Back pay of weekly payments – are you missing out on weekly payments you may be entitled to?
Published on October 30, 2020 by Hanaan Indari
Recent decision of the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW  NSWCA 13
On 27 June 2012, the Workers Compensation Legislation Amendment Act 2012 came into effect. This amendment Act introduced s39(1) of the Workers Compensation Act 1987 which outlined that an injured worked had no entitlement to weekly payments in respect of an injury after a collective period of 260 weeks. However the exception is where injured workers are assessed with a whole person impairment of greater than 20%.
In accordance with the 2016 Workers Compensation Regulations, the effect of these amendments would begin on 1 January 2013 meaning that the 260 week period for all existing recipients expired on 25 December 2017.
Therefore on 25 December 2017, injured workers across New South Wales received a Christmas gift like no other – the discontinuation of their weekly payments. It is estimated that more than one thousand injured workers had their payments discontinued.
In order for the weekly payments to continue, injured workers had to undergo a medical assessment and have their whole person impairment assessed. For some injured workers, this assessment could not take place until their weekly payments had already been discontinued.
For the injured workers who received an assessment of greater than 20% whole person impairment, insurers reinstated their weekly payments from the date of their assessment. However this led to the question if injured workers would be back paid from the date their weekly payments were discontinued to the date of their assessment of greater than 20% whole person impairment?
This issue was recently dealt in the matters of Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW  NSWCA 113.
In both of these matters, the injured workers weekly payments were reinstated from the date of their assessment however liability for the weekly payments between the date their weekly payments discontinued to the date of the assessment was disputed.
The matters proceeded to the Workers Compensation Commission and in each matter the respective Arbitrators found that the injured workers were entitled to weekly payments between the date their weekly payments were discontinued to the date of their assessment.
However both matters were appealed and the Arbitrator’s decisions were overturned by the President of the Workers Compensation Commission who found that the workers had not been assessed at greater than 20% until the date of their respective assessments and as a result an injured worker was not entitled to the reinstatement of their weekly payments until they obtained an assessment of greater than 20% whole person impairment.
On appeal, the Court of Appeal found that the 260 week period never applies to an injured worker whose permanent impairment exceeds 20% whole person impairment. This is regardless of when the injured workers receive that assessment as the date an injured worker reaches that threshold is not a relevant consideration, the only relevant consideration is what the degree of permanent impairment is.
This means that injured workers are entitled to weekly benefits from the date their weekly payments were discontinued to the date of the assessment of their whole person impairment. A great win for injured workers across New South Wales.
If you are an injured worker whose payments have been discontinued, we are here to help you. You should seek legal advice from the competent and understanding lawyers at Carroll & O’Dea Lawyers Wollongong by contacting (02) 4258 8308.