Many injured workers are faced with having their weekly payments stopped due to a change in workers compensation laws that was introduced in 2012, limiting the amount of weekly payments a worker could receive to 260 weeks (5 years) under section 39 of the Workers Compensation Act 1987. The section does not apply to an injured worker if their injury has been assessed as greater than 20% whole person impairment.
As part of the legislative changes there was a saving grace piece introduced to cover worker’s injured prior to the changes being implemented, so that the changes did not apply retrospectively. This meant that “existing recipient’s”, workers who were injured and made a claim prior to 1 October 2012 were firstly, permitted to have the number of weeks restart on 1 October 2012. Secondly, when their 260 week period was finished, and if they were not at maximum medical improvement, for example they had recently undergone surgery, then they were able to have an assessment made by an Approved Medical Specialist to state they had not reached maximum medical improvement. This assessment then allowed their weekly payments to continue until they had reached maximum medical improvement and could be assessed to see if they reached the required threshold of greater than 20% whole person impairment.
Where the law then becomes particularly strict is to qualify as an existing recipient the case of Zeljko Komljenovic v Facility Management Solutions Pty Ltd [2013] NSWWCC 69 states that you have to be receiving weekly payments at the time of 1 October 2012. For some workers they may have been injured and made a claim prior to 1 October 2012, been back at work on 1 October 2012, then required surgery after this date, therefore being unable to work. If multiple surgeries were required and during their recovery period they have used up their 260 weeks’ worth of weekly payments or had only returned to work part-time due to the injury, then they are not entitled to weekly payments after 260 weeks as they were not receiving weeklies at the exact date of 1 October 2012. These workers are further disadvantaged if further treatment is still required as they are not suitable to be assessed for whole person impairment to know if they have reached the greater than 20% whole person impairment threshold. If they do proceed to assessment of whole person impairment prematurely they may be extinguishing their valuable rights to further compensation in the future.
If you have, or know someone who has, received notice of their weekly payments ceasing due to section 39 then please contact our office to discuss your options because Helping You is Our Business.
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