Yildiz v Fullview Plastics Pty Ltd

[2019] NSWWCCPD 24

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Yildiz v Fullview Plastics Pty Ltd [2019] NSWWCCPD 24
APPELLANT:	Ali Yildiz
RESPONDENT:	Fullview Plastics Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-3028/18
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	7 December 2018
DATE OF APPEAL DECISION:	30 May 2019
SUBJECT MATTER OF DECISION:	Claim for lump sum compensation for pain and suffering pursuant to repealed s 67 of the Workers Compensation Act 1987; whether entitlement to s 67 benefits is preserved by the savings and transitional provisions introduced by the Workers Compensation Legislation Amendment Act 2012; cll 3 and 15 of Pt 19H of Sch 6 to the Workers Compensation Act 1987; cll 10 and 11 of Sch 8 to the Workers Compensation Regulation 2016; Woolworths Ltd v Wagg [2017] NSWWCCPD 13 distinguished
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carters Law Firm
Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s Certificate of Determination, dated 7 December 2018, is confirmed.

INTRODUCTION

1. This matter concerns whether the worker is entitled to lump sum compensation under the repealed s 67 of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns the application of the Presidential decision in Woolworths Ltd v Wagg [2017] NSWWCCPD 13.[1]

   [1] [2017] NSWWCCPD 13 (Wagg).

2. Prior to the amendments introduced by Sch 2 to the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), workers who received an injury that resulted in a degree of permanent impairment of 10% or more were entitled to receive, in addition to any other compensation, compensation for pain and suffering resulting from the permanent impairment pursuant to s 67 of the 1987 Act.

3. Subject to certain specific exceptions in the savings and transitional provisions, the amendments introduced by Sch 2 to the 2012 amending Act abolished a worker’s rights to receive compensation for pain and suffering pursuant to s 67 of the 1987 Act. An exception to the repeal of s 67 of the 1987 Act is found in cl 10(1) (formerly cl 11) of Pt 1 of Sch 8 to the Workers Compensation Regulation 2016 (2016 Regulation). Clause 10 provides that the amendments introduced by Sch 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012, but not to a claim that specifically sought compensation under s 66 or 67 of the 1987 Act.

4. For the reasons discussed below, the appeal does not succeed. The worker’s entitlement to s 67 benefits is not preserved by the savings and transitional provisions.

BACKGROUND

1. In 1998, the appellant worker, Ali Yildiz, commenced employment with the respondent, Fullview Plastics Pty Ltd.

2. On 1 March 2004, Mr Yildiz sustained an injury to his right shoulder, hip and knee in the course of his employment when the serving arm of a plastic bottle making machine came out and hit him on the right side…