Welcome to the June 2014 Edition of the Edwards Michael eBulletin.

Who Do the Lump Sum Amendments Apply To?

The decision of Roche DP in Caulfield v Whelan Kartaway Pty Limited [2014] NSWWCC PD 34 has again thrown the extent to which the 2012 lump sum amendments apply to certain workers into controversy.
Unlike Mr Goudappel, who made his first claim for lump sum compensation after 19 June 2012, Mr Caulfield claimed and was awarded s.66 compensation in respect of an 8% WPI by a Certificate of Determination dated 19 November 2010, in accordance with a Medical Assessment Certificate.  Following the making of that award, Mr Caulfield underwent further surgery and on 29 August 2012 he claimed further s.66 compensation in respect of a 17% WPI (with credit to be given for the monetary amount previously awarded) on the basis that his condition had deteriorated.
Mr Caulfield commenced Commission proceedings in which the arbitrator entered an award in favour of the employer on the basis that the worker failed to establish any deterioration in his condition as the doctor relied upon in support of the claim had assessed a 17% WPI before and after the award made on 19 November 2010.  It was this issue which initially arose in the appeal and Roche DP found in the worker’s favour in relation to it on the basis that if the degree of impairment now claimed is greater than the amount previously awarded, it is mandatory that the further claim be referred to an AMS.  In so concluding, Roche DP followed Abou-Haidar v Consolidated Wire Pty Limited [2010] NSWWCC PD 128.
Prior to the determination of Mr Caulfield’s appeal, the High Court delivered its decision in Goudappel, leading Roche DP to request submissions as to the impact of the 2012 amendments on Mr Caulfield’s claim in light of that decision.  Perhaps significantly, the employer did not oppose the worker’s submission that the 2012 amendments did not apply to him and “did not suggest an alternative interpretation of the provisions”.
Consequently, Roche DP accepted the worker’s submissions and concluded that the effect of the words “but not to a claim that specifically sought compensation under ss.66 or 67” in Clause 11 of Schedule 8 of the Workers Compensation Regulation 2010 was to exempt, apparently for all time, workers who had made a claim for lump sum compensation prior to 19 June 2012 from the amended provisions, meaning that the amendments did not apply to a claim for lump sum compensation made after 19 June 2012 in those circumstances.

This decision is contrary to the interpretation preferred by WorkCover, being that any claim brought after 19 June 2012 is subject to the amendments, and broader than the interpretation preferred by WIRO, which is understood to be that workers can bring one (but only one) further s.66 claim after 19 June 2012.
Given the history of the Goudappel matter, it can be anticipated that the view expressed by Roche DP will be the subject of appeal to the Court of Appeal, although possibly not in this case given the employer’s failure to argue the issue.
A potential flaw in the reasoning adopted by Roche DP is that the wording of Schedule 8, Clause 11 of the 2010 Regulation in fact focuses attention on a claim that specifically sought compensation under ss.66 or 67”, rather than stating that the amendments do not apply to a worker who has brought a claim for lump sum compensation prior to ss.66 or 67.  In other words, the transitional Regulation does not appear to preserve the rights, accrued or otherwise, of the worker generally but only exempts the particular claim(s) for lump sum compensation made prior to 19 June 2012.  It may have been otherwise if Clause 11 had stated that the amendments “do not apply to a worker who made a claim for lump sum compensation prior to 19 June 2012”.
This distinction, which was not addressed by Roche DP, is likely to again bring the concept of a “claim” under scrutiny.