Injured Workers Betrayed by the NSW Government's Retrospective Amendments

An Open Letter to Mike Baird, Premier of New South Wales

Dear Mr Baird,

In your capacity as the Minister for Western Sydney, we thought you and your Parliamentary Colleagues in Western Sydney should be aware that there is a further tsunami of unhappiness heading your way as a result of a decision in the Court of Appeal on 27 August 2015 in the matter of Cram Fluid Power v Green [2015] NSWCA 250.

When your Government amended the Workers Compensation Act 1987 in June 2012 it inserted a new section, 66 (1A) that stated "only one claim can be made under this Act for permanent impairment compensation in respect of a permanent impairment that results from an injury."

Up until the recent decision in Cram Fluid Power, that provision had been interpreted to mean that workers injured prior 19 June 2012 had "one more go" to claim lump sum compensation for permanent impairments if their condition had significantly deteriorated. The Court of Appeal, having analysed the transitional provisions enacted at the time, has decided that workers in this State only have one claim for lump sum compensation, ever. If workers made their claim prior to 19 June 2012, that constitutes their one claim.

All workers who were injured prior 19 June 2012 were told that if their condition significantly deteriorated in the future, they could come back and make a further claim.  Many workers were advised they would eventually need spinal surgery, hip replacements or knee replacements, and if those events occurred in the future, they could come back and "top up" their lump sum entitlements. They did not know, and could not have known, that your Government would amend the legislation in 2012, and give it a retrospective effect, despite the fact that the then Premier, Mr Barry O'Farrell, promised that there would be no retrospective effect. These comments were made the day after the legislation came into effect.

Hundreds, possibly thousands, of injured workers are now unable to make a further claim for lump sum compensation, despite the fact that they have significantly deteriorated, because they made one claim, years ago.

This aspect of the amendments made by your Government is harsh, unfair and unnecessary.  You are punishing people who have genuine impairments, and deserve lump sum compensation to compensate them for the pain and suffering and disability inflicted upon them as a result of injuries sustained in the course of their employment. They should have the same opportunity as workers injured after 19^th June, 2012, when your Government amended the legislation. They should be able to make one claim for additional lump sum compensation, if their condition has significantly deteriorated, pursuant to the new laws.

Prior to 19 June 2012 such workers also received additional allowance for pain and suffering pursuant to Section 67 of the Act. Your Government abolished that entitlement for all workers, past and present.

On 21 August 2015 the Act was further amended with a view to trying to "soften" some of the harsher provisions.  In relation to treatment expenses the new provision uses Whole Person Impairment (WPI) as the benchmark for how long the Insurers have to pay for reasonable treatment. Many workers injured prior to 19 June 2012 will not have an assessment of WPI. Many workers injured since 19 June 2012 will not be stable enough to make an assessment of WPI, so using a permanent impairment scale to regulate treatment provided to injured workers is ridiculous.

We only warn you that you will no doubt receive complaints from disgruntled constituents affected by these amendments. Perhaps you could discuss these problems with the relevant Minister, Mr Dominic Perrottet. He will no doubt be hearing from stakeholders such as the Law Society, the Bar Association and the Australian Lawyers Alliance (ALA). 

Steve Groves

Director/Solicitor

P +61 2 4731 5688

E  litigation@lamrocks.com.au