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SUBJECT MATTER OF DECISION:	Claim for lump sum compensation for pain and suffering pursuant to repealed s 67 of the Workers Compensation Act 1987; whether entitlement to s 67 benefits is preserved by the savings and transitional provisions introduced by the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

This matter concerns whether the worker is entitled to lump sum compensation under the repealed s 67 of the Workers Compensation Act 1987 (the 1987 Act).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).
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.
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.
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

In 1998, the appellant worker, Ali Yildiz, commenced employment with the respondent, Fullview Plastics Pty Ltd.
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 and his body twisted in a narrow aisle.
On 6 June 2005, Mr Yildiz sustained an aggravation to his right shoulder in the course of his employment when the plastic grinder machine he was operating became jammed and stopped. He used a steel bar to turn the blades of the plastic grinder machine, in an attempt to unblock the machine. Afterwards, Mr Yildiz felt pain in his right shoulder.
On 31 May 2006, Mr Yildiz underwent surgery to his right shoulder, at the hand of Dr Biggs, orthopaedic surgeon. Following a period of leave, Mr Yildiz returned to work on suitable duties.
On 9 October 2006, Mr Yildiz developed severe pain in his left shoulder in the course of his employment. He claimed that this arose as a consequence of favouring his right shoulder and overusing his left shoulder.
On 15 January 2007, Mr Yildiz made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of injury arising from the material dates in 2004 and 2005.
On 17 April 2007, the parties entered into a complying agreement pursuant to s 66A of the 1987 Act. The complying agreement provided for lump sum compensation in the sum of $8,750 for 7% whole person impairment in respect of the right shoulder, pursuant to s 66 of the 1987 Act.
On 30 March 2017, Mr Yildiz made a further claim for lump sum compensation for 18% whole person impairment, pursuant to s 66 of the 1987 Act, in respect of a deterioration in his right shoulder and consequential condition to his left shoulder. He also made a claim for lump sum compensation for pain and suffering pursuant to the repealed s 67 of the 1987 Act.
On 25 July 2017, Employers Mutual NSW Limited, the employer’s insurer, wrote to Mr Yildiz advising of the outcome of his whole person impairment claim. The insurer declined the claim for compensation in respect of ss 66 and 67 of the 1987 Act, on the basis that it did not consider that Mr Yildiz suffered any further impairment of the right upper extremity arising from the June 2005 injury or March 2004 injury. In this regard, the insurer relied on the report of Dr Frank Machart, dated 3 July 2017, in which Mr Yildiz was assessed at 6% whole person impairment in respect of the right shoulder and nil in respect of the left shoulder condition. Therefore, the insurer concluded that it made an “offer of ‘NIL’ under section 66 and 67” of the 1987 Act. This decision was confirmed by the insurer on 5 July 2018.
On 14 June 2018, Mr Yildiz filed an Application to Resolve a Dispute (the Application) for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act.
On 5 July 2018, the employer filed a Reply to the Application.
On 21 August 2018, the matter was listed for conciliation and arbitration proceedings before Arbitrator Homan. On that same day, the Commission entered Consent Orders amending the Application to include the 1 March 2004 date of injury. The right shoulder injury and consequential condition to the left shoulder were referred for assessment of the degree of whole person impairment arising from the incidents on 1 March 2004 and 6 June 2005.
On 6 November 2018, Dr Greggory Burrow, Approved Medical Specialist, issued a Medical Assessment Certificate in respect of the right shoulder and left shoulder injuries arising from the dates of injury on 1 March 2004 and 6 June 2005. This was a reconsideration of a previous Medical Assessment Certificate based on the amended referral for assessment of permanent impairment dated 31 October 2018. Dr Burrow assessed 2% whole person impairment (comprising of 2% for the right shoulder and 0% for the left shoulder) in respect of the incident on 1 March 2004 and 15% whole person impairment (comprising of 6% for the right shoulder and 10% for the left shoulder) in respect of the incident on 6 June 2005.
On 9 November 2018, the matter was listed for telephone conference before Arbitrator Homan. Following the telephone conference, the parties were directed to file written submissions on the quantum of any entitlement to lump sum compensation pursuant to s 66 of the 1987 Act and any entitlement to s 67 of the 1987 Act. The Arbitrator then determined the Application on the papers.
On 7 December 2018, the Arbitrator issued a Certificate of Determination. The date of the Certificate of Determination was recorded as “7 December 2016”. On 20 December 2018, the Arbitrator issued an Amended Certificate of Determination. The Certificate of Determination was amended to reflect the correct date of determination, the reasons remained unamended. The Arbitrator ordered that the respondent pay Mr Yildiz further lump sum compensation pursuant to s 66 of the 1987 Act, in respect of 17% whole person impairment of the right upper extremity (shoulder) and left upper extremity (shoulder) resulting from injuries of 1 March 2004 and 6 June 2005. The Arbitrator entered an award for $23,000, less $8,750, the amount paid pursuant to the complying agreement on 17 April 2007. The Arbitrator held that Mr Yildiz’s entitlements to s 67 benefits were not preserved by the savings and transitional provisions introduced by the 2012 amending Act. The Arbitrator entered an award for the respondent employer with respect to the claim under s 67 of the 1987 Act.
Mr Yildiz appealed the Arbitrator’s decision that he was not entitled to further lump sum compensation pursuant to s 67 of the 1987 Act.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE ARBITRATOR’S REASONS

