Caulfield v Whelan Kartaway Pty Ltd - [2014] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34
APPELLANT:	Michael Caulfield
RESPONDENT:	Whelan Kartaway Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-11583/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	10 February 2014
DATE OF APPEAL HEARING:	5 June 2014
DATE OF APPEAL DECISION:	11 June 2014
SUBJECT MATTER OF DECISION:	Second claim for lump sum compensation where the first claim for such compensation was “specifically sought” prior to 19 June 2012; whether amendments introduced by the Workers Compensation Legislation Amendment Act 2012 apply to such a claim; cl 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cl 1 1 of Sch 8 to the Workers Compensation Regulation 2010; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 discussed and applied; whether any need to establish deterioration since initial claim for lump sum compensation; estoppel; no estoppel in a changing situation; effect of initial assessment by an Approved Medical Specialist; power of Arbitrator in claim for lump sum compensation where liability is not in issue; application of principles in *Abou-Haidar v Consolidated Wire Pty Ltd* [2010] NSWWCCPD 128
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr B McManamey, instructed by Law Partners
Respondent:	Mr S Grant, instructed by Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 10 February 2014 is revoked and the following orders are made: “1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the applicant worker’s whole person impairment as a result of the injury to his right knee on 9 August 2005. 2. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed, regardless of the outcome of the assessment by the Approved Medical Specialist.” 2. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

This appeal concerns whether a worker who specifically sought lump sum compensation for permanent impairment before 19 June 2012 is entitled to make a second claim for such compensation arising out of the same injury and, if so, the limits, if any, on the making of such a claim.
The first issue concerns the effect of the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) on workers who have “specifically sought” lump sum compensation under s 66 or 67 of the Workers Compensation Act 1987 (the 1987 Act) before the commencement of those amendments, that is, before 19 June 2012.
This question requires consideration of the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2), the transitional provisions introduced by the 2012 amending Act, and the amendments introduced to the Workers Compensation Regulation 2010 by the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (the amending Regulation).
The second issue is whether, in bringing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWWCCPD 34
Decision Date: 11 June 2014

CaseChat Overview and Summary

In the case of Caulfield v Whelan Kartaway Pty Ltd, the applicant sought a second lump sum compensation claim for injuries sustained prior to 19 June 2012, following an initial claim. The dispute centred on the applicability of amendments introduced by the Workers Compensation Legislation Amendment Act 2012 to such claims and whether there was a need to establish deterioration since the initial claim. The matter was heard in the Workers Compensation Tribunal of New South Wales.

The central legal issues revolved around the interpretation and application of clauses 15 of Part 19H of Schedule 6 to the Workers Compensation Act 1987 and clause 11 of Schedule 8 to the Workers Compensation Regulation 2010. Additionally, the court had to consider whether the principles of estoppel could apply in this changing legislative context and the role of an Approved Medical Specialist's assessment in such claims. The Arbitrator's power to award compensation where liability was not in question was also examined.

The tribunal found that the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 did not apply to the applicant's claim as it was specifically sought prior to the effective date of the amendments. The tribunal also determined that there was no need to establish deterioration since the initial claim. The tribunal emphasised that estoppel did not apply in a changing legislative situation. The tribunal further held that the initial assessment by an Approved Medical Specialist was a crucial step in determining the extent of the worker's impairment. The tribunal concluded that the Arbitrator had the power to award compensation without the necessity of establishing deterioration, aligning with principles discussed in Abou-Haidar v Consolidated Wire Pty Ltd.

The tribunal revoked the Arbitrator's determination and ordered that the matter be remitted to the Registrar for referral to an Approved Medical Specialist to assess the applicant worker’s whole person impairment. Additionally, the tribunal ordered the respondent employer to pay the applicant worker’s costs, regardless of the outcome of the assessment, and to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

Orders

Orders of the court

1. The Arbitrator’s determination of 10 February 2014 is revoked and the following orders are made:

“1. The matter is remitted to the Registrar for referral to an Approved Medical Specialist to assess the applicant worker’s whole person impairment as a result of the injury to his right knee on 9 August 2005.

2. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed, regardless of the outcome of the assessment by the Approved Medical Specialist.”

2. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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