Injured workers’ entitlements to claim workers compensation benefits were seriously affected by the NSW government’s 2012 legislative changes including limiting the length of time that a badly injured worker could receive weekly (income replacement) payments. The Court of Appeal has set things to right to injured workes’ entitlements. Read our case summary here.

In 2012 the NSW government introduced changes to the workers compensation system which seriously affected the rights of workers. One significant change was to limit the length of time that workers could receive weekly (income replacement) benefits.

The Workers Compensation Act 1987 NSW (the Act) establishes three different entitlement periods in relation to the payment of weekly benefits:

  1. The first entitlement period covers the first 13 weeks after the injury and during that period a worker is entitled to 95% of pre-injury average weekly earnings (PIAWE).
  2. During the second entitlement period from weeks 14 to 130 (two and a half years after the injury), the worker is entitled to 80% of his or her PIAWE.
  3. The third entitlement period cover the time from 131 weeks to 260 weeks (five years after the injury. During this period the worker is entitled to 80% of his or her PIAWE, subject to certain limitations for example, he or she has no capacity to work or has some capacity and works not less than 15 hours per week.

The Act further provides that after 260 weeks of payments, weekly income support benefits must cease. However a worker can continue receiving benefits if he or she has a whole person impairment (WPI) assessment of over 20%.

If an insurer stopped the worker’s weekly benefits after 260 weeks, on the basis of a WPI assessment of 20% WPI or less but the worker later obtains a WPI assessment of over 20% and his or benefits are restored, the question to be asked is – is the worker entitled to the payment of weekly benefits lost during the period of time after the benefits ceased and before they were restored?

Until recently the answer was that the injured worker was not entitled to recover any payments during the gap period however two recent Court of Appeal decisions have changed that to a resounding yes, the injured worker is entitled to the back payment of weekly benefits.

In the cases of Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 the issue facing the court was the same (although the workers and their employers were completely different).

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.

Tom Goudkamp OAM (and  the workers compensation team at Stacks Goudkamp) calls on the regulator to ask insurers to audit their claims and ensure any workers affected by this decision receive their full and proper entitlement to benefits.

For more information, and to arrange a free, no-obligation assessment of your claim, please contact Stacks Goudkamp on 1800 25 1800, or alternatively, make an online enquiry.

Written by Con Ktenas

Con Ktenas is a lawyer in Anna Tavianatos’ Practice Group. Con represents people in a wide variety of matters including workers compensationpublic liability claims and abuse claims.