In 2012 the NSW Government made significant changes to the workers compensation system. For injured workers who made workers compensation claims prior to 2012 their weekly payments ceased on 25 December 2017, if they had not been assessed at greater than 20% whole person impaired. If injured workers later went on to be assessed at greater than 20% whole person impaired the workers compensation insurer was not reimbursing payments to the injured worker for the period they went without receiving weekly payments of compensation.
However, new case law decided on 17 June 2020 has now overturned any misconception that weekly payments were not payable for the period that the weekly payments stopped up until the assessment of greater than 20% whole person impairment. The two cases are Hochbaum v RSM Building Services Pty Ltd (Hochbaum); Whitton v Technical and Further Education Commission t/as TAFE NSW  NSWCA 113 (Whitton).
Previously it was thought that section 39(3) Workers Compensation Act 1987 provided that an assessment needed to be completed by an Approved Medical Specialist before the weekly payments would be payable and therefore the assessment did not act retrospectively. Following the decision in Hochbaum and Whitton the court has made it clear that subsection 3 only provides a mechanism for assessment and not a time frame. Additionally section 39(2) simply states the only threshold required for weekly payments to continue is for the worker to be assessed at greater than 20% whole person impairment and it does not matter when that assessment occurs.
If your weekly payments ceased on 25 December 2017 and there was a delay in receiving an assessment of greater than 20% whole person impairment, and your weekly payments were temporarily not paid, please contact our office because you may be entitled to reimbursement. We have two WIRO approved solicitors to assist you with your workers compensation claims because Helping You is Our Business.
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