Key Takeaways

A worker’s entitlement to weekly benefits beyond the second entitlement period (130 weeks) is governed by s38 of the Workers Compensation Act 1987 (the 1987 Act).

Under that provision, benefits are payable if the worker is ‘assessed by the insurer’ as meeting the necessary preconditions.

S38(4) of the 1987 Act requires an insurer to conduct a work capacity assessment within the last 52 weeks of the second entitlement period for the purposes of assessing a worker’s entitlement beyond 130 weeks.

While the legislation requires the insurer to conduct the necessary assessment, the authorities provide a lack of clarity regarding the Personal Injury Commission’s (PIC) jurisdiction to determine a worker’s s38 entitlements, particularly in circumstances where there has been no such assessment by the insurer.

Brief Facts

In Lee v Bunnings Group Ltd (NSWWCCPD 2013), President Keating held that:

It is clear from the unambiguous terms of s 38 that an entitlement to compensation under that section must be assessed by the insurer, not by the PIC.

In that case the insurer had not conducted the necessary assessment, given which President Keating indicated that the Arbitrator should not have determined the worker’s rights under s38.

In Sabanayagam v St George Bank Ltd (NSWCA 2016) the worker had received benefits for more than 130 weeks and was seeking an award pursuant to s38. At that time s43(1) and (3) of the 1987 Act (since repealed) denied the PIC jurisdiction to determine disputes about work capacity decisions. The NSWCA found that the insurer had not made a work capacity decision and commented that were it not for s43(1) and (3), the worker’s entitlement under s38 would have been a matter for the PIC to determine.

In Roberts v University of Sydney (NSWWCC 2021), Arbitrator Harris indicated that Lee was no longer good law, and in applying the commentary from the NSWCA in Sabanayagam, he held at [66] that:  

'Whilst the section refers to the insurer deciding the issue, when that becomes a dispute between the parties, it is then within the jurisdiction of the PIC to determine whether the worker has satisfied the various statutory preconditions.'

Certainly this broad language, read alongside Sabanayagam suggests a view that the PIC would have jurisdiction to determine a worker’s s38 rights in any circumstances in which those rights become an issue in dispute between the parties. Such a reading would be consistent with s105 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which gives the PIC exclusive jurisdiction to examine, hear and determine all matters arising under both the 1987 and 1998 Acts.

In Lu v Randstad Pty Limited (NSWPIC 2021) Member Isaksen determined the question of injury in the worker’s favour and went on to award benefits under s37 and s38. In terms of s38 he considered evidence qualified by the insurer met the necessary preconditions and awarded benefits. There had been no prior s38 assessment by the insurer.

Less than two weeks later in Dominguez v De Martin and Gasparini Pty Ltd (NSWPIC 2021), Member Isaksen issued another decision in which he awarded benefits to 130 weeks under s37 only, noting there had been no assessment by the insurer as required by s38. In his decision he encouraged the insurer to promptly conduct that assessment.

More recently, in Wijanto v Metcash Trading Ltd (NSWPIC 2021) decided only last month, Member Haddock determined the question of injury in the worker’s favour and awarded benefits under s36 and s37. There had been no assessment by the insurer as required by s38. The Member did not determine the worker’s s38 benefits but did comment that the worker’s own evidence established that she would not satisfy the necessary pre-conditions.

Implications

The authorities suggest that the PIC has jurisdiction to determine a dispute arising from an insurer’s assessment of a worker’s weekly benefit rights beyond 130 weeks.

In terms of what the PIC can do if the insurer has not assessed the issue, Sabanayagam as interpreted in Roberts would suggest that irrespective of why the insurer has not determined the matter, the PIC can determine it.

This is interesting given s38 is clear in its language, requiring the insurer to determine the issue at first instance.

There is unlikely to be argument against the PIC’s jurisdiction to determine a worker’s rights under s38 in circumstances where the insurer has failed to comply with s38(4) and has not undertaken the assessment when required to do so.

But what if the insurer could have been under no obligation to assess the worker’s s38 entitlements at the time required by s38(4), for example if liability had been declined early in the second entitlement period?

This issue is yet to be explored and recent decisions from Arbitrators and Members are inconsistent in their approach.

Ultimately, the parties are faced with a lack of certainty about exactly when and in what circumstances the PIC will determine a worker’s s38 rights.

It seems a question calling for clarity.