Walters v Good Guys Discount Warehouse (Australia) Pty Limited
[2022] NSWPIC 222
•18 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Walters v Good Guys Discount Warehouse (Australia) Pty Limited [2022] NSWPIC 222 |
| APPLICANT: | Susan Walters |
| RESPONDENT: | Good Guys Discount Warehouse (Australia) Pty Limited |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 18 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); accepted frank injury to left knee; in 2014, claim for compensation pursuant to section 66 of the 1987 Act in respect of frank injury to left knee resolved by complying agreement pursuant to section 66A of the 1987 Act and compensation paid pursuant to the complying agreement on basis of 4% whole person impairment (WPI); accepted consequential condition to right knee; in 2021, claim for compensation pursuant to section 66 of the 1987 Act in respect of left knee frank injury and right knee consequential condition on basis of 34% WPI; whether 2021 claim for compensation pursuant to section 66 of the 1987 Act precluded by section 66(1A) of the 1987 Act on basis that it is a second claim; whether 2021 claim was a variation of the 2014 claim; Held– the applicant has no entitlement to pursue the claim for permanent impairment compensation pursuant to section 66 of the 1987 Act. |
| DETERMINATIONS MADE: | The applicant has no entitlement to pursue her claim for permanent impairment compensation pursuant to s 66(1) of the Workers Compensation Act 1987. |
| ORDERS MADE: | Award for the respondent in respect of the applicant’s claim for permanent impairment compensation pursuant to s 66(1) of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
Ms Susan Walters (the applicant) claims permanent impairment lump sum compensation (permanent impairment compensation) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of an injury to the left lower extremity (left knee) sustained on 31 March 2012 and for consequential condition to the right lower extremity (right knee).
The applicant was employed as a shop assistant by Good Guys Discount Warehouse (Australia) Pty Limited (the respondent).
On 31 March 2012, the applicant injured her left knee while working for the respondent.
On 2 April 2012, the applicant reported the left knee injury to the respondent.
On 19 April 2012, the respondent’s workers compensation insurer accepted liability for the left knee injury and for a claim for medical expenses.
On 22 January 2014, the applicant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of the left lower extremity (left knee) for 4% whole person impairment (WPI), based on a medical report of Dr James Bodel dated 2 December 2013 (the 2014 Claim).
On 26 February 2014, the applicant and the insurer signed an agreement which purported to be a “Complying Agreement” made pursuant to s 66A of the 1987 Act (the Complying Agreement), whereby the respondent agreed to pay the applicant the sum of $5,500 for 4% WPI. The respondent paid the applicant the sum of $5,500 pursuant to the Complying Agreement.
On 6 November 2018, the applicant underwent a total knee replacement of the left knee.
On 28 March 2020, the applicant underwent a total knee replacement of the right knee.
On 29 September 2021, the applicant made another claim for permanent impairment compensation pursuant to s 66 of the 1987 Act for 34% WPI in respect of injury to the left lower extremity (left knee) sustained on 31 March 2012 and for consequential condition to the right lower extremity (right knee), based on a medical report of Dr Peter Giblin dated 7 February 2021 (the 2021 Claim).
By notice dated 18 October 2021 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer denied liability on the basis that:
(a) firstly, it did not accept that the applicant had any further entitlement to claim permanent impairment compensation pursuant to s 66 of the 1987 Act as the applicant’s previous claim for permanent impairment was made after 19 June 2012 when legislative amendments to s 66 of the 1987 Act were made. Section 66 (1A) of the 1987 Act relevantly provided that only one claim can be made under the 1987 Act for permanent impairment compensation in respect of permanent impairment that results from an injury. Applying s 66(1A) of the 1987 Act, the applicant had exhausted her one claim for permanent impairment compensation for her injury and the applicant did not have any further entitlement to claim permanent impairment compensation pursuant to s 66 of the 1987 Act, and
(b) secondly, based on an assessment of independent medical expert, Dr Richard Powell, on 17 December 2020, the applicant was not eligible for permanent impairment compensation as the applicant’s impairment did not result in an impairment greater than 10% WPI pursuant to s 66(1) of the 1987 Act.
On 9 December 2021, the applicant filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) in relation to a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act for 34% WPI in respect of injury to the left lower extremity and right lower extremity, with a date of injury of 31 March 2012.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute 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 dispute 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.
At the hearing on 15 March 2022, the applicant was represented by Ms Kavita Balendra, counsel, instructed by Mr Jeremy Campbell of Legalworks Pty Ltd t/as Star Lawyers NSW. The respondent was represented by Mr Fraser Doak, counsel, instructed by Ms Lily Fung of Hall and Wilcox Lawyers.
ISSUES FOR DETERMINATION
At the hearing, counsel for the applicant and the respondent confirmed that the following matters are agreed:
(a) the respondent accepted liability for a frank injury to the applicant’s left knee on 31 March 2012, and
(b) the respondent accepted liability for a consequential condition to the applicant’s right knee.
The following issues remain in dispute:
(a) whether the applicant is precluded by s 66(1A) of the 1987 Act from making a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in respect of the right knee consequential condition and whether the applicant is entitled to receive permanent impairment compensation pursuant to s 66 of the 1987 Act, and
(b) quantification of the applicant’s WPI as required by s 66 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) respondent’s Application to Admit Late Documents and attached documents dated 10 March 2022.
Oral Evidence
Neither party sough leave to adduce oral evidence or cross examine any witness.
REVIEW OF EVIDENCE
The parties filed an agreed chronology pursuant to directions of the Commission.
Applicant
The applicant gave evidence by way of a statement dated 26 November 2021.
The applicant stated that while he was at work on 31 March 2012, he caught his left foot on a wooden pallet which was lying on the floor, which caused him to fall, twisting his left knee. On 2 April 2012, the applicant reported the injury and his nominated treating doctor issued him a WorkCover Medical Certificate that same day.
The applicant stated that his left knee continued to cause him pain and he underwent a left knee arthroscopy in 2013. Following that surgery, his left knee initially showed some improvement however it started to deteriorate again after 18 months.
The applicant stated that in 2018, he saw a specialist about his left knee pain. In November 2018, the applicant underwent left total knee replacement surgery.
The applicant stated that following the left total knee replacement surgery, he noticed that his right knee became sore and rapidly deteriorated. He also began to experience pain in both hips.
The applicant stated that in March 2020, he underwent right total knee replacement surgery.
Notification of injury, the 2014 Claim, the Complying Agreement and the 2021 Claim
An entry dated 2 April 2012 in the respondent’s Register of Injury recorded an injury to the applicant’s left knee sustained on 31 March 2012 when the applicant tripped on a pallet corner and landed on her left knee.
