260 weeks later – Medical instability becomes financial instability

In 2012 the NSW Government amended the existing Workers Compensation Act 1987 (The Act) to introduce, among other things, restrictions and structure to the weekly compensation received by injured workers.
Weekly compensation was divided into 4 categories: weeks 1 – 13; weeks 14 – 130; weeks 131 – 260; and post 260 weeks.

This article deals with Section 39, covering the post 260 weeks, and the inequities created by recent decisions. The cases of Hochbaum v RSM Building Services Pty Ltd and the appeal decision is of particular relevance.
The one qualifying factor for continuation of weekly payments of workers’ compensation after 260 weeks is that the injured worker has a whole person impairment (WPI) of 21% or more.

The determination of whole person impairment is to be in accordance with Chapter 4, Division 7 of the Work Injury Management Act 1998 (WIM). This requires that an Approved medical Specialist (AMS), who is appointed by the Workers compensation Commission NSW (WCC), has determined that the injured worker’s impairment is 21% WPI or more.
In most cases, the calculation of the 260 weeks began from 1 January 2013. For many injured workers this meant that the 260 weeks expired on 25 December 2017.

The problem is that some injured workers reached the 260 week mark but hadn’t reached maximum medical improvement (MMI); such that the WPI of the injured worker was not capable of assessment. Weekly compensation payments were ceased by the insurer, at that stage. When the injured worker was ultimately assessed as having a WPI of 21% or more, the arrears of weekly compensation payments – back to 26 December 2017 – were claimed.
Insurers were reluctant to pay these arrears arguing that there was nothing in the legislation to require them to pay arrears of weekly compensation.

The case of Hochbaum v RSM Building Services Pty Ltd came before Arbitrator Bamber.
Allianz had ceased weekly compensation for Mr Hochbaum on 25 December 2017.
The AMS, Dr M Burns, issued a Medical Assessment certificate (MAC) on 16 July 2018 assessing Mr Hochbaum as 21% WPI.

Allianz denied liability for weekly compensation from 25 December 2017 to 15 July 2018.
At first instance Arbitrator Bamber decided that arrears of weekly compensation were available to Mr Hochbaum.
The other side appealed this decision and the matter came before President Judge Phillips.
Judge Phillips decided that weekly compensation arrears were not available to Mr Hochbaum until an AMS determined he was 21% WPI or more. This is the interpretation of the President of the Workers’ Compensation Commission New South Wales and, as such, is the nature of the law at present.

The writer does not agree with this decision as it places the injured worker at an even greater disadvantage than that caused by their life changing injuries.

Don Cameron & Associates has a history of making inroads into unfair decisions in the past, and has achieved many favourable outcomes for injured workers. We will continue to fight these unfair decisions and seek the best outcome for injured workers.