Sullivan v ER Curtain Pty Ltd
[2025] NSWPIC 17
•17 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sullivan v ER Curtain Pty Ltd [2025] NSWPIC 17 |
| APPLICANT: | Karl Sullivan |
| RESPONDENT: | ER Curtain Pty Ltd |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 17 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injuries; claim for compensation pursuant to section 66; parties agree that all of the events that were causative of the applicant’s psychological injury occurred between 1986 and 1992; consideration of whether the applicant is able to proceed with his claim for lump sum compensation pursuant to section 66, having regard to clause 3(2) of part 18C of schedule 6 of the Act; Department of Environment, Climate Change & Water v J, SAS Trustee Corporation v Pearce, and State of New South Wales (Fire and Rescue NSW) v Dixon considered; Held – the effect of clause 3(2) of part 18C of schedule 6 of the Act is clear and the applicant in these proceedings is unable to claim lump sum compensation pursuant to section 66 as it has been agreed that all events causative of his psychological injury and impairment occurred prior to 1 July 2002; the proportion of his psychological impairment that relates to events before 1 January 2002 is 100%; there will be an award for the respondent in relation to the applicant’s claim in these proceedings pursuant to section 66. |
| DETERMINATIONS MADE: | The Commission determines: 1. There will be an award for the respondent in relation to the applicant’s claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Karl Sullivan (the applicant) is 54-years-of-age. He was employed by ER Curtain Pty Ltd (the respondent) between March 1986 and the end of 1992, as a boilermaker.
Due to events which occurred during this period of employment, he alleges that he sustained a psychological injury.
By a letter from his solicitors dated 28 February 2024, he claimed lump sum compensation from the respondent pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), in relation to 20% permanent impairment.
The respondent denied that claim by way of a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated
25 September 2024.By way of an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission), the applicant seeks a determination of his entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties eventually agreed that the only issue to be determined in these proceedings is:
(a) is the applicant able to proceed with a claim for lump sum compensation pursuant to s 66 of the 1987 Act, having regard to cl 3(2) of part 18C of schedule 6 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the proceedings 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 proceedings 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 in the proceedings.
The proceedings were listed for conciliation/arbitration before me on 14 January 2025. On that occasion, the applicant was represented by Ms Nicole Compton of counsel, instructed by Ms Hill; and the respondent was represented by Mr Ross Goodridge of counsel, instructed by Ms Cincotta. The applicant was present, as was a representative of the respondent’s insurer (Ms Brown).
The respondent conceded that the applicant had sustained a psychological injury during his employment with it, pursuant to s 4 of the 1987 Act.
It was therefore agreed between the parties and myself that the appropriate course was for me to first determine the issue agreed between the parties and referred to at paragraph 6 above. If the applicant was successful in relation to that issue, there would then be other issues raised by the respondent to determine (specifically regarding the correct deemed date of the applicant’s injury, and regarding the applicant’s delay in claiming – the respondent relying upon ss 254 and 261 of the 1998 Act). However, if the applicant was unsuccessful in relation to that issue, there would be an award for the respondent entered regarding his claim pursuant to s 66 of the 1987 Act with respect to his injury.
Helpfully, the parties then agreed upon some agreed facts, which I read onto the recording in the proceedings, and which I will detail at paragraph 14 below.
EVIDENCE
Documentary evidence
The following documents were (without objection from any party) in evidence before the Commission and considered by me in making this determination:
(a) the ARD and attached documents, and
(b) the respondent’s Reply (Reply) and attached documents.
Oral evidence
There was no oral evidence given in the proceedings.
