Kilic v Kmart Australia Ltd
[2013] NSWWCCPD 37
•3 July 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 | ||
| APPELLANT: | Hulya Kilic | ||
| RESPONDENT: | Kmart Australia Ltd | ||
| INSURER: | Self-insured | ||
| FILE NUMBER: | A1-4576/12 | ||
| ARBITRATOR: | Ms K Haddock | ||
| DATE OF ARBITRATOR’S DECISION: | 26 March 2013 | ||
| DATE OF APPEAL HEARING: | 27 June 2012 | ||
| DATE OF APPEAL DECISION: | 3 July 2013 | ||
| SUBJECT MATTER OF DECISION: | Claim for weekly compensation for periods before and after 1 January 2013; claim made before 1 October 2012; whether the entitlement periods for weekly compensation commence to run from date weekly compensation paid or payable or from 1 January 2013; ss 32A, 36, 37 and 39 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012; Pt 19H of Sch 6 to the Workers Compensation Act 1987; Sch 8 to the Workers Compensation Regulation 2010 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr R Stanton, instructed by P K Simpson & Co | |
| Respondent: | Mr P Perry, instructed by Sparke Helmore Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 26 March 2013 is confirmed. 2. Each party is to pay her or its own costs of the appeal. | ||
INTRODUCTION
This appeal concerns the application of the amendments to the Workers Compensation Act 1987 (the 1987 Act), introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), to a claim for weekly compensation made before 1 October 2012.
The principal issue is when the entitlement periods introduced in the 2012 amending Act commence to run. If they run from the date on which weekly compensation was first paid or payable to the worker, as the Arbitrator found, the worker’s entitlement to weekly compensation under the amended s 37 expires on 26 July 2013. If they run from 1 January 2013, as argued by the appellant worker, her entitlement to weekly compensation under the amended s 37 expires on 2 July 2015.
Without expressing a view on it, as it is not a matter for the Commission in any event, it seems unlikely (on the current evidence) that the worker will have an entitlement to weekly compensation once her entitlement under the amended s 37 expires. This highlights the importance of determining when the entitlement periods commence to run.
Unless otherwise stated, all references in this decision to the 1987 Act are to that Act as amended by the 2012 amending Act.
BACKGROUND
On 24 January 2011, and between November 2007 and 2 February 2011, the appellant worker, Hulya Kilic, received injuries in the course of her employment with the respondent employer, Kmart Australia Ltd (Kmart). Her claim for compensation was accepted and Kmart paid voluntary weekly and other compensation until 19 April 2012. Kmart disputed liability beyond that date on the ground that Ms Kilic had not received some of the injuries she alleged and that, in respect of the injuries that it conceded, she had no continuing incapacity for work.
A Commission Arbitrator determined the claim in Ms Kilic’s favour on 23 January 2013 and, among other orders, ordered Kmart to pay weekly compensation from 19 April 2012 to 31 December 2012 under s 40 of the 1987 Act, as it was prior to the amendments introduced by the 2012 amending Act (voluntary weekly compensation having been paid from late January 2011 until 19 April 2012). These orders have not been challenged on appeal.
In respect of Ms Kilic’s entitlement to weekly compensation from 1 January 2013, the Arbitrator sought further submissions and made a second determination on 26 March 2013 in which she applied the amendments to the 1987 Act introduced by the 2012 amending Act, and the amendments to the Workers Compensation Regulation 2010 (the amended Regulation), introduced by the Workers Compensation Amendment (Miscellaneous) Regulation 2012 and the Workers Compensation Amendment (Transitional) Regulation 2012.
The Arbitrator determined that Ms Kilic’s entitlement to weekly compensation from 1 January 2013 fell to be determined under the second entitlement period set out in s 32A of the 1987 Act. She therefore determined the quantum of weekly compensation payable by applying the formula in s 37 appropriate for a worker with a current work capacity and found that Ms Kilic’s entitlement to compensation under that section ($144 per week) would expire on 26 July 2013, 130 weeks after weekly compensation was first paid or payable to her.
