Workers Compensation Commission Update – Goudappel v ADCO Constructions

The NSW Court of Appeal has handed down its decision today, 29 April 2013, in the case of Goudappel v ADCO Constructions. 

Mr Goudappel had made a claim for compensation generally prior to 19 June 2012.  Then, after 19 June 2012, he made a claim specifically for lump sum compensation for permanent impairment (arising from the same pre 19 June 2012 injury).  The specific lump sum claim was for 6% whole person impairment which amounted to $8,250. 

Mr Goudappel’s claim went before the Workers Compensation Commission (“WCC”) and he lost.  This is because the 2012 workers compensation amendments said, among other things, that (i) a worker who receives an injury that results in a degree of impairment greater than 10% is entitled to receive lump sum compensation, and, (ii) the amendment extends to a claim for compensation made on or after 19 June 2012, but not to such a claim made before that date.  (The WCC interpreted the phrase “claim for compensation made” to mean claims specifically for lump sum compensation.  It ruled against Mr Goudappel since his claim for lump sum compensation was after 19 June 2012 and only for 6%). 

The Court of Appeal has OVERTURNED the WCC’s decision.  It said the preferred meaning of the phrase “claim for compensation made” is the claim for compensation generally.  It said the 2012 amendments do not [our emphasis] apply to claims for compensation made before 19 June 2012 in respect of an injury that results in permanent impairment, whether or not the claim specifically sought permanent impairment / pain and suffering compensation. 

In other words, as we understand the Court of Appeal’s decision, workers who have made claims generally for compensation for injuries prior to 19 June 2012:

a)      Do not have to establish the new greater than 10% threshold;

b)      Can bring multiple claims for lump sum permanent impairment compensation as their impairment deteriorates and are not limited to just one claim (which is another of the 2012 amendments); and

c)       Can claim an extra lump sum for pain and suffering (which was abolished by the 2012 amending legislation and is not recoverable by workers who have suffered injuries / made claims for compensation on or after 19 June 2012) if they have / when they reach the necessary level of impairment (in the case of injuries prior to 1 January 2002, impairment/s that amount to $10,000, or, in the case of injuries after 1 January 2002 whole person impairment of at least 10%).

This is a positive decision for workers who suffered injuries and made claims for compensation prior to 19 June 2012.

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Motor Vehicle Accident Compensation Law Intended Changes

In February 2013, the NSW government announced that it intends to make amendments to motor vehicle accident compensation law. Like the 2012 workers compensation reforms, the motor accident amendments will be significant and is reportedly intended to reduce the cost of car CTP insurance premiums.

It seems that the government intends to make the system a no-fault system (because disputes on liability delay cases’ resolution and blow out costs it said). However, it is estimated that there will be an extra 7000 claims per annum therefore, and it seems benefits will have to be reduced to achieve significant premium reductions.

Payments for lost wages will be made to injured motorists in a periodic way, but they will be capped at rates similar to workers compensation wages benefits, potentially which are potentially lower than actual pre-injury earnings and not necessarily a true measure of an injured motorist’s economic loss.

The government said that such earners could have obtained their own income protection insurance and can rely on that insurance to make up any shortfall. It is unclear at this stage whether wages compensation will continue until retirement age, or be terminated after a number of years like the new workers compensation payments provisions.

It seems that common law rights will be preserved, but only for those injured motorists who have a whole person impairment in excess of 10%. That is a high threshold to meet. Even then, we understand that compensation for the value of domestic care provided to injured motorists on a voluntary basis by friends or relatives following the injury because the injured claimant can no longer perform those domestic activities will be abolished.

This type of claim has been available to claimants for almost 40 years, having been established by the High Court in 1977, but will no longer apply if the government’s proposals are implemented without change. The Motor Accidents Compensation Act already has thresholds that limit when such compensation can be claimed.

These amendments have NOT been implemented yet. Concerned citizens should contact their local member of parliament. The Law Society, Bar Association and Australian Lawyers Alliance have presented a joint submission to the government to make alternative arrangements that are much fairer for people injured in motor vehicle accidents and can also reduce premiums. AM Legal will continue to provide updates on this proposed reform.

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2012 NSW Changes To Workers Compensation

In 2012 the NSW government implemented changes to workers compensation. These were major changes across the entire scheme.

The government completely re-wrote the statutory provisions relating to wages compensation for periods of unfitness for work. The provisions contain complex methods for calculating entitlements. Injured workers can be paid sums for periods of no capacity for work or some capacity for work for up to five years.

There are three entitlement periods within that five year period; 1-13 weeks, 14-130 weeks and 131-260 weeks. Application has to be made in writing, in a form approved by Workcover, to receive payments for the period 131-260 weeks. Payments beyond five years can only be made to injured workers with a whole person impairment exceeding 20%.

Insurers must perform a work capacity assessment early on in the five year period and can do so from time to time thereafter. Once the assessment is completed, insurers can make a work capacity decision and may alter payments to injured workers.

The alteration could be unfair and unsatisfactory for injured workers. For example, should an insurer’s assessment conclude that an injured worker can perform a certain job or jobs (whether or not those jobs are accessible and available to the worker or realistically within the worker’s skill and experience) and the reported earnings for that job or jobs are greater than the worker’s pre-injury earnings, the worker will be deemed to have no loss and payments will be stopped. The government has included provisions that purport to take away the Workers Compensation Commission’s power to review and overturn or amend such decisions.

