There is no doubt that the 2012 changes to the workers’ compensation scheme introduced some convoluted, confusing and unfair changes.
One of the more onerous changes was the amendment to Section 39 of the Workers Compensation Act which introduced a maximum period of 5 years within which a worker can claim weekly compensation payments. This time limit though does not apply if the worker’s injuries have resulted in a greater than 20% Whole Person Impairment, whether by agreement or by an assessment of the Approved Medical Specialist of the Workers Compensation Commission.
What happens when an injured worker’s whole person impairment is assessed at greater than 20% after this 5 year-period? Normally, the worker’s weekly compensation payments will commence from the date of that assessment. However, can the worker back-claim the weekly compensation payments from the end of the 5-year period up to when they achieved the greater than 20% assessment? Since 2012, the answer to that question has been ‘No’.
In two recent NSW Court of Appeal decisions of Hochbaum v RSM Building Services Pty Ltd and Whitton v Technical and Further Education Commission t/as TAFE NSW, the Court of Appeal determined that if a worker is assessed after the end of the 5-year period as having a greater than 20% Whole Person Impairment, then the insurer is required to back-pay the worker their weekly compensation payments from when the payments stopped.
The above applies even if a worker had previously had their whole person impairment assessed for the purpose of pursuing a lump sum claim for their injury. This decision makes it possible for the worker’s whole person impairment to be re-assessed to determine if it has increased to an assessment of greater than 20%.
If your weekly payments ceased after the 5-year period ended, contact Lionheart Lawyers. We will assess your claim and assist you in claiming your full entitlements.