Goudappel v ADCO Constructions Pty Ltd 
29 April 2013
NSW Court of Appeal1
The Court of Appeal was asked to determine whether the 2012
transitional provisions which amended the Workers Compensation
Act 1987, referred to a claim for compensation generally or a
claim specifically for lump sum compensation.
On 17 April 2010, Mr Goudappel (the Worker)
suffered an injury to his left foot and ankle during the course of
his employment with ADCO Constructions Pty Ltd (the
Employer). On 19 April 2012, the Worker made a claim for
compensation against the Employer and was compensated in respect of
weekly compensation and medical expenses.
The 2012 amendments to s 66 of the Workers Compensation Act
1987 NSW (the 1987 Act) limited payments of
lump sum compensation to workers with injuries causing greater than
10% whole person impairment. The amendments were effective from 19
On 20 June 2012, the Worker made a claim pursuant to s 66 in
respect of 6% whole person impairment. The claim was denied by GIO
Workers Compensation Limited (GIO) on the basis
that the Worker did not satisfy the relevant 10% whole person
An Application to Resolve a Dispute was filed in the Workers
Compensation Commission. The WorkCover Authority of NSW
(WorkCover) intervened and the matter was referred
to the President as a novel or complex question of law pursuant to
s 351 of the Workplace Injury Management and Workers
Compensation Act 1998 (the 1998 Act).
President Keating's Determination
The decision of the President turned on a straightforward issue,
namely whether the phrase in the transitional provisions:
"claim for compensation", referred to a claim for
compensation generally or a claim specifically for lump sum
President Keating accepted that the meaning of the words
contained within a provision of a statute should be construed in
the context of the statute as a whole. It was determined that the
amendment referred specifically to a claim for lump sum
compensation. The Worker was therefore precluded by the amendments
from making a claim pursuant to s 66.
Court of Appeal Decision
At the hearing of the Appeal, the Worker contended that his
claim was not affected by the 2012 amendments because his
"claim for compensation" was made on 19 April 2012, three
months prior to the crucial date.
The Employer and WorkCover argued that because the transitional
provisions only addressed the operation of amendments in respect of
lump sum compensation, it should be inferred that it operated with
respect to claims expressed to be for such payments.
"Claim" is defined by s 4 of the 1998 Act to mean
"a claim for compensation". Section 4 also defines the
term "compensation" to mean "compensation under
the Workers Compensation Acts and includes any monetary benefit
under those Acts".
The Court of Appeal noted that the WorkCover Guidelines do not
require that there be a separate claim for lump sum compensation.
They provide for a "permanent impairment claim form", but
note that such a form is not required if a claim is already in
progress and the insurer has sufficient information to assess the
It was determined that none of the provisions suggested that the
Acts required, in June 2012, that an injured work must make a
separate claim for lump sum compensation: rather they were
consistent with the contrary conclusion. It must therefore follow
that the transitional provisions did not require the application of
the s 66 amendments in circumstances where the worker was able to
rely upon a claim made prior to 19 June 2012.
The Court of Appeal concluded that the amendments to Division 4
of Part 3 of the Workers Compensation Act 1987 introduced
by the 2012 amendments do not apply to claims for compensation
pursuant to s 66 which are made before 19 June 2012, whether or not
the claims specifically sought compensation under ss 66 or 67 of
the 1987 Act.
The 2012 amendments to the Workers Compensation legislation do
not affect any injury for which a claim for compensation was made
prior to 19 June 2012.
The determination will allow workers who made a claim for
compensation prior to 19 June 2012, whether lump sum or otherwise,
to make a further claim in respect of deterioration of their
This may have an effect on the number of potential Work Injury
Damages claims as it allows certain workers to claim in respect of
any deterioration, including deteriorations which lead to
assessments of 15% whole person impairment or greater.
1 Bathurst CJ, Beazley P, Basten
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