Zane v Hunter Area Health

[2002] NSWWCCPD 2

REFERRAL OF A QUESTION OF LAW

CITATION:Zane v Hunter Area Health

[2002] NSWWCCPD 2

APPLICANT:  Larry Zane

RESPONDENT:  Hunter Area Health

INTERVENER:  WorkCover NSW

INSURER:GIO Workers Compensation

FILE NO:WCC379-2002

DATE OF DECISION:  11 September 2002

PRESIDENTIAL MEMBER:  Justice Terry Sheahan

President

QUESTION OF LAW:Whether Section 60AA of the

Workers Compensation Act

1987 applies to injuries suffered prior to the date upon which that section took effect.

HEARING:  On the Papers

REPRESENTATION:  Applicant:
  Oliver, Campbell Lawyers
  Respondent:

Sparke Helmore

Intervener:
WorkCover NSW

ORDERS MADE:  Leave to refer the Question of Law refused.

THE QUESTION OF LAW

1. The Arbitrator to whom this matter was assigned has sought leave to refer a Question of Law for the opinion of the President, viz:

“Whether Section 60AA of the Workers Compensation Act 1987 applies to injuries suffered prior to the date upon which that section took effect”.

1. Section 60AA of that 1987 Act provides:

2. If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the

   worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:

   (a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and

   (b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and

   (c) the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2).

3. Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:

   (a)       it is provided for not more than 6 hours per week,

   (b)       it is provided during a period that is not longer than, or during periods   that together are not longer than, 3 months,

   (c)it is provided pursuant to the requirements of the relevant injury management plan.

4. Compensation is not payable under this section for gratuitous domestic assistance unless the following requirements are also satisfied:

   (a)the person who provides the assistance must have lost income or forgone employment as a result of providing the assistance,

   (b)the assistance must be provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines.

5. Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.

6. The following requirements apply in respect of payments under this  section:

   (a)payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,

   (b) payments are only to be made if those costs and the provision of the assistance is properly verified (and the WorkCover Guidelines may make provision for how the performance of those services is to be verified),

   (c) payments for gratuitous domestic assistance are to be made to the provider of the assistance.

7. In this section:

   gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”

THE ISSUES REGARDING LEAVE

1. The application for leave was dealt with in accordance with the Commission’s relevant Practice Direction, as it then stood, and I also directed that the Registrar advise the WorkCover Authority of it.

1. WorkCover then exercised its rights under s 106 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”), and the current position is as follows:

§WorkCover opposes the grant of leave, submitting that the question posed is adequately answered by the provisions of cl 10 Schedule 6 Part 18C of the 1987 Act, which provides:

“10. Compensation for domestic assistance

The amendments made by Schedule 3 (Amendments relating to compensation for domestic assistance) to the Workers Compensation Legislation FurtherAmendment Act 2001 extend to domestic assistance provided after thecommencement of the amendments (whenever the injury concerned was received) but do not so extend in a case where damages (within the meaning of Part 5 of this Act) have been recovered from the employer liable to pay compensation under this Act in respect of the injury”.

• The solicitors for the insurer do not now wish to press the question of law, and believe it is now a matter for the worker to establish his entitlement, if any, under s 60AA.

• The solicitors for the worker, by submission dated 15 August 2002, seek “a ruling” to “clarify future claims” for domestic assistance, but make no submissions that the relevant provisions are unclear.

• None of the three parties has addressed the question of whether the leave application is capable of determination on the papers.

DISCUSSION

1. Section 351(3) of the 1998 Act provides that leave for referral of a question of law for the President’s opinion is not to be granted unless the President is “satisfied that the question involves a novel or complex question of law”. If leave is not granted, the President must state reasons in writing.

1. The substantive issue between the parties is whether the applicant worker is entitled to domestic assistance, his compensible injury having been sustained on 25 November 1995.

1. The Arbitrator was apparently informed, by the representatives of the parties, there was no authority on the question whether s 60AA “applies to injuries suffered before [its] enactment”.

1. However, the question is clearly answered by the express provisions of cl 10 of Schedule 6 Part 18C, and so cannot be said to be “novel or complex”.

1. Whether the worker can establish an entitlement is a matter for the parties and the Arbitrator, and asking the Commission to interpret or “clarify’ what s 60AA may mean in “future claims” raises a hypothetical matter, which is clearly well beyond the unambiguous terms of s 351 of the 1998 Act.

10. As the Commission needs no elaboration of the written submissions by oral argument, I am content to determine the question of leave “on the papers”.

DECISION

11. For the reasons I have stated, leave to refer the Question of Law is refused.

COSTS

12. In all the circumstances I make no order as to costs.

Justice Terry Sheahan

President

I certify that this is a true and accurate record of the reasons for decision of Justice Terry Sheahan, President, Workers Compensation Commission

Registrar

Date:  11 September 2002