The Arbitrator considered the application of the relevant provisions, and savings and transitional provisions introduced by the 2012 amending Act.
The Arbitrator observed that neither party put into evidence the original claim for lump sum compensation and the only evidence of that claim was a partial copy of the complying agreement dated 17 April 2007.[2] The Arbitrator observed that the complying agreement indicated that a claim was made on 15 January 2007, and that it was made in relation to two dates of injury “6/06/2006 and 1 March 2004” and the medical reports of Dr Peter Conrad dated 5 December 2006 and Dr Frank Machart dated 15 February 2007. The Arbitrator accepted that the reference to 2006 injury was a reference to 2005, in the complying agreement.
[2] Yildiz v Fullview Plastics Pty Ltd [2019] NSWWCC 10 (Reasons), [23].
The Arbitrator noted that the report of Dr Conrad of 5 December 2006 was in evidence but the report of Dr Machart dated 15 February 2007 was not in evidence, however an earlier report, of Dr Machart dated 14 February 2007, was in evidence. The Arbitrator found that the evidence indicated that a claim for lump sum compensation was made on 15 January 2007 in relation to injuries at work on 1 March 2004 and 6 June 2005.[3] She further found that compensation in the sum of $8,750 was paid pursuant to the complying agreement of 17 April 2007, in respect of 7% whole person impairment of the right upper extremity attributable to both injures.[4]
[3] Reasons, [30].
[4] Reasons, [31].
The Arbitrator considered the legislative amendments introduced by the 2012 amending Act, in relation to an entitlement to bring a claim for further lump sum compensation for permanent impairment pursuant to s 66 of the 1987 Act. The Arbitrator observed that the parties agreed that Mr Yildiz was entitled to bring one further claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of the existing impairment.[5]
[5] Reasons, [35].
The Arbitrator found that Mr Yildiz had made a claim for lump sum compensation in relation to the injuries of 1 March 2004 and 6 June 2005 prior to 19 June 2012.[6] She further found that the compensation paid pursuant to the agreement of 17 April 2007 was for permanent impairment resulting from both injuries.[7] It followed that Mr Yildiz was entitled to bring one further claim for lump sum compensation in relation to both injuries.[8] The Arbitrator noted that the degree of permanent impairment was not required to be greater than 10%.[9]
[6] Reasons, [36].
[7] Reasons, [36].
[8] Reasons, [37].
[9] Reasons, [37].
The Arbitrator considered Dr Burrow’s Medical Assessment Certificated dated 31 October 2018. She observed that using the Combined Values Table the degree of whole person impairment assessed by Dr Burrow is 17%.[10] She held that the amount of compensation payable is $23,000 less the $8,750 already paid (in accordance with the complying agreement).[11]
[10] Reasons, [51].
[11] Reasons, [51].
The Arbitrator turned her mind to the application of s 67 of the 1987 Act, as repealed by Sch 2 to the 2012 amending Act. The Arbitrator observed that the parties agreed and she accepted that there was no claim made for lump sum compensation pursuant to s 67 prior to June 2012.[12] Although, the Arbitrator noted that a claim for s 66 benefits had been made on 15 January 2007.[13]
[12] Reasons, [54].
[13] Reasons, [54].
The Arbitrator distinguished the decision in Wagg on the basis that in the present case, unlike the matter in Wagg, there was no claim made prior to June 2012 that was still on foot.[14] It followed that the Arbitrator found that Mr Yildiz is entitled to one further claim for lump sum compensation pursuant to cl 11.[15] However, cl 11 only refers to a claim that specifically seeks compensation under s 66 of the 1987 Act.[16] Accordingly, Mr Yildiz had no entitlement to make a further lump sum compensation claim under s 67 of the 1987 Act and an award was entered for the respondent.[17]
[14] Reasons, [56].
[15] Reasons, [57].
[16] Reasons, [57].
[17] Reasons, [58].
On 20 December 2018, the Arbitrator issued an Amended Certificate of Determination. The Certificate of Determination is in the following terms:
“The Commission orders:
1. The respondent to pay the applicant further lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 in respect of 17% whole person impairment of the right upper extremity (shoulder) and left upper extremity (shoulder) resulting from the injuries of 1 March 2004 and 6 June 2005, being $23,000 less $8,750 paid pursuant to complying agreement on 17 April 2007 (total $14,250).
2. Award for the respondent in respect of the claim for lump sum compensation pursuant to section 67 of the Workers Compensation Act 1987.
A brief statement is attached setting out the Commission’s reasons for the determination.”

