In Sodexo Australia Pty Limited v Khan  NSWWCC PD 12 Roche DP considered whether Caulfield v Whelan Kartaway Pty Limited  NSWWCC PD 34 and Cram Fluid Power Pty Limited v Green  NSWWCC PD 84 were correctly decided in light of the decision of the Court of Appeal in Sukkar v Adonis Electrics Pty Limited  NSW CA 459.
Sukkar involved a hearing loss claim in which the worker had claimed for and received lump sum compensation prior to 19 June 2012 and then subsequently made a claim for further hearing loss. Significantly, s.17 of the 1987 Act provides that a claim for further hearing loss is to be treated as a new and separate injury which is deemed to have occurred on the giving of notice of injury. On that basis, McColl JA found that the 2012 lump sum compensation amendments applied to the claim made after 19 June 2012 because the earlier claim was in relation to a different injury. The approaches adopted by Basten JA and Beech-Jones J, however, have created some uncertainty as to the true defining principle (ratio) of the decision and in relation to whether such ratio was limited to hearing loss claims. For a detailed discussion of Sukkar, see the January 2015 issue of the Edwards Michael Powell Lawyers e-bulletin.
In Khan the worker had specifically sought and was paid permanent impairment compensation before 19 June 2012 and then made a further claim on 4 December 2013 on the basis that the condition of his back, which had originally been injured in August 1997, had deteriorated.
For the reasons stated in Green, Roche DP rejected the employer’s submission that the transitional provisions excluded only claims made before 19 June 2012 which were unresolved as at that date from the effect of the amendments.
The employer further argued, however, that Sukkar provided support for its argument, referring in particular to Basten JA’s observation that there is “a critical difference between a claim for compensation for permanent impairment made before 19 June 2012 that has been resolved and a claim for (such) compensation made before 19 June 2012 that remains on foot after that date” and to statements made by Beech-Jones J to the effect that while a claim for permanent impairment compensation made prior to 19 June 2012 is exempt from the amendments any claim made in respect of the same injury after that date will be subject to those amendments and would constitute the “one claim” allowed by s.66(1A).
Roche DP rejected the employer’s arguments on the basis that Sukkar was limited to a consideration of hearing loss claims, meaning that the comments made by Basten JA and Beech-Jones J were obiter (i.e. not binding) and further because the interpretation of those comments urged by the employer was inconsistent with the High Court’s decision in Goudappel.
… And Again
The effect of Sukkar on the decisions of Caulfield and Green was again considered by O’Grady DP in Michell Australia Pty Limited v Fordham  NSWWCC PD 15. In that case the worker was injured in September 1989 and claimed and received lump sum compensation in 2004. A further claim for lump sum compensation based on deterioration was made in January 2014 and the employer invoked the 2012 lump sum compensation amendments.
The employer relied upon Sukkar and O’Grady DP acknowledged that the statements of Basten JA and Beech-Jones J did provide some support for the proposition that the transitional provisions exempted only claims made before 19 June 2012 which were unresolved as at that date. Nevertheless, O’Grady DP found that he was not bound by those statements because the ratio of Sukkar was limited to hearing loss claims and because those comments were considered to be inconsistent with the binding decision of the High Court in Goudappel.
It is clear that Caulfield will remain the law until such time as the Court of Appeal considers the issue of whether a worker who made a claim for lump sum compensation prior to 19 June 2012 is forever and in all respects exempt from the 2012 lump sum compensation amendments (as per Caulfield) or whether the amendments do apply to a further claim made after 19 June 2012 to the extent that the further claim made after that date will constitute the “one claim” for the purposes of s.66(1A), the greater than 10% WPI threshold now provided by s.66(1) applies and there is no further entitlement to s.67 compensation. A further issue to be considered is whether and in what circumstances impairments for which compensation was paid prior to 19 June 2012 can be aggregated with any subsequent impairment for the purposes of the s.66(1) threshold. The comments made by Basten JA and Beech-Jones J in Sukkar certainly provide some support for the later interpretation and it is noted that in Green Keating P also made comments to the effect that if Caulfield were wrong, a worker would nevertheless be able to bring one further claim after 19 June 2012.
It is understood that Green is the subject of a holding appeal in the Court of Appeal.