Spinelli v Integrated Labour Network Pty Limited
[2013] NSWWCCPD 31
•28 May 2013
| WORKERS COMPENSATION COMMISSION | |||
| REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT | |||
| CITATION: | Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31 | ||
| APPLICANT: | Michael Spinelli | ||
| RESPONDENT: | Integrated Labour Network Pty Limited | ||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||
| INTERVENER: | WorkCover Authority of New South Wales | ||
| FILE NUMBER: | 8859/12 | ||
| DATE OF DECISION: | 28 May 2013 | ||
| SUBJECT MATTER OF DECISION: | Question of Law; s 351 of the Workplace Injury Management and Workers Compensation Act (1998); application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Applicant: | Mr D Hooke SC and Mr D Toomey, instructed by Slater & Gordon Lawyers | |
| Respondent: | Mr S Flett, instructed by Sparke Helmore Lawyers | ||
| Intervener: | Mr W Cooper for the WorkCover Authority of New South Wales | ||
| ORDERS MADE ON APPEAL: | 1. Application for leave to refer questions of law refused. 2. The hearing date of 13 June 2013 is vacated. 3. The respondent employer is to pay the applicant worker’s costs of the application. 4. The WorkCover Authority is to pay its own costs. | ||
INTRODUCTION
This matter involves an Application for Leave to Refer a Question of Law to the President of the Commission pursuant to s 351 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Application is made by a Commission Arbitrator at the request of the parties.
This matter is one of several matters involving questions of law concerning the construction of the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987 (the 1987 Act) (Compensation for non-economic loss) introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 (the Amending Act), and the savings and transitional provisions which accompany it.
THE QUESTIONS OF LAW
The questions of law referred for determination are:
(a) Is cl 11 of Sch 1 of the Workers Compensation Amendment (Transitional) Regulation 2012 invalid?
(b) Do the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987 introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to a worker injured on or after 1 January 2002, who has made a claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act prior to 19 June 2012, so as to disentitle them from making a further claim for lump sum compensation pursuant to s 66 of the 1987 Act on or after 19 June 2012 in respect of additional permanent impairment resulting from the same injury?
(c) Do the amendments to Div 4 of Pt 3 of the Workers Compensation Act 1987 introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012 apply to a worker injured on or after 1 January 2002, who has made a claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act prior to 19 June 2012, so as to disentitle them from making a further claim for lump sum compensation pursuant to s 67 of the 1987 Act on or after 19 June 2012 in respect of additional permanent impairment resulting from the same injury?
(d) Does s 322A of the Workplace Injury Management and Workers Compensation Act 1998 prevent a worker injured on or after 1 January 2002 and whose injury is the subject of a Medical Assessment Certificate in respect of the degree of permanent impairment in respect of a claim for lump sum compensation made prior to 19 June 2012 from having a further medical dispute in relation to the degree of permanent impairment of the worker as a result of the same injury referred for medical assessment by an Approved Medical Specialist on or after 19 June 2012 for the purpose of a claim for:
(i)lump sum compensation pursuant to s 66 of the 1987 Act;
(ii)lump sum compensation pursuant to s 67 of the 1987 Act, or
(iii)work injury damages?
BACKGROUND TO THE REFERRAL OF THE QUESTION
Mr Spinelli suffered an undisputed injury to the lower back on 31 October 2007 whilst manoeuvring a heavy laden pallet jack in the course of his employment with the respondent.
On 30 September 2008, an Arbitrator made an award by consent in favour of Mr Spinelli for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 14 per cent whole person impairment and an amount of $19,000 for pain and suffering pursuant to s 67 of the 1987 Act.
By the time the Approved Medical Specialist issued his Certificate, Mr Spinelli had undergone a microdiscectomy at L4/5. He subsequently underwent further microdiscectomies and rhizolysis from L4 to S1 in February 2009 and a revision of his lumbar decompression rhizolysis in May 2010. On 21 May 2011, the applicant underwent lumbar decompression and interbody fusion from L4 to S1.
