Wynyard Properties Pty Limited v Reyes

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Wynyard Properties Pty Limited v  Reyes [2013] NSWWCCPD 23
APPELLANT:		Wynyard Properties Pty Limited
RESPONDENT:		Evelyn Reyes
INSURER:		Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:		A1-6897/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		10 January 2013
DATE OF APPEAL DECISION:		24 April 2013
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; Pt 16 r 16.2 of the Workers Compensation Commission Rules 2011; sufficient compliance with s 282 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:		1.     The application to extend time to appeal is refused. 2.     The appellant employer is to pay the respondent worker's costs of the appeal as agreed or assessed.

INTRODUCTION

1. The amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) restrict entitlements to permanent impairment compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of claims made after 19 June 2012.This appeal concerns whether valid particulars of a claim for lump sum compensation were provided to the appellant prior to 19 June 2012, and therefore whether a valid claim for lump sum compensation was made before 19 June 2012.

BACKGROUND

1. The respondent worker, Ms Reyes, was employed by the appellant as a room attendant from 2001 through to 2008.

2. On 3 January 2006, Ms Reyes suffered injuries to her back, neck and right shoulder while pushing and pulling a bed during the course of her employment. She made a claim for permanent impairment compensation. That claim was resolved and on 7 February 2008, the Commission entered a Certificate of Determination Consent Orders. The consent orders noted, among other things, an award in favour of Ms Reyes in respect of an 18 per cent whole person impairment as a result of injuries to the right shoulder and neck and seven per cent whole person impairment as a result of injuries to the lumbar spine pursuant to s 66 of the 1987 Act, plus an amount of $20,000 pursuant to s 67 of the 1987 Act.

3. On 16 November 2008, Ms Reyes underwent an ulnar nerve decompression at the right elbow and excision of a ganglion performed by Dr Dexter.

4. It is evident that prior to December 2009, Ms Reyes made a claim for compensation in respect of her right elbow, and left shoulder, although the precise details of this claim are not in evidence. It is evident because on 14 December 2009, Allianz issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), declining liability for “your claim for compensation for your right elbow and left shoulder”. The “claim” was rejected on the basis that the injuries to the right elbow and left shoulder were not workplace injuries within the meaning s 4 of…