Section 39 and time
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113
The NSW Supreme Court has now handed down it’s decision in these matters, which were on appeal from the Presidential Division of the Workers Compensation Commission.
Material facts
The workers in this case each made a claim for compensation and were in receipt of weekly compensation payments prior to the introduction of a new Workers Compensation Regime in 2012. Following the 2012 amendments, a worker has no entitlement to weekly compensation after an aggregate period of 260 weeks, unless they have sustained more than 20% whole person impairment (WPI), pursuant to Section 39 of the Workers Compensation Act 1987 (WCA 1987).
In accordance with this section, and the new legislative provisions, the worker’s weekly benefits payments were ceased after 260 weeks. Sometime thereafter, each worker was assessed as having greater than 20% WPI. Weekly payments were resumed following the assessment, and there arose an issue as to whether the workers were entitled to back payments for the period between the date that their weekly compensation ceased and the date that they were assessed as having sustained greater than a 20% WPI.
In first instance decisions, the Arbitrator held that the workers were entitled to back payments for that period. On Appeal, President Judge Phillips overturned both decisions and held that the workers were not entitled to back payments, noting that, in his opinion, Section 39 of the WCA 1987 was not retrospective. The matter came before a Three Judge Bench of the NSW Supreme Court.
Issues for determination
Section 39 of the WCA 1987 relevantly provides:
39 CESSATION OF WEEKLY PAYMENTS AFTER 5 YEARS
- Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
- This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
1. Note : For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
- For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).
The issues for consideration in this Appeal were:
- Whether medical assessment is a necessary pre-condition to an acceptance or finding of liability given the wording of Section 39(3); and
- Whether the greater than 20% WPI threshold prescribed by Section 39(2) has a temporal aspect (i.e. whether the worker is entitled to weekly compensation during the period before they were assessed as having sustained greater than 20% WPI).
Decision
Justices Brereton, White and Simpson unanimously upheld the Appeal. It was considered that on a proper construction of Section 39, the 260 week limit never applies to workers who have sustained greater than 20% WPI, regardless of when that threshold is crossed.
It is the final degree of permanent impairment that results from the injury that is determinative of whether the worker is entitled to payments beyond 260 weeks.
Implications
The 260 week limit on weekly compensation provided by Section 39 of the WCA 1987 does not apply to workers who are at any stage assessed as having a greater than 20% WPI. In cases where a worker is assessed as having sustained the requisite WPI at some time after their weekly payments have ceased, they we will be entitled to reinstatement and back payments for the period in which they did not receive such compensation.
Should you have any questions about a particular workers compensation matter, please telephone our workers compensation team on either 4929 9333 or 8297 5900.
