Workcover NSW – Caulfield case and lump sum claims

caufield-whelan-kartaway-nsw-case

A recent Presidential Decision in the matter of Caulfield v Kartaway Pty Limited [2014] NSWWCCPD 34 (Caulfield) has clarified (or further confused) the recent  High Court’s decision in the Goudappel case in relation to further claims for permanent impairment in NSW.

Workcover NSW – Caulfield case and lump sum claims

The issue in the Caulfield case was whether a further claim for lump sum compensation could be brought by an injured worker who had specifically sought and been awarded lump sum compensation before the amendments of 19 June 2012, if that injured worker had brought a further claim after this date due to a deterioration of his condition.

At the Hearing, Deputy President (Roche) stated that the amendments did not apply in this situation and the injured worker was entitled to seek further lump sum compensation, regardless of having already made a claim under section 66.

Roche also commented that even though the claim in this case (as opposed to Goudappel) exceeded the threshold of greater than 10% WPI, the injured worker’s entitlement would also not have been extinguished even if it had not reached the threshold as the amendments did not apply to this claim.

It is worth noting that the Scheme Agent in Caulfield case did not make any submissions on the issue about whether the injured worker was entitled to make a further claim for further lump sum compensation.

We understand that the following case law currently applies:

Where an injured worker has initially made a claim for lump sum compensation specifically under section 66 before 19 June 2012, they are not subject to the 2012 amendments that apply to the lump sum claims.

Where an injured worker’s initial claim for lump sum compensation was made on or after 19 June 2012, the claim will be subject to the following amendments:

  • Only one claim for lump sum compensation under section 66 of the 1987 Act can be made;
  • The minimum threshold for entitlement to compensation under section 66 of the 1987 Act is ‘greater than 10% WPI’; and
  • There is no entitlement to compensation for pain and suffering under section 67 of the 1987 Act.

We also note that WIRO recently announced in a media release (dated 16 June) it would fund only one application for a further claim of lump sum compensation and only where the minimum threshold of “greater than 10% WPI” was reached.

Another WIRO media release dated 11 June explains the details of the Caulfield case.

 

[Article dictated by Workcovervictim and manually transcribed on her behalf]



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