Nikho v Contract Blue Pty Ltd
[2021] NSWPIC 227
•5 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Nikho v Contract Blue Pty Ltd [2021] NSWPIC 227 |
| APPLICANT: | Ando Nikho |
| RESPONDENT: | Contract Blue Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Lump sum compensation claim; whether applicant has already exhausted his “one further claim” pursuant to Clause 11 of Schedule 8 of the Workers Compensation Regulations 2016; Held- the applicant’s previous claim for lump sum compensation was made before 19 June 2012; the present claim before the Commission is therefore the applicant’s one further claim; the applicant’s intervening claim for weekly compensation does not count as his one further claim; ADCO Constructions Pty Ltd v Goudappel discussed; matter remitted to the President for referral for medical assessment of the applicant’s upper extremities (shoulders). |
| DETERMINATIONS MADE: | 1. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 6 May 2008 Body systems referred: Right upper extremity (shoulder), Method of assessment: Whole person impairment. 2. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Application to Resolve a dispute and attachments; and (c) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
The factual background to this matter is largely uncontroversial. On 6 May 2008, the applicant was lifting heavy paint drums in the course of his employment with the respondent when he suffered injury to his cervical spine, left upper extremity, right upper extremity and a consequential condition to his digestive tract.
The applicant issued proceedings 570/10, which was the subject of a medical assessment which was upheld on appeal from the decision of an Approved Medical Specialist (AMS). The applicant was assessed as suffering the following impairments:
· Cervical spine – 6%
· Left upper extremity – 0%
· Right upper extremity – 1%
The applicant then made a claim for weekly compensation in respect of the same injuries, which was the subject of proceedings number 6416/11. He received an award for ongoing weekly payments in that matter.
It is common ground that on 14 June 2012, the applicant made a further claim for compensation.
On 6 May 2014, the Workers Compensation Commission issued a Certificate of Determination in matter 4167/13 for a further 4% whole person impairment, based on the Medical Assessment certificate of Dr Kumar, which assessed 1% for the upper digestive tract and 2% for each upper extremity (shoulder).
The applicant now brings these proceedings seeking permanent impairment compensation for deterioration to his left and right shoulders.
The respondent has denied liability and asserts the applicant is precluded from advancing his claim by virtue of the operation of section 66(1A) of the Workers Compensation Act 1987 (the 1987 Act).
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is whether the applicant is able to maintain his claim, or whether he is precluded from doing so by virtue of the operation of section 66(1A). If there is a finding against the applicant on this question, there will be an award for the respondent. If the applicant succeeds on this point, it is accepted the matter will be remitted to the President for referral to a Medical Assessor to asses the applicant’s claim for permanent impairment compensation.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 31 May 2021. 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.
At the hearing, Mr B Carney of counsel instructed by Ms P Dulichan appeared for the applicant, and Mr B Loukas of counsel instructed by Mr N Bennett appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
No oral evidence was called at the hearing.
FINDINGS AND REASONS
Whether the applicant is precluded from claiming by section 66(1A) of the 1987 Act
Section 66(1A) of the 1987 Act provides:
“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent that results from an injury.”
“Injury” has the same meaning as in section 4 of the 1987 Act.
The operation of section 66(1A) is subject to Clause 11 of Schedule 8 of the Workers Compensation Regulations 2016 (the 2016 Regulations). That clause provides only one further lump sum compensation claim may be made in respect of an existing impairment (sub-clauses (1) and (2)).
Relevantly, sub-clause (4) provides:
“(4) For the purposes of subclauses (1) and (2)—
(a)a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66(1A) of the 1987 Act had never been enacted, and
(b)no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment—
(i)that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii)in respect of which no compensation has been paid, and
(c)section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.”
Sub-clause (6) of the Schedule defines “existing impairment” as one resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
For the applicant, Mr Carney took the Commission through the history of the various claims for compensation. He noted the first claim was that decided by the Medical Assessment Certificate (MAC) of Dr McGroder in 2010. He submitted that for the purposes of the present matter, the 2011 claim for weekly benefits was irrelevant, as it was not a claim for lump sum compensation.
That being so, Mr Carney submitted that the applicant’s claim made on 14 June 2012 and which was the subject of the MAC of Dr Kumar issued in 2014, was not the subject of section 66(1A), as it was made before the relevant operative date of 19 June 2012.
Given that claim had not been withdrawn or otherwise dealt with before Clause 11 of the Schedule came into effect, the applicant submitted it must be dealt with as if section 66(1a) of the 1987 Act had never been enacted (see Clause 11(4)(b)(i) of the Regulation).
For the respondent, Mr Loukas submitted the applicant is precluded from making a further claim with respect to the left shoulder, as that body part was assessed with nil whole person impairment in proceedings number 570/10, and as such there is no “existing impairment.”
I do not accept that submission, as the definition of “existing impairment” in Clause 11 of Schedule 8 to the 2016 Regulations is “a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.” In this matter, it is the claim assessed by Dr Kumar and the subject of determination in matter number 4167/13 which constitutes the “existing impairment”, as it is common ground that claim was made before 19 June 2012. The determination in that matter was for a 2% whole person impairment with respect to the left upper extremity (shoulder), and as such on the respondent’s view of the definition of “existing impairment”, such an impairment arises.
Mr Loukas also submitted that the applicant’s claim for lump sum compensation in respect of the digestive system as a consequential condition, which was made on 1 March 2013 and was part of the subject of the proceedings in matter number 4167/13 is the “one further claim”, as that claim related to a consequential condition arising from the injury at issue, and therefore precludes the applicant making any further claim with respect to any body part arising from the injury at issue. However, I accept Mr Carney’s submission that the relevant “further claim” relates to a body part which was the subject of a claim before 19 June 2012. In this matter, that is relevantly the upper extremities.
Mr Carney submitted, and I accept, that if the applicant pursues this claim in relation to the upper extremities, it will bring an end to his entitlement to claim lump sum compensation in respect of any body part arising from the injury at issue, including but not limited to any further claim concerning the digestive system. That is the case because the present claim is the “one further claim” as set out in Clause 11 of Schedule 8 of the 2016 Regulations.
Lastly, Mr Loukas submitted the claim made with respect to weekly benefits was the one further claim to which the applicant was entitled, pursuant to the decision of the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (16 May 2014) (Goudappel).
I note that the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 (the 2015 Regulation) commenced on 13 November 2015, and the effect of that regulation was to enact the present Clause 11 of Schedule 8 of the 2016 Regulations, and that it came into effect from 13 November 2015.
Having found the applicant’s present claim to be the “one further claim” to which he is entitled, I do not consider the 2011 weekly benefits claim prohibits the applicant’s current claim for lump sum compensation, which in my view is allowed by virtue of the specific provisions of Clause 11 to Schedule of the 2016 Regulations.
SUMMARY
For the above reasons, the matter will be remitted to the President for referral to a Medical Specialist to determine the deterioration (if any) of the applicant’s permanent impairment to his right and left upper extremities (shoulders).
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