Di Matteo v RDM Ceramics Pty Limited - [2013] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION
REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT
CITATION:	Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27
APPLICANT:	Remo Di Matteo
RESPONDENT:	RDM Ceramics Pty Limited
INSURER:	GIO General Limited
INTERVENER:	WorkCover Authority of New South Wales
FILE NUMBER:	7565/12
DATE OF DECISION:	20 May 2013
SUBJECT MATTER OF DECISION:	Question of Law; s 351 of the Workplace Injury Management and Workers Compensation Act 1998 application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Applicant:	Mr B G McManamey, instructed by Villari Lawyers
Respondent:	Mr P L Perry, instructed by Hicksons
Intervener:	Mr S L Flett for the WorkCover Authority of New South Wales
ORDERS MADE ON APPEAL:	1. The answers to the questions of law referred for determination are: 1. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 disallow a worker who has made a claim for permanent impairment compensation prior to 19 June 2012 from making a further claim, in respect of the same injury for permanent impairment on or after 19 June 2012? A. No. 2. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment where the injury occurred before 1 January 2002? A. Having regard to the answer to question one, it is unnecessary to answer question two. 2. The respondent employer is to pay the applicant worker’s costs of the application. 3. The WorkCover Authority is to pay its own costs.

INTRODUCTION

This matter involves an Application for Leave to Refer a Question of Law to the President of the Commission pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The application is made by a Commission Arbitrator at the request of the parties.
The issues involve questions concerning the construction of the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) (compensation for non-economic loss) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 (the Amending Act), and the savings and transitional provisions which accompany it.

THE QUESTIONS OF LAW

The questions of law referred for determination are:
1. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 disallow a worker who has made a claim for permanent impairment compensation prior to 19 June 2012 from making a further claim, in respect of the same injury for permanent impairment on or after 19 June 2012?
2. Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for permanent impairment where the injury occurred before 1 January 2002?

BACKGROUND TO THE REFERRAL OF THE QUESTION

Mr Di Matteo was injured in the course of his employment with the respondent on 31 May 1994 when he injured his back and left leg whilst carrying a bag of sand.
On 5 September 1996, Mr Di Matteo claimed permanent impairment compensation pursuant to s 66 of the 1987 Act.
In June 2001 and October 2008 he entered into complying agreements under s 66A of the 1987 Act for the payment of lump sum compensation in respect of impairments to his back and left leg.
On 20 June 2012, Mr Di Matteo made a further claim for lump sum compensation as a result of sexual dysfunction associated with his accepted back injury. He claimed 12 per cent permanent loss of his sexual organs.
Entitlements to lump sum compensation pursuant to s 66 were amended by Sch 2 of the Amending Act and s 67 was repealed. The amendments apply to claims made on or after 19 June 2012.
Relevantly, the amended form of s 66 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.
…”
Mr Di Matteo’s claim for additional compensation was rejected by his employer’s workers compensation insurer, GIO General Limited, on the basis that pursuant to s 66(1A) he had no further entitlement to permanent impairment compensation having previously claimed and recovered permanent impairment compensation in respect of his injuries.
On 3 July 2012, Mr Di Matteo lodged an Application to Resolve a Dispute (the Application) in the Commission. It claimed $5,640 pursuant to s 66 for 12 per cent permanent loss of use of the sexual organs plus an additional sum for compensation for pain and suffering pursuant to s 67.
In Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60 (Goudappel) I determined a Question of Law referred by an Arbitrator concerning the interpretation of the savings and transitional provisions of the Amending Act. The question concerned whether the amended lump sum compensation provisions applied where a worker had made a claim for any form of compensation prior to 19 June 2012 as opposed to a claim for lump sum compensation. I determined that the amendments introduced by Sch 2 of the Amending Act applied to claims pursuant to s 66 made on or after 19 June 2012 in circumstances where a worker has made a claim for another type of compensation in respect of the same injury prior to 19 June 2012.
Following the decision, Mr Goudappel filed an appeal to the Court of Appeal.
As a consequence of the decision in Goudappel, further issues were raised in these proceedings concerning whether a worker who had made a claim for permanent impairment compensation prior to 19 June 2012 (unlike Goudappel where no claim had been made before that date) was disallowed from making a further claim in respect of the same injury for permanent impairment compensation on or after 19 June 2012. The amendments also raised a question in relation to the application of the amendments introduced by Sch 2 in respect of injuries occurring before 1 January 2002 where the entitlements to compensation are based on the Table of Disabilities as opposed to permanent impairment compensation.
In the course of the proceedings, at the request of the parties, the Arbitrator referred the two Questions of Law to which I have referred for determination pursuant to s 351 of the 1998 Act.
The Question of Law Application was listed for hearing before me on 18 February 2013. Pursuant to s 106 of the 1998 Act, the WorkCover Authority (WorkCover) intervened in those proceedings. After hearing submissions from the parties and WorkCover, I reserved my decision.
On 29 April 2013, following an expedited hearing, the Court of Appeal delivered judgment in Goudappel v ADCO Constructions Pty Limited [2013] NSWCA 94 (Goudappel No 2). Basten JA, (Bathurst CJ and Beazley P agreeing), allowed the appeal from the decision in Goudappel and set aside the answer given in the Commission on 22 October 2012.
In answer to the question:
“Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on or after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?”
The Court of Appeal substituted the following answer:
“The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 do not apply to claims for compensation pursuant to s 66 which are made before 19 June 2012 in respect of an injury that results in permanent impairment whether or not the claim specifically sought compensation under s 66 or s 67 of the 1987 Act.”
The Court also held that to the extent that reg 11 of the Workers Compensation Amendment (Transitional) Regulation 2012 (the Transitional Regulation) sought to prejudicially affect a right to obtain a benefit under s 66, which accrued at the date of injury, the regulation was beyond power and invalid.
Given the decision in Goudappel No 2, I arranged for a telephone conference between the parties on 7 May 2013. As a result of the discussions that ensued, I issued a direction requiring the parties to indicate whether the Application to Refer the Question of Law was pressed and if so why leave should be given to deal with the questions, having regard to the decision in Goudappel No 2.
In response to the direction, Mr Di Matteo submitted:
“The circumstances in which question one arises always involves a claim having been made prior to 19 June 2012. The Court [of Appeal] has determined that in those circumstances the amendments do not apply to any claims for compensation pursuant to s 66 and s 67. It follows the answer to question one must be no.
If question one is answered no, it is not necessary to determine question two on the facts of this case.”
Notwithstanding the decision in Goudappel No 2, WorkCover does not concede that reg 11 of the Transitional Regulation is invalid, ultra vires or beyond power.
WorkCover does not concede that the answer to question one in the negative necessarily results in a similar answer to question two.
The Respondent adopts WorkCover’s submission.

CONSIDERATION

I am satisfied that the questions raised in these proceedings involve novel and complex questions of law, the resolution of which would not only have important consequences for Mr Di Matteo but have wider implications for many other claimants and for those reasons leave should be granted.
I accept the applicant’s submission that the decision of the Court of Appeal in Goudappel No 2 answers question one raised in these proceedings. The decision is clearly binding on the Commission. It must follow that the answer to question one must be answered in the negative.
For these reasons the answer to question one is:
“No.”
The answer to question two is:
“Having regard to the answer to question one, it is unnecessary to answer question two”.

COSTS

The respondent employer is to pay the applicant worker’s costs of the application.
The WorkCover Authority is to pay its own costs.

Judge Keating
President

20 May 2013

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE