Supreme Court Victory for Injured Workers

Posted 23-07-2020
Written by admin 101
Category Compensation

Injured workers have had a victory over insurers in the NSW Supreme Court. RMB Compensation division reports:

In June 2012 the NSW workers compensation legislation drastically reduced entitlements for injured workers to receive weekly income payments.

Previously an injured worker could claim weekly benefits for an indefinite period. The 2012 amendments restricted that period, in most cases, to a maximum of five years.

As a result, workers now require a whole person impairment assessment (WPI) of 21% or higher by a specially qualified medical specialist to claim beyond five years.

After June 2012, when the worker had reached five years of weekly income payments, the insurer simply stopped paying them, often before a worker had a WPI assessment.

Consequently, many workers accepted the decision of the insurer and sought disability benefits via Centrelink or simply had no income.

But what happens in a situation where a worker has waited many years after payments have been stopped and then receives an assessment of 21% or higher? Can they claim for the gap period?

This situation arose in two recent cases that were ultimately decided in the NSW Supreme Court, Court of Appeal.

In these cases, the workers argued that it didn’t matter when they were assessed at 21% or higher. They had a right to claim after the five years. The insurers argued that the workers only became entitled to weekly income benefits again once their WPI was assessed at 21% or higher and couldn’t claim the gap period.

The Court of Appeal found that the legislation did not specifically state that a worker’s entitlement to payments beyond five years only began from the date of the  WPI assessment. The legislation simply stated that a worker can claim payments beyond the five years if they had a WPI assessment of 21% or higher.

The workers were therefore successful in claiming the gap period, which in these cases spanned years.

The judgement is incredibly important because in many cases, workers payments stopped after five years often without WPI assessments being made by the insurer.

Many workers have also had surgery that can increase the WPI percentage significantly.  Workers that fall into this category and have a WPI of 21% or higher may now be able to make a claim for years of past weekly income payments.

If you feel your circumstances might be similar to these cases, we encourage you to contact us and seek legal advice from an RMB Compensation lawyer about your potential entitlements. We'll be able to help you via a quick phone call, or ask us a question via email.