GROUNDS OF APPEAL

The grounds of appeal are whether the Arbitrator erred by:
(a) determining that Mr Yildiz was estopped from making a further lump sum claim under s 67 of the 1987 Act (ground one), and
(b) not applying and following the Presidential decision in Wagg and in distinguishing that decision from the facts in the subject case (ground two).

SUBMISSIONS

Mr Yildiz’s submissions

Mr Yildiz submits that the Arbitrator erred in not applying the decision in Wagg. He submits that that decision was factually similar, involving serial injuries to a limb (leg) all of which occurred before June 2012. In that matter, there had been no prior claim for s 67 benefits until after 19 June 2012. In the present matter, Mr Yildiz submits that there had been no prior claim for s 67 benefits. He further submits that:
“In Wagg the appellant submitted that as the worker had not made a claim for s 67 benefits before 19 June 2012 her claim must fail. It was submitted that construing the word ‘or’ in cl 10(1) of the 2016 Regulation (as it is now) such that a claim made for s 66 benefits saved an entitlement to s 67 benefits was to give the clause a beneficial construction which was not permitted (ADCO Constructions Ptv. Limited v Goudappel [2014] HCA 18; Sukkar v Adonis Electrics Ptv Ltd [2013] NSWWCCPD 59; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28). In Wagg it was held that Goudappel did not limit the exclusion from the operation of cl 10 (cl 11 as it then was) to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there had been a claim before 19 June 2012. It followed that as the worker had made a claim that specifically sought compensation under s 66 before 19 June 2012, the amendments to ss 66 and 67 made by the amending Act did not apply to her. It followed that she was entitled to have her claim for s 67 benefits determined without the restrictions imposed on lump sum compensation by the amending Act.”
Mr Yildiz further submits that the application of cl 10 was a case where either the former benefits under s 66 and s 67 were preserved or not, depending on whether a claim for s 66 benefits had been made before 19 June 2012. The decision in Wagg offers binding guidance as to the determination of the issue as to the s 67 entitlement in the present matter. Mr Yildiz further submits that there “has to be an award in [his] favour … under s 67 having regard to the determination in the MAC.”