In May 2012, Mr Spinelli was reassessed by Dr Peter Conrad following his surgery. Dr Conrad assessed that Mr Spinelli suffered a 29 per cent whole person impairment by reason of the subject injury. It is accepted that on or after 19 June 2012, Mr Spinelli’s solicitors made a further claim on his behalf for $40,382.50 in respect of a further 15 per cent whole person impairment pursuant to s 66 and a further $26,000 for pain and suffering pursuant to s 67.
Entitlements to lump sum compensation pursuant to s 66 were amended by Sch 2 of the Amending Act and s 67 was repealed. The amendments were said to apply to claims made on or after 19 June 2012.
Relevantly, the amended form of s 66 provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
…”
Mr Spinelli’s claim for additional compensation was rejected by his employer’s workers compensation insurer, QBE Workers Compensation, on the basis that the additional compensation was no longer payable pursuant to s 66 in circumstances where a claim for permanent impairment had previously been made.
On 31 July 2012, Mr Spinelli lodged an Application to Resolve a Dispute (the Application) in the Workers Compensation Commission (the Commission) making a claim for lump sum compensation as outlined above.
On 9 July 2012, the respondent lodged a Reply in the Commission indicating that the claim would be resisted by reason of the amendments made by Sch 2 of the Amending Act and in particular the introduction of s 66(1A) and the repeal of s 67.
An Arbitrator conducted a telephone conference on 12 November 2012 and prior to the matter proceeding to an arbitration hearing, at the request of the parties and after hearing submissions on the issues, the Arbitrator determined that the matter involved novel and complex questions of law and should be referred to the President pursuant to s 351 of the 1998 Act.
LEAVE
Leave of the Commission is required for a Question of Law referral to proceed under s 351(1) of the 1998 Act.
Leave is not to be granted unless the Commission is satisfied that the question involves novel and complex questions of law.
At the time the Application was lodged the questions referred by the Arbitrator concerned complex and novel questions regarding the interaction between the amendments introduced by the 2012 Amending Act and the savings and transitional provisions found in Pt 19H, and the validity and effect of various regulations that had been promulgated since the 2012 Amending Act was passed.
The matter was listed for hearing before me on 13 June 2013 to hear argument in relation to the question of leave and submissions in relation to the questions of law.
Pursuant to s 106 of the 1998 Act the WorkCover Authority intervened in the proceedings.
On 29 April 2013, following an expedited hearing, the Court of Appeal delivered judgment in Goudappel v ADCO Constructions Pty Limited [2013] NSWCA 94 (Goudappel No 2). Basten JA, (Bathurst CJ and Beazley P agreeing), allowed the appeal from the decision in Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60 (Goudappel No 1) and set aside the answer given in the Commission on 22 October 2012.
In answer to the question:
“Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on or after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?”
The Court of Appeal substituted the following answer:
“The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 do not apply to claims for compensation pursuant to s 66 which are made before 19 June 2012 in respect of an injury that results in permanent impairment whether or not the claim specifically sought compensation under s 66 or s 67 of the 1987 Act.”
The Court also held that to the extent that reg 11 of the Workers Compensation Amendment (Transitional) Regulation 2012 (the Transitional Regulation) sought to prejudicially affect a right to obtain a benefit under s 66, which accrued at the date of injury, the regulation was beyond power and invalid.
Given the decision in Goudappel No 2 I arranged for a telephone conference between the parties on 27 May 2013.
There was general acceptance among the parties that the questions of law raised for determination in this application had been answered by the Court of Appeal’s decision in Goudappel No 2.
The parties no longer required the Commission to determine the questions referred in this application.
I agree with the parties’ submission that the Court of Appeal’s decision in Goudappel No 2 answers each of the questions raised in these proceedings. In the circumstances, and noting that none of the parties advanced any reason why leave should be given to proceed further with this application, it is appropriate that leave be refused, and the hearing date on 13 June 2013 is vacated.
COSTS
The respondent employer is to pay the applicant worker’s costs of the application.
The WorkCover Authority is to pay its own costs.
Judge Keating
President
28 May 2013
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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