Melides v Meat Carter Pty Limited - [2019] NSWWCCPD 48

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal allowed – Meat Carter Pty Ltd v Melides* [2020] NSWCA 307**
CITATION:	Melides v Meat Carter Pty Limited [2019] NSWWCCPD 48
APPELLANT:	Steven Melides
RESPONDENT:	Meat Carter Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6032/18
ARBITRATOR:	Mr A Scarcella
DATE OF ARBITRATOR’S DECISION:	26 February 2019
DATE OF APPEAL DECISION:	10 September 2019
SUBJECT MATTER OF DECISION:	Construction of s 38A of the Workers Compensation Act 1987, “determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision”: Hee v State Transit Authority of New South Wales [2019] NSWCA 175 applied; RSM Building Services Pty Limited v Hochbaum [2019] NSWWCCPD 15 distinguished
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Peninsula Law
Respondent:	Stiles Lawyers
ORDERS MADE ON APPEAL:	1. The Orders of the Arbitrator made 26 February 2019 are revoked.
2. The respondent to the appeal is to pay to the appellant weekly compensation at the rate prescribed by s 38A of the Workers Compensation Act 1987 from 14 August 2014 to 8 July 2017, with credit to be given for weekly payments of compensation between 14 August 2014 and 8 July 2017.

INTRODUCTION

This is an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) against a decision of the Workers Compensation Commission constituted by an Arbitrator dated 26 February 2019.

THE DECISION UNDER APPEAL

The Certificate of Determination dated 26 February 2019 records the Arbitrator’s Orders as follows:
“The Commission orders:
9. The orders sought by the applicant for weekly benefits at the rates provided under section 38A of the Workers Compensation Act 1987 from 14 August 2014 to 8 June 2017 or in the alternative, from 2 November 2016 to 8 June 2017 are declined.”

PRELIMINARY MATTERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
I note that the appellant, Mr Melides, has sought an oral hearing, this is opposed by the respondent employer.
In addition to the parties’ written submissions in support and opposition of the appeal, further written submissions were filed by the appellant and respondent pursuant to a Direction issued on 13 August 2019.
In the circumstances, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is an appropriate course in the circumstances.
The parties are agreed that the amount of compensation in issue exceeds the threshold specified in s 352(3) of the 1998 Act.
The appeal was filed on 26 March 2019 and has been commenced within the time limited by s 352(4) of the 1998…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWWCCPD 48
Decision Date: 10 September 2019

CaseChat Overview and Summary

In the case of Melides v Meat Carter Pty Limited, the Court was called upon to determine the correct amount of weekly compensation payments that should have been paid to the appellant, Mr Melides, following an injury he sustained while employed by the respondent. The dispute arose from the interpretation of section 38A of the Workers Compensation Act 1987, which governs the calculation of weekly payments of compensation payable to a worker with the highest needs. The case was heard in the New South Wales Court of Appeal.

The central legal issue before the Court was the correct interpretation and application of section 38A of the Workers Compensation Act 1987. The Court needed to determine whether the Arbitrator's decision, which had previously determined the compensation payable to Mr Melides, was in accordance with the statutory provisions. Specifically, the Court had to consider the implications of the decisions in Hee v State Transit Authority of New South Wales [2019] NSWCA 175 and RSM Building Services Pty Limited v Hochbaum [2019] NSWWCCPD 15, and how these precedents applied to the facts of this case.

The Court found that the Arbitrator had erred in the interpretation and application of section 38A of the Workers Compensation Act 1987. By applying the reasoning in Hee v State Transit Authority of New South Wales, the Court held that the Arbitrator's decision did not correctly reflect the statutory provisions. The Court distinguished the case from RSM Building Services Pty Limited v Hochbaum, finding that the facts of that case were distinguishable and did not provide a sound basis for interpreting the relevant statutory provisions in this case. Consequently, the Court revoked the Arbitrator's Orders and directed that Mr Melides was to receive weekly compensation at the rate prescribed by section 38A of the Workers Compensation Act 1987, with credit given for previous payments.

Orders

Orders of the court

1. The Orders of the Arbitrator made 26 February 2019 are revoked.

2. The respondent to the appeal is to pay to the appellant weekly compensation at the rate prescribed by s 38A of the Workers Compensation Act 1987 from 14 August 2014 to 8 July 2017, with credit to be given for weekly payments of compensation between 14 August 2014 and 8 July 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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