Charles Usher v Lend Lease Project Management & Construction (Australia) Pty Limited [2020] NSWWCC 61

Summary

The Workers Compensation Commission was asked to consider whether an insurer’s proactive offers of lump sum compensation constituted the making of a claim for the purposes of the transitional provisions and allowed for an entitlement to compensation for pain and suffering under section 67 following the 2012 amendments. Senior Arbitrator Glenn Capel found in favour of the applicant and awarded section 67 compensation, citing the respondent’s access to IME reports and treating clinical records prior to the proactive offers being made.

Background

The applicant sustained injuries to his back and right knee during the course of his employment with the respondent, Lend Lease Project Management & Construction, on 29 March 2000. Separately, he sustained injury to his left knee on 21 September 2005, again while working for the respondent. It is accepted that the respondent made proactive offers to the applicant for lump sum compensation in respect of the 2001 and 2005 injuries, on 16 March 2001 and 23 May 2007 respectively.

The applicant did not formally make claims for lump sum compensation until September 2018.

It was agreed by the parties at teleconference that the applicant was entitled to two separate lump sum awards against the two separate injury dates.

The applicant argued that compensation for pain and suffering was also payable under the transitional provisions because the claims were made prior to 2012, as indicated by the respondent’s proactive offers. Section 67 (now repealed) of the Workers Compensation Act 1987 (the 1987 Act) provides that a worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive up to $50,000 additional compensation for pain and suffering resulting from the permanent impairment. This section was repealed as part of the widespread amendments to the legislation in 2012, though compensation for pain and suffering remains available to exempt workers.

For all other workers, and under clause 15 of Division 1 of Part 19H of Sch. 6 of the 1987 Act, the 2012 amendments do not apply to a claim for lump sum compensation made prior to 19 June 2012. Clause 10 (formerly clause 11) of the Workers Compensation Regulation 2016 (the 2016 Regulation) similarly provides that the 2012 amendments do not extend to claims for compensation under sections 66 or 67 brought prior to 19 June 2012.

The respondent argued that the proactive offers were made before sufficient particulars had been made available and, therefore, the requirements of a claim under sections 260 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1988 Act) were not established prior to 2012.

Senior Arbitrator Capel was asked to determine whether the applicant was entitled to section 67 pain and suffering compensation in addition to his section 66 lump sum compensation entitlement.

Case law 

The Senior Arbitrator referred to the following authorities:

• Goudappel v ADCO Constructions Pty Limited & Anor [2012] NSWWCCPD 60 (Goudappel No 1)
• Halloran v Rail Corporation NSW [2013] NSWWCC 85 (Halloran)
• White v Royal Society for Prevention of Cruelty to Animals t/as RSPCA [2013] NSWWCC 28 (White); and
• Hobson v CGI Technologies & Solutions Australia Pty Ltd [2015] NSWWCC 299 (Hobson).

President Keating held in Goudappel No 1 that a separate claim form is not required in order to initiate a lump sum claim, however, a claim for lump sum compensation is not validly made until the requirements of section 282 of the 1998 Act, and the particulars/supporting documents required by the Guidelines, are provided. These particulars should allow a respondent to, as best as practicable, gauge the applicant’s full entitlement.

There is an accepted line of authority, confirmed in the decisions of Halloran and White, to the effect that a proactive offer may be regarded as an alternative to a lump sum claim formally made by the worker. In both Halloran and White, the insurers had the benefit of reviewing an IME report containing a WPI assessment and subsequently made proactive offers based on the assessments. The Arbitrators found that sufficient section 282 particulars were available and claims were indicated at the time the offers were made.

In Hobson, the worker suffered a recurrence of a back injury in 2008 and, following a request for information by the insurer, the treating surgeon indicated that future surgery was a long term possibility. The insurer organised for the worker to be examined by the treating surgeon for an assessment of impairment. He assessed 14% WPI, noting that only one quarter of the impairment was attributable to the work injury.

Following review of the report, the insurer made a proactive offer in respect of 4% WPI. The offer was not accepted and the claim was not resolved at that time.

Subsequently, in 2014, the worker brought a claim for compensation under section 66 and 67 in respect of 24% WPI following spinal surgery. In this case the Arbitrator found that particulars provided prior to the proactive offer failed to sufficiently reflect the nature of the claim as it was presented in 2014.

Decision

Senior Arbitrator Capel noted that the respondent had the benefit of treating medical records and IME assessments prior to the proactive offers being made. He also noted that the proactive offers remained unresolved prior to the formal lump sum claims being made. The Senior Arbitrator considered that the applicant had undergone surgery following the proactive offers but held that materials at the respondent’s disposal when the offers were made, sufficiently particularised the claims. Notably, the Senior Arbitrator commented that the prospect of possible post-offer surgery didn’t necessarily preclude a proactive offer constituting a contemporaneous claim for the purposes of the transitional provisions.