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Insights

This has caused confusion and constant revision of the law. With this much uncertainty surrounding workers entitlements, legal advice can only be given based on possibilities. The recent case of Goudappel v Adco Constructions Pty Ltd [2013] shed some light on which claims would be affected, and it appeared that workers who had made a claim pre 19 June 2012 would still have their rights under the old scheme for section 66 permanent impairment and section 67 pain and suffering.

The new scheme abolishes compensation under section 67 for pain and suffering and restricts any claims for compensation under section 66 not greater than 10% whole person impairment.

However, as the legislation is put to challenge, it appears that workers are once again controlled by the bodies that enforce it. The case of Goudappel has been put to the High Court seeking leave, and if it is successful, many workers will have no certainty relating to their claim until it is determined, a process which could take months. An independent WorkCover body, WIRO, has announced that all section 66 and section 67 claims will be on hold until the pending case law is determined. This decision delays the process further and adds to the frustration experienced by claimants.

To add more to the workers worries, the work capacity assessments have commenced and workers are receiving notification by way of phone and letter stating that their weekly payments are more than likely to be stopped. Workers who have been on compensation for years, some with no capacity and others who are unable to secure employment will be forced to face it alone without the help of the legal profession. An injured worker commented to me recently, “I went to court, I was awarded my weekly payments till I was retirement age and now that is worth nothing.” Even those who have endured the long road to fight for their entitlements will be subject to the new work capacity assessments.

Retrospective law is always a challenge, but to cut the legal profession from advising lay people is wrong. Many have no legal background and some have limited literacy skills and speak English as a second language. They will find it very difficult to deal with this challenging system. It is expected that many workers will give up on pursuing a claim, adding additional strain on Centrelink and Medicare.