Jasbir Singh v B & E Poultry holdings Pty Ltd [2018] NSWWCC 178
The applicant, Mr Singh, was employed by the respondent, B& E Poultry Holdings Pty Ltd as a delivery driver. On 25 February 2013 as he was lifting boxes of chickens during a delivery he sustained an injury to his lower back. The workers compensation insurer accepted liability for the injury and Mr Singh received weekly compensation and related medical treatment expenses including surgery to his lumbar spine in 2014.
Compensation claim rejected
In 2015, the applicant brought a claim for lump sum compensation for permanent impairment in respect of 13% whole person impairment (WPI) for the lumbar spine. The claim was denied on the basis that Mr Singh had not satisfied the 11%WPI threshold pursuant to section 66(1) of the Workers Compensation Act 1987.
The claim was remitted to the Workers Compensation Commission for determination. Mr Singh was assessed by an Approved Medical Specialist (AMS), Dr SK Cyril Wong who issued a Medical Assessment Certificate (MAC) for 14%WPI. The applicant discontinued the claim for lump sum compensation before the Commission had issued the Certificate of Determination.
In 2018, the applicant recommenced a claim for permanent impairment for 16%WPI as assessed by Dr Khan. An offer of 14%WPI was made by the respondent in accordance with the Medical Assessment Certificate of Dr Wong. The respondent argued firstly, that the applicant had exhausted his one claim for permanent impairment pursuant to section 66(1A) of the 1987 Act; and secondly, the applicant was bound by the MAC of Dr Wong and not entitled to a reassessment according to section 322A of the Workplace Injury Management and Workers Compensation Act 1998.
The applicant’s principle argument was that the issuance of the Certificate of Determination is binding. The applicant relied on the principles in Avni v Visy industrial Plastics Pty ltd [2016] NSWWCCPD 46 wherein President Keating noted that
“Rule 15.7 of the Workers Compensation Rules 2011 allows a worker to discontinue proceedings and he/she is free to recommence that claim at any time…The mere issuing of a MAC does not resolve the issues and a MAC issued in one set of proceedings does not bind parties in subsequent proceedings…A dispute is not determined unless Commission …issued a certificate of determination.”
The respondent contended that the decision in Avni was wrong to the extent that it allowed an applicant to make or recommence a claim that was discontinued after a MAC had been issued. Further, the respondent submitted that a “claim” simply means a valid claim not a determined claim.(Woolworths Ltd v Stafford [2015] NSW CCPD3 and Tan v National Australia Bank Ltd[2008] NSWCA 198)
In summary, the Arbitrator found that the applicant was not entitled to bring the current claim for permanent impairment. The Arbitrator accepted that the applicant was permitted to discontinue his claim in accordance with rule 15.7. However, in applying a strict interpretation of the relevant provisions the Arbitrator determined that the applicant was bound by section 66(1A) of the 1987 Act. A “claim” for the purpose of section 66 is a claim that satisfies the requirements of sections 260 and 261. A “claim” that does not necessarily mean one that is determined (Tan and Stafford). Further, in regards to the interpretation of section 322A of the 1998 Act, the Arbitrator decided that the applicant is entitled to one permanent impairment assessment only and is bound by that assessment for all disputes in respect of all past and future permanent impairment claims for that injury.
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