Woolworths Ltd v Wagg

[2017] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Woolworths Ltd v Wagg [2017] NSWWCCPD 13
APPELLANT:	Woolworths Ltd
RESPONDENT:	Cheryl Wagg
INSURER:	Self-insurer
FILE NUMBER:	A1-3045/16
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	12 October 2016
DATE OF APPEAL DECISION:	24 April 2017
SUBJECT MATTER OF DECISION:	Clause 10(1) of Sch 8 to the Workers Compensation Regulation 2016; whether claim for s 66 benefits made before the Workers Compensation Legislation Amendment Act 2012 (the amending Act), preserves a claim for compensation under s 67 of the Workers Compensation Act 1987, in respect of the same injury made after the amending Act; interlocutory decision; adequacy of reasons
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	BBW Lawyers
Respondent:	Anthony Scarcella
ORDERS MADE ON APPEAL:	1.   I grant leave to appeal the Arbitrator’s determination of 12 October 2016. 2.   The Arbitrator’s decision of 12 October 2016 is confirmed.

INTRODUCTION

1. The worker injured her right knee in the course of her employment on 28 February 2008. She made a claim for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act), before the Workers Compensation Legislation Amendment Act 2012 (the amending Act) was enacted. At the time that claim was made, the impairment arising from the injury did not attract an entitlement to benefits under s 67 of the 1987 Act.

2. The worker re-injured her knee on 1 September 2010. The parties agree that the impairment arising from both incidents amounted to 19 per cent whole person impairment. The worker has been compensated accordingly, pursuant to s 66 of the 1987 Act.

3. Schedule 2 of the amending Act, among other things, abolished entitlements to compensation for pain and suffering under s 67 of the 1987 Act. However, cl 10(1) of the Workers Compensation Regulation 2016 (the 2016 Regulation) provides that amendments made by Sch 2 of the amending Act do not extend to a claim that specifically sought compensation under s 66 or s 67 of the 1987 Act.

4. The question arising on this appeal is whether the worker is entitled to pursue a s 67 claim in circumstances where a claim for s 66 benefits was made before the amending Act became operative on 19 June 2012, but the claim for s 67 benefits, in respect of the same injury, was not made until after that date.

5. For the reasons explained in this decision, the worker is entitled to pursue the s 67 claim.

BACKGROUND

1. From 2002 until May 2015, the respondent worker, Cheryl Wagg, worked as a delicatessen assistant for the appellant, Woolworths Ltd. On 13 January 2008, Mrs Wagg sustained an accepted injury to her right knee in the course of her employment when she was squatting to remove debris from the delicatessen drains.

2. On 28 February 2008, Mrs Wagg completed a “Woolworths Ltd, NSW & ACT Claim For Workers Compensation”, in respect of the injury on 13 January 2008.

3. Since the injury Mrs…