Michell Australia Pty Ltd v Fordham

[2015] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Michell Australia Pty Ltd v Fordham [2015] NSWWCCPD 15
APPELLANT:	Michell Australia Pty Ltd
RESPONDENT:	Thomas Fordham
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3040/14
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	22 October 2014
DATE OF APPEAL DECISION:	26 February 2015
SUBJECT MATTER OF DECISION:	Claim for further lump sum compensation; s 66 of the Workers Compensation Act 1987; effect of amendments to the Workers Compensation Act 1987 and the Workers Compensation Regulation 2010; whether further claim made after operation of amendments is defeated by application of the amended provisions when earlier claim made specifically sought such compensation under unamended provision
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons Lawyers
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted pursuant to s 352 (3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2.     Paragraph [2] of the Arbitrator’s determination found in Certificate of Determination dated 22 October 2014 is amended by deletion of the words “pg 133-135 of the Application” which appear in parentheses and substituted with the words “p 21-22 of the amended Reply”.  3.     The Arbitrator’s findings and orders found in the Certificate of Determination dated 22 October 2014 are otherwise, for the reasons stated herein, confirmed.

INTRODUCTION

1. This appeal concerns the proper construction and application of the provisions of the Workers Compensation Act 1987 (the 1987 Act), following amendments effected by the passage of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) and relevant regulations. The question raised concerns the entitlement to lump sum compensation of Mr Thomas Fordham as against his former employer Michell Australia Pty Ltd (the appellant) in the following circumstances.

2. Mr Fordham received relevant injury on 20 September 1989. Lump sum compensation was claimed by him and paid by the appellant in 2004. A claim for further lump sum compensation was made by Mr Fordham on 6 January 2014. The appellant declined that claim.

3. In proceedings before Arbitrator John Harris in which Mr Fordham sought orders with respect to further lump sum compensation, the appellant asserted that the 1987 Act, in its amended terms, had application to the relevant facts and that Mr Fordham’s further claim was defeated by operation of s 66 of that Act. That assertion was rejected by the Arbitrator and a determination was made on 22 October 2014 as is found in a Certificate of Determination as follows:

   “The determination of the Commission in this matter is as follows:

   1. I find that the applicant is [sic] can make one further claim for lump sum compensation pursuant to s 66(1A) of the 1987 Act;

   2.       The matter is remitted to the Registrar for referral to an Approved Medical Specialist (‘AMS’) as follows:

Dates of Injury:            20 September 1989

Body Parts/Systems:     Back;

Loss of efficient use of the right leg at or above…