In 2012, legislative amendments were made to the Workers Compensation Act 1987 and one of the most significant changes brought about by the amendments was the introduction of a new provision – Section 39.
Section 39 provides that weekly payments are available for a maximum aggregate period of 260 weeks (5 years), whether or not consecutive, unless a worker’s degree of permanent impairment resulting from the injury is greater than 20% whole person impairment (“WPI”). The provision has set up a five-year limit on the payment of weekly benefits for all workers with 20% WPI or less.
In many cases, a worker’s degree of permanent impairment is determined before the 260 weeks point and, in those cases, whether weekly payments will continue or cease will depend on whether or not the worker has 21% WPI or more at the time when they reach 260 weeks.
What should happen, however, if the 21% WPI, the Section 39 threshold, is crossed at some point after weekly benefits have ceased at 260 weeks? There had been uncertainly as to whether a worker whose degree of permanent impairment is assessed as more than 20% is entitled to have weekly compensation restored from the date of cessation, or from the date when their WPI is determined to be more than 20% by a Medical Assessor (previously called an Approved Medical Specialist) appointed by the Personal Injury Commission (previously called Workers Compensation Commission). That is, from the date of the Medical Assessment Certificate (“MAC”).
President Judge Phillips of the Workers Compensation Commission previously dealt with the application of Section 39 in RSM Building Services Pty Ltd v Hochbaum [2019] NSWWCCPD 15 (“Hochbaum”) and Technical and Further Education Commission t/as TAFE NSW v Whitton [2019] NSWWCCPD 27 (“Whitton”).
In two separate decisions, the President held that the proper construction of Section 39 is to reinstate a worker’s entitlement to weekly compensation from the date when WPI is determined by an Approved Medical Specialist to be more than 20%. In other words, weekly payments can only be restored from the date of a MAC.
Both workers subsequently filed an appeal against the decisions of Hochbaum and Whitton to the Supreme Court of NSW. In each matter, the Court allowed the appeal and set aside the decisions made by President Judge Phillips.
The Court of Appeal held that on the proper construction of Section 39, the 260-week limit never applies to a worker whose degree of permanent impairment resulting from the relevant 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 decisions published by the Court of Appeal in the matter of Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (17 June 2020) have now clarified the operation of Section 39. The effect of the decisions is that the workers who satisfy the 21% WPI threshold sometime after weekly benefits ceased are not only entitled to claim for ongoing weekly payments but also entitled to back pay of weekly compensation between the date payments ceased under Section 39 and the date of the MAC.