Relevant Legislation
To understand better the Arbitrator’s second determination, it is helpful to consider some of the key dates, definitions and provisions introduced by the 2012 amending Act and the amended Regulation, as relevant to the current appeal. The relevant transitional provisions consequent upon the enactment of the 2012 amending Act are found in Div 1 and 2 of Pt 19H of Sch 6 to the 1987 Act and in Sch 8 to the amended Regulation. For simplicity, when referring to the clauses in these schedules, I will merely refer to the particular clause in either Pt 19H or, as appropriate, Sch 8:
(a) “weekly payments amendments” means the amendments made by the 2012 amending Act to Div 2 of Pt 3 of the 1987 Act (which Division is headed “weekly compensation by way of income support”) (cl 1 of Pt 19H);
(b) “first 26 weeks of incapacity” has the meaning it had under s 34 of the 1987 Act, as in force before the weekly payments amendments (cl 1 of Pt 19H);
(c) “existing recipient of weekly payments” means “an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payments amendments” (cl 1 of Pt 19H);
(d) except as provided by Pt 19H, or the Regulations, an amendment made by the 2012 amending Act extends to an injury received before the commencement of the amendment, a claim for compensation made before the commencement of the amendment, and proceedings pending in the Commission or a court immediately before the commencement of the amendment (cl 3(1) of Pt 19H);
(e) except as otherwise provided by Pt 19H, “[a]n 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” (cl 3(2) of Pt 19H);
(f) the power to make regulations that contain provisions of a saving and transitional nature consequent on the enactment of the 2012 amending Act extends to authorise the making of regulations whereby the provisions of the Workers Compensation Acts are deemed to be amended in the manner specified in the regulations (cl 5(4) of Pt 19H);
(g) an existing recipient of weekly payments remains entitled to compensation under Div 2 of Pt 3 of the 1987 Act (weekly compensation by way of income support) “as if the weekly payments amendments had not been made, but only until the weekly payments amendments apply to the compensation payable to the person as provided by this Division” (cl 6 of Pt 19H):
(h) clause 8 of Pt 19H provides:
Work capacity assessment of existing recipients of weekly payments “
(1) A work capacity assessment of an existing recipient of weekly payments is to be conducted as provided by this clause for the purposes of facilitating the application of the weekly payments amendments to the worker.
(2) The insurer who is liable to make weekly payments of compensation to an existing recipient of weekly payments must conduct a work capacity assessment of the worker no later than 12 months (or such longer period as may be prescribed by the regulations) after the commencement of the weekly payments amendments. [Now within 18 months of 1 October 2012 – see cl 17 of Sch 8.]
(3) If an existing recipient of weekly payments is a seriously injured worker, the insurer is not to conduct a work capacity assessment of the worker under this clause.
(4) The WorkCover Guidelines may make provision for the staged implementation of the requirement under this clause for a work capacity assessment.
(5) A work capacity assessment can be conducted before the commencement of Schedule 1 to the 2012 amending Act, as if that Schedule had commenced on the date of assent to the 2012 amending Act. For that purpose the WorkCover Guidelines can make provision for work capacity assessments before the commencement of Schedule 1 to the 2012 amending Act.”;
(i) clause 9 of Pt 19H provides:
“9 Weekly payments amendments to apply after work capacity assessment
(1) On the expiration of a period of 3 months after an insurer first conducts a work capacity assessment of an existing recipient of weekly payments (as required under this Division or otherwise), the weekly payments amendments apply to the compensation payable under Division 2 of Part 3 of the 1987 Act to the worker in respect of any period of incapacity after the expiration of that period. [See now cl 22 of Sch 8.]
(2) However, the weekly payments amendments do not apply to the compensation payable under Division 2 of Part 3 of the 1987 Act to the worker in respect of any period of incapacity during the first 26 weeks of incapacity.
(3) For the purposes of the application under this clause of the weekly payments amendments to a worker, the worker’s pre-injury average weekly earnings are deemed to be equal to the transitional amount.
Note: The transitional amount is initially $906.25 and is indexed annually.