A letter dated 22 January 2014 from the applicant’s solicitor to the insurer stated that, in accordance with an attached report of Dr Bodel dated 2 December 2013 (two reports), the applicant claimed: permanent impairment compensation pursuant to s 66 of the 1987 Act in the sum of $5,000 based on 4% WPI; medical expenses; weekly payments; interest, and costs. Details of the attached report of Dr Bodel are set out later in these reasons.
A letter dated 12 February 2014 from the insurer to the applicant stated that it accepted 4% WPI in respect of the left knee injury on 31 March 2012 and it agreed to pay permanent impairment compensation pursuant to a complying agreement in accordance with s 66A of the 1987 Act.
The Complying Agreement stated:
“Complying Agreement Under Section 66A of the Workers Compensation Act 1987
This agreement as to the amount of compensation payable under Section 66 and/or Section 67 must be completed in full and returned to Allianz before the agreed amount of compensation will be paid...
...
3. Agreement details
Date(s) of injury: 31/03/2012
Date(s) of permanent impairment claim 22/01/2014 – Claim for the injury to the left knee made on 4-2-2012
...
B. Particulars of this agreement:
...
For post-1 January 2022 date of injury:
Percentage loss Body part/system/process Amount payable
4% L knee $5,500
...
4. Compensation amounts
Section 66: $5,500.00
Section 67: N/A
TOTAL: $5,500.00
Plus costs as agreed or assessed
...
6. Confirmation of independent legal advice
Worker
I confirm that I have received independent legal advice about this Agreement before I entered into this Agreement.
...”
(Emphasis notes those parts of the agreement completed in handwriting.)
The Complying Agreement was apparently signed by the applicant on 26 February 2014 and by a representative of the respondent’s insurer on 14 March 2014. The handwritten additions appear to have been initialled by the applicant and a representative of the respondent’s insurer.
An email dated 29 September 2021 from the applicant’s solicitor to the insurer stated that it attached a Permanent Impairment Claim Form and a report of Dr Giblin dated 7 July 2021. The attached Permanent Impairment Claim form is dated 30 August 2021. It noted injury dated 31 March 2012 to the left lower extremity and right lower extremity and claimed 34% WPI. The form noted that the applicant “received $5,500.00 in 2014 in respect of 4% WPI in respect of the left knee” from the insurer. Details of the attached report of Dr Giblin dated 7 July 2021 are set out later in these reasons.
Treating medical evidence
Dr Philip Frawley, orthopaedic surgeon
Dr Frawley wrote several reports between 30 May 2012 and 4 September 2013.
Dr Frawley noted the history of the applicant’s left knee symptoms and his treatment by left knee arthroscopic debridement surgery on 25 June 2013.
Dr Oliver Khoo, orthopaedic surgeon
Dr Khoo wrote numerous reports between 16 August 2018 and 11 March 2021.
Dr Khoo noted the history of the applicant’s left knee symptoms and his treatment by left total knee replacement surgery on 6 November 2018. Dr Khoo noted development of right knee symptoms in 2019 and his treatment by right knee total knee replacement surgery in March 2020.
Clinical records – Your Health Griffith Pty Ltd
The evidence includes numerous clinical records of the applicant’s treating general practitioners.
The clinical records show that on 2 April 2012, the applicant reported a left knee injury when she fell at work on 31 March 2012. The applicant subsequently reported ongoing left knee pain. Further, in 2018, the applicant reported ongoing pain in her right knee for two years with no injury.
The clinical records show various investigations of the applicant’s knees and referrals including to Dr Philip Frawley for treatment. Medical certificates and Certificates of Capacity were completed for various periods in relation to the left knee and the right knee. The clinical records also recorded left knee arthroscopy performed by Dr Frawley on 25 June 2013.
Clinical records - St Vincents Health Australia
Clinical records recorded left total knee replacement surgery performed by Dr Khoo on 6 November 2018.
Investigation reports
The evidence included various investigation reports between 26 April 2012 and 28 October 2020 in respect of a left knee ultrasound and left and right knee MRIs and x-rays.
Investigation of the applicant’s left knee by MRI in July 2018 showed: degenerative cartilage changes affecting primarily medial compartment with some fissuring of the patello femoral cartilage centrally. There was a medial meniscal tear of the mid body of medial meniscus, being a horizontal split tear with mucoid degenerative change extending into the posterior body.
Investigation of the applicant’s right knee by MRI in July 2018 showed: changes of medial meniscus which suggested intrasubstance mucoid change rather than a distinct tear; degenerative cartilage changes primarily involving the medial compartment but also patella femoral compartment; small cartilage fragment or osteochondral body at the posteromedial portion of the knee joint, and a small Baker’s cyst.
Independent medical evidence
Dr James Bodel, orthopaedic surgeon
In a report dated 2 December 2013, Dr Bodel provided an independent medical opinion at the request of the applicant. Dr Bodel considered the applicant’s history, investigation reports, reports of treating doctors and conducted a physical examination.
Dr Bodel stated that the exact diagnosis was uncertain but it appeared that the applicant had aggravation of the articular cartilage damage in the medial femoral condyle caused by the event at work on 31 March 2012. He stated that the direct blow to the front of the knee on 31 March 2012 was a significant contributing factor the exacerbation, acceleration and deterioration of a disease process being articular cartilage loss in the medial femoral condyle. He stated that the applicant’s prognosis was guarded but she may require knee replacement surgery. Dr Bodel opined that the applicant’s left knee clinical condition had reached maximum medical improvement and he assessed 4% WPI.
Dr Peter Giblin, orthopaedic surgeon
In a report dated 7 July 2021, Dr Giblin provided an independent medical opinion at the request of the applicant. Dr Giblin considered the applicant’s history, investigation reports, reports of treating doctors and conducted a physical examination.
Dr Giblin diagnosed a soft tissue injury to the applicant’s left knee, reasonably causally related to the work injury on 31 March 2012 and undergoing progressive deterioration in line with clinical expectations so that total knee replacement surgery occurred as a result in November 2018. Dr Giblin also diagnosed a secondary soft tissue injury to the applicant’s right knee, consequent upon the work injury on 31 March 2012 and caused by material aggravation of pre-existing degenerative changes. Further, Dr Giblin diagnosed compensatory trochanteric bursitis affecting both hips, consequent upon her altered gait pattern.
