Workers Compensation Update
Your rights for Compensation for Permanent Impairment
Case note: Gaudappel v Adco Constructions Pty Ltd (2013) NSW CA 94
Traditionally, the New South Wales scheme of Workers Compensation has provided an injured worker for ongoing entitlements to compensation provided they could establish their employment was a substantial contributing factor for their need.
The three main entitlements were:
- Payment of your work injury related medical expenses,
- Weekly wage compensation for incapacity to earn because of your work related condition, and
- A small sum for any Permanent impairment caused by your work related injury.
The new Workers Compensation Scheme has seriously eroded these rights, including an injured worker’s right to benefits for permanent impairment.
A right to benefits for permanent impairment is a right not often know by workers and rarely disclosed by the insurer/scheme agent.
Under the new scheme, a worker has to prove that their work related injury results in a 11% or greater Whole Person Impairment rating.
It may not sound much, but this is a very high threshold to overcome.
However, there may be some relief for those who made a claim for workers compensation BEFORE 19 June 2012.
The New South Wales Court of Appeal has upheld an Appeal by an injured worker claiming benefits for a Permanent Impairment suffered as a result of his employment.
The claim was for less than 11% Whole Person Impairment.
He argued that as he had made a claim for compensation before 19 June 2012 then he did not need to meet the 11% threshold.
In essence, this decision provides that if you have suffered an injury and made a claim for Worker’s Compensation in any form before 19 June 2012 then you are entitled to claim benefits for whatever permanent impairment you have suffered.
If, your injury happened after have not made a claim for Worker’s Compensation benefits before 19 June 2012 than, you must reach a threshold of 11 % Whole Person Impairment before you are entitled to any compensation for Permanent Impairment.
Special leave to appeal this decision to the Highest Court in Australia has been made by the employer. It remains to be seen what their decision will be.
On 17 April 2010 the injured worker suffered an injury at work when a bundle of steel fell from a forklift causing him an injury on his left foot and left ankle.
Two days later the injured worker made a Workers Compensation Claim.
As is usually the case the original Workers Compensation Claim does not specifically make a claim for any permanent impairment.
The law requires that a worker “reach maximum medical improvement” before he can be assessed and make a claim for permanent impairment benefits.
On 19 June 2012, new provisions of the Workers Compensation Scheme came into force for all “claims for compensation” made on or after 19 June 2012.
The injured worker made a claim for permanent impairment benefits after this date.
In essence, the issue was whether the original Workers Compensation Claim was enough to see his claim fall under the Pre-Workers Compensation Amendments.
Decision of the President of the Worker’s Compensation Commission
President Keating of the Worker’s Compensation Commission dismissed the workers claim stating that “claim for compensation” meant that a claim specifically for permanent impairment benefits had to be made before 19 June 2012.
As the claim for permanent impairment was made by the worker after this date and under the 11 5 Whole Person Impairment Threshold he could recover no compensation for permanent impairment. The Worker Appealed to the New South Wales Court of Appeal.
The New South Wales Court of Appeal Decision
The New South Wales Court of Appeal allowed the Appeal.
The New South Wales Court of Appeal found that if any claim for Compensation is made before 19 June 2012 than the old provisions will apply to that claim (i.e there is no threshold for obtaining Whole Person Impairment benefits) and thus the worker can claim.
The Court noted that this was the case “whether the claim specifically sought compensation” for permanent impairment benefits.
Is this the final word?
The employers Solicitors are considering whether they should appeal to the highest Court in Australia that is the High Court of Australia.
The employer has until 27 May 2013 to lodge this Appeal.
If any Appeal is lodge, the High Court of Australia must grant special leave to hear the case of the employer.
If special leave is granted, than the High Court will review the case and provide a judgement which may overturn or confirm the New South Wales Court of Appeal.
It is yet to be seen whether the employer will appeal to the High Court of Australia.
The position of WorkCover
WIRO, a sub branch of WorkCover has issued the attached fact sheet which provides what an injured worker’s rights are if they have made a claim for compensation before 19 June 2012 with respect to permanent impairment.
This document states that WorkCover is of the view that an injured worker can make a claim for permanent impairment benefits.
If you reach the threshold of 11 % Whole Person Impairment than you are entitled to further compensation for pain and suffering.
If after making this claim your condition further deteriorates, an injured worker will be able to make a further claim for permanent benefits provided that the deterioration has caused an increase in assessment of permanent impairment.
If you have made a claim for compensation before 19 June 2012 and have any ongoing impairment we strongly suggest that you seek legal advice as to whether you have any entitlements to permanent impairment benefits.
It is still to be seen whether the New South Wales Government will seek to change the law so that the New South Wales Court of Appeal Decision is in fact changed.
If you do wish to proceed with a claim for permanent impairment benefits we ask that you kindly contact our office and arrange an appointment in this regard.