Australia: Goudappel decision re-opens door for workers

Curwoods Case Note
Last Updated: 4 May 2013
Article by Todd Kirchner and Michael Poulos

Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94

Judgment date: 29 April 2013
Jurisdiction: NSW Court of Appeal1

In Brief

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 June 2012.

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 impairment threshold.

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 compensation.

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 claim.

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 condition.

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 JA

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