Dr Giblin stated that the applicant’s condition was stable and had reached maximum medical improvement. Pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5) methodology, in respect of the applicant’s left lower extremity (knee), Dr Giblin assessed 20% WPI. In respect of the applicant’s right lower extremity (knee), Dr Giblin assessed 20% WPI, with a deduction of one-tenth for pre-existing degenerative changes giving a subtotal of 18% WPI. Dr Giblin stated “20% combined with 18% is 34% WPI”.
Dr Richard Powell, orthopaedic surgeon
In a report dated 17 December 2020, Dr Powell provided an independent medical opinion at the request of the respondent. Dr Powell considered the applicant’s history, investigation reports, reports of treating doctors and conducted a physical examination.
In relation to diagnosis, Dr Powell stated that: the applicant had sustained injury to her left knee in a fall at work in March 2012 whilst in the employ of the respondent; injury was managed surgically by Dr Phil Frawley with a left knee arthroscopy; the left knee symptoms improved though did not resolve; there was gradual deterioration over the next six years and the applicant subsequently underwent a left total knee replacement under the care of
Dr Oliver Khoo in November 2018 and an excellent result had been obtained; the applicant developed symptoms in the right knee in 2019 with investigations revealing evidence of degenerative pathology for which she underwent a right total knee replacement performed by Dr Khoo in March 2020, and an excellent result had been achieved.Dr Powell concluded that the applicant had reached the state of maximum medical improvement. He stated that the applicant had suffered permanent impairment in the knees. He assumed that liability had been accepted for the right knee on the basis that it had been a consequential injury. Pursuant to the AMA 5 methodology, in respect of the left knee,
Dr Powell assessed 15% WPI with a reduction of two-thirds on account of an underlying degenerative disease process, giving a WPI of 3%. In respect of the right knee, Dr Powell assessed 15% WPI with a reduction of four-fifths on account of a pre-existing degenerative disease process, giving a WPI of 5%. Dr Powell assessed 0% WPI in respect of scarring as it was surgical scarring consistent with the expected outcome of the procedures without any complicating features. On that basis, in respect of both knees, Dr Powell assessed total WPI of 8%.
SUBMISSIONS
Submissions were made in writing pursuant to directions of the Commission.
Applicant’s submissions
In summary, the applicant’s counsel, Ms Balendra, submitted:
(a) the effect of the decision of the High Court in Goudappel v Adco Constructions[1] (Goudappel No. 2) is that, as there was no claim for permanent impairment compensation made prior to 19 June 2012, then s 66 of the 1987 Act, as amended by the Workers Compensation Amendment Act 2012 (the 2012 amendments), applies to the 2014 Claim and the 2021 Claim;
(b) the effect of s 66(1) of the 1987 Act (as amended by the 2012 amendments), is that the applicant's entitlement to permanent impairment compensation pursuant to the 2014 Claim was extinguished because it was based on an assessment of 4% WPI (in accordance with the report of Dr Bodel dated 2 December 2013) and the applicant did not have a degree of permanent impairment greater than 10%;
(c) as such, the Complying Agreement must be invalid;
(d) the 2014 Claim was never resolved or determined;
(e) in accordance with the reasoning of Deputy President Roche in Woolworths Ltd v Stafford,[2] the 2021 Claim is an amendment to the 2014 Claim, and
(f) on that basis, the 2021 Claim is not a second claim for permanent impairment compensation;
(g) accordingly, 66(1A) of the 1987 Act does not apply to preclude the 2021 Claim for 34% WPI in respect of injury to the left lower extremity (left knee) sustained on 31 March 2012 and for consequential condition to the right lower extremity (right knee), and
(h) given that the only basis of the respondent's denial was s 66(1A), the most appropriate course of action would be to award the applicant $68,750 in accordance with 34% WPI.
[1] [2014] HCA 18.
[2] [2015] NSWWCCPD 36 at [90]-[92].
Respondent’s submissions
In summary, the respondent’s counsel, Mr Doak, submitted:
(a) the 2014 Claim was validly made because it was in accordance with the current state of the law at that time, which was the decision of the NSW Court of Appeal in Goudappel v ADCO Constructions Pty Ltd[3] (Goudappel No.1);
[3] [2013] NSWCA 94.
(b) section 66(1A) of the 1987 Act now precludes the applicant from making the 2021 Claim because she has exhausted her one claim entitlement by making the 2014 Claim;
(c) the emphasis of s 66(1A) of the 1987 Act is on the making of the claim, not on the entitlement to permanent impairment compensation;
(d) that emphasis is apparent in the definition of “claim” in s 4 of the 1998 Act which states “claim means a claim for compensation or work injury damages that a person has made, or is entitled to make” (emphasis added);
(e) section 281(1) of the 1998 Act contemplates that a claim that is made may be either accepted or disputed. Accordingly, a claim is taken to have been made regardless of whether the claim is disputed and the dispute is ultimately upheld;
(f) the distinction between the making of a claim and the entitlement to compensation was clearly accepted by the High Court in Goudappel No. 2;
(g) the applicant was not entitled to recover permanent impairment compensation pursuant to s 66 (as amended by the 2012 amendments) in respect of the 2014 Claim as the degree of permanent impairment was not 10% or greater, notwithstanding that the applicant made the 2014 Claim and was paid compensation pursuant to the Complying Agreement based on the state of the law at the time based on Goudappel No. 1;
(h) the decision of the High Court in Goudappel No. 2 did not overturn the applicant’s ability to make the 2014 Claim, only her entitlement to receive permanent impairment compensation;
(i) thus, s 66(1A) of the 1987 Act precludes the applicant from making the 2021 Claim and recovering any further permanent impairment compensation in that respect;
(j) the applicant’s reliance on the decision of Stafford is misconceived;
(k) it is open to the Commission to find that Stafford was wrongly decided and should not be followed because the Deputy President in that case failed to give proper emphasis and meaning to the wording of the definition of “claim” in section 4 of the 1998 Act, which emphasises that a claim is a request or demand for payment of compensation that has been made or which the worker is entitled to make. The use of the disjunctive “or” in the wording of the definition supports that argument: In the present proceedings, the applicant made the claim regardless of whether she was subsequently held not to be entitled to make the claim by the decision of the High Court in Goudappel No. 2;
(l) the facts in the present case and the issue that arises is distinguishable from Stafford: In the present case, the applicant had not only notified or made a demand (or claim) for permanent impairment compensation, but the applicant’s demand had been processed by the respondent’s insurer and had been paid in accordance with the agreement between the parties for an amount that the applicant was entitled to receive under the state of the law as it stood at that time;
(m) the reasoning of the Deputy President in Stafford is constrained by the factual circumstances in that case and cannot be applied to the present case where the situation is very different: In Stafford, the Deputy President’s starting point was that a claim is more than simply a demand. However in the present case, the applicant clearly made a claim for permanent impairment compensation under
