A couple of days ago we received a question from a severely injured worker, located in NSW regarding CGU’s endless delay of her agreed permanent impairment and pain and suffering payment under section 66/67 of the workers compensation act NSW. We are hoping that someone can help us shed light on this matter!
CGU delays payment for permanent impairment/pain and suffering under section 66/67 workcover NSW
The injured workers question
I have been on workcover [NSW] for 3 years and have been battling CGU for my 66/67 payment for 25% WPI [total body permanent impairment] and it was from a complying agreement. We have been in the WCC for one year now and they [CGU] keep bullshitting with these appeals that just waste time and have no merit but they keep doing it.
Has anyone been in a similar situation and how can you get the insurer to pay you the money they agreed to pay me.
I am in NSW and it is a 66/67 which is the payment for permanent impairment of 25% and pain & suffering. I do have common law claim but I need this payment that was originally offered by the insurer to proceed with my common law claim. CGU keeps on finding anything in which they can appeal on which of course goes back to the WCC which we go there the arbitrator makes a ruling and then 28 days later CGU appeals that and so on it has been 4 maybe 5 times back to the commission.
I would have thought the arbitrator could make a ruling that they pay what was agreed not use anyway by which to delay the settlement by bogus appeals. they have lost every time we go to the WCC.Any advice will help as lawyers just keep rolling along with the bullshit excuses. Thanks
General information on permanent impairment in NSW
If a worker has a permanent impairment as a result of a workplace injury or illness, they may be entitled to receive a payment under section 66 of the Workers Compensation Act 1987.
To receive compensation, the worker will need to lodge a claim that gives an evaluation of permanent loss or permanent impairment (including any entitlement for ‘pain and suffering’). The evaluation will be expressed as a percentage loss of a given body part/system (for injuries before 1 January 2002) or a percentage impairment of the whole person (for injuries on or after 1 January 2002).
For injuries before 1 January 2002:
- payments for any permanent loss of efficient use are determined according to the Table of Disabilities
- in order to receive a payment under section 66 of the Workers Compensation Act 1987, the minimum level (or threshold) of permanent loss must be 1% or more for a given body part or system, but 6% for permanent hearing loss
- if the claim for permanent loss was made before 12 January 1997, the most a worker can receive is set out in the WorkCover Benefits Guide and is dependent on the date of the injury
- if the claim was made on or after 12 January 1997 (and it does not matter when the injury happened), the most a worker can receive for a permanent loss is:
- for a single permanent loss $100,000
- for a multiple permanent loss $121,000
- an injured worker may also have access to ‘pain and suffering’ payments under section 67 of the Workers Compensation Act 1987, if 10% or more disability (as measured in the Table of Disabilities) is present. The maximum amount payable for pain and suffering is $50,000.
For injuries on or after 1 January 2002:
- the degree of permanent impairment is assessed using the WorkCover Guides for the Evaluation of Permanent Impairment
- evaluations of permanent impairment can only be conducted by a suitably qualified medical specialist who is trained in the use of the Guides
- a minimum level of permanent impairment must be present before compensation payments are made. For permanent impairments, the minimum levels are greater than 1% of the whole person. However, for permanent psychiatric and psychological impairment there is a 15% threshold
- for hearing loss claims, a minimum level of 6% binaural hearing loss must be present
- the maximum benefit for permanent impairment has increased to $200,000, calculated in accordance with the formula in the Workers Compensation Act 1987. Necessary income support and medical expenses would continue to be paid once a claim has been settled
- an injured worker may also have access to ‘pain and suffering’ payments under section 67 of the Workers Compensation Act 1987, if 10% or more permanent impairment is present. The maximum amount payable for pain and suffering is $50,000.
Common law damages
A common law claim is made when an injured worker sues their employer in court for damages. To be eligible to take action under common law, three criteria must be met:
- the worker must demonstrate negligence of the employer or a fellow employee
- the injured worker must have a permanent impairment that is at least a 15% whole person impairment
- the claim cannot be started for at least six months after the worker gave notice of the injury to the employer, or not more than three years after the date of injury.
Common law claims are heard in the District or Supreme Courts. Initially, the Workers Compensation Commission attempts to mediate and reach settlement through discussion and agreement of all parties.
Damages are paid as one lump sum, to cover past and future economic loss only. They can be reduced if the worker’s own negligence contributed to the injury.
