July 14, 2020

Court of Appeal decision a victory for injured workers

Injured workers who lost weekly compensation payments after five years are entitled to backpay after a major win by a Wollongong Law firm in the New South Wales Court of Appeal.

Until the recent decision, changes in 2017 to the Workers Compensation Act (called Section 39) meant weekly pay entitlements for injured workers were to cease after five years. The exception is people whose injuries are assessed to result in permanent impairment of more than 20 per cent.

Unfortunately, some injured workers have been unable to obtain the assessment until after their weekly payments have ceased and have therefore been subject to a period of time without financial assistance.

The case went before the Workers Compensation Commission last year, where Wollongong law firm Foye Legal successfully challenged the insurer to have their client’s missed weekly payments reimbursed.

The insurer appealed the verdict, but the Court of Appeal recently upheld the original decision, a huge win for injured workers.

Foye Legal Associate Lawyer Emma Thomson (pictured) successfully argued that an injured worker is entitled to have their weekly payments backdated for that period, if that worker has no, or a reduced, work capacity.

“The Court agreed that the only relevant question is the degree of impairment that results from a worker’s injury, not the date they were deemed to be over the 20 per cent threshold.

“In some cases, the impairment might be immediate, but for other people, the injury may worsen over time, or may take a long time to be properly assessed. This is an important distinction in helping people get due compensation.”

Foye Legal Chief Lawyer Diana Foye said: “Workers with serious and long-standing injuries do not deserve to have the added emotional stress and financial hardship because of an arbitrary cut-off date.

“It’s not only a major win for our client, who had no income and did not deserve to be cut off from the financial compensation to which she is entitled, it’s also more broadly a win for workers in New South Wales who may already be under enormous stress and financial pressure from COVID-19.”

Story By

Diana Foye