s 66 of the 1987 Act within the meaning of the definition of “claim”. That is also the only available finding if the fairly expansive approach adopted by the Deputy President in Stafford is applied;(n) the effect of the applicant’s argument in the present case relying on Stafford would be that the claim made by the applicant was not a claim at all, however that conclusion is not open to the Commission based on Stafford, as the reasoning in that case does not apply to the present case;
(o) the construction of the definition of “claim” sought to be relied on by the applicant is that a claim that has been made, accepted and paid in accordance with the applicable law at the time is not a claim. That construction is irrational and unjust and should be avoided. As the Deputy President acknowledged in Stafford,[4] “a construction that appears ‘irrational and unjust’ is to be avoided where the statutory text does not require that construction”;
(p) if the applicant’s argument were accepted, it would necessarily apply to all workers who received payment of compensation in similar circumstances, which would be payment made under a mistake of fact or law, liable to be repaid to the insurer in each case under the principles of restitution;
(q) the decision in Stafford has no application to a determined claim;
(r) support for that proposition can be found in the reasoning of Arbitrator Harris in Mehmet Yildiz v Victoria Yeeros Pty Ltd[5] (Yildiz), who decided that the applicant had no entitlement to pursue a further claim for WPI pursuant to s 66(1A) of the 1987 Act. In Yildiz, Arbitrator Harris found that the initial claim and the determination of the Workers Compensation Commission (WCC) were not invalid or rendered a nullity by the subsequent determination of the High Court decision of the High Court in Goudappel No. 2 and that such conclusion was consistent with the “principle of finality of the previous determination”;
(s) in Yildiz, Arbitrator Harris specifically noted that the reasons in Stafford applied to a claim which had not been determined[6] and rejected the submission that Stafford is authority for the proposition that a determined claim can be an invalid claim. Those comments by Arbitrator Harris in Yildiz are clearly correct and apply to the present case;
(t) although the claim in Yildiz was determined by way of a Certificate of Determination and not by way of a complying agreement, as in the present case, that distinction makes no difference to the result. As noted by Arbitrator Harris in Yildiz, the NSW Court of Appeal in Cram Fluid Power Pty Limited v Green,[7] (Cram Fluid) approached a complying agreement by the parties to a claim for permanent impairment compensation under section 66 of the 1987 Act as having had the effect of finally resolving the claim;
(u) the reasoning in Yildiz and underlying legal principles plainly support the respondent’s position that the final resolution of the 2014 Claim by way of the Complying Agreement precludes the applicant from bring the 2021 Claim, and
(v) section 66(1A) of the 1987 Act precludes the applicant from bringing the 2021 Claim and, accordingly, the Commission should enter an award for the respondent.
[4] At [68].
[5] [2016] NSWWCC 108.
[6] Yildiz at [57].
[7] [2015] NSWCA 250.
Applicant’s submissions in reply
In summary, Ms Balendra submitted in reply:
(a) in Stafford, the claim for compensation that was advanced by the applicant was defective, in that it was a claim that could not, on a proper construction of the law, be advanced. However, the applicant’s the claim, as it is now articulated is not a defective claim, in that it accords with the construction of s 66(1A) as stated in Goudappel No. 2;
(b) the decision in Yildiz involved a close examination of the principles of estoppel (and specifically res judicata) and its application where there has been a determination of the Commission. That can be distinguished from the facts of the present case where there has been no determination of any issue by the Commission, nor is the Complying Agreement in the nature of a determination;
(c) subsection 66A(1) of the 1987 Act itself states that a complying agreement is simply a "written agreement". Further, s 66A(3) of the 1987 Act draws a distinction between an award of the Commission and a "complying agreement" and allows for the Commission to award compensation additional to the compensation payable under s 66(2) of the 1987 Act by virtue of a complying agreement if it is established that: the agreed degree of permanent impairment is manifestly too low; or the worker has been induced to enter into the agreement as a result of fraud or misrepresentation; or since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed;
(d) clearly therefore it is contemplated within the 1987 Act that the Commission has the power to override a complying agreement, making a complying agreement quite distinct from a determination of the Commission;
(e) not only was the Complying Agreement in the present case invalid as the law applies after Goudappel No. 2, but the Complying Agreement itself is invalid because it is on its face defective as the handwritten words "claim for the injury to the left knee made on 4-2-2012" cannot be correct, being prior to the date of injury which was 31 March 2012, and
(f) as the only basis of the respondent's denial was s 66(1A), the most appropriate course of action would be to award the applicant $68,750 in accordance with 34% WPI.
FINDINGS AND REASONS
Legislation
Workers Compensation Act 1987
Section 66 of the 1987 Act (as amended by the 2012 amendments) 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…”
Section 66A of the 1987 Act (as amended by the 2012 amendments) provides:
“66A Agreements for compensation
(1) In this section, complying agreement means a written agreement:
(a)under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and
(b)in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice, or has waived the right to obtain independent legal advice, before entering into the agreement.
(2) 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 degree of impairment so agreed.
(3) The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:
(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 agree.
(4) Complying agreements, and the payments made under them, are to be recorded in accordance with the Workers Compensation Guidelines.
(5) Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.
(6) Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.”
Clauses 3 and 15 of Div.1 of Pt 19H of Sch 6 of the 1987 Act provide:
“3 Application of amendments generally
(1) Except as provided by this Part or the regulations, an amendment made by the 2012 amending Act extends to:
(a)an injury received before the commencement of the amendment, and
(b)a claim for compensation made before the commencement of the amendment, and
(c)proceedings pending in the Commission or a court immediately before the commencement of the amendment.
(2) An amendment made by the 2012 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.”
“15 Lump sum compensation
An amendment made by Schedule 2 to the 2012 amending Act extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.”
Workplace Injury Management and Workers Compensation Act 1998
Section 4 of the 1998 Act defines the term “claim” as follows:
“4 Definitions
(1) In this Act:
claim means a claim for compensation or work injury damages that a person has made or is entitled to make…”.
The manner of making a claim is set out in s 260 of the 1998 Act. It provides:
“260 How a claim is made
(1) A claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines.
...”
Section 261 sets out the time within which a claim for compensation must be made.
Section 281 of the 1998 Act states:
“281 Liability to be accepted and settlement offer made
(1) The person on whom a claim for lump sum compensation or work injury damages is made, must within the time required by this section, determine the claim by:
(a)accepting liability and making a reasonable offer of settlement to the claimant, or
(b)disputing liability under Division 3 of Part 2 of Chapter 4.
