t is now possible for injured workers to reapply to the Workers Compensation Commission in order to receive a higher impairment assessment if their “one claim” for lump sum benefits was denied by an AMS. Although it would be impossible for the employee to file a new claim for lump sum benefits (i.e. E. In light of the Workers Compensation Act 1987 (also known as “the 1987 Act”), which established Section 66 payment, a system has been put in place that enables employees to visit the Commission again and determine whether their condition has gotten worse enough to surpass the thresholds. For numerous workers whose condition may have significantly worsened in the interim but who have had an impairment assessment since 2012, this has broad and important ramifications.

Applications and (Un)intentional Repercussions

In essence, a worker who was evaluated by the Commission and found to have a 14 percent permanent impairment was below the 15 percent work injury damages threshold. A 1 percent WPI difference in assessment meant that the injured worker would not be able to access work injury damages and potentially large sums of compensation, which had a significant practical impact on claims management. This had the effect of restricting the filing of claims in situations where employees believed themselves to be near the “threshold” points (i.e. e. 14% of WPI claims, or 20% of WPI claims in which employees requested the security of “lifetime medical rights,” which only began to accrue at 21% and higher. Consequently, there has been a disruption in the handling of claims at “threshold points,” wherein solicitors are hesitant to counsel clients to pursue their claims when they are:

1. Close but below a threshold point;
2. Prone to deteriorate (due to shared experience);
3. Have been informed that they will almost certainly require additional surgery (for example, in meniscal repairs, joint replacements, or disc surgeries where adjacent levels are susceptible to requiring surgery).

Unintentionally, these changes have resulted in obstruction around the threshold points as solicitors have to carefully balance the risk of finalizing an impairment that is too low to grant rights to deserving injured workers against the workers’ reasonable entitlement to compensation for their injuries.

Observation of Galea v Colourwise Nursurye NSW Pty Ltd (2019) NSW WCC 362

Some of the 2012 amendments were deemed to have a “non-beneficial operation” by the High Court in the case of ADCO Constructions Pty Ltd v. Goudappel. This was especially concerning the 1987 Act’s Section 66(1A) entitlement to file a single claim.

According to Arbitrator Harris, Section 322A was not a beneficial provision and served a similar purpose to those covered in Goudappel. It is evident from reading Subsection 4 of Section 322A that Parliament did not intend for the “one assessment” limit to limit an injured worker’s ability to appeal under Section 327 of the 1998 Act.

However, since it was not practical to file an appeal based on a deterioration prior to the issuance of a Certificate of Determination, there was some uncertainty regarding the actual application of s. 327(3)(a). Now that this matter has been discussed, Arbitrator Harris has weighed the aforementioned against filing an appeal under s. 327(c) and/or (d), which requires that any application be made within 28 days of the Medical Assessment Certificate. According to him, “it is important to take into account the finality of litigation in light of the fact that s. 327(3)(a) does not establish a deadline for filing an appeal based on deterioration.

The following is something that practitioners should take into account from the decision:

1. Goudappel case and Section 66(1A) remain unaffected.
2. The applicant is not permitted to include new body parts (like Ms. Galea’s neck) or make any additional claims under Section 66.
3. The body parts that were evaluated for inclusion in the original Medical Assessment Certificate are the only ones covered by the appeal.
4. A discretion to set aside the Certificate of Determination may be exercised, and this depends on how strong the applicant’s claim is. Real chances of proving an impairment of at least 15% should be present for the applicant.
5. If the applicant knew there were actual chances of future deterioration at the time of the initial Certificate of Determination, that knowledge is irrelevant (e.g. G. should surgery be considered in the future).
6. These orders do not cancel the ones pertaining to the payment of Section 66 compensation, even though the prior Certificate of Determination may be revoked to permit the appeal.

In this present time, injured workers are worried and sometimes confused in accepting their section 66 lump sum compensation claim if they are assessed below 15% WPI that they may not have any further entitlements to claim work related injury claims.

The decision of Galea v Nusurey colour wise (NSW) (2019) NSWWCC 362 has given new hope to the injured workers who have deteriorated significantly and already had their chance of one lump sum compensation claim via Approved Medical Assessment.