Should a permanently injured worker lose payments while waiting for assessment? Which case won?
Worker falls while pushing wheelbarrow and suffers injury
The initial injury happened in December 2000, when the worker fell while pushing a wheelbarrow. He suffered a significant injury to his right leg and ankle. The workers compensation insurer accepted liability and paid treatment expenses and ongoing weekly benefits from that point on, as well as a lump sum payment for permanent injury about four years after the incident.
The leg injury continued to give the man problems. In 2012 he had a serious fall when the injured leg gave way, resulting in a broken wrist and a significant back injury. Under workers compensation law, these consequential further injuries are treated as being part of the initial work injury.
The insurer continued paying weekly benefits on the basis that the man was unable to work as a result of the injuries and made a formal decision in 2013 that he had “no work capacity”, meaning that he would continue to receive weekly compensation benefits into the future.
Changes to workers compensation laws in NSW and introduction of “five-year rule”
In 2012 some major changes were made to workers compensation laws in NSW, including a new 260-week limit on payment of replacement income. This is loosely referred to as the five-year rule, because for people with long-term injuries receiving continuous payments, the 260-week limit works out to five years.
Payments before 2013 were not counted toward this new limit, with the result that thousands of long-term injured workers got a nasty Christmas present in 2017, when their workers compensation benefits were cut off.
Threshold of 20% Whole Person Impairment
The only way in which people with long-term injuries could continue to receive compensation benefits after the five-year cut off period was if they could establish through medical evidence that their permanent injury exceeded a “20% of Whole Person Impairment” threshold.
The worker was ultimately certified at 21%, but it took until 16 July 2018 to obtain that formal assessment. Weekly payments of workers compensation benefits resumed from 16 July 2018, but the insurer refused to pay benefits for the intervening period from 25 December 2017 to 16 July 2018.
The worker brought proceedings seeking an order that the insurer was liable to back-pay him for the six month period.