In August 2015 the NSW Court of Appeal decided that NSW injured workers could not make more than one lump-sum insurance claim. In other words that injured workers could not top up their lump-sum compensation payment if their condition deteriorated. However, yesterday (Monday 26 Oct 15), the state government will make a new regulation to override that court decision in that case, known as Cram Fluid Power v Green.
NSW government will override Court of Appeal to give injured workers more certainty
Patrick Scala (pictured) is one of 6000 injured workers left in limbo after a NSW court decided they could not top up their lump-sum compensation payment if their condition deteriorated.
The Court of Appeal decision in August meant injured workers like Mr Scala could not make more than one lump-sum insurance claim. (see below)
On Monday (26 Oct 20015), the state government will make a new regulation to override that court decision in that case, known as Cram Fluid Power v Green.
This follows the NSW Labor opposition’s recent introduction of a bill that also aimed to override the Court of Appeal decision.
The Minister for Innovation and Better Regulation, Victor Dominello, said the new regulation would respond to the Court of Appeal decision, which applied a limit of “one claim only” to all injured workers, including those who made a lump-sum claim before June 19, 2012.
This was when the O’Farrell government overhauled the workers’ compensation scheme, slashing benefits for injured workers.
“The government has acted to clarify the law, providing certainty for injured workers whose claims are affected by the Cram Fluid decision,” Mr Dominello said.
“Injured workers within this cohort will be able to make one further claim.
“There is no time limitation for making the claim or restriction on minimum increase in a claimant’s level of permanent impairment.”
Mr Dominello said the decision was consistent with reforms introduced earlier this year to make the workers’ compensation system fairer and sustainable.
Mr Scala, from Shoalhaven Heads, was “shattered” after the Court of Appeal dashed his hopes of making a second claim for a lump-sum payment.
He injured his lower back on three occasions between 2005 and 2008 when he was working at night packing supermarket shelves. He received a lump-sum payment in 2009 and has not worked since 2007.
He said his condition had deteriorated since 2007 and he was shocked when the “door was slammed shut” last month by the court of appeal. He says he would be very happy “to get back to where I was before [that decision]”.
In the past three years, he has had two hip replacements. He had back surgery in early September after an earlier surgery failed to relieve his pain. The second operation has also failed to bring relief.
Mr Scala’s solicitor, Stephen Legzdin, of the Slater and Gordon law practice in Nowra, said it appeared the new regulation could help his client.
“This will make a big difference to a select group of people, but it won’t solve the problem of people being precluded from topping up claims if they were injured after June 19, 2012, if their condition deteriorates,” Mr Legzdin said.
Before the court of appeal decision in August, about 6000 injured workers who made a lump-sum claim before June 19, 2012, were advised they could make a further claim if their condition deteriorated.
Shadow attorney-general Paul Lynch introduced a bill to NSW Parliament to enable injured workers whose condition deteriorates over time to make more than one claim for a lump-sum payment.
When introducing the bill, Mr Lynch said compensation “should be paid at the actual level of a worker’s disability, not at some artificial, temporary level”.
The state government announced in August it would return $1 billion in enhanced benefits to injured workers and employers.
Mr Dominello said the government has met its commitment to return every dollar above the minimum needed to keep the scheme sustainable, to injured workers and business in a two-thirds/one-third split.
WorkCover NSW – entitlement to make further permanent impairment claim
An appeal in the NSW Workers Compensation Commission o 28 Sept 2015 confirmed that, where one claim has been made for permanent impairment compensation in respect of impairment from one injury, the injured worker is not entitled to make a further claim.
[Read the full text of this case: Stella Maris College v R  NSWWCCPD 57 (28 September 2015)]
In this case, an worker injured her right knee at work on 17 August 2009 and, on 30 November 2012 she claimed permanent impairment compensation for 12% whole-person impairment according to the Workers Compensation Act 1987 (NSW). The employer/insurer accepted liability for the claim and the injured worker was paid $17,050.
On 13 September 2013, the worker underwent a total right knee replacement, and on 8 May 2014 she was assessed as having 32% whole-person impairment because of her knee injury. She then claimed an additional lump sum compensation. The insurer’s doctor assessed her as having a whole-person impairment in respect of her right knee of 21%. However, the insurer disputed liability according to s66(1A) of the Act because this was a second claim in respect of the same injury.
The injured worker took her claim in the NSW Workers Compensation Commission, seeking $46,200 as additional lump sum compensation for her increased impairment. She sated that it was not a second claim but that additional compensation could be awarded because there had been an increase in the degree of permanent impairment beyond what had originally been agreed in the complying agreement between the injured worker and the employer/insurer, as provided in s66A(3) of the NSW Workover Act.
The WCC considered the amendments involving s66 and s66A of the Act in 2012. As the injured worker’s current claim was only for permanent impairment compensation, the court remitted it to the Registrar for referral to an approved medical specialist for assessment of her current whole-person impairment arising from the injury on 17 August 2009. To the injured worker’s favour, the Commission issued a certificate of determination, consistent with the arbitrator’s determination, on 21 May 2015
But, the injured worker’s employer/insurer appealed the matter.
The Deputy President confirmed the employer’s view; namely, that the decision in Cram Fluid Power Pty Ltd v Green  NSWCA 250 (27 August 2015) established that the arbitrator’s decision had been erroneous. The worker’s present claim was a second claim. The Commission was bound to apply the law stated in the recent decision. The employer’s appeal had to succeed. Having already made one claim for permanent impairment compensation, the worker was not entitled to make a second in respect of impairment from the same injury.
The Commission revoked the arbitrator’s determination of 31 May 2015 and made an order for award for the injured worker.
In this landmark case, the NSW Court of Appeal confirmed that workers compensation amendments in 2012 prevent workers from topping up lump sum payments for an injury.
An injured worker had received a lump sum award two years before the 2012 amendments came into effect, but the Court of Appeal decided this was not a factor that overrode the intention behind the legislation.
[Read the full text of this case: Cram Fluid Power Pty Ltd v G  NSWCA 250 (27 August 2015)]
The question before the court in this matter was whether an injured worker who made a claim for lump sum compensation prior to 19 June 2012 was precluded from bringing a further claim for lump sum compensation under ss 66 and 67 of the Workers Compensation Act 1987.
The worker had obtained a favourable ruling on this point from the Workers Compensation Commission. (WCC)
However, this ruling has now been overruled by the Court of Appeal.
Justice of Appeal (Fabian Gleeson) noted that the answer to this question turned upon the application and construction of certain amendments to the Workers Compensation Act 1987 (NSW) – namely s66 and s66A, which were inserted in June 2012.
The relevant facts were not in dispute. The injured worker, a maintenance fitter, suffered an injury at work on 24 May 2005 when he was crouching down to lift parts off a hose assembly. He injured his lower back. It was not disputed that he made a claim for compensation against his employer within six months of the injury.
Justice Gleeson concluded:
“In short, the 2013 claim which [the worker] sought to pursue before the Commission does not answer the description in cl 11 of a claim that “specifically sought compensation under s 66… made before 19 June 2012”. The fact the 2010 claim may have answered that description is not to the point. Once it is accepted, as it must be, that the 2013 claim, although arising out of the same injury, was a different claim to the 2010 claim, the effect of cl 15 of Pt 19H is that [the worker’s] 2013 claim is subject to the operation of the amending provisions, including the one claim limitation in s 66(1A).”
Here the injured worker had already made his one claim for lump sum compensation, being his 2010 claim.
Accordingly, the new s 66(1A) did not entitle the worker from making his 2013 claim for further lump sum compensation.
[Post dictated by WCV and manually transcribed on her behalf]
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