Court of Appeal decision rewrites indexing of weekly payments under the NSW Workers Compensation Scheme
Published on February 5, 2021 by Scott Dougall
Carroll & O’Dea Lawyers’ client wins right for weekly payments to be indexed well before the 2012 Amendments
Theoret v Aces Incorporated  NSWCA 3, Decision of 2 February 2021
A client of Carroll and O’Dea Lawyers has won the right to have her weekly payments indexed to a date well before amendments to the NSW Workers Compensation Scheme were introduced in 2012.
The decision by the NSW Court of Appeal found that the injured disability support worker was entitled to indexing of her weekly compensation benefits to the date of her first entitlement in 2003, well before the 2012 Amendments to the NSW Workers Compensation Scheme.
Those amendments changed the method of adjusting (indexing) weekly payment rates in order to account for wage growth, inflation and other factors. Under this change a worker’s pre-injury average weekly earnings (PIAWE) is to be adjusted on 1st April and 1 October each year after their entitlement to weekly benefits arises.
The insurer of the Firm’s client had argued that indexing should only apply after the October 2012 Amendments.
The NSW Court of Appeal has found indexing should apply from the date of entitlement – even if that is before the 2012 changes to the scheme.
“This is a profoundly significant decision not only for our client but also for injured workers across New South Wales” said Carroll & O’Dea Lawyers’ Scott Dougall.
“In this case the correct indexing of weekly payments back to the date of entitlement in 2003 means our client will receive hundreds of dollars in additional payments each week, recognizing she is unable to work as a result of her injury.
“Our client has had a long journey to this point.
“Before the NSW Court of Appeal decision, her application was unsuccessful in both the Workers Compensation Commission and on appeal to the Deputy President of Workers Compensation Commission.
“The Firm is very pleased that our client has secured the compensation she is entitled to at the level which reflects her full entitlement.
“The decision opens the door to injured workers across New South Wales who may have claims for additional indexing as a result of this outcome”, said Partner Scott Dougall.
Click here to read the Lawyers Weekly article featuring Scott Dougall – ‘New decision challenges workers compensation scheme’