Greene v BHP Australia Pty Ltd [2012] NSWWCC
In August 2013, NSW Workers Compensation Commission Arbitrator Paul Sweeney gave an oral judgment in the matter of Greene v BHP Australia, finding that the 2012 lump sum legislative amendments to the Workers Compensation Act 1987 (the 1987 Act) do not apply to injuries sustained before 1 January 2002.
This is the first decision of the Workers Compensation Commission on the application of the 2012 legislative amendments to pre-1 January 2002 injuries.
Background
The applicant, James Greene, filed an Application to Resolve a Dispute claiming lump sum compensation and hearing aids for industrial deafness due to his employment with BHP Australia between 1963 and 1995. Mr Greene claimed 15.7% binaural hearing loss.
The lump sum compensation claim was declined by the insurer, as the applicant first claimed compensation after 19 June 2012 and the degree of impairment claimed (15.7% binaural hearing loss) was below the 11% whole person impairment threshold in section 66(1) of the 1987 Act (15.7% binaural hearing loss corresponding to 8% WPI).
It was agreed by the parties that the applicant's claim had been made after 19 June 2012. However, at arbitration the applicant contended that the amendments to division 4 of part 3 of the 1987 Act, which include the enactment of section 66(1), do not apply to pre-1 January 2002 injuries. The employer contended that the amendments apply to all claims where compensation is first claimed after 19 June 2012, regardless of the date of injury.
Arbitrator's decision
Arbitrator Sweeney found that the 2012 lump sum amendments do not apply to pre-1 January 2002 injuries.
The Arbitrator accepted the employer's contention that clauses 3 and 15 of part 19H, schedule 6 of the 1987 Act state that section 66, as amended in 2012, is to apply to all injuries and claims whenever made. The Arbitrator, however, considered it clear that the 2012 amendments did nothing to remove clause 3, part 18C of schedule 6 and therefore found that this clause continues to operate, notwithstanding clauses 3 and 15 of part 19H. Clause 3 of Part 18C of schedule 6 was enacted in 2001 and preserved the Table of Disabilities method of assessing permanent impairment for injuries sustained prior to 1 January 2002, even if a worker claims compensation after that date.
The Arbitrator considered whether the 2012 amendments impliedly repealed clause 3 of part 18 of schedule 6, but did not accept this to be the case, finding that if the legislature had intended to repeal this clause it could have done and did not
In addition, Arbitrator Sweeney considered the enactment of regulation 18 in schedule 8 of the Workers Compensation Regulation 2010 to be indicative of the legislative intent that the 2012 amendments do not apply to pre-1 January 2002 injuries. Regulation 18 preserved section 69A for industrial deafness claims with a date of injury before 1 January 2002.
Accordingly, the Arbitrator determined that the applicant was not required to satisfy the 11% whole person impairment threshold in section 66(1) and there was no impediment to his lump sum claim proceeding, with the matter being remitted to the Registrar for referral to an approved medical specialist.
Impact of this decision
While section 69A was repealed in the 2012 legislative amendments, it is clear from Arbitrator Sweeney's decision and regulation 18, schedule 8 of the Workers Compensation Regulation 2010 that the section continues to apply to pre-1 January 2002 industrial deafness injuries and therefore the 6% binaural hearing loss threshold imposed by section 69A continues to apply to such injuries.
While the Arbitrator's decision dealt specifically with an industrial deafness injury, his finding that the 2012 lump sum amendments do not apply to injuries sustained before 1 January 2002 is relevant to all injuries sustained prior to 1 January 2002.
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