...”
REASONS
Does s 66(1A) of the 1987 Act preclude the making of a claim for permanent impairment compensation?
It is not in dispute and having regard to the evidence, I accept that:
(a) on 31 March 2012 the applicant sustained a frank injury to her left knee in the course of her employment;
(b) on 2 April 2012, the applicant reported the injury to the left knee to the respondent;
(c) on 19 April 2012, the respondent accepted liability for the injury to the applicant’s left knee;
(d) on 22 January 2014, the applicant made the 2014 Claim for permanent impairment compensation pursuant to s 66 of the 1987 Act for 4% WPI in respect of her left knee, based on the medical report of Dr Bodel dated 2 December 2013;
(e) on 26 February 2014, the applicant and the insurer signed the Complying Agreement and the respondent paid the applicant the sum of $5,00 pursuant to the Complying Agreement on the basis of 4% WPI in respect of her left knee;
(f) on 6 November 2018, the applicant underwent left total knee replacement surgery;
(g) on 28 March 2020, the applicant underwent right total knee replacement surgery;
(h) on 29 September 2021, the applicant made the 2021 Claim for permanent impairment compensation pursuant to s 66 of the 1987 Act for 34% WPI in respect of injury to the left lower extremity (left knee) sustained on 31 March 2012 and for consequential condition to the right lower extremity (right knee), based on the medical report of Dr Giblin dated 7 February 2021, and
(i) the respondent now accepts a consequential condition to the applicant’s right knee although denies liability for permanent impairment compensation for the reasons stated.
I note at this point, that I do not accept the submissions of Ms Balendra that the Complying Agreement is, on its face, defective. Paragraph 3 of the Complying Agreement states a date of injury of “31/03/2012” and then states “Date(s) of permanent impairment claim 22/02/2014 – Claim for the injury to the left knee made on 4-2-2012”, with the italicised words being completed in handwriting and apparently initialled by the applicant and on behalf of the insurer. I note that there are different customary practices for recording dates in numerical form: one practise is to sequence the day, followed by the month and then the year; but another practise is to sequence the month, followed by the day and then the year. In the Complying Agreement, if the handwritten date of claim for injury to the left knee of “4-2-2012” is read to be 4 February 2012, it is clearly incorrect, as it is prior to the date of the accepted left knee injury, which is 31 March 2012. It seems to me that the date was instead intended to be read to be 2 April 2012, which is consistent with the date on which the applicant reported the left knee injury to the respondent, as stated in the applicant’s evidence and the register of injury. On that basis, there is no error or defect on the face of the Complying Agreement.
I need to determine whether the applicant is precluded by s 66(1A) of the 1987 Act from making a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in terms of the 2021 Claim. Relevant to determination of the issue, are issues concerning the validity and effect of the 2014 Claim, the Complying Agreement and the 2021 Claim in the context of the legislative provisions.
Section 66 of the 1987 Act was amended as part of the broader 2012 amendments, which were intended to deliver urgent reforms to the workers compensation scheme to “ensure better protection for injured workers, save businesses from unnecessary premium hikes and get the scheme back into surplus”.[8]
[8] New South Wales Legislative Assembly, (Hansard), Second Reading Speech for Workers Compensation Legislation Amendment Bill 2012, 19 June 2012 (Second Reading Speech), [1].
The amendments to s 66 of the 1987 Act, by the 2012 amendments, included the introduction of a minimum threshold of greater than 10% WPI and a limit of only one claim “to reduce disputes and reduce administration costs while allowing the scheme to focus on the more seriously injured workers”.[9]
[9] Second Reading Speech, [14].
The transitional provisions in Sch 6 of the 1987 Act are relevant to commencement of operation of the 2012 amendments.
Subclause 3(1) of Pt 19 H of Sch 6 of the 1987 Act provides that the 2012 amendments generally extend to an injury received, a claim for compensation made and proceedings pending in the Commission or a Court, before the commencement of the 2012 amendments.
Clause 15 of Pt 19H of Sch 6 of the 1987 Act provides that the 2012 amendments in relation to permanent impairment compensation apply to a claim made on or after 19 June 2012.
At the time that the 2014 Claim was made, the Complying Agreement was signed and compensation was paid pursuant to the Complying Agreement, in the context of the decision in Goudappel No. 1 which was the most current authority at that time, it seemed that the applicable provision was s 66 of the 1987 Act prior to the 2012 amendments. Accordingly, it seemed that the 2014 Claim based on 4% WPI could be advanced on a proper construction of the law at that time. That was the situation when the applicant and the insurer signed the Complying Agreement and the insurer paid compensation to the applicant pursuant to the Complying Agreement.
However, the subsequent High Court decision in Goudappel No. 2 made it clear that Goulappel No. 1 was incorrectly decided. In Goudappel No. 2, the High Court held that the 2012 amendments apply to claims for permanent impairment compensation pursuant to s 66 of the 1987 Act made on or after 19 June 2012, where the worker has not made a claim specifically seeking compensation under s 66 or s 67 of the 1987 Act prior to 19 June 2012.
Pursuant to Goudappel No. 2, because the applicant in this case did not make a claim specifically seeking compensation under s 66 or s 67 of the 1987 Act prior to 19 June 2012, the 2012 amendments apply to the 2014 Claim, the Complying Agreement and the 2021 Claim.
Section 66(1) of the 1987 Act (as amended by the 2012 amendments), only provides an entitlement to receive compensation for permanent impairment to “[a] worker who receives an injury that results in a degree of permanent impairment greater than 10%”.
Notwithstanding the decision in Goudappel No. 1 at the time the 2014 Claim and the Complying Agreement were made, the law subsequently decided by the High Court in Goudappel No. 2 must now be taken to have been the law at the time that the 2014 Claim and the Complying Agreement were made: Gifford v Strang Patrick Stevedoring Pty Limited,[10] per Callinan J at [129], citing Kleinwort Benson Ltd v Lincoln City Council.[11]
[10] [2003] HCA 33; 214 CLR 269, [129].
[11] Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, [357]-[364].
Pursuant to s 66(1) of the 1987 Act (as amended by the 2012 amendments), at the time the 2014 Claim and the Complying Agreement were made, the applicant had no entitlement to permanent impairment compensation because she did not have a degree of permanent impairment greater than 10%. Accordingly, a claim for permanent impairment compensation based on 4% WPI could not be advanced on a proper construction of the law.