(4) For the purposes of the application of the weekly payments amendments to the compensation payable under Division 2 of Part 3 of the 1987 Act to a worker in respect of any period of incapacity after the commencement of those amendments, a reference in that Division to a period in respect of which a weekly payment has been paid or is payable to a worker includes such a period that occurred before the commencement of those amendments (or before the application of those amendments to the compensation payable to the worker).”;
(j) the provisions of Pt 19H are deemed to be amended to the extent necessary to give effect to Pt 1 of Sch 8 to the amended Regulation (cl 1(2) of Sch 8);
(k) cl 9(1) of Pt 19H has been amended by cl 22 of Sch 8 to the amended Regulation so that the weekly payments amendments apply to existing recipients of weekly compensation three months after an insurer makes a work capacity decision arising from the first work capacity assessment of such a worker;
(l) if a claim for compensation in respect of the worker’s injury was made before 1 October 2012, as it was in Ms Kilic’s case, “the weekly payments amendments and the relevant transitional arrangements do not apply to compensation payable in respect of the injury until 1 January 2013” (emphasis added) (cl 3(1) of Sch 8 of the amended Regulation);
(m) in respect of claims made before 1 October 2012, and for the purposes of the application s 39 of the 1987 Act (which deals with the cessation of weekly payments after five years), “no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining the aggregate period in respect of which a weekly payment has been paid or is payable to the worker)” (cl 4 of Sch 8). The note to this clause states that s 39 “limits the payment of weekly payments of compensation to a period of 5 years” and that the clause “ensures that for claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 5 years”;
(n) “seriously injured worker” means a worker whose injury has resulted in permanent impairment and the degree of permanent impairment has been assessed for the purposes of Div 4 to be more than 30 per cent, or the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or the insurer is satisfied that the degree of permanent impairment is likely to be more than 30 per cent (s 32A of the 1987 Act);
(o) “first entitlement period” means “an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker” (s 32A of the 1987 Act). (The method of calculating the quantum of weekly compensation payable in this period is set out in s 36 of the 1987 Act.), and
(p) “second entitlement period” means “an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker” (s 32A of the 1987 Act). (The method of calculating the quantum of weekly compensation payable in this period is set out in s 37 of the 1987 Act.)
Categories of Claimant/Worker
In summary, there are three categories of claimant/worker with different dates for the commencement of the weekly payments amendments depending on the category the worker comes within:
(a) in the case of a claim made on or after 1 October 2012, the weekly payments amendments apply from the date on which the claim is made (note to cl 3(1) of Sch 8);
(b) for existing recipients of weekly compensation immediately before 1 October 2012, the weekly payments amendments apply on a date three months after the insurer makes a work capacity decision (cl 6 of Pt 19H and cl 22 of Sch 8). A work capacity decision arises from a work capacity assessment, which assessment must be done within 18 months of 1 October 2012 (cl 17 of Sch 8), and
(c) for claims made before 1 October 2012, but where the worker is not an existing recipient of weekly compensation, the weekly payments amendments and the relevant transitional arrangements do not apply to the “compensation payable” in respect of the injury until 1 January 2013 (cl 3(1) of Sch 8).
Entitlement Periods
By way of a general overview of the entitlements to weekly compensation introduced by the 2012 amending Act, there are now several different entitlement periods for weekly compensation:
(a) the first covers an aggregate period of 13 weeks “in respect of which a weekly payment has been paid or is payable” (s 32A). Weekly compensation in this period is calculated using one of the formulas in s 36. Which formula is used depends on whether or not the worker has a current work capacity;
(b) the second covers an aggregate period of 117 weeks after the expiry of the first entitlement period “in respect of which a weekly payment has been paid or is payable” (s 32A). Weekly compensation in this period is calculated using one of the formulas in s 37. Again, which formula is used depends on whether or not the worker has a current work capacity;
(c) a worker’s entitlement to weekly compensation ceases on the expiration of the second entitlement period unless he or she is entitled to compensation under s 38 (s 38(1)). A worker who is assessed by the insurer as having no current work capacity, and is likely to continue indefinitely to have no current work capacity, is entitled to compensation after the second entitlement period (s 38(2)), calculated under a formula in s 38(6). A worker who is assessed by an insurer as having a current work capacity is only entitled to compensation after the second entitlement period if he or she meets the three criteria in s 38(3). The quantum of compensation for such a worker is calculated under the formula in s 38(7);
(d) despite any other provision in Div 2 of the 1987 Act, a worker has no entitlement to weekly payments of compensation under Div 2 after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable in respect of the injury (s 39). For claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 260 weeks (cl 4 of Sch 8). Section 39 does not apply to a worker whose injury has resulted in permanent impairment of more than 20 per cent;
(e) weekly compensation (described as “special compensation”) is payable for incapacity after the second entitlement period where that incapacity has resulted from injury related surgery. Such compensation is payable at the rate provided under s 37, but is not payable during the first 13 consecutive weeks after the surgery, or during any period more than 13 weeks after the surgery (s 41), and
(f) special provisions apply for seriously injured workers.
