weekly compensation under ss 36,37 or 38 is determined. That date in my view is the date of injury.

52. In my view, dating the payment of the special benefit to commence from the date of injury accords with the purpose of s 38A to provide that workers with highest needs should receive a prescribed minimum payment. This purpose is not advanced by limiting the payment to a date after the medical assessment declares the worker to be a worker with ‘highest needs’. In the majority of cases a ‘worker with highest needs’ is likely to have qualified as such from the date of injury even if the formal assessment of same does not occur until a later point of time.

53. The benefit paid under s 38A is substituted for the amount of weekly compensation determined under ss 36-38. 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.”

  1. The essence of the reasoning of the Acting Deputy President is that a benefit payable under s 38A is substituted for the determination made under ss 36, 37 and 38 for entitlement to weekly payments and therefore is to be taken to have been payable from the time the weekly payments due under ss 36, 37 and 38 were payable.

  2. The present issue did not arise in Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175. There it was agreed that the worker had suffered permanent impairment of more than 30 per cent. He was injured on 17 October 2013 and was paid weekly compensation payments pursuant to ss 36 and 37 until he returned to work. Because of his prior earnings he was entitled to weekly compensation payments at more than the rate provided for by s 38A until he returned to work. After he returned to work his earnings were such that the amount of weekly compensation payments payable under s 37 to which he was entitled was zero. Nonetheless, this court held that if the worker were not able to return to his full pre-injury duties and was a worker with “current work capacity” (as defined), he was entitled to a weekly payment at the rate provided for by s 38A even though the amount of weekly compensation to which he was entitled under s 37 was zero. An “amount” could be zero (s 35(2) since repealed).

  3. No issue arose as to whether the worker’s entitlement to s 38A payments arose from the date of injury or from the date that the insurer was satisfied that the degree of permanent impairment was likely to be more than 30 per cent. (Section 32A: definition of “worker with highest needs” para (c)). This was because the worker received a higher payment under ss 36 and 37 until he returned to work.

  4. Neither Meagher JA nor the other members of the court addressed this question. Nothing in Hee supports the reasoning of the Acting Deputy President at [51]-[53] of his reasons quoted above at [29].

  5. Section 38A does not provide for the substitution of amounts calculated pursuant to the section for amounts payable under ss 36, 37 or 38 prior to the injured worker being a “worker with highest needs”.

  6. The respondent came within the definition of “worker with highest needs” because and only because his degree of permanent impairment had been assessed for the purpose of Div 4 to be more than 30 per cent. Prior to 9 June 2017 there was no assessment. Prior to that date the respondent was not a worker with highest needs within the meaning of s 38A. With respect, the Acting Deputy President was wrong in saying (at [51]) that “it follows that the entitlement to the special payment for workers with highest needs arises at the same time as the entitlement to weekly compensation under s 36, 37 or 38 is determined”.

  7. The basis upon which the Acting Deputy President’s reasoning was sought to be defended in this court was that such a construction advanced the purpose of the 2015 amendments to ensure that workers with highest needs should receive a prescribed minimum payment (Reasons at [52] quoted above at [29]).

  8. Section 36 provides for weekly payments of compensation to an injured worker during the “first entitlement period” of 13 weeks according to whether a worker has “no current work capacity” or has “current work capacity”. (The definitions of those expressions were considered in Hee, but are not presently relevant). In that period a worker is entitled to 95 per cent of average weekly earnings subject to a maximum and allowance for earnings and non-pecuniary benefits.

  9. Section 37 provides for weekly payments of compensation for the second entitlement period (weeks 14-130) at a lower rate. Again, the worker’s entitlement depends upon an assessment of his or her work capacity.

  10. A worker’s entitlement to compensation ceases after 130 weeks, unless he or she is assessed by the insurer as having no work capacity and is likely to continue indefinitely in that condition, or in particular circumstances provided for by s 38(3) and (4). Different provisions apply to a “worker with high needs” and other workers. A “worker with high needs” is also defined in s 32A as follows:

“worker with high needs means a worker whose injury has resulted in permanent impairment and—

(a)     the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or

(b)     an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or

Note—

Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.

(c)     the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,

and includes a worker with highest needs.”

  1. The appellant submitted, correctly, that there is a temporal aspect to s 38A(1). It submitted that s 38A(1) 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.

