Injured Workers Hurt By Court Decision On Compensation
A recent decision in the NSW Court of Appeal could have serious consequences for workers injured while doing their job who seek financial assistance to help them cope with their new disability.
The effect of the court decision is that potentially thousands of seriously injured workers whose condition worsens could be stopped from topping up their initial lump sum compensation payment.
The decision effectively overturned the previous interpretation of section 66 of the Workers Compensation Act 1987 so that a worker who has made a claim for permanent impairment compensation prior to 19 June 2012 may not bring a further claim for lump sum compensation after that date.
On that date the NSW government inserted a new provision in the Act stating: “Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
The Cram Fluid Power v Green case centred on a worker who’d injured his spine and received lump sum compensation. However his spinal condition worsened and he had to undergo surgery. His condition was now significantly worse and he sought a further compensation payment to help him in his worsened state.
However Court of Appeal judges ruled it was not a new claim, but a second claim for the same injury and therefore was ruled out of being a permissible claim for workers’ compensation.
The effect of this decision is that many workers could be barred from receiving top-up compensation for a worsening condition. It also means that a worker who initially does not get any lump sum because they are assessed as having a whole person impairment (WPI) of 10 per cent could not try again later, even after having to undergo surgery that would be expected to put them over the threshold.
“The aim of the workers compensation scheme is to protect workers rights and assist them to adjust their lives when they are injured at work,” said workers’ compensation specialist Erin Woodward of Stacks Law Firm.
“The change to the legislation and the resulting Court of Appeal ruling seems to work against that aim. If an injured worker’s condition worsens they should be assisted and compensated to adjust to this new level of disability caused by the original work injury. We hope the NSW Government will review the legislation in light of this decision because in its current form it will operate very unfairly for many workers.
“The workers compensation scheme is becoming more and more complex and it’s made more difficult for injured workers because they are having to deal with experienced and trained insurance representatives on the other side. If you are injured at work, you should talk to a lawyer that specialises in workers’ compensation to make sure you get all your entitlements,” Ms Woodward said.