Singh v ADFA Jamison Pty Ltd (No 2)
[2023] NSWPIC 573
•31 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Singh v ADFA Jamison Pty Ltd (No 2) [2023] NSWPIC 573 |
| APPLICANT: | Dropati Singh |
| RESPONDENT: | ADFA Jamison Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 31 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation; applicant makes claim for section 67 compensation; claim for section 67 compensation had previously been made in 2005, at which time the applicant settled her section 66 claim by complying agreement in respect of an 8% whole person impairment; in 2022, the applicant brought a further section 66 claim which was the subject of a medical assessment by the Commission; the applicant was found to have a 16% whole person impairment, at which point she asserted her claim for section 67 had not previously been dispensed with; Held – the entering into of the complying agreement in 2005 for an 8% whole person impairment, being an amount which did not entitle the applicant to section 67 compensation, effectively dealt with the claim for pain and suffering; the applicant’s claim for section 67 compensation was not extant at 19 June 2012, being the date the 2012 amendments to the Act took effect and ended the entitlement to claim for section 67 compensation; as such, no transitional provisions in relation to claims made before the 2012 amendments apply in this matter; the effect of the applicant’s contention is a pre-2012 claim for section 67 compensation remains on foot forever, notwithstanding a pre-2012 settlement which did not enliven the provisions of the then section67 itself; award for the respondent on the claim for section 67 compensation. |
| DETERMINATIONS MADE: | The Commission determines: 1. The orders in the Certificate of Determination dated 31 July 2023 are confirmed. 2. Award for the respondent on the claim for compensation pursuant to s 67. 3. The respondent is to have credit for the previous award of permanent impairment compensation made pursuant to s 66. |
STATEMENT OF REASONS
BACKGROUND
On 9 October 2003, Ms Dropati Singh (the applicant) suffered a fall in the course of her employment as a cleaner with ADFA Jamison Pty Ltd (the respondent). As a result of that fall, the Commission found the applicant suffered injury to her left upper extremity (shoulder and elbow), together with scarring and a consequential condition to her cervical spine.
The matter proceeded to a hearing before me on 17 January 2023. On 13 March 2023, the Personal Injury Commission (Commission) issued a Certificate of Determination and the applicant was then referred for medical assessment of her injuries as found by the Commission.
On 27 June 2023, a Medical Assessment Certificate (MAC) of Medical Assessor Berry was issued. Dr Berry assessed the applicant as suffering from a 16% whole person impairment.
Relevantly, the applicant had previously brought proceedings in relation to her injury. On 26 April 2005, the applicant’s solicitors had made a claim for permanent impairment compensation in respect of an alleged 15% whole person impairment, together with a claim for compensation for pain and suffering pursuant to s 67 of the Workers’ Compensation Act 1987 (the 1987 Act). An Application to Resolve a Dispute was lodged in respect of that claim on 1 September 2005, which also sought compensation pursuant to ss 66 and 67.
On 11 November 2005, a Certificate of Determination – Consent Orders was issued by the Commission by which the applicant discontinued her proceedings with a costs order in her favour. the Commission made the following notations on that document:
“1. The matter is discontinued and the parties will file an agreement pursuant to section 66A of the Workers’ Compensation Act 1987.
2. That the respondent pay the applicant as lump sum compensation under section 66 of the Workers’ Compensation Act 1987 as follows (for injuries on and from 01.01.02), $10,000.00 in respect of an 8% whole person impairment.”
Following the Commission issuing the Certificate of Determination on 31 July 2023 in these proceedings, the applicant contended she was entitled to make a claim pursuant to s 67 for pain and suffering. The respondent denies liability for any claim pursuant to s 67.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant is entitled to bring a claim for pain and suffering pursuant to s 67, and
(b) if so, the amount of that compensation procedure before the Commission.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
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.
The parties attended a further hearing before me on 13 September 2023. On that occasion, the applicant was represented by Mr Schipp of counsel and instructed by Mr Bellisimo. The respondent was represented by Mr Beran, instructed by Ms Nguyen.
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);
(b) Reply;
(c) Application to Admit Late Documents (AALD) dated 16 January 2023;
(d) AALD dated 1 February 2023, and
(e) AALD dated 15 September 2023, lodged after the hearing by uncontested leave.
Additionally, the Commission also had before it the Certificate of Determination dated 13 March 2023, the MAC of Dr Berry and the Medical Certificate of Determination dated 31 July 2023.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant can claim s 67 compensation
There is no issue the applicant made a claim for pain and suffering compensation when initially lodging her claim. Mr Schipp submitted that this claim was never finalised or dealt with by the prior complying agreement, as it was not capable of being paid until the medical assessment by Dr Berry led to the applicant having a whole person impairment of greater than 10%.
In my view, there are a number of difficulties with the applicant’s position.
The applicant’s alleged entitlement to s 67 compensation is contingent upon the claim being on foot before the entitlement to s 67 compensation was abolished by the 2012 amendments to the 1987 Act. In my view, however, the claim was not on foot. Whether the claim was ultimately resolved by way of complying agreement or by a determination of the Commission, the fact is that by resolving her claim for an 8% whole person impairment in 2005, the applicant’s claim had been dealt with and was no longer on foot.
As Mr Beran noted, the effect of the applicant’s submission, were it accepted, is that a pre-2012 claim for s 67 compensation remains on foot for all time, notwithstanding a resolution being reached with respect to an accompanying s 66 claim in terms which disentitled a claim for pain and suffering.
To my mind, that contention must be correct. Mr Beran took the Commission to the decision of the Court of Appeal in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 which he stated, and I accept, is authority for the proposition that the s 67 claim was resolved by entering into the s 66A complying agreement for an amount pursuant to s 66 which was less than the threshold required to then entitle the claimant to obtain compensation pursuant to s 67. In my view, the respondent’s position is correct.
The s 66A agreement in 2005 agreeing to pay the applicant compensation for 8% whole person impairment in my view deals with the s 67 claim in that no compensation was payable pursuant to that section. The resolution of that claim invalidates the applicant’s claim for s 67.
I accept Mr Beran’s submission that s 66A(3) inserted by the 2012 amendments has the effect of removing the ability to award further s 67 compensation. In my view, it is clear the applicant’s s 67 claim was resolved by the entering into of the s 66A agreement for the payment of compensation in respect of an 8% whole person impairment pursuant to s 66.
Notwithstanding Mr Schipp’s submission that had the applicant obtained a further report in 2011 which quantified her s 66 claim at 11% or greater and therefore entitled her to make a claim pursuant to s 67, she would have been able to do so, one cannot simply ignore the operation of the 2012 amendments. The current claim for s 67 compensation is, in my view, correctly characterised as having been made after 19 June 2012, being the date the 2012 amendments came into effect. In my view, the original claim for s 67 compensation was dealt with by the complying agreement in 2005.
There was no extant s 67 claim at the time the 2012 amendments came into operation, as the applicant’s claim pursuant to that section had been dealt with and finalised by the Certificate of Determination in November 2005 and the accompanying complying agreement pursuant to s 66A in which the applicant was awarded compensation pursuant to s 66 in respect of an 8% whole person impairment, an agreement which disentitled her to making a claim pursuant to s 67.
This being the case, there are no transitional or savings provisions relating to the 12012 amendments which could possibly apply to the applicant’s purported s 67 claim. The applicant is not entitled to claim compensation pursuant to s 67, and there will be an award for the respondent on the claim for s 67 compensation.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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