Update on Changes to the Workers' Compensation Act

The Amendments to the Workers Compensation Act on 19 June 2012 have left many injured workers uncertain as to whether or not they can claim additional lump sum compensation if their condition deteriorates.

Two recent cases have shed some light on the matter, however we are still waiting on the outcome of one (Goudappel V Adco Constructions Pty Ltd) which has progressed as far as the High Court of Australia.

Following is an overview of the recent decisions made and their implications for workers.

Goudappel V Adco Constructions Pty Limited

On 29 April 2013, the Court of Appeal delivered a decision in the matter of Ronald Goudappel V Adco Constructions. The Court held that the amendments to the Workers Compensation Act affecting lump sum compensation that came into effect on 19 June 2012 DO NOT apply to any worker who has made a claim for compensation prior to 19 June 2012 and received payment of benefits, whether or note that worker specifically sought lump sum compensation.

The effect of the decision by the Court of Appeal in Goudappel was as follows:-

• The threshold of 11% WPI to bring a claim for permanent impairments pursuant to Section 66 does not apply to workers who had an injury prior to 19 June 2012 and had claimed compensation prior to 19 June 2012.

• That worker can bring multiply claims under Section 66 as his or her impairment deteriorates.

• These workers are also entitled to bring a claim for pain and suffering under the old Section 67, if they reach the 10% WPI threshold.

• The amendments in June 2012 will apply to workers injured after 19 June 2012, or who were injured prior to 19 June 2012, but received no compensation benefits, prior to 19 June 2012.

On 23 May 2013 the employer in the matter of Goudappel vs Adco Constructions Pty Limited filed an Application for Special Leave to Appeal to the High Court of Australia. The Special Leave Application was heard by the High Court on 11 October 2013 and leave was granted to proceed with the appeal.

The WorkCover Independent Review Office (WIRO) have decided that until the appeal has been determined, funding will be provided for Applicants who wish to make any claims for lump sum compensation for injuries occurring prior to 19 June 2012.

The Government amended the Act, effective from 1 April 2013, to provide that any worker, who brings an Application to the Workers’ Compensation Commission, must pay their own legal costs and disbursements, win, lose or draw. WIRO was provided with funds to administer a Legal Aid Scheme to assist workers to bring Applications, where WIRO felt there was merit.

The Decision of the Court of Appeal in Goudappel opened a window of opportunity for workers injured prior to 19 June 2012 to bring further claims for lump sum compensation as their condition deteriorated.  As the High Court has granted leave to appeal, all of the claims based on the decision in Goudappel will have to await the outcome of the High Court of Appeal to see whether they remain viable.  However, it appears at this stage that WorkCover has instructed the insurers to allow the claims rather than wait for the outcome of the appeal.

Di Matteo V RDM Ceramics Pty Limited

On 20 May 2013 His Honour Judge Keating, the President of the Workers’ Compensation Commission, delivered a Decision in a matter of Di Matteo vs. RDM Ceramics Pty Limited [2013] NSW WCCPD 27.

President Keating was asked to decide whether the amendments to the Act made in June 2012 precluded a worker who had made a previous claim for permanent impairment compensation prior to 19 June 2012 from making a further claim, in respect of the same injury. President Keating followed the decision in Goudappel and held that injured workers could make further claims.

President Keating was also asked, in Di Matteo, to decide whether the amendments applied to claims for permanent impairment where the injury occurred before 1 January 2002,that is injuries assessed under the old Table of Disabilities. He decided that they did not.

We understand the Application for Leave to Appeal will be heard by the High Court in Sydney on 11 October 2013.

For more information on the amendments to the Workers Compensation Legislation, contact Steve Groves or Arthur Fogarty at Lamrocks Solicitors.

Call (02) 4731 5688, or email litigation@lamrocks.com.au