Respondent’s submissions

The respondent submits that the Arbitrator did not err, as alleged by Mr Yildiz. The respondent submits that the appeal offends s 352(5) of the 1998 Act as the grounds of appeal have not been elucidated. To the extent that Mr Yildiz raises issues with the Arbitrator’s application of the decision in Wagg, the respondent makes the following submissions.
The Arbitrator distinguished the decision in Wagg, on the basis that in the present matter a claim was made and resolved prior to 19 June 2012 where in Wagg there was an unresolved claim. The respondent submits that Mr Yildiz does not set out how the Arbitrator erred in distinguishing the decision in Wagg.
The respondent further submits that in Sukkarv Adonis Electrics Pty Ltd[18] it was again found that there was a difference between a resolved claim and an unresolved claim.
[18] [2014] NSWCA 459 (Sukkar).
Mr Yildiz’s claim was resolved prior to 19 June 2012. The respondent submits that, accordingly Mr Yildiz is not entitled to compensation pursuant to the repealed s 67 of the 1987 Act.

LEGISLATION

The following provisions are relevant to the determination of the issues in dispute on appeal.
It is apparent that the appellant relies upon the definitions in s 4 of the 1998 Act which appear 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.
…
compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.
…”
Section 66 of the 1987 Act 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.
(2)     The amount of permanent impairment compensation is to be calculated as follows:
(a) if the degree of permanent impairment is greater than 10% but not greater than 30%, the amount of permanent impairment compensation is to be calculated as follows:
(b) if the degree of permanent impairment is greater than 30% but not greater than 50%, the amount of permanent impairment compensation is to be calculated as follows:
(c) if the degree of permanent impairment is greater than 50% but not greater than 55%, the amount of permanent impairment compensation is $242,010,
(d) if the degree of permanent impairment is greater than 55% but not greater than 60%, the amount of permanent impairment compensation is $309,020,
(e) if the degree of permanent impairment is greater than 60% but not greater than 65%, the amount of permanent impairment compensation is $376,030,
(f) if the degree of permanent impairment is greater than 65% but not greater than 70%, the amount of permanent impairment compensation is $443,030,
(g) if the degree of permanent impairment is greater than 70% but not greater than 74%, the amount of permanent impairment compensation is $510,040,
(h) if the degree of permanent impairment is greater than 74%, the amount of permanent impairment compensation is $577,050,
where D is the number derived by expressing the degree of permanent impairment as D%.
(2A) To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.
Example 1. A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $25,420. If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $25,420. Under this subsection, that $25,420 will be increased by 5%, yielding $26,691.
Example 2. A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $175,000. If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $175,000, or $116,666.67. Under this subsection, that $116,666.67 will be increased by 5%, yielding $122,500. The total compensation payable for the impairment will therefore be $180,833.33.
(3)     The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.”

