The changes to the New South Wales Workers Compensation scheme made by the State Government in 2012 were some of, if not the harshest amendments to the scheme protecting injured workers since the introduction of compulsory Workers Compensation insurance in NSW in 1926.

Changes under the Workers Compensation Act in NSW

The 2012 amendments brought about significant changes to lump sum compensation under the Workers Compensation Act. These included the introduction of an 11% threshold for Whole Person Impairment before an injured worker can make a claim for lump sum compensation. Whole Person Impairment (WPI) is the method by which the severity of a worker’s injury is measured. There was previously no threshold. Another change was introduced under Section 66 (1A) of the Act. Under this section, injured workers are limited to making only one claim for permanent impairment resulting from an injury.

What does this mean for injured workers?

What this means is that if you are injured at work and are assessed as having greater than 11% WPI then you are limited to making only one claim for lump sum compensation. If you made a claim for permanent impairment and your injury deteriorated and then you were assessed at an even higher WPI % you would be stopped from making another claim for that increase in permanent impairment of your workplace injury.

At present however, this change only applies to claims for lump sum compensation made on or after 19 June 2012. For example, if an injured worker suffered an injury in 2008, and received a lump sum compensation payment in respect of that injury in 2011 and now that injury has deteriorated, if their WPI % has increased they are able to make an additional claim (providing the 11% threshold is reached).

If another claim is made after 19 June 2012 then that is considered to be the one and final claim that an injured worker is permitted to make for permanent impairment compensation.

On 17 December 2014, President Keating of the Workers Compensation Commission supported the above interpretation of the legislation in Cram Fluid Power Pty Ltd V Green.

In this case, Mr Green had injured his back at work in May 2005. In December 2010, Mr Green received compensation for that injury in respect of 7% WPI. His injury deteriorated and Mr Green underwent lumbar spine fusion surgery in September 2012. In December 2013, Mr Green made another claim for permanent impairment compensation in respect of 22% WPI.

The Insurer in this situation was Allianz. They stated that Mr Green was not entitled to make an additional claim for permanent impairment compensation because of the 2012 changes to the Act.

Mr Green argued that the 2012 amendments only applied to claims made on or after 19 June 2012 and was successful in arguing that point in front of President Judge Keating.

While this is the current interpretation of the law, the employer, Cram Fluid Power Pty Ltd has sought leave from the NSW Court of Appeal to challenge the decision of Judge Keating.

Workers Compensation claim question?

If you have any questions about a Workers Compensation claim, contact your nearest Turner Freeman office on 13 43 63 to speak with a personal injury law expert. Our NSW offices are located in Sydney, ParramattaNewcastle, Penrith, Wollongong and Gloucester.