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NSW workers comp amendments retrospectively betray injured workers
17th Sep 2015
Injured workers in New South Wales have retrospectively been stripped of their right to claim lump-sum compensation despite assurances from the government that changes to the Workers Compensation Act would have no such outcome, the Australian Lawyers Alliance (ALA) said today.
Amendments by the government to the NSW Workers Compensation Act in 2012 saw injured workers limited to one claim for lump-sum compensation for permanent impairments resulting from workplace injuries. Then-Premier Barry O'Farrell clearly stated at the time that this change would not be retrospectively applied to victims of past workplace injuries.
However a recent decision by the New South Wales Court of Appeal in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 has ruled that the 2012 amendments do have a retrospective effect, meaning that thousands of injured workers across NSW now face being blocked from making reasonable top-up applications to their original lump sum claims.
ALA spokesperson Shane Butcher said that this ruling was inherently unfair to victims of workplace injuries, many of whom faced losing thousands in additional lump sum benefits as a result of their condition having significantly deteriorated.
“The Cram Fluid decision will pull the rug from under the feet of many injured workers and their families across New South Wales,” Mr Butcher said.
“This ruling is inherently unfair - how can the government change injured workers legal rights based on decision they made many years ago? Injured workers are feeling betrayed by the workers compensation scheme.”
Mr Butcher said that as part of the 2012 NSW workers compensation reform package, the government introduced a clause that allowed a worker only one claim and one ‘assessment’ of the degree of impairment arising from their injuries.
“In 2012 then-Premier O’Farrell clearly and unambiguously said that his government’s changes to workers compensation would not be retrospective,” Mr Butcher said. “Now thousands of workers face an uncertain future due to the government’s mistake.”
“What this decision means is that a worker who made a decision prior to 19 June 2012 to resolve a lump sum claim will now have that decision counted as his or her one claim,” Mr Butcher said.
“While the vast majority of injured workers are successfully rehabilitated back into employment, their condition often degenerates in future years, resulting in significant additional impairment.
“Workers injured after 19 June 2012 have been able to make informed decisions on how best to pursue their rights in light of the current legislative restrictions,” Mr Butcher said.
“However, workers injured prior to the amendments did not know at the time they made their first claim for permanent impairments that it would be their only claim, and that they would not be allowed to ‘top up’ their claim if their condition deteriorated in future years. In fact they were told the exact opposite, as that was the law at the time.”
Mr Butcher said that the government’s amendments had created a wave of unhappiness in the community.
“These vulnerable people have had the door slammed in their face without even knowing that the door was there,” Mr Butcher said.
“They are now left facing the reality that the decisions they made many years ago regarding their lump sum entitlements, following good legal advice, is in fact now limiting their rights today.
“To compound the problem, in more recent reforms the NSW government linked that “one assessment” to entitlement to rights for medical treatment.
“It is absurd to think that a worker’s right to treatment is now to be determined upon a decision that they may have made five or six years prior to these amendments being passed,” Mr Butcher said.
“This is despite that fact that the law did not even exist at the time they may have made that decision and resolved that claim.”
Mr Butcher also highlighted the consequential damage being suffered by injured workers whose entitlements to pursue threshold damages disputes and the right to be assessed as ’seriously injured’ are also threatened by the Cram Fluid decision.
Mr Butcher urged the NSW government to reconsider the retrospective nature of section 66(1A) of the Workers Compensation Act in line with the assurances that were given by Premier O’Farrell, and to revoke its one-assessment policy.
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