Court of Appeal knocks out top-up claims for workers compensation
On 27 August 2015 the Court of Appeal in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 delivered its decision on a claim for further lump sum compensation in circumstances where a worker had previously recovered lump sum compensation prior to 19 June 2012.
Facts
Mr Green (the worker) was employed by Cram Fluid Power Pty Ltd. The worker suffered an injury to his back at work on 24 May 2005.
On 14 December 2010 the worker made a claim for lump sum compensation for permanent impairment under s 66 of the Workers Compensation Act 1987 (the 1987 Act) (the 2010 claim). The worker’s claim for lump sum compensation was resolved by way of a complying agreement for 7% WPI.
The Workers Compensation Legislation Amendment Act 2012 provided amendments to claims for lump sum compensation made on and after 19 June 2012. Those amendments included the insertion of s66 (1A) to the 1987 Act, which sought to limit injured workers to one claim for lump sum compensation.
The worker’s condition deteriorated. He came to surgery on his back in September 2012. On 29 October 2013 the worker made a claim for 22% WPI (the 2013 claim)
The insurer rejected the worker’s 2013 claim for lump sum compensation relying upon the 2012 lump sum amendments, specifically section 66 (1A).
Arbitrator’s decision
At first instance, Arbitrator Harris found the worker’s 2013 claim was not caught by the 2012 lump sum amendments. Arbitrator Harris referred the worker’s 2013 claim to an AMS to assess his entitlement to further lump sum compensation.
Presidential decision
The employer appealed Arbitrator Harris’ decision. President Keating held the 2012 lump sum amendments did not apply to the worker’s 2013 claim for permanent impairment compensation. In obiter, President Keating said that the worker’s 2013 claim was the “one claim” for the purposes of s66 (1A) of the 1987 Act and he was entitled to pursue that claim.
Court of Appeal
The Court of Appeal was required to consider whether the 2013 claim was a claim for compensation made on or after 19 June 2012 and to which the one claim provision in s66 (1A) of the 1987 Act applies.
The Court of Appeal was also required to consider whether s66A (3)(c) of the 1987 Act permits a further claim for lump sum compensation, after 19 June 2012, based upon a deterioration, where the first claim was resolved by way of a complying agreement before 19 June 2012.
The Court of Appeal held that:
- The 2013 claim, although arising out of the same injury as the 2010 claim, was a separate claim to the 2010 claim and was therefore subject to 2012 lump sum amendments, including the one claim provision in s66 (1A) of the 1987 Act.
- The worker had made a claim for lump sum compensation in 2010. The 2010 claim was the worker’s “one claim” for lump sum compensation and s66 (1A) disentitled the worker from making his further claim for lump sums in 2013.
- S66A (3)(c) of the 1987 Act is not independent of s66 (1A) of the 1987 Act. S66A (3) (c) has limited operation to claims for further lump sum compensation settled by way of complying agreement, where the claim for further lump sum compensation was made prior to 19 June 2012.
Impact
The impact of the Court of Appeal’s decision is to limit workers to a single claim for lump sum compensation, regardless of when the first claim for lump sums was made. Only those workers who had made a claim for further lump sums prior to 19 June 2012, which is unresolved, can proceed with that further claim.
The one claim provision applies to injuries received before 1 January 2002, but not to injuries received before 4.00pm on 30 June 1987, because injuries occurring before 4.00pm on 30 June 1987 are governed by the Workers Compensation Act 1926.
This decision will mean workers will delay bringing their one claim for lump sum compensation to ensure they receive the maximum benefit.
* It needs to be remembered the 2012 amendments do not apply to Police Officers, paramedics and Firefighters.
Author: Stephen Marsh