Danny Khoshaba, Partner
FACTS AND BACKGROUND
The appellant worker was employed by the respondent as a process worker when on the deemed date of 30 March 2005, she sustained an injury to her upper extremities as a result of repetitive and heavy lifting. The worker's claim/resolution history is noted as follows:
- On 18 August 2010, the parties entered into a
Complying Agreement based on a 10% whole person impairment ("WPI") assessment
relating to the worker's right and left wrists.
- On 21 June 2012,
the worker made a further claim for lump sum compensation having been assessed
at 13% WPI. The worker discontinued this claim following receipt of a
Medical Assessment Certificate ("MAC") dated 4 February 2014 which found 8% WPI.
- On 23 December 2014, the worker made a further
claim for lump sum compensation having been assessed at 15% WPI. Liability was declined pursuant to section 66(1A) of
the Workers Compensation
Act 1987 ("the 1987
Act") having regard to the discontinued claim in 2012 which was said to have
been the "one further" claim.
The Arbitrator found that the worker's
entitlement to further lump sum compensation was not preserved by
Schedule 8, clause 11 of the Workers Compensation Regulation 2015
("the Regulation") as she had already exercised that entitlement in
respect of the discontinued lump sum claim, which was subject to a Certificate
of Determination ("COD"). The matter went on appeal before
President Keating was required to determine whether
worker's discontinued lump sum claim in 2012 was the worker's "one
further" claim for lump sum compensation pursuant to the Regulation; and
worker was able to include additional body parts when making a further claim.
The worker (appellant) was successful on appeal. The President
- No regard was to
be had in respect of the discontinued claim in 2012. The worker's
entitlements had therefore been preserved by the Regulation, allowing the
worker to proceed with the 2014 claim.
- The worker was
able to include additional body parts arising
from the same injury
Draca v Formtec Group (NSW) Pty Ltd  NSWWCCPD 53 (7 November 2016) ("Draca")
The recent decision in Draca similarly considered a worker’s entitlement to a further lump sum claim and the impact of the Regulation. In this matter, the worker made three (3) successful claims for lump sum compensation prior to 19 June 2012. The worker’s further claim/resolution history is noted as follows:
In October 2012, the worker made a lump sum claim for injuries to the bowel and digestive system. The worker received 0% WPI for lost bowel function and a COD was issued.
On 10 November 2014, the worker made a further claim for lump sum compensation for injuries to the back, right leg and digestive system injuries. The Approved Medical Specialist, (“AMS”) assessed the worker at 16% WPI. A COD was issued confirming that the worker had an entitlement.
Reconsideration was sought by the respondent. The matter was subsequently listed for Arbitration. The Arbitrator found that the October 2012 claim constituted “one claim” for the purposes of s 66(1A) of the 1987 Act. The 2014 lump sum claim could therefore not proceed.
However, on appeal Deputy President Snell found in favour of the worker, noting that:
If the 2012 claim was a nullity, then the 2014 claim would be the one further lump sum claim for the purposes of the Regulation.
If the 2012 claim was valid, no regard should be had to it, as it was finally dealt with before 13 November 2015 (the commencement date of the Regulation), and no compensation was paid in respect of it.
Workers appear to be able to add body parts in respect of the same injury.
Discontinued claims do not appear to count as further lump sum claims.
No regard is to be had to lump sum claims finally dealt with before 13 November 2015 (the Regulation) and where no compensation was paid in respect of them.
The issuing of a MAC in proceedings does not bind parties in subsequent proceedings.
Danny Khoshaba, Sydney
Anthony Morrissey, Sydney
Shona Wilde, Sydney
Graeme Armstead, Melbourne
David Thompson, Melbourne
Peggy Cheong, Darwin
Chris Osborne, Darwin
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