- S38A of the Workers Compensation Act 1987 (the 1987 Act) does not create an automatic entitlement to a minimum weekly compensation rate for workers with highest needs, as defined by s32A.
- Workers with highest needs who cannot establish incapacity within the meaning of ss34-38 of the 1987 Act are not entitled to payments under s38A.
On 17 October 2013, Mr Hee, (the applicant) sustained injury to his cervical spine in the course of his employment with the State Transit Authority of NSW (the respondent) as a result of tripping and falling. He required a cervical laminectomy which was performed on 24 January 2014.
The applicant did not work from 24 January 2014 to 31 May 2014. He thereafter returned to his pre-injury duties working full-time.
A claim for weekly compensation was brought in the Workers Compensation Commission (the Commission) whereupon the applicant was paid weekly benefits, by way of settlement, for that closed period.
The applicant was subsequently awarded lump sum compensation corresponding with 34% whole person impairment of the cervical spine. This was by way of a complying agreement.
On 17 March 2017, the applicant made a further claim for weekly compensation pursuant to s38A on the basis that he was a worker with highest needs within the definition of s32A. The claim was disputed by the insurer and proceeded to the Commission.
On 17 May 2017, the workers compensation insurer issued a Work Capacity Decision under s43 of the 1987 Act stipulating that the applicant was not entitled to further weekly compensation because he had resumed his pre-injury duties on a full-time basis. This was said to be irrespective of his level of impairment and the operation of ss32A and 38A.
On 19 May 2017, the respondent filed a Reply alleging that the Commission had no jurisdiction to deal with the dispute pursuant to s43(3) of the 1987 Act. The submission was on the basis that the insurer had made a Work Capacity Decision and accordingly, the Commission was precluded from making an inconsistent determination.
The matter came before Senior Arbitrator Glenn Capel who made the following key determinations:
- That the Commission retains jurisdiction to make orders for weekly payments as long as they are not inconsistent with the Work Capacity Decision of an insurer
- That the Notice of the insurer on 17 March 2017 was not in fact a Work Capacity Decision, and
- That, in any event, the applicant was not earning less than what he would otherwise have been entitled to under s37. Therefore he was not entitled to payments of weekly compensation under s37 or s38A.
The applicant appealed.
The key issue in dispute was whether a worker is entitled to the minimum statutory rate of weekly benefits under s38A if their ordinary entitlements under s37 were assessed by the Commission at nil.
Interestingly, the Senior Arbitrator’s assessment of nil weekly benefits was not in dispute.
President Keating confirmed the well-established view that provisions must be interpreted with the purpose of the statute in mind .
The President found that the special benefit under s38A is 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 s38A.
The President went on to say:
‘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 set out above.’ 
A noteworthy aspect of the decision is that the appellant’s proposition that a calculation of nil constitutes a determination of an ‘amount payable’ was rejected.
The President ultimately confirmed the Senior Arbitrator’s determination of 27 October 2017, concluding:
‘A worker with highest needs and an established incapacity is not entitled to the additional benefits payable pursuant to s38A merely by reason of satisfaction of those criteria alone. More is required. The benefits provided for in s38A are only payable where a worker has established that there is an amount of weekly compensation payable applying the provisions of ss34-38 that is less than $788.32. A worker, such as Mr Hee, who is unable to establish any amount of weekly compensation payable arising from a compensable injury, is not eligible for the additional benefits under s38A.’ 
Some solicitors representing claimants are becoming increasingly reliant on technical arguments to secure compensation benefits for their clients. This case is a reminder to stakeholders that such efforts must remain within the confines of appropriate legislative construction and common sense.
This case highlights the importance of looking beyond the superficial meaning of the provisions of the Workers Compensation Act 1987 and examining the true purpose of the legislation.
In the context of s38A, this case will ensure that only the workers who have genuinely demonstrated the highest needs (not just the highest impairment) are entitled to have access to the special weekly benefits designed for them.
- Commissioner for Railways (NSW) v Agalianos  HCA 27; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  HCA 41; Certain Lloyd’s Underwriters v Cross  HCA 52; SZTAL v Minister for Immigration and Border Protection  FCAFC 69.
- Decision, paragraph 144.
- Decision, paragraph 188.