As can be seen from the above summary, before the quantum of weekly compensation payable to a worker can be determined under the weekly payments amendments, it is necessary to determine, among other things, into which entitlement period the claim falls. This issue is significant and is discussed further below.
Significantly, it was agreed before the Arbitrator (and on appeal) that Ms Kilic:
(a) claimed compensation before 1 October 2012;
(b) was not an “existing recipient of weekly payments” immediately before 1 October 2012, and
(c) was not a seriously injured worker.
THE ARBITRATION
In respect of the issue of Ms Kilic’s entitlement to weekly compensation from 1 January 2013, her counsel, Mr Stanton, relied on cl 9(2) of Pt 19H to support a submission that the weekly payments amendments do not apply to the first 26 weeks of Ms Kilic’s incapacity. His primary submission was that, based on cl 3 of Sch 8, Ms Kilic’s first entitlement period did not commence to run until 1 January 2013 and, as a consequence, her entitlement to weekly compensation under the 1987 Act continues until 30 June 2015, that is, 130 weeks from 1 January 2013.
The Arbitrator rejected these submissions.
With respect to the first submission, the Arbitrator said that cl 9(2), which commences with “[h]owever”, qualifies cl 9(1), which refers to an existing recipient of weekly payments. Therefore, as Ms Kilic was not an existing recipient of weekly payments, cl 9(2) did not apply to her and the weekly payments amendments do apply during the first 26 weeks of incapacity.
With respect to Mr Stanton’s primary submission, the Arbitrator said:
(a) clause 3 of Sch 8 provides that, for claims made before 1 October 2012, the weekly payments amendments and transitional arrangements do not apply to the “compensation payable” in respect of the injury until 1 January 2013. In calculating Ms Kilic’s entitlement periods, that should not be interpreted as prohibiting the taking into account of periods during which Ms Kilic received compensation ([36]);
(b) clause 9(4) of Sch 6 required her to take into account the periods during which the worker was paid, or would be paid, compensation as a result of the orders she previously made ([38]);
(c) while s 39 provides that, in most cases, a worker will have no entitlement to weekly payments after five years, cl 4 of Sch 8 provides that, for a claim made before 1 October 2012, compensation paid or payable before 1 January 2013 is to be disregarded in determining the five years ([39]). As there was no corresponding provision that directed compensation paid or payable before 1 January 2013 was not to be taken into account when calculating the weekly compensation payable after 1 January 2013, she was required to “take into account the period during which compensation was paid or payable to [Ms Kilic] before 1 January 2013 for the purpose of calculating her entitlement after 1 January 2013” ([40]);
(d) Ms Kilic’s first entitlement period (13 weeks) ran from the date of her first incapacity (28 January 2011) and expired on 29 April 2011 ([41]), and her second entitlement period (117 weeks) ran from 30 April 2011 until 26 July 2013 ([42]), and
(e) as Ms Kilic was “within the second entitlement period” at the date of the determination on 26 March 2013, had a current work capacity, and had not returned to work, her entitlement from 1 January 2013 to 26 July 2013 was to be determined under s 37(3) of the 1987 Act ([43]).
Applying the formula in s 37(3), which is applicable to workers in the second entitlement period who have a current work capacity and who have returned to work for less than 15 hours per week (or who have not returned to work), the Arbitrator determined Ms Kilic to be entitled to weekly compensation of $144 from 1 January 2013. That entitlement would expire on 26 July 2013.
The Commission issued a Certificate of Determination on 26 March 2013 in the following terms:
“1. That the findings in the Certificate of Determination dated 23 January 2013 are confirmed.
2.That the orders in the Certificate of Determination dated 23 January 2013 are varied as follows:
(a)There is an award in favour of the applicant pursuant to section 37 (3) of the WorkersCompensation Act 1987, as amended by the Workers Compensation LegislationAmendment Act 2012, at the rate of $144 per week from 1 January 2013 and continuing in accordance with the legislation.”
ISSUE ON APPEAL
The issue on appeal is whether the Arbitrator erred in determining when the entitlement period in s 32A commenced to run and in finding that the second entitlement period will expire on 26 July 2013. Ms Kilic has not challenged the quantum of the award from 1 January 2013 or the Commission’s jurisdiction to make an award for the payment of weekly compensation from 1 January 2013.
