Can a worker claim back-paid weekly benefits after their benefits cease at the 260 week limit under s 39(1) of the Workers Compensation Act 1987 (“the Act”) if their whole person impairment (“WPI”) is later found to be 20% or more?
The Court of Appeal on 17 June 2020 in Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113 has said “Yes”, finding that the 260 week limit under s39(1) of the Act never applies to a worker whose level of WPI from an injury exceeds 20%, regardless of when they satisfy that threshold.
Mr Hochbaum suffered a workplace injury in 2000 and claimed compensation prior to 1 October 2012 making him an ‘existing recipients’ of weekly benefits as at that date.
The Workers Compensation Legislation Amendment Act 2012 introduced the current version of s 39 of the Act which provides that weekly payments of compensation will cease after 260 weeks unless an injured worker’s WPI is more than 20% as assessed by an Approved Medical Specialist (“AMS”).
Regulations which became effective in 2016, provided that for the purposes of s 39, time did not begin to run until 1 January 2013. Meaning, the 260 week period for all existing recipients, including Mr Hochbaum expired on 25 December 2017. As Mr Hochbaum had not had his level of WPI assessed by that time, weekly payments of compensation ceased the day after Christmas 2017.
However, on 16 July 2018, an AMS issued a Certificate in relation to Mr Hochbaum certifying he had a 21% WPI. The workers compensation insurer then recommenced paying him weekly compensation from the date the certificate was issued.
The question in issue over the next 2 years was whether Mr Hochbaum was entitled to be back-paid the weekly compensation between 26 December 2017 and 16 July 2018, a period of 29 weeks. There was a determination at first instance by the Arbitrator that Mr Hochbaum was entitled to back pay for this period. However, the insurer appealed, and the decision was overturned by the President of the Workers Compensation Commission. Mr Hochbaum then appealed to the NSW Court of Appeal.
Most importantly his Honour Brereton JA stated “…on the proper construction of s 39, the 260 week limit never applies to a worker whose degree of permanent impairment resulting from the relevant injury exceeds 20%, regardless of when that threshold is crossed, and regardless of whether or when it is formally assessed as having been crossed.”
This case is important especially for injured workers who’s level of WPI is ultimately assessed as greater then 20% and who have not been able to be assessed within the 260 week period, likely because their injury has not stabilised, as they can received back payment from the date their weekly benefits cease to the issuing of a certificate by an AMS.
If you are unsure whether such a ruling may apply to your workers compensation claim, we would be pleased to speak with you in an obligation-free consultation to advise you about your options. You can click here to book an appointment or call us on (02) 4050 0330 to make a time.
