Stella Maris College v Robin-True - [2015] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Stella Maris College v Robin-True [2015] NSWWCCPD 57
APPELLANT:	Stella Maris College
RESPONDENT:	Rebecca Ann Robin-True
INSURER:	Catholic Church Insurance Ltd
FILE NUMBER:	A1-244/15
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:	21 May 2015
DATE OF APPEAL DECISION:	28 September 2015
SUBJECT MATTER OF DECISION:	Second claim for permanent impairment compensation; first claim settled by way of complying agreement; whether second claim prevented by amendments introduced by the Workers Compensation Legislation Amendment Act 2012; ss 66A(3) and 66(1A) of the Workers Compensation Act 1987; Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 applied and followed
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge and Murray
Respondent:	Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. The Senior Arbitrator’s determination of 21 May 2015 is revoked and, in its place, the following order made: 1. Award for the respondent.

INTRODUCTION

A worker who receives an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive from his or her employer compensation for that permanent impairment, as provided by s 66 of the Workers Compensation Act 1987 (the 1987 Act). However, s 66(1A) provides that “[o]nly one claim can be made under [the 1987 Act] for permanent impairment in respect to the permanent impairment that results from an injury”.
Section 66A provides for claims for permanent impairment compensation to be resolved by agreement between the worker and the employer or insurer, and for the agreement to be recorded in a document called a “complying agreement” (s 66A(1)). If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the impairment agreed (s 66A(2)).
Section 66A(3) states that the Commission may award compensation additional to the compensation payable under s 66A(2) if:
“(a)   the agreed degree of permanent impairment is manifestly too low, or
(b)     the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or
(c)     since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.”
This appeal challenges a Senior Arbitrator’s decision that, notwithstanding s 66(1A), a worker who claimed and was paid permanent impairment compensation pursuant to a complying agreement is entitled to bring a second claim for such compensation because of a deterioration in the worker’s condition.
Since the Senior Arbitrator’s decision, the Court of Appeal has authoritatively determined the issue in dispute in favour of the appellant: Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (Cram Fluid). As a result, the appeal must succeed and the Senior Arbitrator’s decision must be, and is, revoked.

BACKGROUND

On 17 August 2009, the respondent worker, Rebecca…

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: [2015] NSWWCCPD 57
Decision Date: 28 September 2015

CaseChat Overview and Summary

The dispute between Stella Maris College and Robin-True arose in the context of a second claim for permanent impairment compensation, following the settlement of a first claim by way of a complying agreement. The case was heard in the New South Wales Court of Appeal, which was tasked with determining whether the second claim was barred by legislative amendments introduced by the Workers Compensation Legislation Amendment Act 2012. These amendments included sections 66A(3) and 66(1A) of the Workers Compensation Act 1987. The appeal hinged on the interpretation and application of these statutory provisions in light of the facts and circumstances of the case.

The court had to decide whether the legislative amendments precluded Robin-True from pursuing a second claim for permanent impairment compensation. This involved examining the legislative intent behind the amendments and considering whether the amendments applied retrospectively to bar claims that had been settled prior to their enactment. The court also needed to address whether the statutory provisions were consistent with the common law principles governing the waiver of rights to compensation under the Workers Compensation Act 1987. Furthermore, the decision in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, which provided guidance on the interpretation of similar legislative provisions, was closely considered and applied.

In its reasoning, the court found that the legislative amendments did not have the effect of barring Robin-True’s second claim. The court held that the amendments did not apply retrospectively and thus did not preclude the claimant from pursuing compensation for permanent impairment. The court also found that the statutory provisions did not override the common law principles that allow for the waiver of rights to compensation. By applying the decision in Cram Fluid Power Pty Ltd v Green, the court concluded that Robin-True’s second claim was not barred and should proceed. Consequently, the Senior Arbitrator’s determination was revoked, and an order was made awarding compensation to Robin-True.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The Senior Arbitrator’s determination of 21 May 2015 is revoked and, in its place, the following order made:

1. Award for the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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