Repealed s 67 of the 1987 Act provided:
“67    Compensation for pain and suffering
(1)     A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
Note. Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.
(1A) (Repealed)
(2)     Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
(3)     The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.
(3A) (Repealed)
(4)     The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.
(4A) (Repealed)
(5)     Compensation under this section is not payable after the death of the worker concerned.
(6)     If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.
(7)     In this section:
pain and suffering means:
(a) actual pain, or
(b) distress or anxiety,
suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.”
The relevant transitional provisions introduced by the 2012 amending Act are cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act and cl 10 and cl 11 of Sch 8 of Pt 1 to the 2016 Regulation.
Clause 3 of Pt 19H of Sch 6 to the 1987 Act provides:
“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.”
Clause 15 of Pt 19H of Sch 6 to the 1987 Act provides:
“Division 3 - Miscellaneous
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.”
Clause 10 of Pt 1 of Sch 8 to the 2016 Regulation provides:
“(1) The amendments made by Schedule 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 section 66 or 67 of the 1987 Act.
(2)Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read subject to subclause (1).”
Clause 11 of Pt 1 of Sch 8 to the 2016 Regulation provides:
“11    Lump sum compensation: further claims
(1)     A further lump sum compensation claim may be made in respect of an existing impairment.
(2)     Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66 (1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
(4)     For the purposes of subclauses (1) and (2):
(a) a further lump sum compensation claim made, and not withdrawn or otherwise finally dealt with, before the commencement of subclause (1) is to continue and be dealt with as if section 66 (1A) of the 1987 Act had never been enacted, and
(b) no regard is to be had to any further lump sum compensation claim made in respect of the existing impairment:
(i) that was withdrawn or otherwise finally dealt with before the commencement of subclause (1), and
(ii) in respect of which no compensation has been paid, and
(c) section 322A of the 1998 Act does not operate to prevent an assessment being made under section 322 of that Act for the purposes of a further lump sum compensation claim.
(5)     The following provisions are to be read subject to this clause:
(a) section 66 of, and clause 15 of Part 19H of Schedule 6 to, the 1987 Act,
(b) section 322A of the 1998 Act,
(c) clauses 10 and 19 of this Schedule.
(6)     In this clause:
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”

DISCUSSION

Principles on appeal

The principles to be applied on appeal are found in s 352(5) of the 1998 Act which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Mr Yildiz only alleges that the Arbitrator has fallen into legal error and does not allege any error of fact or discretion.

Wagg

The decision in Wagg concerned the application of similar provisions to the present matter. Mrs Wagg suffered a right knee injury in 2008. In 2008 Mrs Wagg notified her employer of the injury. She underwent surgery on her right knee in 2008 and 2009. In August 2010 she was certified as having reached maximum medical improvement and fit for permanently modified duties. She made a claim for lump sum compensation. However, in September 2010, Mrs Wagg sustained a further injury to her right knee and the claim for compensation was not pursed. In 2011 she underwent further surgery to her right knee. In 2014, Mrs Wagg underwent another assessment of impairment. The original claim was subsequently amended to include the allegations of impairment arising from the 2010 incident. Mrs Wagg sought lump sum compensation in respect of ss 66 and 67 of the 1987 Act in relation to the injuries sustained.
In proceedings before a Commission Arbitrator it was held that Mrs Wagg was entitled to an award of lump sum compensation pursuant to s 67 of the 1987 Act, as preserved by cl 11 (now cl 10) of Sch 8 to the 2016 Regulation. The parties entered into a Complying Agreement pursuant to s 66A of the 1987 Act in respect of the lump sum claim pursuant to s 66 of the 1987 Act. The employer appealed the Arbitrator’s determination. In particular, the employer alleged the Arbitrator erred in law in finding that cl 10(1) operates to entitle Mrs Wagg to compensation pursuant to the repealed s 67 of the 1987 Act.
On appeal, the then President Keating found that the amendments introduced by Sch 2 to the 2012 amending Act did not apply to Mrs Wagg because she had made a claim specifically seeking compensation under s 66 before 19 June 2012. The President found that it did not matter whether the threshold for s 67 benefits was reached before or after 19 June 2012, because the claim for lump sum compensation made before 19 June 2012 was unresolved and remained on foot. As Mrs Wagg had made a claim for s 66 benefits in respect of the injury, the benefits available under s 66 and s 67, as those benefits existed prior to the introduction of the 2012 amending Act, were preserved.

