In each case the Workers Compensation Commission’s Arbitrator held that the worker was entitled to those benefits but, on appeal, the President of the Commission had overturned the decisions finding that the workers were only entitled to benefits from the date they were assessed to have had a degree of whole person permanent impairment resulting from the injury of more than 20%.
The New South Wales Court of Appeal held that on a proper construction of the relevant section (section 39 of the (NSW)) the 260 week limit never applies to a worker whose degree of WPI exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed. Moreover, the words of the section do not mandate that there must have been a formal assessment following the dispute resolution procedures set out in the Act. For example, the Court of Appeal found that the insurer could be satisfied the injured worker’s WPI is greater 20% on the evidence and without the need for a WPI assessment.
The date upon which the impairment threshold is crossed is not a relevant consideration in any question resulting under section 39. The only relevant question is whether the permanent impairment results from the worker’s injury and whether the degree of that impairment is greater than 20%.
The practical effect of the above is that any worker who has had his or her weekly benefits cancelled under section 39 as a result of not having a formal assessment (and certificate) of WPI greater 20%, is now able to ask the insurance company to reinstate those payments as soon as the insurer agrees they have a WPI of more than 20% or the Medical Assessment Certificate is issued and the worker is entitled to be paid benefits back dated to the date his or her weekly payments were ceased.
Stacks Goudkamp has a specialist team of lawyers in workers compensation law who are happy to provide accurate and timely advice in relation to injured workers’ entitlements and assist you in all your workers compensation enquiries.