One Claim Rule (Section 66(1A))
WORKERS COMPENSATION ACT 1987 – SECT 66
Entitlement to compensation for permanent impairment
See the attached PDF, Maximum Benefits Payable for Permanent Injuries
66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note : No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.
(2) The amount of permanent impairment compensation is to be calculated as follows:
(a) if the degree of permanent impairment is greater than 10% but not greater than 30%, the amount of permanent impairment compensation is to be calculated as follows:
$19,540 + [$2,940 x (D – 10)]
(b) if the degree of permanent impairment is greater than 30% but not greater than 50%, the amount of permanent impairment compensation is to be calculated as follows:
$78,200 + [$4,840 x (D – 30)]
(c) if the degree of permanent impairment is greater than 50% but not greater than 55%, the amount of permanent impairment compensation is $242,010,
(d) if the degree of permanent impairment is greater than 55% but not greater than 60%, the amount of permanent impairment compensation is $309,020,
(e) if the degree of permanent impairment is greater than 60% but not greater than 65%, the amount of permanent impairment compensation is $376,030,
(f) if the degree of permanent impairment is greater than 65% but not greater than 70%, the amount of permanent impairment compensation is $443,030,
(g) if the degree of permanent impairment is greater than 70% but not greater than 74%, the amount of permanent impairment compensation is $510,040,
(h) if the degree of permanent impairment is greater than 74%, the amount of permanent impairment compensation is $577,050,
where
“D” is the number derived by expressing the degree of permanent impairment as D%.
(2A) To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.
Example 1 : A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $25,420. If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $25,420. Under this subsection, that $25,420 will be increased by 5%, yielding $26,691.
Example 2 : A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $175,000. If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $175,000, or $116,666.67. Under this subsection, that $116,666.67 will be increased by 5%, yielding $122,500. The total compensation payable for the impairment will therefore be $180,833.33.
(3) The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.
In Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 the New South Wales Court of Appeal held that the one-claim rule was retrospective and notwithstanding Mr Green had sought lump sum compensation for permanent impairment before 19 June 2012 (and paid in 2010 he was not entitled to make a second claim after 19 June 2012).
The 2015 Amending Act has remedied what was seen to be an unfair result in the above case and allowed injured workers to make one further claim where they had previously made a claim before 19 June 2012.
Important Points
- If a claim has never been duly made for Section 66 lump sum compensation then the injured worker will receive no lump sum compensation unless the degree of impairment is at least 11% whole person impairment (i.e. not greater than 10% whole impairment impairment)
- By virtue of the 2015 amendment where the injured worker has made a claim for impairment prior to the 2012 amending legislation, the worker has been permitted to make one further claim for Section 66 impairment entitlement post the 2012 amending legislation. The Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015. There is no threshold for the one further claim.
- Special provisions for psychological and psychiatric injury, see Section 55A- there is no compensation payable in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15% whole person impairment.
