Singh v ADFA Jamison Pty Ltd (No 2) - [2023] NSWPIC 573

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 573
Decision Date: 31 October 2023

CaseChat Overview and Summary

In the case of Singh v ADFA Jamison Pty Ltd (No 2), the applicant, Ms. Singh, sought to claim compensation under section 67 of the Workers Compensation Act 1987, specifically for pain and suffering, which had previously been settled in 2005. This matter was before the Court of Appeal, where the central issue was whether Ms. Singh's claim for section 67 compensation had been extinguished by her earlier settlement in 2005 or whether it remained viable despite subsequent amendments to the Act.

The legal issue that the Court had to resolve was whether the settlement of Ms. Singh's section 66 claim in 2005, which resulted in a complying agreement for an 8% whole person impairment, effectively concluded her claim for section 67 compensation. This was compounded by the fact that, in 2022, a further medical assessment found her to have a 16% whole person impairment, prompting her to assert that her section 67 claim had not been settled. The Court needed to determine whether the 2012 amendments to the Workers Compensation Act, which ended the entitlement to claim for section 67 compensation, applied retrospectively to claims settled before the amendments came into effect.

The Court concluded that the settlement in 2005, which was for an amount that did not entitle Ms. Singh to section 67 compensation, effectively disposed of her claim for pain and suffering. Since her claim for section 67 compensation was not extant at the time the 2012 amendments took effect on 19 June 2012, no transitional provisions applied. Consequently, the Court ruled that Ms. Singh's claim for section 67 compensation was effectively concluded by the 2005 settlement. The Court awarded the respondent, ADFA Jamison Pty Ltd, on the claim for section 67 compensation.

Orders