Goudappel High Court Appeal Succeeds

On 16 May 2014 the High Court delivered its decision in ADCO Constructions Pty Limited v Goudappel [2014] HCA 18.
The High Court determined, overturning the decision of the Court of Appeal, that Clause 11 of Schedule 8 of the Workers Compensation Regulation 2010 was validly made, meaning that the lump sum compensation amendments introduced by the Workers Compensation Legislation Amendment Act 2012 do apply to claims for lump sum compensation made on or after 19 June 2012 regardless of whether a claim for compensation of any type was made prior to that date.

Accordingly, unless a claim for permanent impairment compensation was made before 19/06/12:

  • There is a “greater than 10%” WPI threshold for the recovery of any compensation under s.66,
  • The entitlement to s.67 compensation is abolished, and
  • Only one assessment of permanent impairment can be made by an AMS, meaning that workers can no longer bring further claims based upon a deterioration of their condition giving rise to an increase in the degree of permanent impairment or in respect of impairment resulting from injuries to different body parts than those previously the subject of assessment by an AMS.

There remain, however, a number of unresolved issues which did not arise out of the facts being considered by the High Court, the most notable of which being:

  • Whether a worker can bring a further claim where a previous claim for lump sum compensation was resolved by a s.66A Complying Agreement, particularly noting that s.66A(3) has not been repealed and specifically provides that the Commission may award compensation additional to that previously paid under a Complying Agreement if “since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed”; and
  • Whether a worker who has received lump sum compensation prior to 19 June 2012, either under a s.66A Complying Agreement or pursuant to an award of the Commission consequent upon an assessment by an AMS, is entitled to bring one further claim for s.66 compensation after 19 June 2012 given that Clause 11 of Schedule 8 provides that the 2012 amendments do not apply to “a claim that specifically sought compensation under ss.66 or 67” made prior to that date; and
  • Whether injuries suffered prior to 1 January 2002 and requiring to be assessed under the Table of Disabilities are caught by the amendments generally and Clause 11 of Schedule 8 (although that would appear to be the case having regard to Clause 19 of Schedule 8).

It is likely that these outstanding issues will be the subject of “test cases” which will initially fall to be determined by the President of the Commission.