The NSW Court of Appeal recently handed down a judgment which has very important implications for workers.
The 2012 amendments to the Workers Compensation Act 1987 (“the Act”) meant that a worker would have no further entitlement to weekly payments of compensation after a period of 260 weeks of payments (section 39(1) of the Act). However, the legislation states that this restriction does not apply to an injured worker whose injury results in permanent impairment of greater than 20% (section 39(2) of the Act).
The appellants were two workers who had been injured in the course of their respective employment. Each of them had made a claim for compensation, and was in receipt of weekly compensation payments, prior to the workers compensation amendments in 2012.
As a result of the 2012 amendments, the respondents’ insurers ceased paying weekly payments to the workers, 260 weeks after 1 January 2013. Subsequently, both of the workers were assessed as having permanent impairment in excess of 20%. Weekly payments were resumed with effect from the date of the assessment, however, the insurers’ liability to make payments in respect of the period between the cessation of the payments and the date of the assessment was disputed.
In each case, an arbitrator had held that the worker was entitled to weekly payments for the disputed period, but both of these decisions were overturned on appeal by the President of the Workers Compensation Commission. The President held that the effect of section 39(2) was to displace section 39(1) only from the date when the worker was assessed to have a permanent impairment of more than 20%.
The workers appealed that decision to the Court of Appeal, who upheld the appeal, in favour of the workers. It was held that on the proper construction of section 39, the 260 week limit never applies to a worker whose permanent impairment exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed.
The Court noted that the date on which an impairment threshold is crossed is not a relevant consideration. The only relevant question is: “What degree of permanent impairment has resulted from the worker’s injury?” For the purposes of section 39, while impairment may improve or deteriorate over time, or not be established until long after the injury, it is the final degree of permanent impairment that results from an injury that determines whether the worker is exempt from the 260 week limit.
Accordingly, the workers were entitled to payment of their weekly benefits for the period between the cessation of the payments and the later assessment of permanent impairment.
[Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113]
If you have any questions on the above article please contact Joe Bonura on jbonura@marsdens.net.au or Tess Danjoux on tdanjoux@marsdens.net.au or by phoning 02 4626 5077.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