A common law settlement cancels all other entitlements to workers compensation benefits. If a common law claim is not successful, the worker will continue to receive workers compensation under the statutory scheme.
A commutation is an injured worker’s entitlement to workers compensation benefits paid out as a lump sum of money.
A commutation is only available under the following circumstances:
- the injured worker must have a permanent impairment that is at least a 15% whole person impairment
- compensation for permanent impairment and pain and suffering has been paid
- the worker must be entitled to ongoing weekly benefits and must have received weekly benefits regularly and periodically during the previous six months
- it is more than two years since the worker first received compensation for the injury
- all opportunities for injury management and return-to-work have been exhausted
- weekly benefits have not been stopped or reduced as a result of the worker not cooperating with the injury management plan
- the worker has received independent legal advice
- the insurance company and worker must agree with the commutation
- WorkCover must approve the commutation
All agreements must be registered with the Workers Compensation Commission.
Workers Compensation Commission
The Workers Compensation Commission replaced the Workers Compensation Resolution Service in January 2002. It handles disputes about:
- weekly compensation
- suitable duties
- medical and related expenses
- permanent impairment
- pain and suffering
- death of a worker
- payments for damages to personal property, such as clothing and spectacles
Application to the Workers Compensation Commission
Any party to a dispute can make an application to the Workers Compensation Commission regarding weekly benefits, medical and related expenses, damages to personal property, or management of the worker’s injury in the workplace. Only a worker, or their representative, can make an application regarding permanent impairment and pain and suffering.
Application forms and information on the application process are available from the Workers Compensation Commission
There are a number of different types of applications that a party to a dispute can make to the Commission.
Interim Payment Direction (IPD)
An IPD is a direction by the Workers Compensation Commission to start payments to the injured worker. It is only available for weekly benefits, or medical and related expenses, under $5000.
A worker may apply for an IPD if the insurer has not decided or started payments, and has not provided a ‘reasonable excuse’. The application may be made seven days after the worker tells their employer that they have an injury.
The IPD does not mean that the insurer has accepted the claim, rather it is a way of paying the injured worker while more investigation takes place.
Resolve a dispute
Applications to resolve disputes can only be made after:
- the time limit for making a decision on the claim has passed and the worker has not received a decision from the insurer
- the worker has received a letter from the insurer saying that the claim has not been accepted
- the worker has received a letter from the insurer saying that they have accepted the claim, but the amount of compensation is in dispute.
Specialist doctors, called approved medical specialists, who are appointed by the President of the Workers Compensation Commission, resolve disputes about permanent impairment and other medical issues.
There are two types of approved medical specialists:
- those who resolve medical disputes about the worker’s condition, eg. the cause of injury, treatment options, fitness for employment
- those who resolve disputes about permanent impairment.
After investigating, the approved medical specialist issues a Medical Assessment Certificate – the final, binding opinion in disputes about permanent impairment.
In other types of disputes, their opinions are considered by the Arbitrator, who mediates between the parties or issues direction.
What we have found so far
The above publication shed some lights on some of the bureacracy that seems to be going on in disputes and even at ridiculous appeals…
For general information on impairment benefits in NWS, visit workcover NSW websiteClaims and Benefits NSW fact sheet Workcover NSW claims estimate manual Workers Compensation Commission NSW Bulletin March 2012
Settlements under Section 66/67
For a number of months, the Commission has actively encouraged parties to engage in settlement discussions of section 66/section 67 proceedings between the issuing of the Medical Assessment Certificate and the Post-MAC teleconference. Where the parties reach agreement before the teleconference, the Commission can determine the matter by issue of
consent orders. This eliminates the need for parties to make a further appearance before the Commission to finalise the matter.
To facilitate issue of consent orders, parties may simply email the Registry (email@example.com) the agreed values for s66 and s67 compensation. The Commission will then issue orders (Certificate of Determination – Consent Orders) for payment of the lump sum compensation and the usual costs order (as agreed or assessed).
Complying with WorkCover guidelines when qualifying an IME
Practitioners and Claims Managers are reminded to follow the guidelines, regulations and Commission rules in relation to forensic medical reports and the admission of late evidence.
The Commission has rules, practice directions and guidelines on their website.Can anyone help us answer why CGU is endlessly denying an agreed upon payment settlement?