SUBMISSIONS
Ms Kilic’s submissions
Mr Stanton’s first point was that the provisions in the 2012 amending Act do not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by Pt 19H (cl 3(2) of Pt 19H). As Ms Kilic was paid weekly compensation from early 2011, that is, for a period before the weekly payments amendments commenced, the new ss 36 and 37 (which deal with the calculation of weekly compensation payable in the first and second entitlement periods respectively) “[do] not apply” in this matter.
To determine that either entitlement period can run in the period from the date of Ms Kilic’s first incapacity on 28 January 2011 (which, I assume, is also the first date on which she received compensation) is to “apply” ss 36 and 37 to that period, which ignores the effect of cl 3(2) of Pt 19H, which states that the new provisions “[do] not apply”. The same situation arises from compensation that is “payable in respect of any period” before 1 October 2012.
As Ms Kilic claimed compensation before 1 October 2012, “the weekly payments amendments … do not apply to the compensation payable … until 1 January 2013” (cl 3(1) of Sch 8). The weekly payments amendments include the new provisions in ss 36 and 37, which create the first and second entitlement periods, and which the amended Regulation states do not apply until 1 January 2013.
If ss 36 and 37 do not apply until 1 January 2013, the entitlement periods they create cannot apply and commence to run until that date.
Dealing with cl 9(4) of Sch 6, Mr Stanton submitted that that clause does not apply to Ms Kilic because she was not an existing recipient of weekly compensation immediately before 1 October 2012 and cl 9 only applies to existing recipients. This submission was based on the following: cl 9 comes after cl 8 of Sch 6, which deals with work capacity assessments of existing recipients of weekly payments, the heading to cl 9 states “[w]eekly payments amendments to apply after work capacity assessment”, and cl 9(1) expressly refers to existing recipients.
It assists in the interpretation of cl 9 to have regard to cl 8 of Pt 19H, which provides for a work capacity assessment of an existing recipient of weekly payments to be conducted as provided by that clause for the purpose of facilitating the application of the weekly payments amendments to the worker. Such assessments are to be conducted within 18 months of 1 October 2012 (cl 17 of Sch 8).
The heading to cl 9 reads “[w]eekly payments amendments to apply after work capacity assessment”. Though the heading can be considered in interpreting the meaning of a clause, the heading is not part of the Act (ss 34(2)(a) and 35(2) of the Interpretation Act 1987 (NSW)).
Clause 9(4) is intended to clarify when and how the weekly payments amendments apply to “existing recipient[s] of weekly payments” and is not intended to apply to workers who are not existing recipients. This explains why the initial part of cl 9(4) reads:
“the application of the weekly payments amendments to the compensation payable … in respect of any period of incapacity after the commencement of those amendments …” (emphasis added)
As such, it is only intended to affect the weekly compensation payable for periods after 1 October 2012, when the amendments commenced.
Mr Stanton gave two examples of the application of cl 9(1) of Pt 19H. First, an existing recipient of weekly benefits injured on 1 January 2012 may not have a work capacity assessment performed until 30 September 2013 (it is assumed that counsel meant to refer to a work capacity decision). The new weekly payment provisions do not apply to that worker until 1 January 2014, and time would not start to run (for the purpose of calculating the 130 weeks) until 1 January 2014.
However, another existing recipient of weekly benefits also injured on 1 January 2012 may have a work capacity assessment (work capacity decision) performed on 1 April 2013. The new weekly payment provisions would apply on 1 July 2013 and time would start to run on 1 July 2013.
If both workers in these examples cease to have weekly entitlements at the expiration of the 130-week period (calculated from 1 January 2012), the worker in the first example would be entitled to six months more weekly compensation than the worker in the second example, even though they were injured on the same day.
It was submitted that the second part of cl 9(4) is intended to prevent the unfair capriciousness that would otherwise result from the two examples given. The second part of cl 9(4) states:
“a reference in that Division [Div 2 of Pt 3 of the 1987 Act] to a period in respect of which a weekly payment has been paid or is payable to a worker includes such a period that occurred before the commencement of those amendments (or before the application of those amendments to the compensation payable to the worker).”
