NSW WCC now allows injured workers to amend proceedings to include S67 claims for pain & suffering


It’s really official – no more confusion for our NSW injured workers, our own senior lawyers have confirmed that the NSW Workers Compensation Commission (WCC)  is now allowing injured workers to amend proceedings to include claims for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987.

NSW WCC now allows injured workers to amend proceedings to include S67 claims for pain & suffering

Claiming for pain and suffering pursuant to Section 67 of the Workers Compensation Act 1987 (NSW)

In the aftermath of the Court of Appeal of New South Wales’ decision in Goudappel v ADCO Constructions Pty Limited & anor [2012] NSWWCCPD 60 (22 October 2012) the NSW Workers Compensation Commission  is now allowing workers to amend proceedings to include claims for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987  ( NSW).

The NSW Workers Compensation Commission has directed that should the Respondent Employer not consent to the amendment of the claim during proceedings, the Applicant (that is: the injured worker and/or his/her lawyer) is able to commence separate proceedings to claim pain and suffering after the determination of the original proceedings.

Wonderful news indeed!


[Dictated by workcovervictim but transcribed and posted on behalf of workcovervictim]



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18 Responses to “NSW WCC now allows injured workers to amend proceedings to include S67 claims for pain & suffering”

  1. Fantastic news!

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  2. They are finally catching up to the Goudappel appeal.
    Makes me think that the further appeal against Goudappel high court decision due next month may favour injured workers even more.

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  3. Hopefully that is the case….This retrospective crap is ludicrous unfair and numerous other four letter words that can’t be repeated in print.Waiting impatiently for this goudappel case next month.

    Barry Oferal and his big boys club need a shove………..right out the door ….:)

    Wonder if his buddy Tony Rabbit realises that all these injured workers are going to be shifted onto the federal disability payments through no fault of their own just because Oferal big insurance buddies don’t want to provide a service they have been paid big money to provide.

    It then becomes a federal issue not state……nsw,vic,as,wa,tas,qld all injured workers thrown onto the federal system.

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  4. I have my fingers crossed, at least there is still some hope.

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  5. I given up on hope! 27% WPI…missed out for pain n suffering because of Barry…recently funded by WIRO to claim and guess what my insurer said? Got to go to the WCC…..hmm yes, but it is choked up with claims and rightly so! What’s MAD BARRY going do about that? Does anyone know the date for the High Court Decision?

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  6. You will get pain and suffering if you were injured prior to June 2012.If so check with your lawyer…..

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    • @ Leanne, yes it was before June 2012, where do you get this info from? because if the case is lost I’ve been told I don’t get P & S…I live with unbearable pain and I have no quality of life! I’m shattered and I live on my own!

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  7. The Gudapell decision is scheduled to be released between the 10th & 12 of October that is a definate, the maximum that can be claimed for pain & suffering is only $50 which is sweet FA & knowbody ever receives the full amount it is a step back in the right direction as the LNP fumble & fuck their way through the legislation they destroyed & nevewr understood in the first place but the main issue at han is that people have the right to be protectected & recognised if their condition is to deteriorate = being entitled to have their second WPI recognised ! This is just clear evidence that retrospectivity is unworkable in the Work Cover context as injured people can’t become uninjured Retrospectively ! PS FarQ Barry & your Crimmo buch of insurence buddies the ICAC are looking at everyone around him maybe it’s about time they started looking at Barry also.

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  8. @ Rob, I totally agree with everything you say! The max amount one gets for pain n suffering for a 27% wpi is about 20k…I’m so peeved off with the current laws. Wiro fund you for pain n sufferring then the insurance co won’t pay up! The current waiting time to book into the WCC is ridiculous, so where does that leave us? Lining up for welfare payments!!
    These work capacity decisions are unfolding for the benefit of the BIG INSURANCE CO and not for the injured workers!!!!!! What are we going to do about ??? We are powerless!

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  9. I have a friend who’s been off work for 2 years now due to a construction accident that’s left his foot damaged beyond repair. He spent months in hospital and the at home alone bed ridden without the company contacting him once to see how he was. As a guy that has always worked this isolation sent him plummeting into a dark depression. He thankfully sought help with this but still is a constant struggle for him.
    He received part of his wages up til now but is now being cut off. His solicitor is ready to file against the company he worked for but I’m concerned about his claim.
    There is no mention of pain and suffering or a secondary psych claim. I was of the understanding that a secondary psych wasn’t questionable by the respondent? That they could not send you to their own assessor (we are in Qld) to get their own opinion?
    They left this poor guy out to dry! He was scared and alone and the only time the company did contact him they lied and said they had a doc certificate saying he was ready to work! He never will and he’ll never get to kick the ball or go to the beach etc with his grand kids either!
    Does anyone have advise? If you have the section reference also (ie S26/c) also I would really appreciate it. Anything would be great please!
    Thanks all.

