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.
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
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%
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 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repealed clause 3 of part 18 of schedule 6, but did not accept this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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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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