Mr Stanton submitted that this result is achieved by the words being interpreted as providing for the entitlement periods for existing recipients of weekly benefits to start to run on 1 October 2012. The words can be interpreted in this way because:
(a) the opening words of cl 9(4) specify that the whole of the sub-clause is directed to assessing the weekly compensation payable (to existing recipients) for periods after 1 October 2012;
(b) without further amendments, the new weekly payment provisions do not apply to existing recipients until three months after a work capacity assessment is performed;
(c) the “period[s] [after 1 October 2012] … before the commencement … or application of” the new weekly payment provisions to existing recipients needs to be included in the ss 36 and 37 entitlement periods, to avoid capriciousness in the treatment of existing recipients, and
(d) the reference to periods that occur before “commencement” or “application” is designed to achieve this.
Interpreting cl 9 in this way prevents conflict with other provisions and common law principles because it:
(a) prevents a conflict with cl 3(2) Pt 19H, which provides that the 2012 amending Act does not apply to compensation paid or payable before 1 October 2012;
(b) prevents a conflict with cl 3 of Sch 8, which provides that, for workers who made a claim for compensation before 1 October 2012, the new weekly payment provisions do not apply until 1 January 2013;
(c) prevents a conflict with cl 9(2) of Pt 19H, which provides that the new weekly payment provisions do not apply to the first 26 weeks of incapacity;
(d) avoids an interpretation of the 2012 amending Act that conflicts with s 30(1)(b) and (c) of the Interpretation Act 1987 (NSW), which provide that amending Acts do not affect existing accrued rights (see also Maxwell v Murphy (1957) 96 CLR 261 at 267), and
(e) construes any ambiguity that is present in favour of the worker, which is the accepted course to adopt when considering such beneficial legislation (Nash v Sunshine Porcelain Potteries Ltd (1959) 101 CLR 353 at 361; J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632).
DISCUSSION AND FINDINGS
I do not accept Mr Stanton’s submissions.
The first submission, based on cl 3(2) of Pt 19H, only has substance if cl 9(4) of Sch 6 does not apply to Ms Kilic and if Mr Stanton’s interpretation of cl 3 of Sch 8 is accepted. For the reasons explained below, it is my view that the Arbitrator was correct to find that cl 9(4) does apply in the circumstances of this case and that cl 3 of Sch 8 does not operate in the manner suggested by Mr Stanton.
The wording of cl 8 of Sch 6 provides no assistance in determining the application and meaning of cl 9(4). Each clause performs a separate and independent function. Clause 8 (as amended by cl 17 of Sch 8) deals with work capacity assessments for existing recipients of weekly payments of compensation. Clause 9(1) (as amended by cl 22 of Sch 8), on the other hand, deals with when the weekly payments amendments apply to existing recipients of weekly compensation immediately before 1 October 2012. I agree with the Arbitrator that sub-clause (2) of cl 9 is linked to sub-clause (1) of cl 9 by use of the conjunction “[h]owever”. Sub-clause (3) of cl 9 relates to the transitional amount and neither counsel submitted that it is relevant to the issue before me.
As Mr Stanton observed, sub-clause (4) of cl 9 is divided into two parts. The first part states that it applies “[f]or the purposes of the application of the weekly payments amendments to the compensation payable under Division 2 of Part 3 of the 1987 Act to a worker in respect of any period of incapacity after the commencement of those amendments”.
The sub-clause continues that, for such purposes, a reference in Div 2 of Pt 3 of the 1987 Act “to a period in respect of which a weekly payment has been paid or is payable to a worker includes such a period that occurred before the commencement of those amendments (or before the application of those amendments to the compensation payable to the worker)”.
As earlier noted, there are at least three potential categories of worker/claimant, with multiple potential dates for the commencement or application of the amendments (see [10] above). The first category is made up of workers who claim on or after 1 October 2012. Such workers are dealt with under the weekly payments amendments without modification or adjustment.
The second category is made up of workers who are existing recipients of weekly compensation, that is, injured workers who are in receipt of weekly payments of compensation immediately before 1 October 2012 (it is convenient to refer to these workers as “existing recipients”). Several provisions in Pt 19H deal with such workers and their situation is tolerably clear. They remain entitled to weekly payments “as if the weekly payments amendments had not been made” but only until the amendments apply to them as provided by Div 2 of Pt 19H (cl 6 of Pt 19H). The amendments apply to them three months after an insurer makes a work capacity decision (cl 22 of Sch 8). This will obviously give different dates for different workers, depending on when the insurer makes a work capacity decision.