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    • @Michelle, unfortunately this behaviour by this poor bloke’s employer is not uncommon. Once you have been injured they wipe you like a dirty arse!

      If he has current workcover certificate stating he is unfit for work due to the workplace accident, then the insurer is obliged to pay weekly payments and medical expenses.

      If his depression is not linked to his injury, if it developed because of his treatment by workcover, then it would be classed as a secondary injury and not compensable. If their is a “causational link” between his physical and psychological injuries, then it would be part of his original claim.

      If his made a workcover claim, then the insurer can send him to their own IME (Independent Medical Examiner) for regular assessments every 6 months or so.

      You mention that his lawyer is preparing to file against the company, that sounds he is proceeding with a common law claim in the courts against the employer.

      If pursuing common law within workcover, it will depend on your friend’s WPI (whole person impairment) determination. Please note each State has different percentages that have to be “achieved” before proceeding to common law under workcover. A lawyer is the best person and ally to have to help you through this.

      The best way to help your friend is assist him to see a psychologist. This can be achieve through his GP who can conduct a questionnaire (he will need a long appointment) and they can write a referral for 10 sessions to see a psychologist that is part of Medicare.

      If his depression is bordering on self harm, speak with Beyond Blue and hopefully they will have a chance to speak with him also.

      I’m sure others will be able to provide additional information and support. We do have a couple of contributors from Queensland.

      You are a good friend, remind him how important he is to you.

      Good luck

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      • @Michelle – the relevant legislation can be found here, as well as quick references.

        Whilst I am not familiar with WC QLD it does appear that there is nothing specific about secondary psych injuries unlike in Vic for example (and other states) and that a WPI of >0% is enough to proceed with common law.

        Sounds like the ceased his weekly payment on the basis that he has a work capacity.

        The QLD legislation is currently under review, so your friend may still be “lucky” with re to proceedings.

        Best advice will be to carefully listen to the lawyer.

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        • They ceased his payments because of the duration from what I can tell. It’s been two years now. His WPI is 60% from recollection and his emotional issues definitely stem from the isolation, incapacity to return to his prior life and the lack of caring by his bosses/worry over paying his bills in the future.
          He was great and owned his issues and has seen a psychiatrist for the last 9 months roughly. But as you know this change of life is a hard one. He has since got a grandson and the thought of not kicking a soccer ball or going to the beach (he cannot walk on sand at lives near the beach) is obviously breaking his heart.
          From what I can see if he goes common law hell have to repay Workcover approx $260k. I cannot see mention of the emotional impact in his paperwork and I’m worried that after the solicitors share also there will be barley any left!
          I just want to say thankyou too. I’ve been researching and reading what I can. You guys are awesome. Hold ur head high in the knowledge that not only are you helping others you are also listening! Sometimes just having someone listen and care enough to answer is the best feeling! Thankyou!

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  10. Sorry make that ISV 60. I assume that’s 60% disability?

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  11. Been on work cover payments for 10yrs 9mnths ruptured two discs in lower back while at work got f…ked around for 4yrs by insurance company have in copies from reports which I requested after seeing their specialist I was sent to that all was in my head I needed to be locked up for my own good & to be sent to a forensic psychiatrist. I finally found a specialist that actually was able to see the damage that I had to my spine. He informed me if I had seen him 4yrs earlier when the injury first occurred he would have operated I would have gone back to work without further problems. As it was by the time I had gotten to him I was unable to walk or sit. Specialist said if he operated he was unsure if he was able to help me to walk again or sit but maybe relieve some of the pain. After op through medicare as insurance company still refused me an op it took me around 2yrs to really start walking to a degree I walked like a drunk if I walked more than 5mtres sometimes less. I had a double fusion 17mnths ago the walking has improved but now am looking at having my tail bone removed due to the damage as I still have great difficulty sitting due to nerve damage which has caused coxidinia which was diagnosed 6yrs ago but has gotten quiet bad. all thanks to insurance companies who say NO

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    • @Sue,so so sorry to read your story and the irreparable damage inflicted upon you (too), by the workcover insurer and their many dodgy IMEs….

      We know Soula who sustained a severe nerve injury called pudendal nerve injury/coxidinia from a gym ball she sat on which exploded. She too was ill-treated, even surveilled and given a zero impairment assessment (by workcover) for this very painful condition. Soula recently appeared on a current affair to talk about her nerve pain, and what has helped her. You can find her inspirational and usefully resourced website here: http://www.pudendalnerve.com.au/. She is truly amazing and may be able to help you with your debilitating nerve pain, through her story and resources (incl medical practitioners).

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      workcovervictim3 October 13, 2013 at 8:50 pm