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To claim and claim again: that is the question…


Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 (16 September 2016) 

Written by

 

Danny Khoshaba, Partner


Jacqueline Goldfinch,
Lawyer


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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:

  1. 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.     
  2. 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. 
  3. 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.

ISSUES

President Keating was required to determine whether or not:  

  1. The worker's discontinued lump sum claim in 2012 was the worker's "one further" claim for lump sum compensation pursuant to the Regulation; and    
  2. The worker was able to include additional body parts when making a further claim. 

DECISION 

The worker (appellant) was successful on appeal.  The President found that: 

  1. 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.    
  2. The worker was able to include additional body parts arising from the same injury

Draca v Formtec Group (NSW) Pty Ltd [2016] 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: 

  1. 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.  
  2. 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: 

  1. 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.       
  2. 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.   

KEY LESSONS

  1. Workers appear to be able to add body parts in respect of the same injury. 
  2. Discontinued claims do not appear to count as further lump sum claims.   
  3. 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.  
  4. The issuing of a MAC in proceedings does not bind parties in subsequent proceedings.

CONTACT US

Danny Khoshaba, Sydney

Anthony Morrissey, Sydney

Shona Wilde, Sydney

Graeme Armstead, Melbourne

David Thompson, Melbourne

Peggy Cheong, Darwin

Chris Osborne, Darwin

"The information contained in this update is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted."

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