September 2013

Workers Compensation Commission (WCC) retains jurisdiction on issue of capacity for work

Amendments to the 1987 Act have not removed the Commission’s jurisdiction to determine a worker’s entitlement to, and the quantum of, weekly compensation payments, according to the decision of Deputy President O’Grady in Inghams Enterprises Pty Limited v Sok & Anor [2013] NSWWCCPD 39

Brief background

The worker was employed by Integrated Parramatta Services Pty Ltd (Integrated), a labour hire company and was sent by Integrated to work at Inghams Enterprises Pty Ltd (Inghams) in June 2001.  The worker performed a variety of physically demanding tasks and suffered injury to her back in October 2002.  She had a short time off work after the injury.  In November 2002 she became a full-time employee of Inghams.  She suffered further injury to her back during her employment with Inghams.

The worker filed an ARD seeking weekly payments of compensation from 10 May 2011 to date and continuing.  Integrated and Inghams were each named as respondents.

Following the arbitration hearing, the worker was awarded weekly payments of compensation under section 37 at the maximum statutory rate on the basis of total incapacity.

Integrated and Inghams both appealed the decision of the arbitrator.

The appeal

The relevant issues on appeal were:

(a)  Did the arbitrator err in making an ongoing award after 31 December 2012 under provisions repealed by the Amended Act?; and

(b)  Did the Commission have jurisdiction to make a determination on capacity and award weekly payments after 31 December 2012?

In answer to (a), Deputy President O’Grady upheld the appeal and determined, (on the basis the worker was not an existing recipient of weekly payments immediately prior to 1 October 2012), the worker’s entitlement required determination under the provisions of the Amended Act beyond 31 December 2012.

In answer to (b), the Deputy President rejected the jurisdictional argument finding, in the absence of a work capacity decision, the Commission retained jurisdiction to determine the issue of capacity for work, any entitlement to weekly payments and the amount of such payments.

What does this mean?

1.  Workers, who are not existing recipients of weekly payments immediately prior to 1 October 2012, are required to have any entitlement to weekly payments of compensation, after 31 December 2012, assessed under the provisions of the Amended Act. 

2.  In the absence of a work capacity decision, the Commission retains its jurisdiction on the issue of capacity for work.

3.  Insurers wishing to deprive the Commission of jurisdiction on the question of capacity and any entitlement resulting from a finding of incapacity, should make a work capacity decision.

We note Inghams have filed a Notice of Intention to Appeal in the Court of Appeal against the decision of Deputy President O’Grady.

 

Our expertise