October 2016

Resurrecting the discontinued claim: preserving a worker's right to make one further lump sum claim

Recent changes in the area of workers compensation have allowed workers to make “one further lump sum compensation claim” for an injury where they had previously made a lump sum claim prior to 19 June 2012.[1]

As the entitlement to “one further” claim is a relatively new change in the legislation, there is a lack of clarity on what it means in the practical sense, for both workers and workers compensation insurers.

In the recent presidential decision Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 (16 September 2016), President Keating looked at whether a worker had already made their “one further” lump sum claim where the claim had been discontinued after the issuing of a Medical Assessment Certificate (MAC).

Facts

The worker was employed as a process worker, a role which involved repetitive and heavy lifting.  She claimed she suffered an injury to her left and right upper extremities (both wrists) from the nature and conditions of her role.  The injury was deemed to have occurred on 30 March 2005.

The 2010 claim

The worker’s first claim for lump sum compensation was resolved by complying agreement, whereby the worker recovered 10% WPI (both wrists).

The 2012 claim 

After the 2012 amendments were introduced, the worker made a claim for further lump sum compensation in respect of an additional 3% WPI for her left shoulder, alleged to have resulted from the same injury. 

The worker was referred to an AMS who assessed 8% WPI for the left upper extremity (shoulder and wrist). 

The worker subsequently discontinued her claim for lump sum compensation. 

The 2014 claim

The worker then made a claim for further lump sum compensation after her doctor assessed her as suffering 15% WPI (right upper extremity and left upper extremity).  She claimed the monetary difference from what had been recovered in the 2010 claim.   

Issues

  • Was the worker entitled to make the 2014 claim?  Or was her discontinued claim in 2012 her “one further” claim?

  • Can a worker include extra body parts in their “one further” claim?

The arbitrator’s decision

At arbitration, it was determined the worker did not have an entitlement to bring the 2014 claim for lump sum compensation, as the 2012 claim was classified as her “one further” claim.

The Presidential decision

In contrast to the arbitrator’s decision, President Keating determined that the worker was entitled to make her 2014 claim. 

He concluded that the discontinuance of the 2012 claim preserved the worker’s rights to pursue her lump sum entitlements in the future.  The worker was therefore allowed to re-open that claim at any time without any consequences.

President Keating also decided that a further claim for lump sum compensation can include new body parts as long as it relates to the same injury.  The worker was therefore entitled to include her claim for the left shoulder impairment as it resulted from the same injury (deemed to have occurred on 30 March 2005).

President Keating concluded that the legislation is designed to preserve the worker’s entitlement to make one further claim in respect of all impairments arising from an accepted injury.  

What are the effects of this decision?

This case opens up opportunities for workers to expand their lump sum entitlements. 

For example, if a worker’s “one further” claim proceeds to an AMS and the worker does not meet the required threshold, they can decide to discontinue the claim and it won’t affect their right to revive their claim in the future.  Effectively, this lump sum claim is put “on hold” for the time being.

Workers can also add on extra body parts to the “one further claim” if it relates to the same injury as the previous lump sum claim.  It does not matter if the worker does not mention all body parts in their initial notification of injury or claim for compensation.

It is yet to be seen how this new change in the legislation will be applied in different factual circumstances.  At this stage, it looks as though an expansive approach will be taken by the Commission in order to protect and preserve a worker’s right to make their “one further” lump sum claim.

Author: Stephanie Small

 


[1] See clause 11 of Sch 8 to the Workers Compensation Regulation 2016

 

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