Bastin v Pacific Palms Recreation Club Pty Ltd
[2023] NSWPIC 612
•15 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bastin v Pacific Palms Recreation Club Pty Ltd [2023] NSWPIC 612 |
| APPLICANT: | Penelope Bastin |
| RESPONDENT: | Pacific Palms Recreation Club Pty Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 15 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; whether the applicant was entitled to section 67 compensation having regard to the repeal of that section by the Workers Compensation Legislation Amendment Act 2012; Held – the claim for compensation pursuant to section 67 was not preserved by the Amendment Act nor 2016 Regulation as the claim made prior to 19 June 2012 had resolved and was not capable of being amended to preserve the right to the former benefits. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant is not entitled to lump sum compensation for pain and suffering pursuant to The Commission orders: 1. There will be an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
The applicant (Ms Bastin) sustained injury on 31 January 2009. Liability was accepted by the Pacific Palms Recreational Club Pty Ltd (the respondent).
A lump sum claim for permanent impairment was made by the applicant prior to
19 June 2012. Following assessment by Dr Mastroianni, (an Approved Medical Specialist) and a conciliation conference in the Workers Compensation Commission, on 9 February 2013, a Certificate of Determination – Consent orders was issued wherein the respondent agreed to pay the applicant $16,170 representing 11% whole person impairment with reference to s 66 of the Workers Compensation Act1987 (the 1987 Act) and $10,000 under s 67 of the 1987 Act.Ten years later, the applicant made a further claim for lump sum compensation pursuant to
ss 66 and 67 of the 1987 Act as follows:29% Whole Person Impairment + 5% = $57,750
50% MEC Pain and Suffering = $25,000
Less previous payments (26,170)
Total $56,580[1]
[1] Folio 6 of the ARD.
On 4 July 2023, in response to the claim, the respondent declined liability for s 67 benefits in its s 78 notice stating (unedited):[2]
(a) there are limited circumstances in which a claim for pain and suffering compensation may be pursued under the former s 67 in light of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) which repealed the section, and your claim does not fall within such category;
(b) given your previous claim was finalised with the issuing of the Certificate of Determination dated 8 February 2013, we dispute that you are entitled to now seek to claim compensation for pain and suffering in relation to your injury, and
(c) we confirm that we have responded to your claim under s 66 of the 1987 Act by way of a separate letter of offer.
[2] Folio 8 of the ARD.
On 25 July 2023, a s 66A complying agreement was endorsed by the applicant and her solicitor accepting further compensation totalling $35,713.33 representing a 27% WPI including 5% uplift but less the previous s 66 paid ($16,170).[3]
[3] Folio 12 of the ARD.
The applicant now seeks review by the Personal Injury Commission (Commission) on the issue of s 67 entitlement.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The law relevant to this application is found in the 1987 Act, the Workers Compensation Legislation Amendment Act 2012 (amending Act) and Workers Compensation Regulation 2016 (the regulation).
The issue to be determined is whether the applicant is entitled to received lump sum compensation for pain and suffering pursuant to s 67 of the 1987 Act following the 2012 amending Act – s 67 of the 1987 Act (in existence prior to the 2012 amending Act), Sch 2 of the 2012 amending Act and Div 3, cl 15 of Sch 6 of the 1987 Act.
Both parties remained firm in their positions and the matter proceeded to arbitration. The applicant was represented by Mr Morgan of counsel instructed by Ms Hall. The applicant was present. The respondent was represented by Mr Hanrahan of counsel instructed by Mr Pryor. Mr Bennett from the GIO was also present.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.
APPLICANT’S SUBMISSIONS
Mr Morgan submitted:
(a) the law is ‘black and white’ and it was entirely open for me to make an award in favour of the applicant relating to s 67 in the sum of $30,000 less previous compensation paid to reflect the applicant’s age, the impact of the injury on her activities of daily living, multiple surgical interventions and lifestyle;
(b) that I should adopt the findings of Mezher v Y & T Ghattas P/L t/as Eastlakes Fruit Market[2022] NSWPIC 474 (Mezher) where the Member rescinded a previous certificate which enabled the applicant to access entitlements under
s 67, and(c) finally, submitted Sch 2 of the 2012 amending Act and Div 3 Cl 15 Pt 19H of Sch 6 of the Act, which repealed s 67 of the 1987 Act did not apply in the circumstances of this case for the same reasons as applied in Mezher.