The applicant has not submitted that the 2014 claim was not validly “made” pursuant to
s 66(1). No issue was taken regarding compliance with formal requirements for making the claim in accordance with the requirements of ss 260 and 261 of the 1998 Act.The applicant relies on the 2014 Claim. The applicant submits that the effect of s 66(1) (as amended by the 2012 amendments) is that the Complying Agreement is invalid, and accordingly the 2014 Claim was not determined nor resolved. Further and significantly, the applicant submits that the 2014 Claim should now be amended in terms of the 2021 Claim. The applicant submits that the 2021 Claim is an amendment to the 2014 Claim and, accordingly, is not a second claim for permanent impairment compensation which would be prohibited by s 66(1A) of the 1987 Act.
The applicant relies on the decision in Stafford,[12] where Deputy President Roche discussed what constitutes a “claim... made under this Act for permanent impairment compensation” for the purposes of s 66(1A) of the 1987 Act and whether a claim could be amended. On 14 June 2010, Mr Stafford suffered a serious head injury. In April 2014, Mr Stafford made a claim for permanent impairment compensation in respect of 7% WPI, which was less than the 10% threshold in s 66(1) of the 1987 Act. The insurer denied liability following the High Court’s decision in Goudappel No. 2. No further action was taken in respect of the claim until September 2014, when an amended claim was made in respect of 12% WPI, on the basis that Mr Stafford was then assessed as having 12% WPI following neuropsychological testing. The insurer denied liability on the basis that s 66(1A) prevented Mr Stafford from making a further claim for compensation. The arbitrator in the initial WCC proceedings determined that Mr Stafford had made only one claim and was not precluded by s 66(1A) from bringing a further claim.
[12] [2015] NSWWCCPD 36.
On appeal, Deputy President Roche examined the statutory meaning of the term “claim”. Deputy President Roche held that the term “claim” in s 66(1A) of the 1987 Act imported more than a demand for payment, and it had to be capable of payment. He stated:
“For the reasons explained below, applying the above principles in the present matter, and interpreting “claim” in its proper context, leads to only one conclusion, namely, that it was open to the Arbitrator to find that a “claim” in s 66(1A) imports more than a ‘mere demand for payment but rather is to be read as referring to a claim made in accordance with the 1987 [Act] and [the] 1998 [Act]... .”[13]
[13] Stafford, [58].
The Deputy President stated that a construction that appeared “irrational and unjust” should be avoided.[14] The Deputy President acknowledged that the 1987 Act remained beneficial legislation and “a beneficial interpretation interprets ‘claim’ as one valid claim capable of payment in accordance with the legislation”.[15]
[14] Stafford, [68].
[15] Stafford, [71].
The Deputy President stated that:
“a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a ‘claim’ for a monetary benefit under the Act.”[16]
[16] Stafford, [72].
The Deputy President determined that the claim made by Mr Stafford in April 2014 was not a valid claim because it was not a claim capable of payment in accordance with the 1987 Act. Accordingly, it could not be his “one claim” for permanent impairment compensation under s 66(1A) of the 1987 Act.
The Deputy President stated that:
“... the letter of 7 April 2014 claimed compensation for a seven per cent whole person impairment. Such a claim is not permitted under s 66(1). It does not matter that, as at 7 April 2014, applying Goudappel No. 1, the claim could have been accepted and paid by the appellant, or assessed by an AMS and determined in favour of Mr Stafford. The High Court’s decision in Goudappel No. 2 determined the law as it was from the date the amendments introduced by the 2012 amending Act took effect. It effectively determined that, in the circumstances of this case, a claim for seven per cent impairment was not a claim that gave rise to an entitlement to permanent impairment compensation, it being under the greater than 10 per cent threshold. Therefore,
Mr Staffords claim on 7 April 2014 was not a valid claim and cannot be his “one claim” for permanent impairment compensation under s 66(1A).”[17][17] Stafford, [67].
Further, the Deputy President stated that a claim, whether valid or invalid, can be amended prior to its resolution or determination:
“90. The suggestion that a claim for permanent impairment compensation, whether valid or invalid, cannot be amended prior to its resolution or determination is clearly wrong and is rejected.
91. It is true that neither the legislation nor the Workers Compensation Commission Rules 2011 (the Rules) deal with the amendment of the initial letter of ‘claim’ for permanent impairment compensation or a permanent impairment claim form. That is hardly surprising. As explained earlier in this decision, when a claim is at that informal stage, the purpose of making a ‘claim’ is merely to start the claims procedures in Ch 7. It is not a formal pleading. To suggest that, prior to the resolution or determination of the claim, by making a demand for permanent impairment compensation for a certain level of permanent impairment, the worker is permanently locked into that claim, and cannot amend it, is untenable and contrary to all principles of justice.”[18]
92. Once an Application to Resolve a Dispute is filed with the Commission, Pt 4 r 4.2 of the Rules provide that the Commission may, on the application of a party, give the party leave to amend any document lodged by the party in the proceedings ‘if the Commission considers the amendment to be necessary for the avoidance of justice” (Pt 4 r 4.2(1)). Such an amendment may be made at any stage of the proceedings and on such terms as the Commission thinks fit (Pt 4 r 4.2(3)). Where the Commission grants leave to amend a document, it may give directions as to the conduct of the proceedings consequent on the amendment.
93. As an applicant is permitted, with leave, to amend the formal Application to Resolve a Dispute, “for the avoidance of injustice”, so too must a claimant be permitted to amend a letter of claim, or a permanent impairment claim form, prior to the resolution or determination of the claim and prior to commencement of proceedings in the Commission. The contrary suggestion is unsupported by any authority or reasoning. It is clearly preferable that a letter of claim for permanent impairment compensation, or a permanent impairment claim form, should not be served until the worker’s condition is stable and has reached maximum medical improvement. If that is done, as it should be, the issue of amending the claim will rarely arise.
94. However, there will be rare cases, such as the present, where there is a change in impairment between the date of the initial claim and the date of resolution or determination of that claim. In such cases, it is appropriate that the claim be amended to reflect the correct position. That is especially so where workers are now restricted to only “one claim” for permanent impairment compensation and where formal proceedings have not commenced in the Commission. It is clearly in the interests of justice that, subject to any prejudice to the appellant, and none has been suggested in the present case, particulars of the worker’s claim properly reflected the claim that is being pursued.
95. The letter of 26 September 2014 was not a second claim. It merely amended the first claim. Except as otherwise provided by an order or rules of court, and Pt 4 r 4.2 is silent on this issue, amendments to pleadings take effect from the date of the original document which it amends rather than from the date when the amendment is made (Baldry v Jackson [1976] 2 NSWLR 415 at 419 per Samuels JA, citing Warner v Sampson [1959] 1 QB 297 and Sneade v Wotherton Barytes and Lead Mining Co Ltd [1904] 1 KB 295).
