Thinking | 17 May 2016
Can a determined claim be invalid?
In Mehmet Yildiz v Victoria Yeeros Pty Ltd  NSWWCC 108, Arbitrator John Harris decided that the applicant has no entitlement to pursue his further claim for whole person impairment pursuant to section 66(1A) of the Workers Compensation Act 1987 (NSW) (Act).
Mr Yildiz suffered an injury on 20 January 2009. He previously made a claim for whole person impairment of the right and left upper extremity and cervical spine by way of letter dated 2 May 2013. During a conciliation/arbitration hearing held on 16 January 2014, it was agreed that the claim for whole person impairment of the right upper extremity only would be referred to an Approved Medical Specialist for assessment. Relevantly, the assessment of impairment relied upon at that time was 4% whole person impairment. Mr Yildiz was subsequently examined by the Approved Medical Specialist who assessed 10% whole person impairment. The Workers Compensation Commission issued a Certificate of Determination dated 8 April 2014 finalising his claim for lump sum compensation for 10% whole person impairment.
Although Mr Yildiz’s claim was less than the minimum 11% whole person impairment threshold pursuant to section 66(1) of the Act in respect to claims for lump sum compensation made after 19 June 2012 as is now the accepted legal position, his claim was finalised prior to the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel  HCA 18 (Goudappel No 2) which determined that the date of the claim for lump sum compensation, as opposed to the date of the injury, is the relevant date for the purposes of section 66(1) of the Act.
In the current proceedings Mr Yildiz relied upon a letter of claim dated 13 November 2015, in which he made a claim for whole person impairment of the left upper extremity and cervical spine again attributable to a date of injury of 20 January 2009. The employer argued that he was precluded from pursuing his claim for further whole person impairment by reason of the operation of section 66(1A) of the Act which states:
‘(1A) Only one claim can be made under this Act for permanent impairment compensatdoneion in respect to the permanent impairment that results from an injury.’
Mr Yildiz submitted that based on the reasoning of Roche DP in Woolworths v Stafford  NSWWCCPD 36 (Stafford), his initial claim for 4% whole person impairment was an invalid claim. He therefore argued that his claim made by way of letter dated 13 November 2015 was now his one valid claim within the meaning of section 66(1A) of the Act. He argued that there was previously an improper referral to the Approved Medical Specialist as he was not entitled to make a claim for less than 11% whole person impairment.
Arbitrator Harris dismissed Mr Yildiz’s argument and found that the initial claim and determination by the WCC was not invalid or a nullity despite the subsequent decision of the High Court in Goudappel No 2. The Arbitrator also did not accept the applicant’s submission that Stafford is authority for the proposition that a determined claim can be an invalid claim.
The Arbitrator therefore found that the applicant’s claim made by way of letter dated 13 November 2015 is a further claim made in breach of section 66(1A) of the Act. He made an award in favour of the employer for the further claim for whole person impairment.
Although this decision of Arbitrator Harris may still yet be the subject of an appeal, the decision provides a basis to argue that an injured worker who made a claim for whole person impairment after 19 June 2012 for less than 11% whole person impairment which was determined prior to the High Court’s decision in Goudappel No 2. has already had their one valid lump sum compensation claim pursuant to section 66(1A) of the Act.
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