More Bad News for Injured Workers

Goudappel High Court Decision
On Friday, 16 May 2014 the High Court overturned the Court of Appeal decision in Goudappel v Adco. This is another blow to injured workers who, for the most part, now find their rights to Workers Compensation insurance benefits either non-existent, limited or soon to be extinguished.

Background
Mr Goudappel sustained an injury at work some years prior to the 2012 NSW State Liberal Government’s Amendments to Workers Compensation benefits. He put in his claim form, received a claim number from the insurer, had a claims officer appointed and received some payments for his time off work and his medical expenses. All before the Government’s changes commencing on 19 June 2012.

On the 19 June 2012 the Government decided to move the goal posts on injured workers and brought in new changes. For the most part those changes reduced and/or extinguished their rights to compensation through its WorkCover funded insurance Scheme.

Despite the Premier (then Barry O’Farrell) assuring injured workers that these changes were not ‘retrospective’ and would not affect the compensation entitlements of workers injured prior to the changes, it is now clear that those changes will effect all injured workers (ie including those with injuries prior to the changes) in NSW. Despite Mr O’Farrell’s assurance, this remained to be tested.

One of the new changes commencing on the 19 June 2012 included placing a threshold on Claims for Permanent Impairment Compensation. In order to qualify for any compensation for a permanent loss to the injured workers body, that loss must be assessed at greater than 10% Whole Person Impairment (WPI). If the loss was 10% or less the injured worker will receive no compensation for such loss.

On the 20 June 2012 Mr Goudappel submitted a medical assessment report claiming s.66 (Permanent Impairment) of 6% WPI. He alleged that he was not to be considered a ‘New Claim’ as he had previously provided a claim form and received payments etc under the system prior to the amendments. It seems the main thrust of his argument was that he was not a “new claim”, rather he was an “old claim” and the new
legislative threshold should not apply to his claim of 6% WPI.

The insurer disputed his claim saying that the s.66 claim was affected by the new changes and he would not be entitled to such compensation as he was not assessed at greater than the 10% threshold. Mr Goudappel lodged an Application to Resolve a Dispute on the matter with the Workers Compensation Commission.

Originally the insurer’s position was upheld by the President of the Workers Compensation Commission, on the basis the claim for impairment compensation was made after 19 June 2012 and did not reach the 10% WPI threshold.

Subsequently Mr Goudappel appealed that decision to the NSW Court of Appeal where the decision was overturned in a unanimous decision. The Court of Appeal found in favour of Mr Goudappel’s argument holding the view that impairment claims for injuries suffered prior to 19 June 2012 were not affected by the 2012 amendments, as long as some form of claim had been made previously.

The Insurer (AKA WorkCover) appealed the decision to the High Court seeking to overturn the Court of Appeal decision. Rather than simply considering whether Mr Goudappel’s claim was a “new claim” or an “old claim” and was thereby affected by the new provisions, the High Court looked at whether the new Transitional Provision (effectively a regulation power delegated by parliament), had the power to amend the original Workers Compensation Act of 1987 (NSW).

The High Court decision
Without trying to sound like a bad Monty Python Joke, the High Court found clause 5(4) of Pt 19H of Schedule 6 enabled the making of clause 11 of Schedule 8 of the regulations which ultimately resulted in claims for lump sum compensation not specifically made prior to 19 June 2012 being invalid if they did not result in a finding of over 10% WPI.

In short, the ‘new’ regulation was declared valid by the High Court. As such Mr Goudappel, despite having previously made a ‘general claim’ had not made the specific claim for 6% WPI prior to the 19 June 2012 and therefore had no entitlement to impairment compensation has he had not reached the ‘new’ threshold.

What does this mean?

  • The Government seems to have delegated the power to make simple regulations that effects major issues for injured workers,
  • The new 11% threshold for s.66 compensation affects all injured workers regardless of whether any claim was made prior to 19 June 2012,
  • There will be no more claims for s.67 (ie Pain and Suffering).

Issues still to be determined or clarified
Despite the High Court decision, there are still some potentially unresolved issues, namely:

  • What, if any affect, this will have on claimants with injuries/claims made prior to 1 January 2002.
  • Whether further (top up) claims now prevented for those that have previously received s.66 claim.

If you are looking for a workers compensation lawyer in Newcastle, then contact Bale Boshev Lawyers today for a free assessment. 

Talk to one of our lawyers today, and let us fight for you.