Graham White | December 2013 | Employers Liability
Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59 (8 November 2013)
Background
The 2012 amendments to the workers compensation legislation include a notation to section 66(1) which provides that ‘No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less’.
On 19 June 2012 the applicant’s solicitor served a letter of demand claiming $12,375 pursuant to section 66 for an additional 9% whole person impairment due to further hearing loss.
In addition the new section 66(1A) states that only one claim for permanent impairment compensation can be made by a worker who receives an injury. In Sukkar, President Keating considered the question of whether a worker could add a prior assessment of whole person impairment to meet the threshold under section 66(1). The matter was referred to the President as a question of law in accordance with section 351 of the Workplace Injury Management and Workers Compensation Act 1998.
The applicant was paid compensation in respect of a 12.9% binaural hearing loss in 1996.
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Aggregating claims to meet section 66(1) threshold of the Workers Compensation Act 1987. Can it be done?
The insurer rejected the claim on the basis that pursuant to section 17(1)(a)(i) the deemed date of injury was 19 June 2012. It was stated that the amendments to section 66 applied and the applicant did not meet the 10% threshold. Accordingly he had no entitlement to lump sum compensation The President was required to determine whether the amendments to section 66 applied to hearing loss claims where a previous payment had been made and whether the applicant was able to aggregate impairments from multiple injuries in order to meet the section 66(1) threshold.
The decision It should be noted that there was no dispute that as the claim for further loss was made by way of letter on 19 June 2012 that was the date that the claim had been made. In the circumstances the amendments to section 66 applied. In the course of his judgment the President pointed out that there were previous decisions of the Commission which had permitted the aggregation of injuries for hearing loss in order to meet the threshold for pain and suffering under section 67: see for example Lauda Enterprises Pty Limited v Akkanen [2010] NSWWCCPD 91. However the President held that the 2012 amendments ‘… ushered in a new regime for the compensation of injured workers suffering whole person impairments’.
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After considering a number of authorities relating to statutory interpretation, the President concluded that the 2012 amendments did apply to hearing loss claims and the applicant could not aggregate his two claims to meet the threshold under section 66(1).
Application of decision In lump sum claims made on or after 19 June 2012 a worker must establish greater than a 10% whole person impairment in respect of the injury alleged and is not entitled to aggregate impairments from earlier injuries in order to meet the threshold under section 66(1).
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Aggregating claims to meet section 66(1) threshold of the Workers Compensation Act 1987. Can it be done? Graham White | December 2013
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