Those decisions can only be reviewed by the insurer or WorkCover. The WorkCover Independent Review Officer and the Supreme Court can also review such decisions, but only on procedural grounds which may result in a reassessment by the insurer and confirmation of its original decision, albeit after complying with those procedural grounds. Should a work capacity decision to terminate payments occur early within the five years entitlement period, payments may be very brief.

These provisions have been rolled out since late 2012 and apply now.

The government amended the law on lump sums for permanent impairment and pain and suffering. For claims for permanent impairment on or after 19 June 2012, no compensation is payable unless the injured worker’s whole person impairment exceeds 10%. Only one claim can be made. There is a case of “Goudappel” in the NSW Court of Appeal in relation to the commencement date of 19 June 2012 and the definition of the word “claim”.

A test case in the Workers Compensation Commission, which is the subject of this appeal, had earlier found that the word “claim” in the context of the lump sums provisions meant a claim specifically for lump sums and not the general claim for workers compensation one makes when filing a claim form immediately following an injury (which tends to be much earlier in time than the discreet lump sums claim). The appellant, who had made his discreet claim for lump sums compensation after 19 June 2012, hopes to have the WCC decision overturned and the word “claim” redefined to mean the initial general claim.

There is another test case before the Workers Compensation Commission over the “one claim” provision. The question of law to be determined is “can a claim for deterioration (which leads to an increase in the injured workers whole person impairment) be made now, post 19 June 2012, despite earlier claims. The decision in that test case is pending.

The government has abolished pain and suffering compensation. Claims for lump sum compensation made after 19 June 2012, cannot be accompanied by claims for pain and suffering compensation no matter how high the degree of whole person impairment.

The government has amended the law on treatment expenses. Now injured workers must receive pre-approval to have treatment at the insurers’ expense. Treatment can only be approved and paid by insurers for up to twelve months post injury or period/s of incapacity for work.

To summarise, there has been a significant change to workers compensation law. It has been designed to reduce employers’ premiums and encourage a return to work. It remains to be seen whether those goals can be achieved and whether the scheme will result in fair outcomes for injured workers. AM Legal will continue to update you on the effect of these laws and the outcome of test cases from time to time.

Update Workers Compensation Commission Update – Goudappel v ADCO Constructions

 

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If a worker has been in receipt of payments and it is subsequently established that s/he has been working and not entitled to compensation, can the insurer recover that over payment and how?

Yes. The insurer can apply to the Workers Compensation Commission for an order for repayment and the WCC can order repayment of payments for a period not exceeding two years (or any longer/shorter period it considers appropriate). The repayments can be deducted from future payments or recovered as a debt in a court of competent jurisdiction.

This publication is not legal advice.  It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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What are the workers compensation insurer’s duties to a) make weekly payments following initial notification of injury, b) to make weekly payments following receipt of a claim and c) following receipt of a claim for lump sum compensation?

a) The insurer must do so within 7 days unless there is a “reasonable excuse” not to do so eg there is a lack of medical information, it is unable to contact the claimant for more information etc (See WorkCover guidelines);

b) The insurer must do so within 21 days if it accepts liability; c) within one month after the injury becomes fully ascertainable or two months of receipt of all relevant particulars (S281), whichever is the later.

This publication is not legal advice.  It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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What heads of damage can be claimed in a worker’s claim for work injury damages?

The damages that can be recovered are damages for monetary losses ie economic loss, loss of superannuation, damages representing the amount of tax paid on prior statutory wages benefits.

This publication is not legal advice. It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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Does a landlord owe a duty of care in relation to leased premises?

The landlord needs to take care to avoid foreseeable risks. Reasonable steps depend on the
circumstances of the case. A landlord must not let premises that s/he knew or ought to have known were defective. For liability to be established there needs to have been some notice of problems and failure to act on that notice. A landlord is only required to take as much care as was reasonable in the circumstances, noting that all domestic or commercial or industrial premises have some element of danger and can never be maid completely safe.

This publication is not legal advice. It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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Is there any other scheme for victims of motor accidents?

Claimant may be entitled to benefits under the Motor Accidents (lifetime care & support) Act 2006. An entitlement will arise for treatment and care under the scheme if the claimant had a spinal cord injury, severe or moderate brain damage, multiple amputations, serious burns or blindness (unless s/he has been awarded damages previously as part of a final settlement).

This publication is not legal advice. It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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Can a claim be made for injuries resulting from a car accident if negligence is not established?

Since April 2010, negligence does not have to be established if compensation is sought up to $5,000 with an Accident Notification Form. Where death or injury occurs from a “blameless accident” and it involves a vehicle that had insurance cover, it is deemed that the accident resulted from the fault of the owner / driver of that vehicle in the use or operation of that vehicle. Once there is that “fault” a claim can be made and compensation recovered.

This publication is not legal advice. It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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Do all car accident cases proceed to the Claims Assessment & Resolution Service?

No. Cases can be exempted from CARS in circumstances including the insurer has declined liability, where the insurer has alleged contributory negligence of at least 25%, where the insurer has declined to indemnify the owner or driver of the motor vehicle and where the insurer alleges fraud.

This publication is not legal advice. It is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

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