Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250

Legal Directions

The decision of the NSW Court of Appeal in Cram Fluid clarifies the operation of the 2012 amendments with respect to claims for further permanent impairment compensation.

The effect of the decision is that:

  1. Section 66(1A) applies to all claims for permanent impairment compensation unless the claim was made prior to 19 June 2012.
  2. A worker who made a claim for permanent impairment compensation prior to 19 June 2012 is precluded from bringing a further claim after 19 June 2012.
  3. A worker who entered into a complying agreement prior to 19 June 2012 can only seek a further award of permanent impairment compensation for a deterioration, pursuant to s66A(3), if the claim for further compensation was made prior to 19 June 2012.

By issue of E-Bulletin No. 61, the Workers Compensation Commission advised that:

  1. In affected matters not currently listed before Arbitrators, notices will be sent to the parties inviting submissions as to why the matter should proceed.
  2. All affected matters listed before Arbitrators will be dealt with at the respective listing.

Consistent with the approach adopted after the decision in Goudappel, we anticipate that WorkCover will direct that any settlement prior to the decision in Cram Fluid be honoured (this will clearly be subject to any instructions or advice which now issue from WorkCover).

What action is Required?

Any offers of settlement in claims affected by this decision should immediately be withdrawn.

Matters in the WCC should be determined in accordance with the decision in Cram Fluid

Any further permanent impairment claims which are affected by the decision in Cram Fluid should be determined by issue of a s74 notice relying on the operation of s66(1A) of the 1987 Act, as interpreted in Cram Fluid.

Please speak to one of our expert workers compensation lawyers if you require any advice regarding the application of this decision.

Authored by Partners Stephen Harris and Bradley Stringer, Sydney.

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