96. In the absence of any other special provision in the legislation or Rules, there is no reason why the above principle should not apply to a document prepared prior to the commencement of proceedings... Thus, the amendment effected by the letter of 26 September 2014 took effect from the date of the first claim on 7 April 2014.”[19]
[18] Stafford, [91]-[92].
[19] Stafford, [90]-[96].
The respondent relies on the decision in Mehmet Yildiz v Victoria Yeeros Pty Ltd[20] (Yildiz) where Arbitrator Harris considered whether a worker was precluded from pursuing a claim by s 66(1A) of the 1987 Act. By letter dated 2 May 2013, Mr Yildiz made a claim for permanent impairment compensation for 13% WPI in respect of injury to various body parts suffered by him in 2009. At a WCC conciliation and arbitration hearing in January 2014, orders were made by consent amending the Application to Resolve a Dispute to claim 4% in respect of the applicant’s upper extremity (shoulder) only and remitting the matter to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the degree of WPI. In February 2014, a Medical Assessment Certificate (MAC) was issued which assessed the impairment as 10% WPI. On 8 April 2014, the WCC issued a Certificate of Determination in accordance with the MAC, awarding Mr Yildiz permanent impairment compensation pursuant to s 66 of the 1987 Act for 10% WPI in respect of the upper extremity (shoulder). In July 2014, the WCC issued a further Certificate of Determination awarding Mr Yildiz compensation for pain and suffering pursuant to section 67 of the 1987 Act. In October 2015, the applicant was assessed in relation to his left and right upper extremity (shoulder and elbow) and scarring (following surgery in 2014). By letter in November 2015, the applicant’s solicitor referred to the previous WCC proceedings and claimed permanent impairment compensation assessed at 23% WPI in relation to the applicant’s left and right upper extremity (shoulder and elbow) and scarring (less what was received in respect of the right upper extremity (shoulder) following the WCC determination in April 2014). The respondent denied liability pursuant to s 66(1A) of the 1987 Act. The effect of the 2012 amendments (as became apparent following Goudappel No. 2) was that Mr Yildiz had not been entitled to receive compensation under
ss 66 or 67 of the 1987 Act when it was awarded by the WCC in 2014.[20] [2016] NSWWCC 108.
In his reasons for determination in Yildiz, Arbitrator Harris reviewed the authorities relevant to the principles of merger in judgement and res judicata.[21] Arbitrator Harris[22] noted the principle concerning changes to the interpretation of the law with respect to earlier decided cases discussed in Piening v Wanless[23]. Relying on those principles, Arbitrator Harris held that Mr Yildiz’s rights were merged into determination by the issuing of a Certificate of Determination by the WCC on 8 April 2014.
[21] Yildiz, [38]-[51].
[22] Yildiz, [41].
[23] (1968) 117 CLR 498 at 506 per Barwick CJ; set out in the judgment of Street CJ (Begg and Ash JJ agreeing) in R v Unger [1977] 2 NSWLR 990.
Arbitrator Harris found that the initial claim had “resolved” by the issue of the Certificate of Determination in April 2014 in accordance with the MAC.[24] Arbitrator Harris stated that:
“The issuing of [the Certificate of Determination] was a merger of the applicant’s rights into determination. This interpretation, to use the words of Gleeson JA in Despot (at [127]), ensures a “need for certainty and finality of decision”. The initial claim and the determination by the Commission were not invalid or a nullity despite the subsequent decision by the High Court decision in Goudappel No. 2. This conclusion is consistent with the authorities referred to, particularly R v Unger, that is, of the principle of finality of the previous determination”.[25]
[24] Yildiz, [55].
[25] Yildiz, [56].
Arbitrator Harris found that the applicant’s initial claim was determined by the issuing of the Certificate of Determination in April 2014 and the Certificate of Determination in July 2014. Arbitrator Harris found that Mr Yildiz could not pursue the November 2015 claim because it was precluded by s 66(1A) of the 1987 Act. On that basis, he made an award for the respondent.
In Yildiz, Arbitrator Harris referred to the reasons of Deputy President Roche in Stafford (at [66]-[67]). Arbitrator Harris stated that it was clear that, in Stafford, the claim had not been determined.[26] Arbitrator Harris noted that to the extent that Deputy President Roche in Stafford subsequently discussed a determined claim in a slightly different context, (that is, where a claim had been made for an amount above the threshold and found to be less than 11%), Deputy President Roche formed the view that this would have concluded the matter in favour of the employer (at [73]). On that basis, Arbitrator Harris did not accept that Stafford was authority for the proposition that a determined claim can be an invalid claim.[27]
[26] Yildiz, [57].
[27] Yildiz, [57].
The respondent also relies on the decision of the Court of Appeal in Cram Fluid Power Pty Limited v Green,[28] (Cram Fluid). In that case, the Court of Appeal considered the effect of the 2012 amendments in relation to a second claim for permanent impairment compensation in circumstances where the worker’s initial claim for permanent impairment compensation had been made, accepted and paid pursuant to a complying agreement prior to 19 June 2012.
Mr Green suffered a back injury on 24 May 2005. In December 2010, Mr Green made a claim for permanent impairment compensation which was accepted and permanent impairment compensation was paid pursuant to a complying agreement. Mr Green’s back condition deteriorated and he had surgery in September 2012. In October 2013, Mr Green made a claim for further permanent impairment compensation, which the insurer denied on the ground that s 66(1A) of the 1987 Act precluded him from bringing a further claim for permanent impairment compensation. An Arbitrator of the WCC determined that Mr Green was not precluded from bringing his further claim for permanent impairment compensation. A Presidential appeal upheld the decision of the Arbitrator. That decision was appealed to the Court of Appeal.[28] [2015] NSWCA 250.
In Cram Fluid, the Court of Appeal[29] held that the effect of cl 11 of the 2010 Regulation (currently cl 10 of the 2016 Regulation) was that the 2012 amendments applied to claims made before 19 June 2012, except where the claim “specifically sought” permanent impairment compensation. It also held that s 66(1A) of the 1987 Act could not be construed as allowing one “further” claim after 19 June 2012 as such a construction provided words that were not contained in the section and it was inconsistent with the plain language and purpose of the 2012 amendments.[30] As Mr Green had made a claim that specifically sought compensation pursuant to s 66 of the 1987 Act and he recovered permanent impairment compensation pursuant to a complying agreement prior to 19 June 2012, he was not entitled to rely on cl 11 of the 2010 Regulation (currently cl 10 of the 2016 Regulation). Accordingly, he was precluded by s 66(1A) of the 1987 Act from bringing the further claim for permanent impairment compensation.
