PUBLISHED 20 Mar 2013

Mr A in August, 2008 as per usual got up in the morning for his drive along the M4 to go to work.

Without warning or notice, the vehicles in front of him started to slow down. He also slowed down but the vehicle behind him failed to stop and at speed collided violently into the rear of Mr A’s car resulting in a domino effect.

Our client had to be cut out of the car and was conveyed by ambulance.

As this was on the way to work he was covered by the then Workers Compensation insurer. Interesting to note however, under recent changes in the Workers Compensation legislation, such journey claims, that is where people sustain an injury in a motor vehicle accident on the way to work or way from the home from work are no longer covered by the Workers Compensation scheme. Previously whether the accident was the worker’s fault or not they were covered under the No Fault Scheme.

The State Government has changed this so as drivers are no longer covered in road accidents for Workers Compensation benefits.

Mr A spent a significant period of time in hospital and subsequently came and saw Reg Kolokossian at our Blacktown office.

We provided initial advice to him in relation to his entitlements and in particular, advised him that it was necessary to lodge a Personal Injury Claim Form within 6 months of the accident to ensure his entitlements for compensation under the Motor Accident Compensation Act were covered. All claims in New South Wales involving motor vehicle accidents needs to be commenced within the 6 month period as this is a mandatory requirement.

Mr A sustained significant injuries to his right knee, neck, significant injuries to his shoulder and secondary injuries to his neck and back. Our client attempted to go back to work on light duties but was not able to do so. He was in his mid sixties and it was very difficult for him to find alternative light duty work. After obtaining various medical reports we requested the insurer confirm whether they were prepared to concede that his injuries would exceed the requisite 10% whole person impairment threshold. In motor vehicle accidents for someone to receive compensation for their pain, suffering, disability and impairment, they need to exceed the 10% threshold. The matter was then referred to the Motor Accidents Authority and an independent medical assessor was appointed who ultimately assessed that his injuries were at 9%. Therefore Mr A did not qualify to receive compensation for his non economic loss. We were still able to successfully prepare submissions to claim for all of Mr A’s past wage loss, his future wage loss and even submitted that he would have, based on his instructions, worked up until age 70 years of age as a driver. We also claim that by virtue of his injuries he was limited from carrying out a lot of the general handyman work around the house such as the gardening, edging and painting every couple of years.

Mr A continued to receive weekly benefits from the Workers Compensation insurer which at least alleviated the financial burden of not having been able to go back to work. Under the new Workers Compensation Scheme no such benefits would be payable to someone injured in a journey claim on the way to or from work.

After obtaining expert reports in support of our client’s claim, we entered into settlement negotiations with the insurer. The matter ultimately settled for a figure in excess of $350,000.00

The importance of this brief summary is to show under the new legislation, drivers would not be covered under the Workers Compensation Scheme. Their only course of action is to lodge a claim as soon as possible for compensation under the Motor Accident Scheme that is, against the green slip policy of the vehicle at fault.

Fortunately we were able to successfully pursue a claim and resolve it.

It is important to note that the New South Wales Government is looking at amending the current scheme of compensation for road accident victims to the extent that people like Mr A who did not exceed the 10% threshold may be barred from even claiming significant compensation.

Gerard Malouf & Partners are advising all clients of the firm and sending out letters to advise people generally of the proposed changes and for them to formally air their complaints to their local Members of Parliament and the media.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.