Consideration

This appeal concerns a confined point of construction pertaining to amendments introduced by the 2012 amending Act. In particular, it concerns whether the savings and transitional provisions introduced by the 2012 amending Act protected Mr Yildiz’s entitlement to s 67 benefits.
The reference in ground one to Mr Yildiz being “estopped from making a further lump sum claim under s 67 of the 1987 Act” is perhaps expressed inelegantly. The principle of estoppel was neither argued nor decided by the Arbitrator in the present proceedings. Rather, the Arbitrator was considering whether Mr Yildiz’s rights to lump sum compensation for pain and suffering pursuant to the repealed s 67 were preserved, by virtue of the relevant savings and transitional provisions. Mr Yildiz’s submissions address the question of entitlement under s 67 of the 1987 Act and it is in this manner that I will approach the appeal.
The Arbitrator found that Mr Yildiz’s original claim for lump sum compensation was resolved by the s 66A complying agreement entered on 17 April 2007. This finding is not disputed on the appeal.
At the time Mr Yildiz made his original claim for lump sum compensation, the impairment arising from the injury did not attract an entitlement to benefits under s 67 of the 1987 Act. That is because the degree of permanent impairment resulting from injury was only 7%, as agreed in the 2007 complying agreement.
After having resolved the claim for s 66 benefits in the 2007 complying agreement, in March 2017 Mr Yildiz made a further claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of a deterioration in the injury to the right shoulder and consequential condition to the left shoulder. The Arbitrator found that that claim constituted a further claim for lump sum compensation under s 66 of the 1987 Act. The Arbitrator’s finding that Mr Yildiz is entitled to make a further claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of the existing impairment, because of cl 11 of Sch 8 to the 2016 Regulation, is not challenged on appeal.
It was not until March 2017, having reached a degree of permanent impairment of greater than 10%, when Mr Yildiz made a claim for s 67 benefits. That claim for s 67 benefits was made after 19 June 2012, and made at the same time as the further claim for lump sum compensation pursuant to s 66 of the 1987 Act. The issue in dispute in the proceedings below and on appeal is whether Mr Yildiz’s entitlement to lump sum compensation benefits pursuant to the repealed s 67 of the 1987 Act is preserved by the savings and transitional provisions introduced by the 2012 amending Act.
The Arbitrator determined Mr Yildiz’s entitlement to s 67 benefits on the basis of the application of the savings and transitional provisions. Having regard to the respondent’s submissions in respect of the decision in Wagg and cl 11, the Arbitrator observed that the definition of “lump sum compensation claim” in cl 11 refers only to a claim specifically seeking compensation under s 66 of the 1987 Act.[19] She then found that Mr Yildiz had “no entitlement to make a further lump sum compensation claim under s 67 of the 1987 Act”.[20] It is implicit in the Arbitrator’s finding that she found Mr Yildiz’s claim for s 67 benefits to be a “further claim for lump sum compensation”. That is a “further claim for lump sum compensation” as defined in cl 11. As cl 11 defines a “lump sum compensation claim” to mean a claim “specifically seeking compensation under section 66 of the 1987 Act”, the Arbitrator found that Mr Yildiz’s s 67 entitlements were not preserved. In other words, the Arbitrator held that the s 67 claim was attached to the further claim for lump sum compensation (under s 66) and because a “lump sum compensation claim” only extends to a claim for s 66 benefits under cl 11, Mr Yildiz’s entitlement to s 67 benefits was not preserved by the savings and transitional provisions. For the reasons discussed below, the Arbitrator’s application of cl 11 to determine whether Mr Yildiz’s entitlement to s 67 benefits was preserved was the incorrect approach. That is because the s 67 claim was not a further claim for lump sum compensation.
[19] Reasons, [57].
[20] Reasons, [56]-[58].

