Under section 66 of the Workers Compensation Act 1987 workers are able to claim for permanent impairment for injuries which are assessed at greater than 10% whole person impairment (WPI) for physical injuries, or 15%WPI or more for psychological injuries. If the date of injury was to occur today the maximum payout, or 100%WPI for permanent impairment would be $598,560.

If death results from an injury, the worker’s dependents, such as a spouse or child, are able to claim a lump sum death benefit claim under section 25 of the Workers Compensation Act 1987. If death was to occur today the current pay out figure is $781,900.

Since the workers compensation changes in 2012 no one has tried to claim permanent impairment as well as a death benefits claim until a recent case of Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of Ryan Messenger [2017].

In this case, Mr Messenger, a machine operator, died at his workplace in the Hunter Valley, from crush injuries to his chest, which occurred after the 40 tonne excavator he was operating, tipped over and crushed the cabin in which he was working. Mr Messenger died 9 minutes after the accident occurred. Mr Messenger was married.

Mr Messenger’s estate made a claim for death benefits and funeral expenses which was accepted by the insurer. Mr Messenger’s estate later made a claim under s66 of the Act for whole person impairment. The insurer did not accept this claim.

Proceedings were commenced in the Workers Compensation Commission and the claim was referred for assessment of Mr Messenger’s degree of permanent impairment. In April 2016, initially Mr Messenger’s permanent impairment was assessed at 100%, the assessor making note his death was inevitable within a short timeframe. Then in August 2016 the assessor reconsidered the assessment and the final assessment was 0%. The 0% Medical Assessment Certificate was appealed against and the Appeal Panel found Mr Messenger’s permanent impairment was in fact 100%. Their reasoning was that Mr Messenger suffered destruction of his respiratory system and that was a permanent impairment, it was not a temporary injury that could improve with or without medical treatment. The length of time until his death was irrelevant, also irrelevant was that the injury caused his death.

Justice Schmidt of the Supreme Court agreed with the argument that the injury was a permanent injury despite death occurring shortly afterward. It was also confirmed this second claim for compensation was permitted. The Act does not state if you receive permanent impairment compensation you cannot claim for death benefits compensation and vice versa.

This case is currently before the court on appeal, but if it is confirmed to be law then it will provide for a number of people to claim further compensation. If you think you have a similar scenario to the above then please make an appointment to speak with us because Helping You is Our Business.

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