“I should get workers comp back pay, starting from the day of my injury.” Which case won?
Injured worker receives weekly compensation benefits and lump sum payment
In September 2000, a worker fell while pushing a wheelbarrow in the course of his employment.
He suffered significant injuries to his leg and made a workers compensation claim.
The employer’s insurer accepted liability. It paid the worker’s treatment expenses and ongoing weekly benefits, along with a lump sum payment for permanent injury.
In June 2012, the worker fell when his leg gave way, breaking his wrist and significantly injuring his back. Under workers compensation law, these injuries were treated as being part of the initial work injury.
New law commences that weekly payments cease after 260 weeks unless permanent impairment greater than 20%
Section 39 provides that a worker is not entitled to weekly payments in respect of an injury after an aggregate period of 260 weeks of weekly payments.
This is loosely referred to as the five year rule, because for people with long-term injuries who receive continuous payments, the 260-week limit works out to be five years.
Under section 39(2), if a person with long-term injuries can establish through medical evidence that their permanent injury exceeds a “20% of Whole Person Impairment” threshold, then they are entitled to continue receiving weekly payments after the five year cut off period.
Worker’s weekly compensation payments cease on 26 December 2017
Under section 39, weekly payments made before 1 January 2013 are not counted towards the 260-week period.
Therefore, the worker reached the 260-week limit on 25 December 2017, being 260 weeks after 1 January 2013.
The insurer ceased paying the worker’s weekly benefits from 26 December 2017.
Worker disputes cessation of payments and payments reinstated from 16 July 2018
On 6 April 2018, the worker made a claim for ongoing payments of weekly compensation, arguing that his permanent impairment exceeded the 20% threshold under section 39(2).
The insurance company denied the claim, triggering a medical dispute between the worker and the insurance company under the workers compensation law.
This dispute was finally resolved on 16 July 2018, when a medical assessment certificate was issued certifying the worker as having 21% permanent impairment.
The worker’s payments were reinstated by the insurance company from 16 July, but the company refused to pay benefits for the intervening period from 26 December 2017 to 15 July 2018.
Worker goes to court seeking back payment for period from 26 December 2017 to 15 July 2018
The worker then went to the Worker’s Compensation Commission, seeking payment for the period between 26 December 2017 and 15 July 2018.
The arbitrator at the commission decided in the worker’s favour, ordering the insurance company to pay the missing six months’ compensation.
The insurance company appealed the arbitrator’s decision to the President of the Worker’s Compensation Commission. The President ruled in the insurance company’s favour, finding that the worker was not entitled to back payment.
The worker appealed the President’s decision to the NSW Court of Appeal, Supreme Court.