Weekly Payments and Injured Workers with Highest Needs

Can an injured worker with highest needs claim the higher rate of weekly payments pursuant to section 38A of the Workers Compensation Act 1987 from the date of their injury?
According to the Court of Appeal of NSW, no they can’t.
The Court of Appeal recently dealt with this issue in Meat Carter Pty Ltd v Melides [2020] NSWCA 307.
Background
Steven Melides was employed by Meat Carter Pty Ltd as a casual delivery driver. On 14 August 2014, Steven contracted Q-fever in the course of his employment with Meat Carter Pty Ltd at their Scone abattoir. Steven subsequently developed a psychological condition.
On 9 June 2017, Steven’s injuries were medically assessed as being 60% whole person impairment. This meant that for the purposes of the workers compensation legislation, he was a ‘worker with highest needs’ because his permanent impairment exceeded 30%.
As a worker with highest needs, Steven then claimed weekly payments at the prescribed rate pursuant to section 38A of the Workers Compensation Act. He claimed that he was entitled to receive weekly payments at the section 38A rate from the date of his injury. In other words, he claimed that he should have been paid the higher rate of weekly payments from the date of his injury and not the date when his injuries were assessed as being 60% whole person impairment.
The insurer paid Steven his weekly payments pursuant to section 38A from the date of the medical assessment. The insurer disputed that Steven was entitled to receive weekly payments at the section 38A rate before the date of his medical assessment.
When the matter came before the Workers Compensation Commission, the Arbitrator declined to order that Steven receive his weekly payments at the rates provided under section 38A before the date of medical assessment. The Arbitrator concluded that the weekly payments should be paid from the date of the medical assessment because that was when Steven’s injuries were determined to be greater than 30% whole person impairment.
Steven appealed the Arbitrator’s decision.
The Worker’s Compensation Commission’s Decision
On appeal, the Acting Deputy President of the Workers Compensation Commission determined that that weekly payments at the section 38A rate should be paid from the date of Steven’s injury, and not from the date of medical assessment.
The insurer appealed the decision of the Acting Deputy President to the Court of Appeal of NSW. The insurer submitted that the Acting Deputy President erred in law in concluding that the higher section 38A rate was payable from the date of injury. The insurer argued that the section 38A rate was only payable from the date of Steven’s medical assessment.
The Court of Appeal’s Decision
The Court of Appeal allowed the appeal. The Court noted that Steven was assessed as having a degree of permanent impairment of 60% on 9 June 2017 (being the date of the medical assessment). Prior to that date, none of the triggers in the defined term ‘worker with highest needs’ had been met. The Court determined that Steven was not a ‘worker with highest needs’ and entitled to payment at the special rate pursuant to s38A until the date of his medical assessment.
In other words, the Court decided that as Steven did not meet the criteria for ‘worker with highest needs’ as at the date of his injury, he was not entitled to receive payment of weekly payments at the prescribed rate under section 38A until the date of his medical assessment, being 9 June 2017.
Why is this case important?
This decision is important because it provides clarity around the date that the higher rate of weekly payments under section 38A should be paid once a worker has met the definition of ‘worker with highest needs’.