Permanent impairment benefits and the High Court decision of Goudappel
The good, bad and the ugly…
Timothy Driscoll LLM
- On 16 May 2014 the High Court of Australia full bench (5 Judges) handed down its decision.
- Unfortunately, the High Court unanimously upheld the Appeal and reversed the NSW Court of Appeal’s decision.
- They did so in very brief fashion – some 67 paragraphs (ironically the same number as the provision which at one time gave pain and suffering benefits!).
- The effect of this decision has caused much a headache for both an injured worker and WorkCover.
- For workers, the decision effectively confirms the following.
- Firstly, there are 2 sets of rules – those who made a claim for permanent impairment benefits before 19 June 2012 and those who did not.
- Depending on when your claim for permanent impairment benefits (if any) has been made will depend on which system applies to your permanent impairment claim
The Bad – The 2 Systems
- Specific claim for permanent impairment benefits before 19 June 2012
i. Your are entitled to permanent impairment compensation for WPI or Permanent loss under Table of Maims (for pre 2002 injuries) above 0%
ii. If you are 10% WPI or received $10,000 or more under the Table of Maims, you are entitled to compensation for pain and suffering between $1 and $50,000.
iii. You can make as many claims as you want if/when you condition deteriorates.
- For Workers who have NOT made a specific claim for permanent impairment benefits before 19 June 2012
i. You must reach 11% WPI to get any compensation
ii. You can only make one claim, and
iii. You cannot get any additional compensation for pain and suffering.
Which one applies to me?
- Only those injured workers who have made a specific claim for permanent impairment benefits in writing before 19 June 2012 come under the first system.
- Normally workers injured will fill in a standard claim. The ordinary/general claim form is not sufficient.
- So if you injured yourself at work after 18 June 2012 or made a claim for permanent impairment benefits (even if you made you original claim) after 19 June 2012 then you fall under the old system.
The Ugly – The dilemma for WorkCover
- As I have previously reported, the NSW Court of Appeal reversed the NSW Workers Compensation Commission’s decision effectively finding that if you made any claim for compensation before 19 June 2012 then the old provisions applied.
- WorkCover, on this advice, implemented its policy that it would pay workers in accordance with this decision.
- However, now that the High Court has reversed this decision, the question remains as to how WorkCover is to deal with current claims on foot.
- If an injured worker and a Scheme agent (or the representatives) have agreed in writing to the payment of permanent impairment compensation in accordance with the NSW Court of Appeal’s decision they will meet that agreement and pay that compensation.
- The effect of WorkCover’s agreement is that if you have agreed or have in fact been paid under the old scheme when you had no right to then, WorkCover will not come after you to reclaim this money.
- If however, your claim was not agreed at the time of the High Court Judgment on 19 May 2014 then you will miss out.
The Good – What has happened since the High Court decision?
- Some reprieve came for workers who made a claim for permanent impairment benefits before 19 June 2012.
- It was thought that if workers decided to seek a top up of permanent impairment benefits due to their condition deteriorating, then that claim would be brought after 19 June 2012 and thus come under the new scheme.
- That issue (to date) has been resolved. The Workers Compensation Commission determined that the 1st system would apply in all of its glory: Cauldield v Whelan Kartaway Pty Limited (2014) NSWCC PD 34.
- However, WorkCover may want to appeal this decision.
- The Scheme Agent themselves, however, cannot, as to do so would raise an issue not submitted/contended before the Commission. However, another scheme agent may wish to bring another ‘test case’ and challenge this decision in the Courts at a future date.
- Time will tell…
8 July 2014.