  2. It is only if a determination of the amount of weekly payments of compensation payable to a worker with highest needs results in an amount less than the prescribed amount that a higher amount is payable. That assessment is to be made from time to time as amounts of weekly payments of compensation are payable. Unless at that time the worker is a “worker with highest needs”, then, increased amounts of compensation are not payable. The respondent was not a worker with highest needs (as defined) before 9 June 2017.

  3. The appellant noted that ss 36, 37 and 38 require different determinations that might need to be made at different times and potentially on a week-by-week basis, depending upon the injured worker’s capacity for work. This submission is correct.

  4. Therefore, it followed, so the appellant argued, that unless the injured worker were a worker with highest needs as defined in s 32A, he or she was not entitled to higher amounts of weekly compensation payments under s 38A unless and until, and only when, the injured worker satisfied the definition of a worker with highest needs.

  5. Not only is an injured worker entitled to different amounts of weekly compensation according to whether he or she is in the first or second entitlement period, or the second entitlement period has expired, but within each of those periods there can be changing assessments of the worker’s work capacity. A work capacity assessment is to be made in accordance with the Workers Compensation Guidelines (s 44A), but in the case of a worker with highest needs a work capacity assessment is not to be made unless the insurer thinks it appropriate to do so when the worker requests it (ss 38(5) and 44A(4)). Those provisions must speak as at the time the question of an insurer’s conducting a work capacity assessment arises. It is only if the worker is then a worker with highest needs that the restrictions in s 38(5) and s 44A(4) apply.

  6. The respondent repeated his submission that had been unsuccessfully advanced before the Arbitrator in reliance on the authorities referred to at [27] above that a worker’s entitlement to compensation vests upon the happening of injury. He pointed to the words of ss 36, 37 and 38 that refer to a worker’s being “entitled” to weekly payment of compensation in the first and second entitlement periods and, in some cases, after the second entitlement period at the rates provided for in those sections and dependent upon the worker’s current work capacity and earnings. That submission was accepted by the Acting Deputy President.

  7. He argued that the entitlement under s 38A of a worker with highest needs arose at the same time as the entitlement to weekly compensation was determined under ss 36, 37 or 38 and submitted that that time was the date of injury. Section 33 provides that if injury results in total or partial incapacity for work the injured worker is entitled to a weekly payment during the incapacity. But as this court held in Hee, s 33 does not describe how the amount of weekly compensation is to be calculated. In the case of partial incapacity under s 33, the worker is only entitled to compensation to the extent that some other provision of the Act so provides (Hee at [9], [49]). It would only if s 38A were engaged, that weekly payments of compensation would be payable under ss 36, 37 or 38 at the rates provided for by s 38A. Whether s 38A is engaged depends on whether the definition of “worker with highest needs” is satisfied at the time weekly compensation payments are payable.

  8. The respondent submitted that s 32A is a definition section and does not of itself create any entitlements to any form of compensation. That is true. But the definition is to be read into s 38A (Herzfeld and Prince, Interpretation, 2nd ed Thomson Reuters at [3.40]). When that is done, s 38A provides in substance (albeit awkwardly):

“If the determination in accordance with this Subdivision of the amount of weekly payments of compensation payable to a worker, whose injury has resulted in permanent impairment and:

(a)    the degree of permanent impairment has been assessed for the purposes of Div 4 to be more than 30%, or

(b)    an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or

(c)   the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%,

results in an amount that is less than $788.32, the amount is to be treated as $788.32.”

  1. If, when the determination of the amount of weekly payments of compensation has to be made, whether it be by the insurer or the Commission, the worker does not fall within the description above, then s 38A is inapplicable.

  2. Section 38A stands in contrast to s 39 considered by this court in Hochbaum. There is no temporal element in s 39(2). But there is when ss 36, 37, 38 and 38A have to be applied. Had s 39(2) used the defined term “worker with high needs” the result in Hochbaum would probably have been different.

  3. The respondent submitted that because s 38A refers to the “determination” of the amount of weekly payments of compensation, whereas ss 36, 37 and 38 refer to weekly payments of compensation to which an injured worker is “entitled”, the temporal operation of ss 36, 37 and 38 did not mean that s 38A had a temporal element. He submitted that the appellant’s construction involves reading the words “when the weekly payment is payable” into s 38A.

