NSW WCC no power to order the workcover insurer to make payments – WTF?


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 [2015] 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!

If the WCC does not have the power to order the workcover insurer to make payments to an injured worker, then who does? What kind of a justice system do we have here?

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 [2015] NSWWCCPD 3 (20 January 2015)



[Article dictated by WCV and manually transcribed on her behalf]

6 Responses to “NSW WCC no power to order the workcover insurer to make payments – WTF?”

  1. I spent 10 years on this horrible workers comp system, and all I got out of it was serious deppresion, a louzy bank balance, and a total understanding of how fucked up and fraudulent the w/comp system is. You can not win the system is designed for the insurance companies to win and for the injured worker to get little or nothing.

  2. They deserve to be sued to the maximum award rate, evil bastards!

  3. That same insurer has not been paying me for months! That have not given me any reasons. I have been chasing up but there are not doing anything!

    • The bastards get away with it but neither accepting or declining your claim and will give you the excuse of needing more factual information bullshit. Don’t bother complaining to your claim manager as he/she they are only doing what their managers tells them to do and most of the time they memorize the list of generic answers they get when they first start working there. Just call your claim manager from a different phone number without mentioning your name or claim number and ask them something like “I haven’t got a reply to my letter I sent you” or “Have you got my medical report from Dr x yet ?” If you catch them off-guard the likely answer will be “I’ve just sent you a letter today” or ” We have not received the report yet. ” without even a clue about who they are talking to on the phone. Even better if you can legally record the conversation so if you do get in front of a judge you can add it to the discovery list.
      Get a list of emails for all politicians and put your story out there, the more people do that the better the chance for a Royal Commission Investigation .

  4. Exactly as you stated… OMG!
    The whole system should not rely on insurance companies ( whose top and bottom line is profits) to act as scheme agents. They seem to wield power with ineffectual balances and checks from the government that has contracted them to care for its injured workers. I shake my head in total disbelief and disgust!

    • NSW WCC no power to order the workcover insurer to make payments???
      Then how do they justify their existence
      If WCC have no power (or choose to use this “excuse”) then they should be shut down.
      I recently heard the same excuse from FairWork Ombudsman.
      What is the point of these expensive govt agencies if they are impotent?
      Its just another false hope that one of these agencies will be there to help us…and once again we are left hung out to dry with more bullsh*t reasons as to why they can’t help.
      Well if they can’t help then the govt should stop paying their wages- SEE HOW THEY LIKE IT
      MadChef ranting

read-before-u-commentThis is a statement pointing you to our seriously injured but esteemed and honourable Social Networking Sites Warning and our comment policy. A must read in the context of a very adversarial workcover system! Remember to mention in which state you reside if you seek advice.

Leave a Reply

Your email address will not be published. Required fields are marked *