RSM Building Services Pty Ltd v Hochbaum

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Appeal to the Court of Appeal allowed – Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113
CITATION:	RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15
APPELLANT:	RSM Building Services Pty Ltd
RESPONDENT:	Frank Hochbaum
INTERVENER:	State Insurance Regulatory Authority
INSURER:	AAI Limited t/as GIO – Agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-4847/18
SENIOR ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	7 January 2019
DATE OF APPEAL DECISION:	18 April 2019
SUBJECT MATTER OF DECISION:	Construction of s 39 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL HEARING:	2 April 2019
REPRESENTATION:	Appellant:	Ms B Tronson, of counsel, instructed by Hicksons
Respondent:	Mr R Page, of counsel, instructed by Shine Lawyers
Intervener:	Ms J Davidson, of counsel, instructed by the Crown Solicitor
ORDERS MADE ON APPEAL:	The Senior Arbitrator’s Certificate of Determination dated 7 January 2019 is revoked and the following is substituted in its place: “An award for the respondent employer.”

INTRODUCTION

1. This appeal concerns the application and interpretation of s 39 of the Workers Compensation Act 1987 (the 1987 Act). Section 39 ceases a worker’s entitlement to the payment of weekly compensation after an aggregate period of 260 weeks. This prohibition is lifted if a worker is assessed as having a degree of permanent impairment of more than 20%. The question for determination on appeal is this – if the assessment is made at a point in time after the cessation of the aggregate 260-week period, is the worker entitled to the back payment of compensation between the cessation date and the date of the assessment of permanent impairment greater than 20%?

BACKGROUND

1. Frank Hochbaum was employed by RSM Building Services Pty Ltd as a labourer.

2. On 1 September 2000, Mr Hochbaum sustained an injury to his right leg when he fell while pushing a wheelbarrow during the course of his employment with the appellant employer. The appellant’s insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz), voluntarily paid weekly payments of compensation.

3. In July 2004, the parties entered into a complying agreement pursuant to s 66A of the 1987 Act, in the sum of $8,750. This agreement resolved Mr Hochbaum’s claim for lump sum compensation in relation to the loss of efficient use of the right leg below the knee resulting from the injury in September 2000.

4. In June 2012, Mr Hochbaum was walking when his right leg gave way and he stumbled and fell onto his outstretched right arm. In January 2015, Mr Hochbaum made a claim in respect of a secondary condition to his back and right arm (wrist) due to the September 2000 injury. That claim was denied by the insurer.

5. On 2 April 2013, Allianz made a work capacity decision which found that Mr Hochbaum had no work capacity.

6. On 2 August 2017, the insurer advised…