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
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
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
"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
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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