Section 32A of the WORKERS COMPENSATION ACT 1987 defines a worker with highest needs as a worker whose injury has resulted in permanent impairment that has been assessed or the insurer has agreed is 31% or more.
A worker with 31% or more permanent impairment has certain rights including:
- Being eligible for a minimum weekly payment of compensation currently $854 per week, which is indexed in April and October yearly. It becomes payable from the date of assessment or agreement of impairment. It is payable for periods of incapacity from 17 September 2012. Importantly, in most circumstances the minimum amount will be payable by the insurer, regardless of earnings.
- Provided the worker continues to provide certificates of capacity, certifying their ongoing incapacity they are entitled to weekly payments until retirement age and reasonable and necessary medical expenses for life.
- An insurer cannot conduct a work capacity assessment unless the insurer thinks it appropriate to do so AND the worker requests it.
Given these rights, if a worker has previously agreed with the insurer as to their level of impairment without being assessed and their injuries significantly deteriorate, the worker may be able to apply to the Workers Compensation Commission (“the Commission”) for a referral to an Approved Medical Specialist (“AMS”) for assessment of whether their degree of permanent impairment is 31% or more in order to determine if the worker now satisfies the definition of a worker with the highest needs.
Such an application was recently made by a worker in the case of Xenicas v ARB Corporation Limited [2020] NSWWCC 413. In this case Mr Xenicas and the insurer had previously agreed his level of impairment was 20% resulting from an injury in 2018. He had not been assessed by an AMS at that time. He then applied to the Commission to be referred to an AMS for a determination of whether his impairment was 31% or more to determine whether he met the definition of a worker with the highest needs.
The insurer disputed the Commission had jurisdiction to refer Mr Xenikas to an AMS for assessment of permanent impairment submitting Section 322A of the Workplace Injury Management and Workers Compensation ACT 1998 applied which states that only one assessment may be made of the degree of permanent impairment of an injured worker.
Mr Xenikas argued that the previous agreement of 20% done by way of consent orders was not an assessment, that no medical assessment certificate had been issued and that it was not a determination of the Commission. The Arbitrator agreed stating the consent orders were not “an assessment of the degree of permanent impairment of the worker because the orders were made in accordance with the agreement of the parties.” Mr Xenikas was referred to an AMS to determine whether his level of permanent impairment is 31% or more to determine whether he is a worker with the highest needs.
The above highlights the need to instruct experienced workers compensation solicitors to ensure a worker’s rights are maximised.
If you have been impacted by a workplace accident, one of our expert solicitors can provide you with advice in a free initial consultation. Please call our office on (02) 4050 0330 or book an appointment online for a confidential discussion about your options.
