Kilic v Kmart Australia Ltd

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

1. 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.

2. 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.

3. 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.

4. Unless otherwise stated, all references in this decision to the 1987 Act are to that Act as amended by the 2012 amending Act.

BACKGROUND

1. 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.

2. A…