[29] Gleeson JA with whom Beazley ACJ and Emmett JA agreed.
[30] Cram Fluid, [104]-[110] (per Gleeson JA).
Gleeson JA stated that:
“... giving effect to the purpose and language of the 2012 amendments while maintaining the unity of the statutory scheme, requires that the one claim limitation in the new s 66 (1A) be taken to be the leading provision and the Commission’s power under s 66A(3) must give way to it. This is because the Commission’s power to award additional compensation under s 66A(3)(c) is not independent of a worker’s entitlement to receive compensation under s 66... .”[31]
[31] Cram Fluid, [108].
In Cram Fluid, the Court of Appeal accepted that the 2010 claim “had been resolved”.[32] Emmet JA treated the 2010 claim as being “resolved by the complying agreement”.[33] Gleeson JA formed a similar view and stated:
“This claim was resolved on 22 December 2010 when the applicant and Mr Green entered into a Complying Agreement pursuant to s 66A of the 1987 Act. Under that agreement that applicant agreed to pay to Mr Green the amount of 48,750, representing his 7% permanent impairment.”[34]
[32] Cram Fluid, per Gleeson JA at [13], Beazley ACJ agreeing at [1], Emmett JA agreeing at [12].
[33] Cram Fluid, per Emmet JA at [11].
[34] Cram Fluid, per Gleeson JA at [16].
In Cram Fluid (as Arbitrator Harris noted in Yildiz):
“Whilst no issue arose in Cram Fluid that the 2010 claim was other than a valid claim, the Court was of the unanimous view that the entry into a complying agreement which provided for compensation to be paid, meant that the initial claim had been ‘resolved’.”[35]
[35] Yildiz, [54].
In the decision of Yildiz v Fullview Plastics Pty Ltd[36] (Fullview Plastics), Mr Yildiz made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in January 2007 in respect of an injury in 2004. In April 2007, Mr Yildiz entered into a complying agreement in the sum of $8,750 for 7% WPI. In March 2017, Mr Yildiz made a further claim pursuant to s 66 of the 1987 Act for 18% WPI and a claim for pain and suffering pursuant to
s 67 of the 1987 Act.[36] [2019] NSWWCCPD 24.
In Fullview Plastics at first instance, the WCC Arbitrator entered an award for the respondent in respect of the claim under s 67 of the 1987 Act.
President Phillips upheld the appeal and held that an entitlement to compensation under s 67 of the 1987 Act was not preserved by cl 10 of Pt 1 of Sch 8 of the 2016 Regulation because the further claim made in 2017 was a new and separate claim to the claim that had been made and resolved by complying agreement in 2007. The 2017 claim could not be attached to the 2007 claim. President Phillips noted that Mr Yildiz had not sought to argue that the 2004 claim, which had been resolved by the 2007 complying agreement, had been amended to include the 2017 claim for s 67 benefits.[37]
[37] Fullview Plastics, [69]-[72].
Mr Doak submits that the relevant emphasis of s 66(1A) of the 1987 Act is on the making of the claim and he submits that there is a significant distinction between making a claim and entitlement to permanent impairment compensation. However, the making of a claim is only one element of s 66(1A).
Another critical requirement of s 66(1A) is a claim. As Deputy President Roche explained in Stafford:
“a ‘claim’ for permanent impairment compensation is, by definition, a claim for a ‘monetary benefit under’ the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1A) threshold, it cannot be a ‘claim’ for a monetary benefit under the Act.”[38]
[38] Stafford, 72].
I do not accept the submissions of Mr Doak that the decision of Stafford was wrongly decided. The decision of Deputy President Roche in Stafford has been cited with approval in this Commission.[39]
[39] Bakir v Kittore Packers Pty Ltd [2020] NSWWCC 303.
In accordance with the reasoning of Deputy President Roche in Stafford, I am satisfied that the 2014 Claim was not a valid claim because it was not capable of payment in accordance with the 1987 Act as the applicant did not have a degree of permanent impairment greater than 10% and, accordingly, a claim for permanent impairment compensation could not be advanced on a proper construction of the law. Further, in accordance with the reasoning of Deputy President Roche in Stafford, I am satisfied that the 2014 Claim, whether valid or invalid, could be amended prior to its resolution or determination.
In Stafford, the claim initiated in April 2014 was unresolved when it was sought to be amended in September 2014. However, in the present case, the parties had signed the Complying Agreement and paid compensation pursuant to the Complying Agreement before the 2021 Claim was made. In the present case, the issue arises whether there was a “resolution” or “determination” of the 2014 Claim that may have a bearing on variation of the 2014 Claim. Deputy President Roche in Stafford did not provide any guidance on the meaning of “resolution” or “determination”.
In Yildiz, Arbitrator Harris found that the initial claim had been “resolved” when Mr Yildiz’s rights merged “into determination” by the WCC’s issue of a Certificate of Determination in accordance with a MAC.[40]
[40] Yildiz, [55]-[56].
In Cram Fluid, the Court of Appeal was unanimously of the view that entry into a complying agreement which provided for compensation to be paid meant that the initial claim had been “resolved”.[41]
[41] Cram Fluid, per Gleeson JA at [16]; Beazley JA agreeing at [1]; per Emmet JA at [11]; Yildiz, per Arbitrator Harris at [54].
In Fullview Plastics, President Phillips held that the later claim was a new and separate claim to the original claim that had been made and resolved by complying agreement and could not be attached to that earlier claim. President Phillips noted that it had not been argued that the original claim, which had been resolved by a Complying Agreement, had been amended to include the later claim.[42]
[42] Fullview Plastics, [69]-[72].
Having regard to the authorities, I am of the view that in the present case, the signing of the Complying Agreement and payment of compensation pursuant to the Complying Agreement had the effect of “resolving” the 2014 Claim. That being the case, it could be said that there was a “resolution” of the 2014 Claim.
In the circumstances, I do not accept that the 2014 Claim was amended by the 2021 Claim.
On that basis, the applicant has no entitlement to pursue her claim for permanent impairment compensation pursuant to s 66(1) of the 1987 Act.
SUMMARY
Accordingly, I find that the applicant has no entitlement to pursue her claim for permanent impairment compensation pursuant to s 66(1) of the 1987 Act.
I make an award for the respondent.
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