Top-up claims are a thing of the past – Cram Fluid Power v Green [2015] NSWCA 250

PUBLISHED 19 Oct 2015

Mr Green suffered a back injury whilst at work on 24 May 2005. An application for compensation was made within 6 months of the injury and on 14 December 2010, Mr Green settled a lump sum claim based on a 7% whole person impairment.

Following settlement, Mr Green’s condition deteriorated to the point where he required surgery. This surgery was performed in September 2012, and in October of 2013 Mr Green made a further lump sum claim pursuant to section 66 of the Workers Compensation Act 1987 (NSW) based on a 22% whole person impairment.

The matter was taken to the Workers Compensation Commission whereby it was found that Mr Green was entitled to make a top-up claim. This decision was appealed and it was further confirmed that Mr Green was not precluded from making his top-up claim. The matter was taken to the Court of Appeal.


The applicant in these proceedings sought leave to take the matter to the Court of Appeal. Their argument was based on two issues:

  1. Whether the one claim limitation provided under Section 66 of the Act applied to Mr Green’s 2013 claim; and
  2. Whether the words one claim are to be interpreted as meaning only one further claim on or after 19 June 2012, being the date these legislative amendments were brought in.

It was found by the Court of Appeal that the claim made in 2013 is a new claim and is therefore not caught under the rules determining section 66, which state that it relates to a claim made before 19 June 2012. This section only operates when the further claim was made prior to 19 June 2012.

In Mr Green’s circumstances, it was found that his ‘one claim’ was made in 2010. As the top-up claim was brought about after the 19 June 2012, the Court determined that he was not entitled to the making of a top-up claim.

What does this mean for you?

In the past we have been able to settle claims, and upon the further deterioration of an injury, have been able to make a top-up claim for that injury. Often, that top-up claim would lead to a work injury damage claims, being a claim for negligence against your employer whereby a 15% whole person impairment is required. Top-up claims are no longer claimable.

If you have had a previous settlement and have had a surgery or a further deterioration since the date of injury, contact the solicitors at Gerard Malouf and Partners for advice. Whilst we are unable to make top-up claims for you, however, we will assess your case and determine the merits in pursuing a work injury damages claim.

Furthermore, it is important to settle a claim only after all treatment has expired. Remember, you only have one shot at making a lump sum claim, so contact Gerard Malouf and Partners to maximise your compensation.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.