Application of the savings and transitional provisions, and Wagg

Clause 15 of Pt 19H of Sch 6 to the 1987 Act protects entitlements the subject of claims made before 19 June 2012 from the general application of cl 3 of Sch 6 of Pt 19H of the 1987 Act.[21] The protection provided by cl 15 of Pt 19H is “liable to be affected by regulation.”[22] In this regard, cl 15 of Pt 19H of Sch 6 to the 1987 Act is to be read subject to cl 10 of Sch 8 of Pt 1 to the 2016 Regulation.[23]
[21] ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel), [13] (per French CJ, Crennan, Kiefel and Keane JJ).
[22] Goudappel, [13] (per French CJ, Crennan, Kiefel and Keane JJ).
[23] 2016 Regulation, cl 10(2).
Clause 10 of Pt 1 of Sch 8 to the 2016 Regulation 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 s 67 of the 1987 Act. In Goudappel, the High Court confirmed that the savings and transitional provisions only applied where a prior claim had been made that specifically sought compensation under s 66 or s 67 of the 1987 Act. The plurality identified the purpose of cl 11 (as it was then; now cl 10) as:
“The purpose of cl 11 [now cl 10] … was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66.”[24]
[24] Goudappel, [29] (per French CJ, Crennan Kiefel and Keane JJ).
As President Keating said in Wagg, the High Court in Goudappel “did not limit the exclusion from the operation of cl 10 (cl 11 as it then was) to one set of proceedings for s 66 compensation, but expressed the exclusion as occurring when there has been a claim before 19 June 2012.”[25] (emphasis included in original) It followed in that matter, as Mrs Wagg had made a claim that “specifically sought” lump sum compensation before 19 June 2012 which remained on foot and was unresolved, the 2012 amendments to ss 66 and 67 made by the 2012 amending Act did not apply to her and her entitlement to s 67 benefits was preserved. This finding was not inconsistent with the Court of Appeal’s decision in Sukkar; that if there is an unresolved claim, specifically for lump sum compensation for permanent impairment, made before 19 June 2012, the 2012 amending Act will not apply to it.[26]
[25] Wagg, [71].
[26] Sukkar, [122].
There is an important distinction between the present matter and the decision in Wagg. In Wagg, the worker had made a claim that “specifically sought” compensation under s 66 before 19 June 2012. That claim was unresolved as at 19 June 2012, due to ongoing deterioration and surgery. The claim was later amended post 19 June 2012, once the worker had reached maximum medical improvement, and was amended to include a claim for s 67 benefits. That is to be contrasted to the situation in the present matter where the s 66 claim had been made and resolved before 19 June 2012, and it was not until 2017 that a claim which had specifically sought compensation under s 67 was made. The Arbitrator distinguished the decision in Wagg on this basis. That finding was open on the evidence and disclosed no error.
I accept the respondent’s submissions that Mr Yildiz has not articulated the basis in which the Arbitrator erred by distinguishing the decision in Wagg. Mr Yildiz merely seeks to reagitate his submissions before the Arbitrator below without properly identifying any particular error. I also accept the respondent’s submissions that Mr Yildiz has not alleged that the decision in Wagg was wrongly decided.
It is clear that the exclusion from the operation of the 2012 amendments to ss 66 and 67 is not limited to one set of proceedings for s 66 compensation, but expressed as occurring when there has been “a claim” for compensation before 19 June 2012.[27] That is, a claim that specifically sought compensation under s 66 or 67 of the 1987 Act.
[27] Goudappel, [29]; Wagg, [71].
A “claim” is defined in s 4 of the 1998 Act. It means a “claim for compensation or work injury damages that a person has made or is entitled to make”. “Compensation” is also defined in s 4 of the 1998 Act. It means “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. The term “made” is not defined in the Act.
As discussed in the Presidential decision in Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee,[28] the provisions dealing with the manner of making a claim for compensation have had a long history of legislative amendment.[29] The relevant claim provisions are those contained in Ch 7 of the 1998 Act, in particular ss 260 and 261 of the 1998 Act. Section 260 provides for how a claim is to be made and s 261 provides the time within which a claim for compensation must be made. Relevantly, s 261(1) provides that compensation cannot be recovered unless a claim for compensation has been made.
[28] [2013] NSWWCCPD 42 (Ottomen).
[29] Ottomen, [92].
The claim for s 67 benefits was a new and separate claim, to the original claim for s 66 benefits and further claim for s 66 benefits. The claim for s 67 benefits was materialised on 30 March 2017 when Mr Yildiz made a specific claim for lump sum compensation pursuant to s 67 of the 1987 Act. It was a claim made in respect of the same injury with the same pathology, as the original s 66 claim which was resolved by complying agreement in 2007.[30] Mr Yildiz has not sought to argue that the original claim, which had been resolved by the 2007 complying agreement, had been amended to include the claim for s 67 benefits. It follows that the s 67 claim was made, for the purposes of cl 15 of Sch 6 of the 1987 Act, after 19 June 2012. Therefore, the amendments made by Sch 2 to the 2012 amending Act extend to that claim for compensation, unless an exemption applies.
[30] Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288; Sukkar; 1998 Act, s 322(2).
The s 67 claim did not fall within the meaning of a “further claim for lump sum compensation” as defined by cl 11(6). To the extent that the Arbitrator considered the claim for s 67 benefits was a “further claim for lump sum compensation” and applied cl 11 to disentitle Mr Yildiz from the benefits of s 67 she erred. However, for the reasons discussed below this error does not affect the outcome of the appeal.
The claim for s 67 benefits is not a claim for compensation which is capable of payment in accordance with the 1987 Act. That is because at the time the original claim was made the assessment of permanent impairment resulting from injury was 7% whole person impairment, and the degree of permanent impairment did not reach the threshold of more than 10 per cent. Mr Yildiz cannot seek to attach his current assessment of impairment of 17% to the original claim for s 66 benefits, which was resolved by complying agreement, in an attempt to preserve his entitlement to s 67 benefits. If Parliament intended that entitlement to s 67 benefits extended to workers in Mr Yildiz’s present position it would have expressly provided for this in the savings and transitional provisions.

