Claim for weekly compensation for periods before and after 1 January 2013; claim made before 1 October 2012; whether the entitlement periods for weekly compensation commence to run from date weekly compensation paid or payable or from 1 January 2013; ss 32A, 36.  

PK Simpson Lawyers instructing Ross Stanton Esq. represented a working mother Mrs Kilic before the WCC claiming weekly compensation.

On 24 January 2011, and between November 2007 and 2 February 2011, the appellant worker, Hulya Kilic, received injuries in the course of her employment with the respondent employer, Kmart Australia Ltd (Kmart). Her claim for compensation was accepted and Kmart paid voluntary weekly and other compensation until 19 April 2012. Kmart disputed liability beyond that date on the ground that Ms Kilic had not received some of the injuries she alleged and that, in respect of the injuries that it conceded, she had no continuing incapacity for work.

The worker was injured in January 2011. Her first 26 weeks of incapacity ended on 29 July 2011.  Arbitrator Haddock had determined that a worker who was not in receipt of weekly compensation benefits as at 1 October 2012 is not an existing recipient and weekly compensation entitlements are calculated according to the old legislative provisions until 31 December 2012.  Arbitrator Haddock made an Award in favour of the worker pursuant to pre-amended Section 37 total incapacity provisions from 29 July 2011 until 31 December 2012. 

The worker as at 1 January 2013 was within the “second entitlement period” of the new weekly compensation provisions. As the worker had a current capacity for employment her ongoing entitlements were determined pursuant to the amended Section 37(3) of the WC Act. It was agreed that the worker’s pre injury average weekly earnings (PIAWE) was $450.00 per week.  Arbitrator Haddock determined the worker had an ability to earn of $216.00 per week. 

She calculated the worker’s entitlement on the basis of $450 X 80%, less the ability to earn of $216.00 per week. This resulted in an ongoing award from 1 January 2013 to date and continuing pursuant to Section 37(3).  She noted that those payments were to continue until a total of 130 weeks had elapsed, at which time the worker would fall outside the second entitlement period and would be governed by the new Section 38 of the WC Act.

The issue on appeal was whether the Arbitrator erred in determining when the entitlement period in s 32A commences.

Arbitrator Haddock found the worker continued to be incapacitated as a result of the relevant injuries and generally entitled to ongoing weekly benefits. However she came to the conclusion that the worker could not receive more than 130 weeks of weekly benefits from the time that her incapacity arose.

On appeal before DP Roche it was argued the effect of the transitional provisions on workers who were not receiving weekly compensation as of 1 October 2012 (as was the case with Mrs Kilic), was that the 130 week entitlement period did not commence to run until 1 January 2013. This was because Schedule 8 Clause 3 Workers Compensation Regulation 2010 provides that the weekly payments amendments (which created the 130 week period) “do not apply to the compensation payable until 1 January  2013”.

It was further argued that Schedule 6 Part 19H Clause 9, which the Arbitrator had relied upon in coming to her conclusion, only applies to workers who were receiving weekly compensation benefits as of 1 October 2012. In the alternative, if Part 19H Clause 9 was found applicable to so-called “non-existing recipients”, it was argued that Schedule 8 Clause 3 had the effect of amending any reading of it which supported the Arbitrator’s interpretation.  This was because (somewhat unusually) relevant Regulations of a savings and transitional nature can amend the Workers Compensation Act by virtue of Schedule 6 Part 20(5).

Unfortunately DP Roche found against this argument and upheld the Arbitrators reasons. 

A holding appeal has been lodged and the appeal will be confirmed before 3 October 2013.

The recent changes to what was meant to be beneficial legislation would test the acumen of a University Law Medalist and may provide work for silks and the senior workers compensation bar for some time.  It’s interesting that each time the Parliament attempts to amend the law to amend costs and reduce complexity they produce unwieldy bureaucracy and increased uncertainty for workers.

Workers Compensation Commission Report