GENERAL ENQUIRIES13 535 57
WOLLONGONG(02) 4221 9311
SHELLHARBOUR(02) 4295 8400

Insights

Mr Goudappel was an employee of Adco Contructions Pty Ltd (“Adco”) when he injured himself on 17 April 2010. He made a claim for compensation under the Workers Compensation Act 1987 (“the Act”) but did not make a specific claim for lump sum compensation until 20 June 2012. This was one day after the significant changes to the legislation.

Adco rejected the claim for lump sum compensation because the lump sum claim was not made before 19 June 2012 and was not greater than 10% whole person impairment. Initially the dispute was upheld by the President of the Workers Compensation Commission. That decision was overturned in the Court of Appeal, who determined that the 2012 amendments to lump sum compensation did not apply to claims for compensation (any claim) which was made before 19 June 2012 even if the specific lump sum claim was made on or after that date.

Adco appealed to the High Court and after the long awaited judgment the High Court focused on the correct approach as to the construction of the provisions in the Act. The High Court found Clause 5(4) of Part 19H of Schedule 6 of the Act enabled the making of Clause 11 of schedule 8 of the Regulations. This resulted in claims for lump sum compensation that had not been made prior to 19 June 2012 as being invalid. Therefore, if a worker had not made a claim for lump sum compensation prior to 19 June 2012 they were subject to the 10% threshold. Mr Goudappel’s claim for lump sum was made after 19 June 2012 and he was therefore subject to the 10% threshold. Mr Goudappel’s entitlement to lump sum compensation was extinguished as he had made his one claim.

The Workcover Independent Review Office has issued guidance notes expressing the view that a claim made before 19 June 2012 does not count as the “one claim” as provided by the Act. They are prepared to fund injured workers who wish to make another claim after 19 June 2012, irrespective of how many claims were made prior to 19 June 2012.

The High Court decision has brought clarity to Section 66 claims of less than 11% whole person impairment. The pain and suffering claims were abolished for claims made after 19 June 2012. Those lucky enough to receive compensation during the Court of Appeal stage should breath easy as they have managed to swoop through whilst it was good law.