On 29 April 2013, the NSW Court of Appeal handed down its decision in the workers compensation test case of Ronald Goudappel v ADCO Constructions. The Court found in favour of the injured worker in its first case that concerned how the new amendments to the Workers Compensation Act 1987 (‘the Act’) affected rights to lump sum claims for permanent impairment. This is a very significant decision, which has been long awaited by many workers adversely affected by the new amendments which took effect on 19 June 2012.
On 17 April 2010, Mr Goudappel sustained physical injuries during the course of his employment with ADCO Constructions. Mr Goudappel made a successful claim for weekly payments as well as medical expenses prior to the amendments taking effect on 19 June 2012. On 20 June 2012, Mr Goudappel made a claim for lump sum compensation on the basis that he had sustained 6 percent whole person impairment. An issue then arose as to whether Mr Gouddapel was entitled to make this claim since the new amendments had taken effect and since he did not meet the new threshold of more than 10 percent whole person impairment.
The issue was initially referred to President Keating of the Workers Compensation Commission for determination. The issue specifically concerned the meaning of “a claim for compensation made” on or after 19 June 2012 and whether “a claim for compensation” meant a lump sum claim or any type of claim made. President Keating then found against Mr Goudappel on the basis that a “claim for compensation made” referred to a claim for lump sum compensation.
Mr Goudappel was therefore prevented from making this claim as it was made after 19 June 2012 despite any original claims he had made since his injury.
LHD then sought leave to appeal to the Court of Appeal in order to set aside the decision of President Keating. The Court applied a wide interpretation to the meaning of “claim for compensation made” and found that the amendments affecting lump sum claims did not apply to workers who had originally made a claim for an injury resulting in impairment, regardless of whether or not it was a claim made pursuant to Section 66.
The decision allows workers who have sustained less than 10 percent whole person impairment as a result of an injury before 19 June 2012 to:
- Make a claim for permanent impairment pursuant to Section 66 of the Act.
By extension of this decision, it is likely that for workers injured before 19 June 2012, that they will be able to:
- Make a claim for pain and suffering pursuant to Section 67 of the Act:
- Make additional claims for permanent impairment where a condition deteriorates over time pursuant to Section 66 of the Act.
Presently, we understand ADCO Constructions is considering an appeal to the High Court. LHD will keep you informed of any developments concerning an appeal of this decision.