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Insights

Since the 2012 legislative changes there have been many trial and error cases. One issue that has arisen is in respect of the one further lump sum claim and when that one further claim is activated.

Finally we have a case that gives us some clarity as to what constitutes the making of a claim.

The appellant worker Ms Avni suffered injury on 30 March 2005 to her upper extremities as a result of the nature and conditions of her employment. She commenced a claim pursuant to the Workers Compensation Act 1987 (“the legislation”) and entered into a Complying Agreement on 18 August 2010 representing 10% whole person impairment(“WPI”).

The amendments to the legislation came into affect on 19 June 2012. The appellant worker made a further claim on 21 June 2012 for an additional 3% whole person impairment.

The matter proceeded to an Approved Medical Specialist (“AMS”) and the appellant worker was assessed as having an 8% whole person impairment arising out of the injury of 30 March 2005. Unfortunately this did not give rise to a further lump sum claim as it was less than the previous agreed 10% WPI.

A Certificate of Determination was issued on 16 May 2014 providing that the claim for further permanent impairment compensation pursuant to Section 66 was discontinued.

The appellant worker was of the view that her condition had deteriorated and on 23 December 2014 she made a further claim for permanent impairment for 15% whole person impairment, less the 10% previously agreed to in the original Complying Agreement.

On Appeal the issue before the Judge was whether the worker has exhausted her right by making a claim and then withdrawing it. His Honour stated “the discontinuance … did not finally determine her entitlement to compensation for whole person impairment. On the contrary, it preserved her right to pursue her entitlements, if any, in the future”.

The appellant worker was therefore able to recommence her claim for lump sum compensation as she had elected to discontinue the earlier proceedings.

This is a win for workers whom have previously made claims or are unable to continue claims because they do not reach the threshold of 10% whole person impairment threshold. They will now be able to remake claims as a one more lump sum claim.

See Avni v Visy Industrial Plastics Pty td [2016] NSWWCCCPS  46