Mr Stanton’s examples relate to existing recipients and, without deciding it, as far as they relate to such workers, his suggested interpretation of cl 9(4) has an obvious attraction because it gives an objective and convenient start date for “the commencement of [the] amendments”, where that expression is first used in cl 9(4), that eliminates the anomaly thrown up by his examples, and treats all existing recipients equally. Whether the sub-clause should be interpreted in that way for existing recipients is not necessary for me to decide.
However, Mr Stanton’s analysis is not determinative of Ms Kilic’s circumstances. She comes within the third category of worker/claimant discussed earlier. That is, those workers who have claimed before 1 October 2012 and whose claims may have been paid briefly, and then denied, or whose claims have never been paid, and who have outstanding claims before the Commission as at that date. Though it has been conceded that such workers are not existing recipients, there is no valid reason why sub-clause (4) of cl 9 would not apply to them.
As previously explained, the amendments commence on several different dates, depending on each worker’s circumstances. As sub-clause (4) of cl 9 does not refer to a specific date, but only uses the general expression “the commencement of [the] amendments”, the logical conclusion is that it is of general application to workers in categories two and three. It arguably applies to existing recipients of weekly compensation (workers in category two) in the manner suggested by Mr Stanton.
However, sub-clause (4) also applies to workers in category three, such as Ms Kilic, for whom the weekly compensation amendments apply from 1 January 2013. As submitted by counsel for Kmart, Mr Perry, this conclusion is reinforced by the use of the definite article “the” in the phrase “the worker” in cl 9(1), which, by its terms, applies only to existing recipients. This is to be contrasted with the use of the indefinite article “a” in the phrase “a worker” in cl 9(4), which applies to workers generally.
It follows that, applying cl 9(4), for the purpose of the application of the weekly payments amendments to weekly compensation payable to Ms Kilic after 1 January 2013, a reference in Div 2 of Pt 3 of the 1987 Act to “a period in respect of which a weekly payment has been paid or is payable” includes such a period that occurred before 1 January 2013. The reference in cl 9(4) to the period “in respect of which a weekly payment has been paid or is payable” is a reference to the words used in s 32A in defining the first and second entitlement periods.
The next point relates to cl 3(1) of Sch 8. Mr Stanton submitted that cl 3 of Sch 8 means what it says: for a person in Ms Kilic’s circumstances, that is, a worker who is not seriously injured, claimed before 1 October 2012 and who was not an existing recipient of weekly compensation immediately before 1 October 2012, none of the weekly payments amendments and transitional arrangements apply to the compensation payable until 1 January 2013. The amendments include ss 36 and 37, which, Mr Stanton submitted, create the first and second entitlement periods and which do not apply until 1 January 2013.
While it is correct that the amendments include the new provisions in ss 36 and 37, those provisions do not create the entitlement periods but merely prescribe the methods to be used to calculate the quantum of compensation payable. The entitlement periods are defined in s 32A by reference to the words used in cl 9(4), namely, to a period “in respect of which a weekly payment has been paid or is payable to the worker”.
Consistent with cl 3(1) of Sch 8, the Arbitrator calculated Ms Kilic’s entitlements up to 31 December 2012 under the legislation that applied up to that date and applied the weekly payments amendments to calculate the “compensation payable” from 1 January 2013. Once the weekly payments amendments apply, it is not possible to determine the quantum of weekly compensation payable until it is decided which entitlement period the worker comes within. That requires consideration of s 32A, which applies from 1 January 2013 and refers to weekly payments paid or payable.
The Arbitrator determined that Ms Kilic’s claim fell within the second entitlement period and she therefore determined the quantum of weekly compensation payable by applying s 37. As previously noted, Ms Kilic has not challenged the quantum of weekly compensation awarded from 1 January 2013, but only the date from which the entitlement periods commence.
If Mr Stanton were correct in his submission that the entitlement periods do not commence to run until 1 January 2013, then Ms Kilic’s weekly compensation from that date would be calculated under s 36, that is, under the first entitlement period, not under s 37, which applies to the second entitlement period.
Clause 3(1) of Sch 8 states that the transitional arrangements also apply from 1 January 2013. Clause 9(4) is part of the transitional arrangements. Clause 9(4) is in clear terms and, as explained above, applies in the present matter. The combined effect of s 32A and cl 9(4) is that the entitlement periods commence at the time when a weekly compensation has been paid or is payable and includes periods before the commencement of the amendments, that is, in this case, before 1 January 2013.
