Cicuto v Terrafirma Terrazzo Pty Ltd

[2016] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cicuto v Terrafirma Terrazzo Pty Ltd [2016] NSWWCCPD 7
APPELLANT:	Luigi Cicuto
RESPONDENT:	Terrafirma Terrazzo Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4954/14
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	29 October 2015
DATE OF APPEAL DECISION:	3 February 2016
SUBJECT MATTER OF DECISION:	Claim for compensation for pain and suffering for injury received before 1 January 2002; whether repeal of s 67 of the Workers Compensation Act 1987 by the Workers Compensation Legislation Amendment Act 2012 applies to pre-2002 injuries; Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 applied
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Villari Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 29 October 2015 is confirmed.

INTRODUCTION

1. Prior to the amendments introduced by Sch 2 to the Workers Compensation Legislation AmendmentAct 2012 (the 2012 amendments/the 2012 amending Act), workers who received an injury that resulted in a degree of permanent impairment of 10 per cent or more were entitled to receive, in addition to any other compensation, compensation for pain and suffering resulting from the permanent impairment (s 67 of the Workers Compensation Act 1987 (the 1987 Act)).

2. Among other things, the amendments introduced by Sch 2 to the 2012 amending Act repealed s 67. Therefore, subject to certain specific exceptions, and subject to the application of the relevant savings and transitional provisions, the amendments abolished workers’ rights to receive compensation for pain and suffering. This appeal concerns the interpretation and application of the relevant savings and transitional provisions.

3. The issue is whether the repeal of s 67 prevents a worker who was injured in 1997 from recovering compensation for pain and suffering in circumstances where he did not claim permanent impairment compensation until after 19 June 2012. The relevance of 19 June 2012 is that, under the relevant savings and transitional provisions, amendments introduced by Sch 2 to the 2012 amending Act apply to claims made before that date, but not to a claim that specifically sought compensation under ss 66 or 67.

4. The Arbitrator determined that, on the facts of this case, the repeal of s 67 prevented the worker from recovering compensation for pain and suffering. For the reasons set out in Frick v Commonwealth Bank of Australia [2016] NSWWCCPD 6 (Frick), which involved the same issue, the Arbitrator’s decision involved no error and is confirmed.

BACKGROUND

1. On 6 November 1997, the appellant worker, Luigi Cicuto, injured his back and legs in the course of his employment as a labourer and mason with the respondent employer, Terrafirma Terrazzo Pty Ltd. On 14 November 1997, Mr Cicuto completed and submitted a claim form in respect of his injury. That claim was accepted and compensation paid.

2. On 21 November 2013, Mr Cicuto claimed lump sum compensation, including compensation for pain and suffering under s 67, in respect of various impairments and losses said to have resulted from the 1997 injury.

3. On 19 December 2014, the Commission issued a Certificate of Determination awarding Mr Cicuto compensation under s 66 of the 1987 Act in respect of a 32 per cent permanent impairment of his back, a 35 per cent loss of efficient use of his left leg at or above the knee and five per cent loss of efficient use of his right leg at or above the knee. Though not stated on the Determination, I have assumed that these orders were by consent.

4. The insurer disputed Mr Cicuto’s entitlement to recover compensation for pain and suffering on the ground that s 67 had been repealed. The Commission referred that claim to an Arbitrator. After hearing oral submissions from both sides, and receiving written submissions from Mr Cicuto’s counsel, Mr McManamey, the Arbitrator delivered a reserved decision on 29 October 2015.

5. The Arbitrator found that Mr Cicuto’s claim was caught by the 2012 amendments and, in light of the repeal of s 67, and by operation of the relevant transitional provisions, he had no entitlement to compensation for pain and suffering. The Arbitrator made an award for the respondent.

6. Mr Cicuto has appealed.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 provides:

   “(6)  If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. Counsel for Mr Cicuto, Mr McManamey, has submitted that, due to the complexity of the matter, he did not believe it could be determined on the papers and he therefore requested an oral hearing. The respondent has consented to the matter being determined on the papers.

3. I do not accept that the issue involved is of such complexity that an oral hearing is required. The parties have had every opportunity to provide submissions on the issue and have done so. The submissions made by Mr McManamey are identical to the submissions he made in Frick. In light of the narrow issue involved, and the fact that the issue has been determined in Frick, I do not believe I would be assisted by oral submissions.

4. Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the respondent that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

ISSUE IN DISPUTE

1. The issue in dispute is whether the Arbitrator erred in refusing to award Mr Cicuto lump sum compensation for pain and suffering under s 67.

DETERMINATION

1. The issue in the present case is the same issue determined in Frick and Mr Cicuto’s submissions in support are, in substance, the same submissions Mr McManamey put in in that case. For the reasons given in Frick, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

DECISION

1. The Arbitrator’s determination of 29 October 2015 is confirmed.

Bill Roche
Deputy President

3 February 2016

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE