Ryan and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by the applicant, Ryan, against a decision by the Secretary of the Department of Social Services regarding the calculation of a compensation preclusion period. The applicant had received two lump sum compensation payments arising from a compensable event on 8 December 2015. The first payment, of $28,360, was made under section 66 of the *Workers Compensation Act 1987* (NSW) on 20 December 2019. The second payment, of $200,000, was made on 14 April 2021 as part of a settlement of the applicant's compensation claim by consent judgment. The Department had calculated a compensation preclusion period of 109 weeks, commencing on 14 April 2021 and ending on 16 May 2023.

The primary legal issues before the Tribunal were whether the two lump sum payments should be treated as a single payment for the purposes of calculating the compensation preclusion period, and whether it was appropriate, in the special circumstances of the case, to treat the whole or part of the compensation as not having been made, thereby reducing the length of that period. The Tribunal was required to consider the application of sections 17, 1170, 1171, and 1184K of the relevant Act.

The Tribunal applied the provisions of the Act, which deemed the two payments to have been received as a single lump sum of $228,360 on the date of the final payment, 14 April 2021. It further applied section 17(3)(a) to deem 50% of this sum, or $114,180, as the compensation component. Using the income cut-out amount at the relevant time, the Tribunal calculated a preclusion period of 109.61 weeks, rounded down to 109 weeks in accordance with section 1170(5). The Tribunal then considered its discretion under section 1184K(1) to disregard part of the compensation in special circumstances. Drawing on established case law, the Tribunal understood "special circumstances" to mean those that are unusual, uncommon, or exceptional. After considering the totality of the evidence, the Tribunal was not satisfied that the applicant's circumstances met this threshold.

Consequently, the Tribunal set aside the decision under review and substituted a finding that the original compensation preclusion period, from 14 April 2021 to 16 May 2023, was to be reinstated.