RESPONDENT’S SUBMISSIONS
Mr Hanrahan submitted:
i) the findings of Mezher are not binding and further the circumstances relating to the ultimate rescission of the certificate of determination in that case differ from the circumstances here as a complying certificate has been issued in this matter in 2013, effectively finalising the claim and exhausting rights under the 1987 Act. It was submitted that this should be regarded as a separate and discrete claim in accordance with the principles in Cram Fluid Power Pty Ltd v Green;[4]
ii) the earlier claim was resolved by the registration of the s 66A Agreement (which was not the case in Mezher), which now prevents a s 67 claim. Clause 10 of Sch 8 of the 2016 Regulation does not and cannot revive the claim made pursuant to s 67 of the Act, because it had already been resolved in a separate claim, specifically pleaded and agreed between the parties in its entirety prior to the 2012 amendments;
iii) there has been a further settlement with regards to s 66 and such a situation is permissible by cl 11 of Sch 8 of the 2016 Regulation which allows for one further claim pursuant to s 66 of the 1987 Act. However, the clause makes no reference to s 67 of the 1987 Act. Further the clause specifically excluded claims that were withdrawn or otherwise finally dealt with before the commencement of the Regulation, and
iv) the position of the respondent has been reinforced by President Phillips in Yildiz v Fullview Plastics Pty Ltd,[5] where it was determined that a claim for compensation pursuant to s 67 of the 1987 Act was not preserved by the 2016 Regulation as the claim made prior to 19 June 2012 had resolved and was not capable of being amended to preserve the right to the former benefits. Further such findings were adopted in the matter of Kuzmanovska –v- ISS Facility Services Australia Ltd t/as Tempo Cleaning Service[6] and Frick v Commonwealth Bank of Australia.[7]
[4] [2015] NSWCA 250 (Cram Fluid).
[5] [2019] NSWWCCPD 24 (Yildiz).
[6] [2019] NSWWCC 219.
[7] [2016] NSWWCCPD 6 (Frick).
LEGISLATION
The legislation is complex and for ease of reference, I have annexed the relevant provisions to these reasons. (Annexure A).
FINDINGS AND REASONS
Mr Morgan submitted the law is ‘black and white’; unfortunately, I did not find it to be so. I note decision makers who precede me on the interpretation of the above statutory provisions following the 2012 and 2016 amendments also commented on the complexity, with the matter ultimately being interpreted and determined by the Court of Appeal.
Overall, to make the complex simple, and without embarking on narration of the case facts, the findings and conclusions in the matters of Cram Fluid, Yildez and Frick establish without any doubt, that an applicant’s entitlement to compensation for pain and suffering was not preserved by the transitional provisions following the repeal of s 67 of the 1987 Act by the 2012 amending Act especially in circumstances where the applicant had resolved such claims made prior to that date.
Here the applicant settled her claim (which was in existence and made prior to the to the 2012 amendments) and the terms were recorded in a consent determination of the Workers Compensation Commission on 8 February 2013.
The applicant made a further claim for s 66 benefits, a decade later, entirely permitted by the 2016 Regulations; however as can be seen from the annexed legislation, those regulations do not extend to s 67 entitlements which were repealed in 2012.
The applicant maintains that this case is analogous to Mezher. I find the facts of this case differ from those of Mezher. This is because the circumstances of Mezher were that it was well established that an appeal of the medical assessment certificate had been foreshadowed albeit delayed due to administrative misadventure and as I understand it, the compensation was not formalised by a complying agreement as has been the case here. Further, Mezher’s application before the Commission sought to formally rescind the previous certificate of determination. This is not the application before me.
As discussed above, these factors are not those present in this situation, and so do not act to preserve s 67 entitlements in this case. Further, as stated in Yildez by President Phillips, if Parliament had intended that s 67 benefits be extended to the current circumstances, it would have expressly provided for this in the savings and transitional provisions, (as annexed) which is not the case here.
SUMMARY
For the reasons above, I find the applicant is not entitled to lump sum compensation for pain and suffering pursuant to s 67 of the 1987 Act and so there will be award for the respondent.
Annexure A
Legislation
Section 66 of the 1987 Act provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note.
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury…”
Section 67 of the 1987 Act, in existence prior to the 2012 amending Act, provided:
“67 Compensation for pain and suffering
(1) A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
Note.
Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.
(1A) (Repealed)
(2) Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
(3) The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
(3A) (Repealed)
(4) The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
(4A) (Repealed)…….
(7) In this section: pain and suffering means: (a) actual pain, or (b) distress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.
Schedule 2 of the 2012 amending Act repealed s 67 of the 1987 Act in these terms:
“[13] Section 67 Compensation for pain and suffering
Omit the section”
The relevant transitional provisions introduced by the 2012 amending Act are cl 3 and cl 15 of Pt 19H of Sch 6 of the 1987 Act and cl 10 and cl 11 of Sch 8 of the 2016 Regulation.
They provide:
“3 Application of amendments generally
(1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a) an injury received before the commencement of the amendment, and
(b) a claim for compensation made before the commencement of the amendment, and
(c) proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2)An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.
“15 Lump sum compensation
An amendment made by Schedule 2 to 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”
Clause 10 and cl 11 of Sch 8 of the 2016 Regulation provides:
“10 Lump sum compensation
(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under section 66 or 67 of the 1987 Act.
(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).
11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4) For the purposes of subclauses (1) and (2):
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1),
(ii)and in respect of which no compensation has been paid, and
(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5) The following provisions are to be read subject to this clause:
(a) section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b) section 322A of the 1998 Act,
(c) clauses 10 and 19 of this Schedule.
(5) In this clause:
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”
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