Injured Workers Restricted to One Lump Sum Claim

~~By Roshana May   New South Wales President Australian Lawyers Alliance.

CRAM FLUID  POWER PTY LIMITED V GREEN [2015] NSWCA 250

27 August 2015

In a decision handed down on 27 August 2015, the Court of Appeal has effectively clarified the meaning of “claim” for the purposes of section 66 (1A) Workers Compensation Act 1987.

The facts of the matter are uncontested and involve a worker, Mr Green, who sustained a back injury on 24 May 2005. Mr Green made a claim for compensation against his employer Cram Fluid Power Pty Ltd within 6 months of his injury.
On 14 December 2010 he made a claim for lump sum compensation for permanent impairment under s 66 which was resolved by Complying Agreement (s66A) for 7% WPI in 2010 (the 2010 Claim).

Mr Green’s condition deteriorated and he required surgery in September 2012. After undergoing surgery, on 29 October 2013 Mr Green made a claim for further permanent impairment compensation under section 66. This claim was for 22% whole person impairment (with credit for the amount paid in respect of the 2010 Claim) (the 2013 Claim).

This claim was not resolved by agreement and Mr Green commenced proceedings in the Commission.

The argument revolved around section 66 of the 1987 Act which was amended by legislation commencing on 19 June 2012. The amendments included a new s 66(1A) which provided that only one claim can be made under the 1987 Act for permanent impairment compensation. Clause 15 of Pt 19H of Sch 6 to the 1987 (cl 15) provided a savings and transitional provision that ‘the 2012 Amending Act extends to a claim for compensation made on or after 19 June 2012 but not to such a claim made before that date’. A later transitional regulation, cl 11 of Schedule 8, affecting the operation of cl 15, was inserted into the Workers Compensation Regulation 2010.  Clause 11 relevantly provided that the 2012 Amending Act extends to a claim made before 19 June 2012 but not to a claim that specifically sought compensation under s 66 of the 1987 Act.

An Arbitrator concluded that Mr Green was not precluded by the 2012 Amending Act from bringing his 2013 Claim, and remitted the matter for referral to an Approved Medical Specialist.

The employer appealed. President Keating confirmed the Arbitrator’s determination and found that the one claim limitation introduced by the 2012 Amending Act did not apply to Mr Green’s 2013 Claim (following Caulfield), and that s 66(1A) only applied prospectively to claims for lump sum compensation made on or after 19 June 2012.

On appeal to the Court of Appeal, two issues were identified:

1. Whether one claim limitiation in s 66(1A) applied to Mr Green's 2013 Claim.
2. Whether the words "one claim" in s66(1A) are to be interpreted as meaning only one further claim may be made on or after 19 June 2012.

As a further issue, the Court of Appeal discussed the operation of Section 66(3) of the 1987 Act which appeared to provide a right of review of a Complying Agreement.

The Judgment termed the issues in this way:

At [53] The question raised by the first issue, is whether the 2013 Claim is a “claim for compensation made on or after 19 June 2012” to which the one claim limitation in s 66(1A) applies, or is “a claim for compensation made before that date”, within the meaning of the transitional provision in cl 15 of Pt 19H of Sch 6 to the 1987 Act.

At [54] The second issue is whether s 66(1A) should be construed to mean that only one “further” claim for lump sum compensation can be made after the commencement of the 2012 Amending Act, as Keating P held, or whether Mr Green’s 2013 Claim is not maintainable, because he has already made “one claim” for lump sum compensation under the 1987 Act, namely his 2010 Claim.

It was held per Gleeson JA (Beazley ACJ [and Emmett JA] agreeing) :

1. the 2013 claim is a "new claim"
2. The 2013 claim is not one caught by clause 11 of Schedule 8 (ie. it is not "a claim which specifically sought compensation under s66... made before 19 June 2012")
3. The Commission's power under s 66A(3)(c) to award additional compensation is not independant of a worker's entitlement to receive compensation under s 66. Hence,66A(3)(c) only operates where the further claim was made before 19 June 2012
4. Section 66(1A) operates on facts antecedent to the 2012 Amending Act coming into force, including the existance of an earlier claim for lump sum compensation under s 66.  You do not "read into" the section the word "further" such that it means "one further claim".
5. Accordingle the 2010 Claim was Mr Green's one claim for lump sum compensation and s 66(1A) disentitled him from making his 2013 Claim for further lump sum compensation.

Commentary:

The decision clarifies that a worker has only one claim ever for permanent impairment (lump sum) compensation, regardless of their date of injury.

Further, it identifies that s66A(3) has no work to do for non-exempt workers unless their ‘further claim’ was made before 19 June 2012. (see also as to s66A(3): Rebecca Robin-True v Stella Maris College [2015] NSWWCC 179)

There will be a number of workers fortunate enough to have ‘topped’ up their permanent impairment compensation prior to the decision, but there will be a much greater number of workers who have conditions as a result of injury which have deteriorated over time and who are  now deprived of any further permanent impairment compensation to fairly compensate them for their injury. Those workers may well be precluded from accessing benefits such as weekly payments, medical expenses, domestic assistance payments and even Work Injury Damages or Commutation.

The giving of advice by lawyers and medical professionals as to when is the optimum time to seek permanent impairment compensation is made even more problematic by this clarification of the ‘one claim’ provision. When coupled with the ‘one assessment, one Medical Assessment Certificate’ policy (in s322A of the 1998 Act), workers in NSW and their advisors are placed in a very difficult position.

The judgment can be found here: https://www.caselaw.nsw.gov.au/decision/55da7ad4e4b0a95dbff9e0d6

Other relevant decisions potentially impacted by the Court of Appeal in Cram Fluid are Caulfield, Robin-True (on appeal) and BP v Greene.

Practitioners should also note the decision of Woolworths Limited v Stafford [2015] NSWWCCPD 36 and BHP Billiton Ltd v Bailey [2015] NSWWCCPD 48 (19 August 2015.