In June 2020, the Supreme Court of Appeal of NSW made a vital decision in the case of Hochbaum v RSM Building Services Pty Ltd and Whitton v Technical and Further Education Commission t/as TAFE NSW  NSWCA 113 for injured workers who have missed weeks of compensation after receiving 260 weeks of weekly payments.
Previously, Section 39 of the Workers Compensation Act 1987 was understood to have meant that an injured worker who has received weekly payments for up to 260 weeks (5 years), will not receive further weekly payments until they have a confirmed 21% Whole Person Impairment (“WPI”) or greater.
For injured workers who were on weekly payments prior to the major workers compensation amendments in 2012, if they did not have greater than 21% WPI, their payments would have ceased from 26 December 2017.
Often it would take many months or up to a year before an injured worker’s dispute for permanent impairment would be resolved and in that time, injured workers did not receive weekly payments.
The Court of Appeal reviewed the interpretation and purpose of Section 39 and held it was not the intention of Section 39 to bar injured workers from receiving weekly payments. There is no wording in the Act that states an injured worker must have a 21% WPI or greater to obtain weekly benefits beyond 260 weeks.
What does this mean for you?
If you have been cut off from weekly payments after 260 weeks, from 26 December 2017 and:
- Attained 21% WPI or greater after that date and did not receive weekly payments from that date up until the time you attained 21% WPI or greater;
- Have not been examined and/or assessed by a medical specialist for greater than 12 months
- Awaiting surgery for your work-related injury;
- Your injury and symptoms have not stabilised and you cannot be assessed for permanent impairment;
Then contact our office to speak to our workers compensation team who will advise whether you are entitled to back pay of weekly compensation and any reasonable and necessary medical expenses for your work-related injury.