Permanent Impairment Compensation Amendments Revisited

The application of the 2012 amendments relating to permanent impairment compensation have been further considered by Keating P in Cram Fluid Power Pty Limited v Green [2014] NSWWCCPD 84.

Mr Green suffered injury in 2005 and recovered s. 66 compensation in respect of a 7% WPI in 2010.   His condition deteriorated and he underwent spinal surgery in September 2012.  On 29 October 2013 he made a claim for further compensation under s. 66 together with compensation under s. 67.  The Arbitrator applied Caulfield v Whelan Kartaway Pty Limited [2014] NSWWCCPD 34 to find that Mr Green could pursue his further claim.

The employer appealed the Arbitrator’s decision, arguing that Caulfield was wrongly decided and that the relevant transitional provisions should only be read as applying to a claim for permanent impairment compensation which was “pending” as at 19 June 2012, meaning that a claim had been made prior to that date but had not yet been resolved as at that date.

Keating P found that Caulfield was correctly decided, meaning that the amendments did not apply and would never apply to a worker who had made a claim for permanent impairment compensation prior to 19 June 2012 regardless of whether such claim had been resolved, primarily on the basis that there was nothing in the legislation or the transitional provisions to support the interpretation proposed by the employer and that it would have been a simple matter for the legislature to have made such interpretation clear had it so intended.

A second issue raised for consideration by the President was whether a worker was entitled to bring one further claim for permanent impairment compensation after 19 June 2012 in circumstances where a claim for such compensation had already been made and resolved before that date.

Having concluded that Caulfield was correctly decided, it was unnecessary for the President to determine this issue but he did make some obiter remarks in relation to it, concluding that, at the very least, “the provision applies prospectively to claims made on or after 19 June 2012” and that a worker in the circumstances of Mr Caulfield or Mr Green would be entitled to pursue one claim for compensation for permanent impairment after 19 June 2012, provided the threshold in section 66(1) is satisfied””.

Thus, Caulfield will remain the law unless and until it is overturned by the Court of Appeal.  As the issues have been clearly raised and argued in Green it might be anticipated that such appeal will be brought in that case.

We consider that it remains arguable that Caulfield was wrongly decided, in that Roche DP extended the reference to a “claim” in the transitional provisions to mean “a worker who has made a claim” prior to 19 June 2012 for the purpose of determining the extent of the exemption from the effect of the 2012 amendments.  We further consider it to be arguable that, if Caulfield was wrongly decided, then Keating P’s view that a worker in those circumstances can bring one, but only one, further claim for permanent impairment compensation after 19 June 2012 is correct.  As the amendments would be applicable to such a claim, no compensation or further compensation under s. 67 would be available.