Sodexo Australia Pty Ltd v Khan

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sodexo Australia Pty Ltd v Khan [2015] NSWWCCPD 12
APPELLANT:	Sodexo Australia Pty Ltd
RESPONDENT:	Mohammed Khan
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-985/14
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	29 August 2014
DATE OF APPEAL DECISION:	18 February 2015
SUBJECT MATTER OF DECISION:	Second claim for permanent impairment compensation where the first claim for such compensation was “specifically sought” prior to 19 June 2012; whether amendments introduced by the Workers Compensation Legislation Amendment Act 2012 apply to such a claim; cl 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cl 11 of Sch 8 to the Workers Compensation Regulation 2010; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 applied; Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 distinguished
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Moray & Agnew
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 29 August 2014 is confirmed. 2.       No order as to costs.

INTRODUCTION

1. The issue in this appeal is whether a worker who specifically sought, and was paid, permanent impairment compensation before 19 June 2012 is entitled to make a second claim for such compensation after that date because of a deterioration in his condition.

2. The resolution of the appeal involves the interpretation of the amendments to the Workers Compensation Act 1987 (the 1987 Act) introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), the transitional provisions introduced by the 2012 amending Act, and amendments made to the Workers Compensation Regulation 2010 (the 2010 Regulation) by the Workers Compensation Amendment (Miscellaneous) Regulation 2012 (the amending Regulation).

3. The issue is identical to the issue considered and determined by me in Caulfield v Whelan Kartaway Pty Ltd [2014] NSWWCCPD 34 (Caulfield) and by the President, Keating DCJ, in Cram Fluid Power Pty Ltd v Green [2014] NSWWCCPD 84 (Green). For the reasons explained in those decisions, and the additional reasons explained below, the worker is entitled to claim permanent impairment compensation for the deterioration in his condition and the Arbitrator’s determination to that effect is confirmed.

BACKGROUND

1. The respondent worker, Mohammed Khan, injured his back while working as a kitchen hand at the appellant employer’s restaurant on 13 August 1997. Liability was accepted and compensation payments made.

2. Pursuant to orders made by the former Compensation Court of New South Wales on 26 June 2002, Mr Khan received lump sum compensation under s 66 of the 1987 Act in respect of a 12.5 per cent permanent impairment of his back and two per cent permanent loss of efficient use of each leg at or above the knee, plus compensation for pain and suffering under s 67. The parties have accepted, though there is no direct evidence of it, that that settlement was preceded by a claim…