WCC e-Bulletin No. 63 - November 2015

President’s Welcome

Welcome to e-Bulletin No. 63 of the Workers Compensation Commission.

This bulletin outlines:

• Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015

Background

On 27 August 2015, the Court of Appeal handed down judgment in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250.  The decision made it clear that, by operation of the 2012 legislative amendments, a worker who made a claim prior to 19 June 2012 for permanent impairment compensation under section 66 of the Workers Compensation Act 1987 (“1987 Act”) was not entitled to make a further claim for permanent impairment compensation on or after 19 June 2012.

Following the decision in Cram Fluid Power Pty Ltd v Green, a number of proceedings before the Commission for further permanent impairment compensation were discontinued or dismissed.

On 26 October 2015, Victor Dominello MP, Minister for Innovation and Better Regulation, announced that the NSW Government would make a new regulation to enable injured workers in NSW who made a claim for permanent impairment compensation before 19 June 2012 to make one further claim.

New Regulation

The Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 (“amendment Regulation”) was published on the NSW legislation website on 13 November 2015 and commences on that date. The amendment Regulation amends Schedule 8 of the Workers Compensation Regulation 2010 by inserting clause 11A.  Clause 11A provides that a worker who made a claim prior to 19 June 2012 for permanent impairment compensation under section 66 may make one further permanent impairment claim on or after 19 June 2012.

The degree of permanent impairment is not required to be greater than 10% for entitlement to a further claim and the restrictions imposed by section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (“1998 Act”) do not operate to prevent a medical assessment under Part 7, Chapter 7 of the
1998 Act for the purposes of the further claim.

A further permanent impairment compensation claim which was on foot before the commencement of the amendment Regulation, and which was not finally determined or withdrawn, is not affected by section 66(1A) of the 1987 Act.

For the purposes of the one further claim, no regard is to be had to any further permanent impairment compensation claim made on or after 19 June 2012 that was withdrawn or in respect of which no compensation was paid.

Commission Proceedings

The following procedures will apply to matters affected by the decision in Cram Fluid Power Pty Ltd v Green and by the amendment Regulation.

If a proceeding was discontinued or dismissed following the judgment in Cram Fluid Power Pty Ltd v Green, it may be restored by written request made to the Registrar.  If the restoration is by consent, that should be noted in the letter to the Registrar.  The matter will be restored to its listing status at the time of discontinuance or dismissal, subject to any objections by the other party.

A worker whose proceeding was either discontinued or dismissed has the option of lodging a fresh proceeding in lieu of seeking to restore the original proceeding.

If a permanent impairment dispute was determined and that determination is inconsistent with the amendment Regulation, the parties may either seek reconsideration of the determination, pursuant to section 350(3) of the1998 Act, or a fresh proceeding may be lodged.

Separate arrangements should be made with the Independent Legal Assistance and Review Service for legal assistance to restore a proceeding, seek reconsideration of a decision or commence a fresh proceeding.

Judge Greg Keating
President