Jansen v Colin Smith t/as Col's Clip Joint
[2021] NSWPIC 24
•15 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jansen v Colin Smith t/as Col’s Clip Joint [2021] NSWPIC 24 |
| APPLICANT: | Maria Jansen |
| RESPONDENT: | Colin Smith t/as Col’s Clip Joint |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 15 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Weekly benefits beyond second entitlement period; whether respondent is required to pay benefits between cessation of second entitlement period on 26 December 2017 and the issuing of a Medical Assessment Certificate certifying the degree of whole person impairment is not yet ascertainable; operation of section 39 of the Workers Compensation Act 1987 and Clause 28C of the Workers Compensation Regulations 2016; Held- the respondent is not required to pay weekly benefits between the expiration of the second entitlement period and the issuing of the Medical Assessment Certificate; there is a temporal element in Clause 28C which must be satisfied before the Regulation operated to vitiate the operation of section 39 of the 1987 Act; Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113 distinguished, Strooisma v Coastwide Fabrication and Erections Pty Ltd [2020] NSWWCCPD 65 followed; award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
On 13 December 2002, Maria Jansen (the applicant) suffered injuries in a motor vehicle accident while travelling home from her employment with Col’s Clip Joint (the respondent). The fact the applicant suffered an injury is not in dispute, and she was in receipt of weekly compensation from that time. The applicant was an “existing recipient” for the purposes of establishing an entitlement to weekly compensation under the 2012 amendments to the workers compensation system.
The parties accept that weekly compensation ceased by virtue of the operation of section 39 of the Workers Compensation Act 1987 (the 1987 Act) on 25 December 2017. On 16 June 2020, a Medical Assessment Certificate (MAC) was issued by an Approved Medical Specialist (AMS) certifying the permanent impairment arising from the applicant's condition was not yet fully ascertainable owing to her requiring a C4-C7 anterior spinal fusion.
Following the issuing of the MAC, the respondent accepted liability for weekly compensation and resumed payments from the date it was issued. The respondent has declined to pay arrears of weekly compensation from 26 December 2017 to 16 June 2020, which is the subject of this application.
ISSUES FOR DETERMINATION
The only issue for determination is whether the respondent is liable to pay weekly compensation between 26 December 2017 and 16 June 2020 inclusive.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing and agreed to that course of action. On 11 January 2021 the applicant lodged her submissions. The respondent lodged its submissions on 12 February 2021.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Amended Application to Resolve a Dispute (the Application) attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant is entitled to weekly benefits between 26 December 2017 and 16 June 2020
The applicant relies upon the decision of the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113 (Hochbaum). She submitted the circumstances of this matter were analogous to Hochbaum, and that her weekly benefits should be backdated to 26 December 2017.
The applicant noted there can ultimately only be a single degree of permanent impairment arising from any injury and submitted that clause 28C of the Workers Compensation Regulations 2016 (the regulations) likewise has no temporal element. Accordingly, the applicant submitted the respondent could not decline to make payments for the period between the cessation of weekly benefits and the issuing of the MAC.
The applicant submitted the decision of Deputy President Snell in Strooisma v Coastwide Fabrication and Erections Pty Ltd [2020] NSW WCCPD 65 (Strooisma) is inconsistent with the judgement of Brereton JA in Hochbaum and that the decision in Strooisma has given rise to a situation where section 39 of the 1987 Act may not apply, but the relevant clause of the regulation can be used to disentitle compensation for an intervening period between cessation of benefits and a MAC being issued.
The applicant submitted it is immaterial whether clause 28C has a temporal element, in that it does not apply until one of the criteria in the clause is met. She submitted the important point is that once clause 28C does apply its effect is that section 39 of the 1987 Act does not. Clause 28C of the regulation provides the following:
“28C Five year limit on weekly payments.
Section 39 of the 1987 Act (as substituted by the 2012 Amending Act) does not apply to an injured worker if the worker's injury has resulted in permanent impairment and:
(a)An assessment of the degree of permanent impairment for the purposes of the Workers Compensation Act is pending and has not been made because an Approved Medical Specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
(b)The insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed).”
The issue between the parties is limited to whether section 39 ceases ab initio once a precondition under clause 28C is fulfilled.
In my view, the operation of clause 28C must be consistent with that found by Deputy President Snell in Strooisma. Contrary to the applicant's submission, the Deputy President summarised the difference between Hochbaum and Strooisma by reference to the decision of Brereton JA in the former matter and at [54] and following, set out the basis for the difference between section 39 and clause 28C. At [58], the Deputy President said:
"I accept the respondent's submission that, unlike section 39(2), there is a temporal element in the satisfaction of the criteria for the application of clause 28C(a). Satisfaction of clause 28C(a) requires the occurrence of certain events. It is necessary that an assessment of the degree of permanent impairment “is pending”. An AMS must have declined to make an assessment of permanent impairment ‘on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable’."
At [59], Snell DP noted the requirements of clause 28C(a) are met when an AMS has declined to make an assessment for the reason set out in the subclause. As such, a worker in the position of the applicant in this matter cannot satisfy the requirements of the subclause until the assessment of their permanent impairment “is pending”. That is a different criterion to those set out in section 39(2), which simply require a degree of permanent impairment resulting from injury of more than 20%. As such, in my view the requirements of the relevant subclause of the regulation were not met until the MAC was issued and, it is from that date on which the respondent was required to recommence payments of weekly compensation.
Put simply, the difference between the two provisions is that the requirements of section 39(2) are satisfied at all relevant times from the date of injury, as liability for permanent impairment arises from that date. Clause 28C(a) by contrast, contains a temporal element in that an assessment of the degree of whole person impairment must be “pending". In my view, that is consistent with the relevant clause containing a temporal element and as such, the applicant's claim for weekly payments for the period in dispute must fail.
Given the degree of whole person impairment is not yet fully ascertainable, it is impossible to know whether the degree of whole person impairment will be 20% or greater, or indeed whether there will ultimately be any whole person impairment at all. As such, it is not possible to state that the relevant threshold is satisfied under section 39(2) from the date of injury. Ultimately, it may be that the applicant does satisfy the requirements of section 39(2) as set out by the Court of Appeal in Hochbaum, however, at this point in time she has not.
There will therefore be an award for the respondent.
Cameron Burge
MEMBER
15 March 2021
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