Who Do the Lump Sum Compensation 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.

 

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.