If I am wrong in my conclusion that cl 9(4) of Sch 6 applies to Ms Kilic, and the correct view is that it only applies to existing recipients, that makes no difference to the outcome. That is because, as Mr Perry submitted, there is a distinction between the calculation of the quantum of weekly “compensation payable” (which is dealt with, in this case, in ss 36 and 37) and the calculation of when the entitlement periods commence to run.
As previously noted, the calculation of the commencement of the entitlement periods is dealt with in s 32A. That section does not apply until 1 January 2013. When it applies, however, it applies according to its terms by reference to the period “in respect of which a weekly payment has been paid or is payable to the worker”. It is not restricted to payments made after 1 January 2013, but applies to compensation “paid or payable”. Unless otherwise stated in either the Act or the transitional arrangements, that includes payments made before 1 January 2013.
This conclusion is reinforced by cl 4 of Sch 8, which provides that, for the purposes of the application of s 39 (which deals with the cessation of weekly payments after five years), in respect of a claim made before 1 October 2012, “no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining the aggregate period in respect of which a weekly payment has been paid or is payable to the worker)”.
Mr Stanton submitted that s 39 should not be read in a vacuum. He said that s 36 deals with compensation for the first 13 weeks, s 37 deals with the next 117 weeks, and s 38 deals with compensation beyond 130 weeks. Save for workers with a permanent impairment of greater than 20 per cent, s 39 states that there is no entitlement to weekly compensation after an aggregate period of 260 weeks. He said that, in calculating the period of 260 weeks, cl 4 of Sch 8 requires that the payments made before 1 January 2013 do not count.
It is significant that cl 4 of Sch 8 applies only for the purposes of the application of s 39. Before it becomes necessary to consider the 260 weeks in s 39, the worker must first meet the requirements in ss 36, 37 and 38. In applying those sections on and from 1 January 2013, there is no provision (in either the legislation or the Regulation) that payments made before 1 January 2013 are to be disregarded, or that defers the commencement of the entitlement periods in s 32A until that date.
The absence of such a provision strongly suggests that, for a worker in Ms Kilic’s circumstances, the weekly compensation “paid or payable” before 1 January 2013 is to be taken into account for the purpose of determining whether, as at 1 January 2013, Ms Kilic came within the first or second entitlement period.
If Ms Kilic is ultimately found to be entitled to compensation under s 38, that is, she is entitled to weekly compensation beyond the second entitlement period of 130 weeks, then the length of time she will be entitled to receive that compensation will be limited by s 39 to 260 weeks. In those circumstances, cl 4 of Sch 8 states that, for a claim made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted toward the 260-week period.
Mr Stanton submitted at the oral hearing of the appeal that cl 3(1) of Sch 8 does for ss 36 and 37 the same as cl 4 of Sch 8 does for s 39. I do not accept that submission. As explained above, cl 3(1) of Sch 8 merely states that the weekly payments amendments do not apply to the “compensation payable”. It does not deal with the commencement of the entitlement periods. It is directed to ensuring that, for claims made before 1 October 2012, the weekly payments amendments and the transitional arrangements do not apply to the “compensation payable” in respect of the injury until 1 January 2013. The Arbitrator did not apply ss 36 or 37 to calculate the “compensation payable”, until 1 January 2013.
Similarly, the Arbitrator did not apply s 32A until 1 January 2013. However, without a clause like cl 4 of Sch 8 to deal with the commencement of the first and second entitlement periods in ss 36 and 37, once s 32A applied, it applied according to its terms. Therefore, for claimants in Ms Kilic’s circumstances, the first entitlement period will start from the date on which weekly compensation is paid or payable.
CONCLUSION
It follows that the Arbitrator did not err in her approach or conclusion and the appeal must fail. On a fair reading of the 2012 amending Act and the amended Regulation, I do not believe that any other approach is reasonably open. The weekly payments amendments apply to workers in Ms Kilic’s circumstances from 1 January 2013. That is what the Arbitrator did and that approach discloses no error. When the provisions are interpreted in this way, none of the “conflicts” referred to by Mr Stanton at [35] above arise. Ms Kilic’s “accrued rights” are not affected. She receives weekly compensation under the 1987 Act, unamended, up to 31 December 2012 and under the weekly payments amendments after that date.
DECISION
The Arbitrator’s determination of 26 March 2013 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
3 July 2013
I, KATHRYN CAMP, 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
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