Agreed facts
The facts agreed upon between the parties were:
(a) the applicant commenced employment as an apprentice boilermaker with the respondent on or around March 1986;
(b) the applicant continued his employment with the respondent until no later than the end of 1992;
(c) during the employment, the applicant as a result of verbal and/or physical assaults by fellow employees, suffered a psychological injury;
(d) as a result of these events, the applicant sustained a psychological injury classified as post-traumatic stress disorder and major depressive disorder, in accordance with ss 4 and 9A of the 1987 Act;
(e) on 1 January 2002, amendments to the 1987 Act came into effect, enabling lump sum compensation claims (pursuant to s 66 of the 1987 Act) to be made for psychological injuries occurring in the workplace;
(f) on or about 15 August 2018, the applicant submitted a worker's compensation claim form regarding his psychological injury received with the respondent;
(g) on or about 28 February 2024, the applicant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act, claiming whole person impairment at 20%, in accordance with Dr Chow’s report dated 18 January 2024;
(h) the respondent’s evidence assesses the applicant’s whole person impairment at 17% - per Dr Anand’s report dated 29 July 2024, and
(i) all of the events that were causative of the applicant’s psychological injury occurred before the commencement of the amendments to the 1987 Act on
1 January 2002, that is, they occurred between 1986 and 1992.
Submissions
Both the respondent and the applicant submitted orally. I do not intend to summarise the submissions in any detail, as they were recorded and form part of the Commission’s record.
The respondent submitted that all of the events causative of the applicant’s psychological injury occurred before psychological injuries were compensable pursuant to s 66 of the 1987 Act. Clause 3(2) of part 18C of schedule 6 of the 1987 Act therefore specifically excluded those events from consideration, so that if there were no causative events after 1 January 2002, a lump sum compensation claim pursuant to s 66 of the 1987 Act could not be proceeded with.
The applicant then essentially did not oppose the respondent’s submissions.
FINDINGS AND REASONS
Is the applicant able to proceed with a claim for lump sum compensation pursuant to s 66 of the 1987 Act, having regard to cl 3(2) of part 18C of schedule 6 of the 1987 Act
There were ‘lump sum compensation amendments’ made to the 1987 Act by the Workers Compensation Legislation Amendment Act 2001 and the Workers Compensation Legislation Further Amendment Act 2001. Prior to this amending legislation, a psychological injury was not compensable pursuant to s 66 of the 1987 Act as it was not included as a body part/system in the relevant Table which listed the body parts/systems so compensable.
The ‘lump sum compensation amendments’ made by this amending legislation then allowed a psychological injury to be compensable pursuant to s 66 of the 1987 Act, but as part of the amendments, cl 3 of part 18C of schedule 6 of the 1987 Act was introduced, which reads as follows:
“(1) The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows--
(a) the amendments to section 66A apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) and so apply--
(i) subject to such modifications to that section as may be prescribed by the regulations, and
(ii) as if an agreement registered before that commencement by the Authority were registered by the Commission,
(b) the repeal of section 72 applies in respect of an injury received before the commencement of the amendments, but only to the extent that the injury is the subject of a new claim.
(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.
(3) A ‘previously non-compensable impairment’ is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement.
(4) No contribution or payment of apportioned share in respect of compensation under Division 4 of Part 3 (as amended by the lump sum compensation amendments) is required under section 15, 16, 17 or 22 to the extent that the employment or injury in respect of which contribution or payment would otherwise be required relates to a previously non-compensable impairment.”
The effect of this clause is that, notwithstanding when a psychological injury may be deemed to have occurred (in accordance with ss 15 or 16 of the 1987 Act) and notwithstanding when the relevant compensation claim for the injury or its resulting impairment was made, if any impairment from the injury was due to ‘somethings’ that occurred prior to the ‘lump sum compensation amendments’, the proportion to which the impairment was due to those ‘somethings’ would have to be applied so as to reduce the lump sum compensation payable for the impairment in accordance with s 66 of the 1987 Act.
The consequence of the clause is therefore that if all of the ‘somethings’ that have caused a psychological impairment occurred prior to the ‘lump sum compensation amendments’ (as it has been agreed occurred with respect to the applicant), the proportion which would need to be applied so as to reduce the lump sum compensation payable for the impairment would be necessarily 100%. Due to the reduction required, no lump sum compensation claim pursuant to s 66 of the 1987 Act would be able to be proceeded with.
