President Keating, in deciding a question of law referred by an arbitrator, determined in Di Matteo v RDM Ceramics Pty Ltd [2013]  NSWWCPD 27, workers who make a claim for permanent impairment compensation prior to 19 June 2012 are not prevented from making a further claim, in respect of the same injury, after 19 June 2012.

Brief background

On 31 May 1994, Mr Di Matteo (the worker), injured his back and left leg when carrying a bag of sand in the course of his employment.

His claim for permanent impairment under section 66 was made on 5 September 1996.

The worker was paid lump sum compensation in accordance with a complying agreement in June 2001 (back) and October 2008 (left leg).

On 20 June 2012, the worker made a further claim for permanent impairment compensation on the basis of loss of use of sexual organs arising out of his accepted back injury.

The worker’s claim was denied on the basis he had no further entitlement to lump sum compensation, the claim having been made after 19 June 2012, and having received prior permanent impairment compensation in respect of his injuries. 

The Presidential Decision

President Keating was bound by the Court of Appeal decision in Goudappel v ADCO Constructions Pty Ltd Anor [2013] NSWCA 94 which determined where any claim for compensation was made prior to 19 June 2012 the legislative amendments are of no effect.

As a claim for further permanent impairment compensation after 19 June 2012 will always involve the earlier claim having been made prior to 19 June 2012, the amendments do not prevent a worker from making a further lump sum claim.  This is despite section 66(1A) which provides only one claim can be made for permanent impairment compensation in respect of the permanent impairment that results from an injury. 

What does this mean?

The decision of the Court of Appeal in Goudappel, and the Presidential Decision in Di Matteo, means workers who bring a claim for permanent impairment compensation after 19 June 2012, (provided a prior general claim for compensation has been made), are not affected by the legislative amendments.

In practice

The likely implication for insurers in allowing workers to bring a further claim in circumstances where their condition has deteriorated, provides further scope for workers to satisfy the 15% WPI threshold allowing them to make a claim for work injury damages.

We note the matter of Goudappel will be the subject of a special leave application to the High Court.