Yildiz v Fullview Plastics Pty Ltd [2019] NSWWCCPD 24

This decision pertains to whether a non-exempt worker is entitled to receive lump sum compensation under the released s67 of the Workers Compensation Act 1987 (WCA).

Workers who received lump sum compensation pursuant to s66 of the WCA were previously entitled to receive lump sum compensation pursuant to s67 if they were assessed as suffering from a greater than 10% WPI. However, this was abolished when Schedule 2 of the 2012 Amending Act was introduced, with the exception being ‘exempt workers’ (namely, emergency services workers in accordance with P25, Div 1, 19H, Sch 6 of the WCA.

Background

The Worker sustained a physical injury during the course of his employment on 1 March 2004, which was subsequently aggravated on 6 June 2005, leading to surgery on 9 October 2006.

A claim for lump sum compensation was made in January 2007, and in April of that year the parties entered into a complying agreement for a 7% WPI. This meant that the worker was not entitled to recover lump sum compensation in accordance with s67 (now repealed) of the WCA, as he was under the required 11% WPI threshold.

In March 2017, the worker made a further claim for lump sum compensation, which was declined by the Insurer on the basis that he did not suffer any further impairment.

The matter was referred off to an Approved Medical Specialist (AMS) in the Workers Compensation Commission, who assessed him as suffering from a 15% WPI as a result of the incident on 6 June 2005.

In a Certificate of Determination dated 7 December 2018, the Arbitrator awarded him further lump sum compensation pursuant to s66, however provided an Award for the Respondent with respect to s67. The worker challenged this decision on presidential appeal.

In confirming the Arbitrator’s decision, President Phillips made the following observations:

• The Worker’s original claim for lump sum compensation was agreed upon by s66A complying agreement entered to on 17 April 2007.
• It was not until March 2017, having reached a degree of WPI greater than 10% when he made a claim for s67 benefits, being made after 19 June 2012.
• It is clear that the exclusion from the operation of the 2012 amendments to ss66 and 67 is not limited to one set of proceedings for s66 compensation, but expressed as occurring where there has been a ‘claim’ for compensation before 19 June 2019. That is, a claim that specifically sought compensation under s66 or 6 7 of the WCA.
• The claim for s67 benefits was a new and separate claim to the original claim for s66 benefits and further claim for s66 benefits, which materialised on 30 March 2017.
• The workers claim for lump sum compensation pursuant to s67 of the WCA in respect of his existing impairment is not preserved by cl 10 of Pt 1 of Sch 8 to the , as the only claim for lump sum compensation made before 19 June 2012 was resolved by Complying agreement and is not capable of being amended to preserve rights to the former benefits under s67 of the WCA.

Implications

Having regard to the above, it is clear that a non-exempt worker’s entitlements to s67 lump sum compensation do not carry over to a claim made after 19 June 2012, regardless of whether the injury occurred before that date.

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.