Woolworths Ltd v Stafford

[2015] NSWWCCPD 36

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Ltd v Stafford [2015] NSWWCCPD 36
APPELLANT:	Woolworths Ltd
RESPONDENT:	Steven Victor Stafford
INSURER:	Self-insured
FILE NUMBER:	A1-6733/14
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISIONS:	25 March 2015 and 8 April 2015
DATE OF APPEAL HEARING:	18 June 2015
DATE OF APPEAL DECISION:	24 June 2015
SUBJECT MATTER OF DECISION:	Claim for permanent impairment compensation; meaning of “claim” in s 66(1A) of the Workers Compensation Act 1987; whether a “claim” for permanent impairment compensation can be amended
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr A Parker, instructed by TurksLegal
Respondent:	Mr G Horan, instructed by Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1.     Leave to appeal is granted. 2.     For the reasons in this decision, the Arbitrator’s determinations of 25 March 2015 and 8 April 2015 are confirmed.

INTRODUCTION

1. This appeal concerns changes to the recovery of permanent impairment compensation (also referred to as lump sum compensation) introduced by the Workers Compensation Legislation AmendmentAct 2012 (the 2012 amending Act).

2. Prior to the amendments introduced by the 2012 amending Act, workers were entitled to recover, in addition to any other compensation under the Workers Compensation Act 1987 (the 1987 Act), compensation for permanent impairment that resulted from an injury (s 66(1)). To recover such compensation, the relevant whole person impairment had to be at least one per cent. If the impairment was 10 per cent or more, the worker was also entitled to receive compensation for pain and suffering under s 67. If, after recovering permanent impairment compensation, a worker’s condition deteriorated as a result of the injury, he or she was entitled to recover additional permanent impairment or lump sum compensation (Lourdes House Hospital v Wheeler (1996) 13 NSWCR 495).

3. Section 66, as amended by the 2012 amending Act, now provides that 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 in that section. A note to s 66(1) states that “[n]o permanent impairment compensation is payable for a degree of permanent impairment of 10% or less”. In addition, due to the repeal of s 67, no compensation is now recoverable for pain and suffering. The amendments also added s 66(1A), which states that “[o]nly one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury”. The parties agree that the amendments apply in the present case.

4. The present appeal concerns the meaning of the word “claim” in s 66(1A). The main issue is whether, as the employer contends, “claim” in s 66(1A) means “a demand” for payment of permanent impairment compensation, or, as the worker contends, and the Arbitrator found, it means a claim for compensation which is capable of payment in accordance with the 1987 Act. A second…