Hochbaum and Whitton Judgement

The Court of Appeal (Brereton & White JJA & Simpson AJA) handed down its decision in the matters of Hochbaum v RSM Building Services Pty Ltd and Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113.


The importance of this decision concerns weekly compensation payments payable to injured workers beyond the 260 week restriction. In 2012, amendments replaced s 39 (1) of the Workers Compensation Act 1987 NSW which states that a worker has no entitlement to weekly compensation payments after 260 weeks from the date of injury, whether or not consecutive payments have been made to the injured worker by the workers compensation insurer. The only exception to this rule is if the workers injury results in permanent impairment of greater than 20% whole person impairment. Then, and only then, are they entitled to weekly compensation payments beyond 260 weeks pursuant to s 39 (2) of the Workers Compensation Act 1987.

It was unsettled law as to whether an injured worker was entitled to back payment when and if they were assessed as suffering 21% whole person impairment after the expiration of their 260 week entitlement.

The judgement in Hochbaum is welcomed by injured workers. In each case, the injured workers weekly compensation payments had ceased at the 260 week cut off period and resumed from the date of the formal assessment of permanent impairment which found that they had permanent impairment resulting from their injuries of greater than 20% whole person impairment.

The insurer in each case declined to pay weekly compensation payments from the date their payments ceased up until the date of the formal assessment was issued, otherwise known as the back payment.

In an important ruling, the Court of Appeal held that weekly compensation payments should have recommenced from the date of when weekly payments ceased at the 260 week period.

Importance of the Ruling

The way in which the Court of Appeal construed the wording of the legislation of section 39 of the Workers Compensation Act 1987 was crucial when ruling on the matter. When construing section 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the work injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed.

The importance for injured workers that flows from the judgement is that if the client has:

  1. Been assessed at greater than 20% whole person impairment, whether or not it is an assessment that has come from an Approved Medical Specialist (AMS), or
  2. If it is likely that the injured worker will exceed the relevant threshold of greater than 20% whole person impairment, or
  3. If the workers permanent impairment is not ascertainable as it is deemed that the worker has not attained a level of maximum medical improvement, then

the worker should apply for reinstatement of weekly compensation payments if the insurer has ceased payments pursuant to Section 39 (1) of the Workers Compensation Act 1987.

Advice for Injured Workers

Injured workers whose claims were previously adversely impacted are encouraged to seek legal advice to review their claim.