This construction of the savings and transitional provisions is consistent with the language and purpose of the provisions of the statute, namely the 2012 amending Act.[31] It is also consistent with the Court of Appeal’s decision in Sukkar.[32] This construction preserves the rights accrued before 19 June 2012 except where the legislature has clearly removed those rights, as it did with respect to a person in Mr Yildiz’s position.
[31] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, [69].
[32] Sukkar, [122].
The 2012 amending Act has been considered by the High Court in Goudappel and by the Court of Appeal in Cram Fluid Power Pty Ltd v Green..[33] In particular, in Cram Fluid the Court of Appeal said:
“It should be accepted that the 2012 amendments disclose a cost-savings objective. Part of the reforms to the existing scheme under the 1987 and 1998 Acts was to disentitle workers from making more than one claim for lump sum compensation. The Court must give effect to this legislative intention, notwithstanding the detrimental impact on injured workers.”[34]
[33] [2015] NSWCA 250 (Cram Fluid).
[34] Cram Fluid [122].
Clearly in this case the repeal of s 67 of the 1987 Act was such a cost-saving intention. However, it is also clear that with respect to the 2012 amending Act certain exceptions were made with respect to claims made before 19 June 2012.
For the reasons set out above, the appeal does not succeed. While the Arbitrator erred in the application of the savings and transitional provisions in her reasoning process, her ultimate conclusion remains unchanged. The Arbitrator’s Certificate of Determination, dated 20 September 2018, is upheld albeit for different reasons. That is, Mr Yildiz has no entitlement to make a claim under the repealed s 67 of the 1987 Act.

CONCLUSION

Mr Yildiz’s claim for lump sum compensation for pain and suffering pursuant to s 67 of the 1987 Act in respect of his existing impairments is not preserved by cl 10 of Pt 1 of Sch 8 to the 2016 Regulation. That is because the only claim for lump sum compensation made before 19 June 2012 was resolved by a complying agreement and that claim is not capable of being amended, to preserve the rights to former benefits under s 67 of the 1987 Act.

ORDER

The Arbitrator’s Certificate of Determination, dated 20 September 2018, is confirmed.

Judge Phillips
President

30 May 2019