Ponticello (as executrix of the estate of the late Giorgio Gino Ponticello) v De Martin and Gasparini Pty Limited and Anor  NSWWCPD46 (4 May 2010)
President Judge Keating affirmed the decision of the Arbitrator that a worker who died after Approved Medical Specialist ('AMS') assessment during proceedings is not entitled to compensation for pain and suffering under the Workers' Compensation Act 1987 (NSW) ('the Act').
On 7 May 2009, Mr Ponticello brought proceedings against his employer claiming compensation pursuant to s66 of the Act in respect of permanent impairment of the back and legs, loss of use of his sexual organs and a claim for pain and suffering under s67.
The employer's reply annexed medico-legal evidence which led to the resolution of the matter with respect to the lump sum dispute relating to sexual organs.
The matter was then remitted to the Registrar and for an AMS assessment of permanent impairment of the back and legs. The consequent medical assessment certificate ('MAC') was issued on 10 August 2009. Mr Ponticello died on 3 September 2009.
Decision of Arbitrator
Mr Ponticello's estate proceeded with his claim for compensation under sections 66 and 67. There was no issue that the right to compensation for permanent impairment survived for the benefit of the estate. The issue that arose was whether Mr Ponticello's estate was entitled to receive compensation under s67.
Pursuant to Section 67(1):
However, pursuant to Section 67(5):
The estate submitted that the entitlement to compensation under s67 arose as at the date of the MAC and the worker died during a period when judgment was "reserved". The Arbitrator stated in response:
The Arbitrator looked to the reasoning of Priestley JA in Bresmac Pty Limited v Starr, in that the express wording of s67(5) made it clear that the entitlement to compensation under s67 was personal and it was to compensate for actual pain and suffering, which could not be realised after the worker had died. The claim was dismissed.
On Appeal, the estate argued that the Arbitrator erred in finding that the worker's rights to compensation under s67 were extinguished on his death by operation of s67(5), given that:
- The MAC was issued prior to the worker's death
- The parties executed a complying agreement under s66A prior to the worker's death.
The estate sought to distinguish this matter from Bresmac. It was argued that compensation was recoverable by a worker who died subsequent to judgment, as a debt owing to the estate. It was submitted that a MAC, a certificate of determination, or an agreement, are all equivalent to 'judgments' and remained enforceable.
The submission was that the worker became entitled to s67 compensation on 10 August 2009, the date of the MAC, and consequently, the worker died at a time of a "reserved judgment" which remained enforceable by the estate.
The estate argued that Mr Ponticello was alive when he entered into the complying agreement to settle the claim for loss under s66 for loss of use of sexual organs and for his claim under s67 "to be agreed or assessed". This was the relevant time when compensation became payable, and in their submission was an agreement enforceable by the estate.
The employer argued that there had been no judgment in the worker's favour prior to his death and Bresmac should be followed. This was despite the fact that the worker would have satisfied the threshold to recover compensation under s67, had he been alive. The employer also submitted that whilst a MAC certifies certain losses, it is not an order of the Commission in favour of the worker prior to his death.
Findings on Appeal
President Judge Keating reviewed the authorities and confirmed that the issuing of a MAC is not equivalent to a determination of a dispute by the Commission. The MAC determines only the degree of permanent impairment. The entitlement to compensation for the impairment is determined by the Commission. The President added that the MAC in earlier proceedings does not create a binding estoppel in later proceedings between the same parties.
The submission that Mr Ponticello died when there was a 'reserved judgment' was rejected. At the time of his death the parties were yet to tender evidence upon which they relied, or make submissions in respect of pain and suffering for the purposes of s67, which would have then concluded the proceedings.
In the President's view, at the time of his death, the hearing of Mr Ponticello's entitlement to s67 compensation had not started. The President went on to confirm that the filing of the Application and Reply was not the commencement of a hearing.
Addressing the submission that this matter should be distinguished from existing case law as the worker had a complying agreement, the President confirmed the agreement particularised the degree of permanent impairment and compensation payable pursuant to s66, and stated that s67 compensation was to be "agreed or assessed". At the time of his death, no agreement had been reached between the parties, and the Commission had not determined the quantum of s67 compensation. Following the reasoning in Booker Industries Pty Limited v Wilson Parking, the President held that this agreement was no more than an agreement to agree, which was unenforceable. An agreement of this sort did no more than preserve the worker's right to agree at a later date the quantum of compensation or have it determined by the Commission.
The President affirmed that the Arbitrator was bound by the express statutory prohibition in s67(5), and held:
This case serves as an assurance that entitlement to compensation for pain and suffering is an entitlement that will not survive to benefit an estate, in the absence of an award prior to death.
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