We have lately been reading heaps of legal cases and recently came across a pretty disturbing one: The NSW Workers Compensation Commission (NSW WCC) ruled in a Jan 2015 case that it does NOT have the power to order a workcover insurer to(re) pay weekly payments to a seriously injured worker for a 2-year period even though the injured worker had a “no work capacity” status. WTF!?
NSW WCC no power to order the workcover insurer to make payments – WTF?[You can read the full text of this case: R. v C Pty Ltd  NSWWCCPD 3 (20 January 2015) here]
Background to the legal workcover case
A workers compensation insurer -namely: Employers Mutual NSW- did not pay a seriously injured worker any compensation in the form of weekly payments for a period of about 2 whole years because the insurer “had not made a work capacity decision” until 2 years later – leaving the poor injured sod with NO income support! During those 2 years, the injured worker was deemed to have no work capacity by his treaters.
Here is the original matter in dispute:
The matter went to the Tribunal (NSW Workers Compensation Commission) and it turns out that the WorkCover insurer – Employers Mutual NSW – could not even provide a reason as why it did not pay the injured worker’s weekly payments for the disputed 2 year period. What’s worse is that the Tribunal could also not find any good reason as why the insurer had not paid the seriously injured worker. The most disturbing aspect of this case is that the Tribunal stated it could not order the insurer to make the payments, as the tribunal (read the WCC) does not have the power to order the insurer to make those payments. OMG!
The “reason” as why the workcover insurer did not pay the weekly payments for the period of 2 years is that the insurer appeared to decide that the phrase “present inability” dictated that a work capacity decision can only apply from the date it is made – WTF! Note that the injured worker had “no current work capacity” defined to mean “a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment”. This bizarre reasoning on the part of the workcover insurer was blatantly incorrect in the tribunal’s view.
No power in WC Commission to order insurer to pay
The injured worker’s “current work capacity” in September 2012 was viewed to be the same as it was in September 2014. Therefore, the poor injured worker was clearly entitled to weekly pay during that claimed period, and this compensation (weekly pay) would be calculated on the same basis as the calculation made in September 2014, under the new s38 of the NSW Workers Compensation Act (1987).
However, and disturbingly the WC Commission determined that it had no power to order the workcover insurer to make those weekly payments. Apparently, the entitlement to compensation (weekly pay) after the second entitlement period was (or is) dependent upon the insurer’s work capacity decision.
If the workcover insurer had incorrectly determined that entitlement, by either wrongly calculating the amount of the compensation payable in weekly pay or, as in the present case, by determining that no weekly compensation was payable in a particular period, the injured worker had (and has) the right to seek a review in the circumstances outlined in s44, or a judicial review in the Supreme Court.
The workcover insurer made a work capacity decision and the injured worker essentially sought orders from the WC Commission inconsistent with that decision. The Commission however determined that it had no power to make such orders.
The NSW workcover legislation in this case really constrained the Tribunal from making the decision it assessed as the appropriate one; however, the Tribunal recommended other avenues available to resolve the issue appropriately.
In its published decision the tribunal stated that it was not pleased with the workcover insurer’s handling of the matter and that the case would be referred to WorkCover for investigation….
In the meantime, the poor injured worker is not getting his rightly entitled weekly pay!
You can read the full text of the legal case here: R. v C Pty Ltd  NSWWCCPD 3 (20 January 2015)
[Article dictated by WCV and manually transcribed on her behalf]