Issue 6: June 2013
Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31
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- Keating P 28 May 2013 Facts
- 66 Entitlement to compensation for permanent impairment
- Held: leave refused The questions of law
Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensationKeating P 28 May 2013 Facts: Mr Spinelli suffered injury to his lower back on 31 October 2007 whilst in the course of his employment. On 30 September 2008, an Arbitrator made an award by consent in favour of Mr Spinelli for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 14 per cent whole person impairment and an amount of $19,000 pursuant to s 67. By the time the AMS issued his Certificate, Mr Spinelli had undergone a microdiscectomy at L4/5. He underwent further microdiscectomies and rhizolysis from L4 to S1 in February 2009 and a revision of his lumbar decompression rhizolysis in May 2010. On 21 May 2011, the applicant underwent lumbar decompression and interbody fusion from L4 to S1. In May 2012, Mr Spinelli was reassessed by Dr Peter Conrad following his surgery. Dr Conrad assessed that Mr Spinelli suffered a 29 per cent whole person impairment by reason of the subject injury. It was accepted that on or after 19 June 2012, Mr Spinelli’s solicitors made a further claim on his behalf for $40,382.50 in respect of a further 15 per cent whole person impairment pursuant to s 66 and a further $26,000 for pain and suffering pursuant to s 67. Entitlements to lump sum compensation pursuant to s 66 were amended by Sch 2 of the Amending Act and s 67 was repealed. The amendments were said to apply to claims made on or after 19 June 2012. Relevantly, the amended form of s 66 provides: “66 Entitlement to compensation for permanent impairment (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less. (1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury. ...”
Mr Spinelli’s claim for additional compensation was rejected by his employer’s workers compensation insurer on the basis that the additional compensation was no longer payable pursuant to s 66 in circumstances where a claim for permanent impairment had previously been made. On 31 July 2012, Mr Spinelli lodged an Application in the Commission making a claim for lump sum compensation. On 9 July 2012, the respondent lodged a Reply indicating that the claim would be resisted by reason of the amendments made by Sch 2 of the Amending Act and in particular the introduction of s 66(1A) and the repeal of s 67. In the course of proceedings, at the request of the parties, the Arbitrator referred two Questions of Law pursuant to s 351 of the 1998 Act. Held: leave refused The questions of law
1. Leave is required for a Question of Law referral to proceed under s 351(1) of the 1998 Act and leave is not to be granted unless the Commission is satisfied that the question involved novel and complex questions of law [14]-[15]. 2. At the time the Application was lodged, the questions referred by the Arbitrator concerned complex and novel questions regarding the interaction between the amendments introduced by the 2012 Amending Act and the savings and transitional provisions found in Pt 19H, and the validity and effect of various regulations that had been promulgated since the 2012 Amending Act was passed [16]. 3. On 29 April 2013, following an expedited hearing, the Court of Appeal delivered judgment in Goudappel v ADCO Constructions Pty Limited [2013] NSWCA 94 (Goudappel No 2). Basten JA, (Bathurst CJ and Beazley P agreeing), allowed the appeal from the decision in Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60 (Goudappel No 1) and set aside the answer given in the Commission on 22 October 2012. 4. The Court of Appeal stated: “The amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 do not apply to claims for compensation pursuant to s 66 which are made before 19 June 2012 in respect of an injury that results in permanent impairment whether or not the claim specifically sought compensation under s 66 or s 67 of the 1987 Act.” 5. The Court also held that to the extent that reg 11 of the Workers Compensation Amendment (Transitional) Regulation 2012 sought to prejudicially affect a right to obtain a benefit under s 66, which accrued at the date of injury, the regulation was beyond power and invalid [21]. 6. On 27 May 2013, Judge Keating held a telephone conference between the parties. At that conference, there was general acceptance among the parties that the questions of law raised for determination had been answered in Goudappel No 2 [23]. 7. The parties no longer required the Commission to determine the questions referred in this application. In the circumstances, leave was refused [25]. Download 246.75 Kb. Share with your friends:
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