  4. I do not accept this submission. The appellant is correct in saying that in s 38A “determination” is used in the sense of a calculation or ascertainment of an amount of weekly payment of compensation, which is something which may be done by the insurer and an injured worker without the involvement of the Commission. It is not confined to a determination by the Commission. In most cases the Commission should not be involved. The appellant correctly submits that the amount of weekly payment depends upon the circumstances of the worker in the particular week, his or her then capacity for work, whether the week falls in the first or second entitlement periods or a later period, and his or her earnings.

  5. The appellant’s construction does not require reading the words “when the weekly payment is payable” into s 38A. (It is unclear where in the section the respondent says those words would impliedly have to be inserted – perhaps after determination). Rather, the construction follows from the context and structure of subdivision 2.

  6. The respondent does point to a potential unfairness in the operation of the sections on the appellant’s construction. Under s 322A(1) of the 1998 Act there may be only one assessment of the degree of permanent impairment of an injured worker. Paragraph (b) of the definition of “worker with highest needs” deals with the position where the approved medical specialist declines to make an assessment of the worker’s degree of permanent impairment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable. But if there is no dispute between the worker and the insurer about that matter, there will be no occasion for an approved medical specialist to be involved. It is only where there is a medical dispute that the 1998 Act provides for the referral of such a dispute for assessment under Pt 7 of Ch 7 of that Act to an approved medical specialist. Therefore, if the insurer is not satisfied that the degree of permanent impairment is likely to be more than 30 per cent (so as to engage the definition in para (c)) the worker will not be able to come within s 38A so as to become entitled to payment of weekly compensation at higher rates until there is an assessment or a dispute as to whether maximum medical improvement has been reached and the degree of permanent impairment is fully ascertainable. It is only if there is such a dispute and there is either an assessment under para (a) of the definition, or the approved medical specialist declines to make the assessment for the reason in para (b), that the worker will qualify.

  7. It must be acknowledged that if s 38A does not apply retrospectively, in some cases a worker who is ultimately assessed as having a degree of permanent impairment of 30 per cent or more will be disadvantaged by the delay in obtaining an assessment. But a delay attributable to there being no medical dispute that the worker has not reached maximum medical impairment and whose degree of permanent impairment cannot be ascertained, is but a subset of cases where delay will disadvantage a worker later assessed as being a worker with highest needs.

  8. The respondent submitted that s 38A was intended to improve the benefits for the more seriously injured worker and any ambiguity should be resolved in the respondent’s favour.

  9. However, the respondent properly acknowledged that in the Second Reading Speech for the Workers Compensation Amendment Act 2015 the Minister identified three objectives of the amendments, namely, support for injured workers to recover and return to work, the provision of proper assistance to workers with highest needs, and ensuring that changes to benefits would not compromise the financial sustainability of the scheme. As the appellant submitted, given these competing objectives, the surest guide to meaning is the text itself (Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619; [2013] HCA 36 at [40]-[41] (the Court); Carr v Western Australia (2007) 231 CLR 138; [2007] HCA 47 at [5]-[6] (Gleeson CJ)).

  10. It follows that the appeal should be allowed. The respondent submitted that if this were so, it should nonetheless be found that payments should commence not from the date of the issue of the medical assessment certificate, but from the date upon which an approved medical specialist, a Dr Mark Burns, provided advice to the respondent’s solicitor that an assessment of 31 per cent whole person impairment would be appropriate. This opinion was provided on 3 November 2016.

  11. The short answer to that submission is that Dr Burns’ opinion was not an assessment “for the purposes of [Div 4]”. An assessment “for the purposes of [Div 4]” is an assessment as provided for by s 65(1) of the Act. That assessment is the assessment made under Pt 7 of Ch 7 of the 1998 Act, being an assessment made pursuant to a referral (ss 321 and 321A). Dr Burns’ report was not such an assessment.

  12. For these reasons I propose the following orders.

  1. Appeal allowed.

  2. Set aside the orders of the Acting Deputy President of 10 September 2019.

  3. In lieu thereof order that the appeal from the orders of the Arbitrator made on 26 February 2019 be dismissed.

  4. Order that the respondent pay the appellant’s costs of the appeal.

**********

Decision last updated: 26 November 2020

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

7

Iqbal v Hotel Operations Solutions Pty Ltd [2024] NSWPICPD 6
Hodges v State of NSW (Western Sydney Local Health District) [2025] NSWPIC 576
Spokes v Mark Bristow Painting [2025] NSWPIC 62