Mary Karekos and Corinna Edwards | April 2013 | Employers Liability
In Zeljko Komljenovic v Facility Management Solutions Pty Ltd [2013] NSWWCC 69 (‘Komljenovic’) and Khalid Mohammadi v Chandler Macleod Group t/as Ready Workforce Pty Ltd (WCC: 6998/12) (‘Mohammadi’) the Workers Compensation Commission considered the definition of an ‘existing recipient’ of weekly payments. The Workers Compensation Commission held that a worker, who made a claim for compensation prior to 1 October 2012 but was not in receipt of weekly benefits at that time, was not an ‘existing recipient’ of weekly payments for the purposes of the 2012 amendments. This was despite the fact that the worker was retrospectively awarded weekly benefits immediately before 1 October 2012 and thereafter.
Who does this impact? Claims officers when considering whether or not a worker is ‘existing recipient’ of weekly payments under the 2012 amendments. If not, the weekly benefits amendments apply to the worker on 1 January 2013. If so, the worker will need to be transitioned to the new regime in accordance with the legislation, guidelines and any internal procedures.
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Who is an ‘existing recipient’ of weekly payments?
What action should be taken? If a worker made a claim for compensation before 1 October 2012, but was not in receipt of weekly benefits at that time, then he or she should not be considered an ‘existing recipient’ of weekly payments, whether or not the worker is later awarded or paid weekly benefits for this period.
Arbitrators’ Decisions Issues In Komljenovic and Mohammadi, Arbitrators Mr Michael Snell and Mr Glen Capel were respectively required to consider whether the worker was an ‘existing recipient’ of weekly payments.
Law The Governor proclaimed that the weekly payments amendments under the Workers Compensation Legislation Amendment Act 2012 No 53 came into effect on 1 October 2012. Schedule 6, Part 19H, Clause 1 of the Workers Compensation Act 1987 (“1987 Act”) defines ‘existing recipient’ of weekly payments as ‘an injured worker who is in receipt of weekly payments of compensation immediately before the commencement of the weekly payment amendments’, or 1 October 2012.
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Decision Arbitrators Snell and Capel found that each worker was not an ‘existing recipient’ of weekly payments. Arbitrator Snell formed the view that the worker was not actually in receipt of such payments at the relevant time and therefore not an ‘existing recipient’ of weekly payments [para 58].
is unable to make a decision contrary to that decision’ [para 23]. Therefore, whether or not a worker is deemed an ‘existing recipient’ of weekly payments, will impact on whether the 2012 amendments to the weekly benefits provisions apply to an injured worker:
Arbitrator Capel provided more detailed reasoning. In making his decision, the Arbitrator relied upon:
1. On 1 January 2013 (not an ‘existing recipient’ of weekly payments); or 2. After an insurer transitions the worker to the new regime (an ‘existing recipient’ of weekly payments).
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Conclusion
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That the Macquarie Dictionary defined ‘immediately’ as ‘without lapse of time, or without delay; instantly; at once …’ and as such, to be an ‘existing recipient’ of weekly payments a worker must have been in receipt of weekly payments ‘closely’ or ‘in the vicinity’ of 1 October 2012. That similar reasoning was adopted by the High Court in Commissioner for Railways (NSW) v Agalianous (1955) 92 CLR 390 and Menzies Property Services Pty Ltd v Sommerville [2000] NSWCA 93. That the proper interpretation was clear and unambiguous language in that the worker must be in receipt of weekly benefits immediately before 1 October 2012, and not merely have an accrued entitlement thereto. That the second reading speech indicated that the parliament’s intention was to deliver urgent reforms to reduce premiums by the 2012 amending act.
Impact Under Schedule 6, Part 19H, Clause 6 of the 1987 Act, an ‘existing recipient’ of weekly payments remains entitled to compensation under the old weekly benefits provisions, but only until the injured worker is transitioned to the new weekly payment regime. In Mohammadi, Arbitrator Capel found that the amendments do not apply to an ‘existing recipient’ of weekly payments until three months after the insurer has made a work capacity decision, unless the period of incapacity is in the first 26 weeks. He stated that ‘once a work capacity decision is made, the Commission
Generally, an injured worker will not be deemed an ‘existing recipient’ of weekly payments where a claim for compensation was made before 1 October 2012 but the worker was not in receipt of weekly payments ‘immediately before’ 1 October 2012. In this case, the 2012 amendments to the weekly benefit provisions apply on 1 January 2013.
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Who is an ‘existing recipient’ of weekly payments? Mary Karekos and Corinna Edwards | April 2013
For more information, please contact: Mary Karekos Partner T: 02 8257 5731 M: 0419 281 720 mary.karekos@turkslegal.com.au
Corinna Edwards Solicitor T: 02 8257 5702 M: 0400 624 162 corinna.edwards@turkslegal.com.au
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