Vostek Industries Pty Ltd v White

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Vostek Industries Pty Ltd v White [2018] NSWWCCPD 47
APPELLANT:	Vostek Industries Pty Ltd
RESPONDENT:	Brett White
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-5349/17
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	19 June 2018
DATE OF APPEAL DECISION:	8 November 2018
SUBJECT MATTER OF DECISION:	Statutory construction; s 38A of the Workers Compensation Act 1987; whether word “amount”, where it is used for the second and third time in s 38A(1), is a reference to the amount of weekly compensation payments only or to a combined total of weekly compensation payments and earnings; Hee v State Transit Authority of NSW [2018] NSWWCCPD 6 considered
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Malouf Solicitors
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 19 June 2018 is confirmed.

INTRODUCTION

1. This appeal concerns the construction of s 38A of the Workers Compensation Act 1987 (the 1987 Act). Section 38A(1) 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. The question on appeal is whether on its proper construction the word “amount”, where it is used for the second and third time in s 38A(1) of the 1987 Act, is a reference to the amount of weekly compensation payments only or to a combined total of weekly compensation payments, earnings or deemed earnings and the value of any non-pecuniary benefits received.

BACKGROUND

1. On 20 July 2005, Mr White injured his right wrist when moving heavy click lock sheets in the course of his employment as a roof plumber with the appellant, Vostek Industries Pty Limited. The appellant’s insurer accepted liability for the injury and paid weekly compensation and medical expenses.

2. In February 2009, Mr White ceased work for the appellant.

3. On 23 August 2010, Dr Crane, an Approved Medical Specialist, assessed Mr White to have 32% whole person impairment of the right upper extremity due to the injury sustained on 20 July 2005. It is not disputed that Mr White is a “worker with highest needs” as defined in s 32A of the 1987 Act.

4. On 19 August 2011, Mr White commenced employment with MMP Industrial Pty Ltd (MMP). His duties were in relation to the manufacture and mixing of paints.

5. On 12 May 2016, Mr White’s legal representative wrote to the insurer seeking weekly payments be adjusted to the minimum prescribed rate pursuant to s 38A(1) of the 1987 Act.

6. On 15 July 2016, the insurer advised that Mr White was only entitled to the difference between his pre-injury average weekly earnings as assessed under ss 37 and 38 of the 1987 Act and his current earnings. That is, he was only entitled to receive $315.50…