This position is entirely consistent with what occurred in Department of Environment, Climate Change & Water v J [2010] NSWWCCPD 56 (Department of Environment), in which an applicant alleged that her psychological injury was as a result of stressful events in her employment between January 1995 and 30 March 1998, but that her deemed date of injury was the date on which she was first incapacitated on 11 December 2007. The applicant claimed lump sum compensation pursuant to s 66 of the 1987 Act in relation to the
11 December 2007 injury. Roche DP however determined that the applicant had no entitlement to that lump sum compensation, stating at [122]:“It is clear beyond doubt (and Mr Mantach properly conceded as much) that the whole of Ms J’s alleged impairment is ‘due to’ events that happened before 1 January 2002, that is, the events that happened between 1995 and March 1998. It is also clear that her impairment (an impairment due to a psychological condition) ‘is of a kind for which no compensation was payable’ before 1 January 2002. It follows that the ‘reduction in compensation payable under Division 4 of Part 3’ for that previously non-compensable impairment is, on the facts of the present case, 100 per cent.”
And at [124]:
“Neither side submitted that the Commission should refer the matter to an Approved Medical Specialist. Whilst it is accepted that Approved Medical Specialists must normally determine medical disputes about the extent of any whole person impairment, given the evidence in the present matter, and the application of the transitional provisions, there is no medical dispute to be referred in this case. Regardless of any assessment by an Approved Medical Specialist, the legal effect of the transitional provisions leads to only one conclusion, namely, that Ms J has no entitlement to lump sum compensation.”
The facts in Department of Environment are very similar to the facts in these proceedings. The result of the proceedings must be the same - that the applicant has no entitlement to lump sum compensation pursuant to s 66 of the 1987 Act, because all of the events which caused his injury and impairment occurred during a period when the impairment was non-compensable pursuant to that section.
In Department of Education, Roche DP applied the reasoning in SAS Trustee Corporation v Pearce [2009] NSWCA 302 (Pearce), where Basten JA (with whom Beazley JA agreed) said at [109]:
“The reduction required under sub-cl 3(2) does not depend upon the date of an injury or the impairment in question; rather, it operates by reference to an event or thing that occurred before the commencement of the amendments. Thus, if it could be shown that a ‘proportion’ of the permanent impairment was due to such an event or thing, a reduction in the payment of compensation would be required.”
And at [111-112]:
“To the extent that the PTSD constituted, or was the consequence of, an injury received before the commencement of the amendments, the lump sum compensation amendments did not apply. However, once the Commissioner determined that the injury happened in 2005 because the PTSD constituted a disease within the terms of s 15 or s 16, it was an injury received after the commencement of the amendments on 1 January 2002. The transitional provisions are then engaged…The reduction required by the transitional provision turns on a causal connection between the impairment and events which occurred before the commencement of the amendments. There may be various circumstances in which an injury is received after a particular date but is ‘due to something’ that occurred before that date. Circumstances which engage ss 15 or 16, providing for deemed dates of injury, could also engage the transitional provision and require a reduction under cl 3(2). They require the assessment of a ‘proportion’ of the impairment which is ‘due to’ events occurring before 2002.”
The above extract from Pearce was most recently applied (and also quoted) by Parker ADP in State of New South Wales (Fire and Rescue NSW) v Dixon [2023] NSWPICPD 14 (Dixon).
SUMMARY
In my opinion, the effect of cl 3(2) of part 18C of schedule 6 of the 1987 Act is clear, as interpreted in Pearce, Department of Education, and Dixon. The applicant in these proceedings is unable to claim lump sum compensation pursuant to s 66 of the 1987 Act as it has been agreed that all events causative of his psychological injury and impairment occurred prior to 1 July 2002.
I find as a result that the proportion of his psychological impairment that relates to events before 1 January 2002 is 100%.
I find that the applicant does not have an entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.
There will be an award for the respondent in relation to the applicant’s claim in these proceedings pursuant to s 66 of the 1987 Act.
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