Section 39 of the Workers Compensation Act 1987 (the 1987 Act) provides that a worker has no entitlement to weekly compensation benefits in respect of an injury after receiving payments for an aggregate period of 260 weeks. However, the restriction does not apply where the WPI that results from the injury is assessed as more than 20%.

Section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) prevents a worker from obtaining more than one assessment of permanent impairment.

The question which then arises is whether section 39 will apply after 260 weeks where the worker’s WPI cannot be determined as the worker has not reached maximum medical improvement (MMI).

Matilda Cruises Pty Ltd v Sweeny [2018] NSWWCCPD 37 DP Snell 31 August 2018

The worker had previously obtained at least three WPI assessments in respect of a knee injury after undergoing a number of operations on his knee.

In February 2017, notice was given that his entitlement to weekly compensation would cease towards the end of the year by the operation of section 39.

In December 2017, the worker underwent further surgery for total knee replacement and his solicitors asked the insurer to concede that MMI had not yet been reached and that the worker was not stable for the purposes of assessing WPI.

The insurer responded that MMI was a matter for the Workers Compensation Commission to determine and invited the worker to apply to the Commission.

The worker duly applied for referral to an AMS under section 319(g) of the 1998 Act to determine whether the degree of permanent impairment was fully ascertainable. The insurer opposed the referral arguing that it was precluded by section 322A of the 1998 Act.

Importantly, the worker was an ‘existing recipient’ and as such Clause 28C(a) of Schedule 8 of the Workers Compensation Regulation 2016 provides that section 39 does not apply if an assessment of WPI is pending and has not been made because an AMS has declined to make the assessment on the basis that MMI has not been reached and the degree of permanent impairment is not fully ascertainable.  

The arbitrator remitted the matter to the Registrar for referral to an AMS to assess whether MMI had been reached.

The arbitrator’s decision was confirmed by DP Snell on appeal noting that the worker is entitled to be referred to an AMS as the further assessment does not relate to an additional lump sum but was for the purpose of determining whether the worker is exempt from the application of section 39.

The Deputy President’s decision is now subject to an appeal to the NSW Court of Appeal.

Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 DP Snell 3 December 2018

The worker was given notice that payments of weekly compensation would cease on 25 December 2017 by the operation of section 39 but was subsequently assessed by an AMS as having 32% WPI.

The insurer reinstated weekly payments from the date of the AMS determination (18 June 2018), not the date on which payments ceased.

The worker commenced proceedings claiming weekly compensation for the intervening period so that the issue for determination was whether she was entitled to weekly compensation after the expiry of 260 weeks during the period prior to her being assessed as having greater than 20% WPI.

The worker relied on the decision in Kennewell v ISS Facility Services Australia t/as Sontic Pty Ltd [2018] NSWWCC216 where it was determined that once section 39 is found not to apply then there is no restriction on the worker’s entitlement and compensation continues until the worker achieves maximum medical improvement.

If the worker cannot establish that his or her permanent impairment is greater than 20%, then weekly compensation ceases.

A beneficial approach to statutory interpretation was adopted by reasoning that if the parliament wished to limit payments to workers from 260 weeks until after they obtain an assessment of greater than 20% WPI, then the parliament could have specifically provided for this by using ‘the clearest of language’.

The arbitrator concluded that section 39 does not apply and that the worker was therefore entitled to weekly benefits from the date on which payments ceased until the determination by the AMS (in accordance with a previous work capacity decision).