Welcome to the March 2015 issue of the Edwards Michael Powell eBulletin.

Caulfield Revisited… Again

In Sodexo Australia Pty Limited v Khan [2015] NSWWCC PD 12 Roche DP considered whether Caulfield v Whelan Kartaway Pty Limited [2014] NSWWCC PD 34 and Cram Fluid Power Pty Limited v Green [2014] NSWWCC PD 84 were correctly decided in light of the decision of the Court of Appeal in Sukkar v Adonis Electrics Pty Limited [2014] 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 [2015] 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.


An Insurer Makes a Worker’s Permanent Impairment Compensation Claim?

In Eaton v Kerry Ingredients Australia Pty Limited t/as Kerry Ingredients [2015] NSWWCC 21 Arbitrator Edwards considered whether a proactive offer for s.66 compensation by an insurer (i.e. one based on an assessment obtained by the insurer without the worker having yet made any formal claim) constituted a “claim” for permanent impairment compensation (PIC).

The facts were that the insurer made an offer in respect of a 3% WPI resulting from injury to the right shoulder as assessed by it’s IME on 17 October 2011.  On 11 April 2014, being after the expiry of the time for which the insurer’s offer was stated to be open, the worker made a claim for a 14% WPI resulting from injury to the right shoulder, the cervical spine and in respect of scarring.

At issue was whether a claim for PIC had been made prior to 19 June 2012, thereby exempting the worker from the effects of the 2012 amendments applying the decision in Caulfield v Whelan Kartaway Pty Limited [2014] NSWWCC PD 34.

The arbitrator found that the insurer’s proactive offer did constitute a “claim”, primarily on the basis that at the time of making the offer the insurer had “all relevant particulars about the claim” within the meaning of s.282 of the 1998 Act and had made a determination as required by s.281 of that Act.  Reference was also made to the 2009 WorkCover Guidelines for Claiming Compensation Benefits (as in force as at October 2011) made pursuant to and for the purposes of s.260 of the 1998 Act, in which insurers were directed not to require a Permanent Impairment Claim Form if a claim for compensation generally was already in progress and to “initiate an assessment of permanent impairment to determine the lump sum payable” if satisfied that maximum medical improvement had been reached.

The arbitrator further found that by making a proactive offer the insurer had “determined” the claim so as to invest the Commission with jurisdiction under s.289(3) of the 1998 Act.

While the arbitrator’s decision proved beneficial to the worker in the case under consideration, as she avoided the 2012 amendments, it at first blush has the potential to complicate matters for workers whose claims are subject to the amendments and are therefore limited to making “only one claim” by operation of s.66(1A).  This is because the “claim” as effectively made by the insurer’s proactive offer may not, for example, include body parts which a worker may subsequently wish to claim.

Further, s.281 of the 1998 Act provides for what must be done by “the person on whom a claim for lump sum compensation … is made” and s.4 of that Act defines a “claimant” as a person who has made or is entitled to make a claim for compensation.  Thus, as a matter of both law and logic it does not appear possible for an insurer to be both a person who makes a claim and a person on whom a claim is made.

A better view may have been that when an insurer made a proactive offer, a worker could either accept it or make a claim for a greater degree of permanent impairment which would have then constituted that worker’s “one claim”.

In any event, it is unlikely that this decision will be of any relevance or effect in claims to which the 2012 amendments do apply because, in addition to the legal and logical difficulties referred to above, the WorkCover Guidelines in force from 11 October 2013 have deleted any reference to insurers initiating assessments of permanent impairment and making proactive offers and instead make it plain that only a worker can “initiate” a claim for PIC and must provide a Permanent Impairment Claim Form in order to do so (see Clause 6.1).  Further, Clause 6.4 of the current WorkCover Guidelines set out the action required to be taken by an insurer pursuant to s.281 of the 1998 Act “when an insurer receives a claim for permanent impairment”.  In short, under the current WorkCover Guidelines it is no longer open to an insurer to make a proactive offer in respect of PIC and an offer can only be made in response to a claim received from a worker.


Section 59A Reconsidered

In Flying Solo Properties Pty Limited t/as Artee Signs v Collet [2015] NSWWCC PD 14 Roche DP overturned a number of arbitrator decisions, including Vella v Penrith City Council [2014] NSWWCC 363, in which it had been held that for the purposes of s.59A(2) weekly payments were “paid or payable” during any of the prescribed entitlement periods for weekly benefits regardless of whether an actual entitlement to weekly benefits arose.

Roche DP determined that weekly benefits were only “paid or payable” in respect of a period during which a worker had an actual entitlement to weekly payments based upon an economic loss assessed in accordance with the formulae provided by the weekly payment provisions and, further, that a worker “ceased to be entitled to weekly payments” for the purposes of s.59A(2) once there was no economic incapacity giving rise to an actual entitlement to weekly payments.  Roche DP further noted that there were a number of circumstances in which the entitlement to weekly payments might cease and that it would not always be necessary for this to have been determined either by the Commission or an insurer by a Work Capacity Decision.

It is implicit in the approach adopted by Roche DP that s.59A(2) comes into operation on the first occasion that a worker ceases to be entitled to weekly payments, meaning that the 12 month period following which the entitlement to s.60 expenses will survive commences on that date.

Roche DP further confirmed, however, that after the date of cessation of weekly payments under s.59A(2) a worker will again be entitled to s.60 expenses under s.59A(3) in respect of medical expenses incurred during any subsequent period in which weekly payments again become payable.

Thus, in Mr Collet’s case, although his entitlement to s.60 expenses under s.59A(1) had expired and s.59A(2) did not apply because there had been no relevant actual entitlement to weekly payments, he would nevertheless again be entitled to s.60 expenses by reason of the incapacity which would inevitably result from neck surgery which had been recommended to him.

Roche DP concluded by stating that s.59A in its present form was likely to wreak confusion and injustice and recommended that the legislature reconsider it.


Assessing Costs under the 2010 Regulations (edition 9) 

Edwards Michael Powell has published Edition 9 of the “Assessing Costs under the 2010 Regulations”.  Click here to view