Section 39 Whole Person Impairment Assessments - Your option to be re-assessed

Published 24 Aug 2018

Our client sustained a workplace injury to his left shoulder in 2010 as a result of the heavy nature of his work, including general construction work.

Over time, he noticed that his left shoulder was in severe pain, and notified his employer. A workers compensation claim was made on his behalf, and he was paid weekly compensation and medical expenses by the insurer.

He remained in receipt of weekly compensation payments until 26 December 2017, when the insurer ceased his payments pursuant to section 39 of the Workers Compensation Act 1987 (NSW).

Section 39 of the Act states that injured workers are only entitled to a maximum period of five years’ worth of weekly compensation payments, unless they are assessed as having 21% Whole Person Impairment or greater.

The insurer had our client assessed prior to ceasing his payments, and the assessment came back at 7% WPI, far below the 21% threshold required to pursue the lump sum claim.

Shortly after his payments were ceased, our client instructed Gerard Malouf and Partners to find out what his rights were.

Our expertly trained solicitors read through the report of the insurer doctor, and noticed that the insurer did not assess our client’s consequential injuries, including his right shoulder and back injury.

Gerard Malouf and Partners then arranged for our client to be assessed by an independent medico-legal doctor who assessed our client as having an impairment of 20% Whole Person Impairment. Although this assessment did not reach the 21% threshold, we instead made a claim for lump sum compensation, as our client had reached the 11% threshold. This assessment also gave a right to sue his employer for Work Injury Damages, otherwise known as negligence, which is a claim for past and future economic loss against the employer.

The insurer responded by having  our client re-assessed, which came back as 7.5%, arguing that our client’s injuries were degenerative in nature, and could not be completely blamed on the workplace accident.

Despite the fact that the insurer had now twice declined to accept our client’s claim for lump sum compensation, we kept fighting for justice.

We then filed an Application in the Workers Compensation Commission, to have our client assessed by and Approved Medical Specialist, appointed by the Commission.

We made submissions to the WCC that our client’s injury was work related, not degenerative in nature.

Eventually, the Approved Medical Specialist opined that our client suffered from 17% WPI, and our client was awarded over $20,000 for his injuries.

Our client now also has the opportunity to sue the employer for Work Injury Damages, relating to his past and future economic loss.

Cases like these stress the importance of including consequential injuries, and to ensure that lawyers build up a case as much as possible to ensure the best outcome for the client. This is something that lawyers at Gerard Malouf and Partners are expertly skilled at pursing.

Here, at Gerard Malouf and Partners, we are willing to go above and beyond for our clients, to achieve maximum justice and maximum compensation.

We pride ourselves in looking out for consequential injuries that an injured worker has, that can be added to the claim, to increase the WPI percentage.

If your payments have been cut off as a result of section 39 of the Workers Compensation Act 1987 (NSW) contact Gerard Malouf and Partners for free legal advice.