Goudappel update

On 16 May 2014 the High Court of Australia handed down its decision in the matter of Adco Constructions Pty Ltd v Ronald Goudappel & Anor.  This matter was an appeal by the employer Adco Constructions against the decision of the NSW Court of Appeal.

In 2012 the NSW government made amendments to workers compensation, including amendments to lump sum compensation for permanent injuries that included the introduction of a qualifying threshold of whole person impairment greater than 10% , abolition of pain and suffering (which was an additional lump sum that was payable on reaching 10% whole person impairment), and limitation of permanent impairment / pain and suffering claims to one claim regardless of possible future deteriorations in condition.  The transitional provisions in the amending legislation said those changes to permanent impairment claims extended to claims made on or after 19 June 2012.

In April 2013 the NSW Court of Appeal interpreted “claims” as claims generally for compensation and not claims specifically for lump sum permanent impairment compensation.  It determined, therefore, that the 2012 legislative amendments to lump sum permanent impairment claims did not apply to workers who made claims generally for workers compensation (even though not specifically for lump sum permanent impairment compensation) prior to 19 June 2012.    The effect of the Court of Appeal decision was that a worker who was injured and claimed compensation generally prior to 19 June 2012, however had not claimed lump sum permanent impairment compensation until after that date, could still claim the version of lump sum compensation benefits that applied prior to the amendments.

The High Court has overturned the NSW Court of Appeal’s determination, saying in its judgment handed down today 16 May 2014 that the 2012 legislative amendments to lump compensation do apply [our emphasis] to claims made on and after 19 June 2012 where the injured worker has not made a claim specifically seeking lump sum compensation before 19 June 2012.

What does this mean?  In the event that workers were injured prior to 19 June 2012, however did not specifically claim lump sum compensation prior to that date, they will be entitled to one claim for lump sum compensation for permanent injury only (not pain and suffering additionally) provided they have a whole person impairment of at least 11%.