One shot only - the final word on further lump sum claims

Victory for Insurers as pivotal determination of Meyers v Andrew Miedecke Motors Pty Ltd [2024] NSWPIC 357 reaffirms the Workers' Compensation legislative scheme’s stance on further lump sum claims.

In the decision of Meyers v Andrew Miedecke Motors Pty Ltd dated 4 July 2024, Principal Member Harris held and reaffirmed a worker had no entitlement to use section 329 of the Workplace Injury Management & Workers Compensation Act 1998 (“the 1998 Act”) as a mechanism for referral for further assessment with respect to a threshold dispute to then pursue a further section 66 claim. This decision was premised on section 322A of the 1998 Act, which operates to restrict a worker to only one assessment of the degree of permanent impairment resulting from an injurious event.

Ultimately, the worker was not entitled to further lump sum compensation, in circumstances whereby a certificate of determination (‘COD’) was rescinded for the purpose of a reconsideration application/threshold dispute and the COD was revoked as to the further payment of section 66 compensation. 

The facts 

• The worker sustained a work-related lumbar spine injury on 14 November 2017.

• In August 2019, the worker served a notice of claim for section 66 for $48,890.00 in respect of 20% WPI (lumbar spine) due to injury sustained on 14 November 2017.

• In February 2020, the worker commenced proceedings in Workers Compensation Commission (WCC) claiming lump sum compensation in respect of 20% WPI. 

• The worker was referred to an AMS for assessment of WPI.

• In March 2020 AMS Dr Hyde-Page provided a Medical Assessment Certificate (MAC) in which he assessed the worker as suffering from 14% WPI (lumbar spine). 

• In April 2020 the worker lodged an appeal against the MAC. 

• In June 2020 the MAP confirmed the MAC of 14% WPI.  

• In July 2020 the WCC issued a COD (COD No. 1) confirming the worker’s permanent impairment resulting from the injury on 14 November 2017 was 14% WPI. 

• In June 2023 the worker subsequently asserted a deterioration of his condition and filed an Application for Reconsideration pursuant to section 329 of the 1998 Act. 

• In August 2023, the COD (COD No 2) was reconsidered, and the matter was referred again for assessment under section 329 based on a threshold dispute.

• In November 2023, Dr Hyde-Page issued a further MAC whereby he assessed 25% WPI (lumbar spine).

• In December 2023, a further COD (COD No 3) was issued directing the payment of section 66 lump sum compensation in the amount of $69,310.50 in respect of 25% WPI. 

• In December 2023, the respondent sought reconsideration of further COD (COD No 3) on the basis that the further assessment was limited to a threshold dispute. 

• In March 2024, the respondent sent a further email to the Commission seeking the revocation of COD No 3.

• The PIC then invited written submissions from the parties in relation to the request to revoke COD No 3. 

• In June 2024 the matter was reallocated to Principal Member Harris and listed for teleconference where parties addressed various matters in response to questions raised about the written submissions.

The issue before Principal Member Harris was whether the worker was entitled to further assessment under section 322A pursuant to section 329 of the 1998 Act.

The worker’s main argument was with the revocation of the first COD, the first section 66 dispute became unresolved, and therefore the original dispute effectively sprang back to legal life.

The respondent’s main arguments were the Commission’s decision was limited to the reconsideration of the MAC as a threshold dispute; and in those circumstances, noting the prior section 66 claim was lodged and paid after the 2012 date, this meant the worker had exhausted his one claim for section 66 purposes.

Principal Member decision 

Principal Member Harris made findings as follows:

• The purpose of the reconsideration was for the purposes of whether the worker exceeded the threshold enunciated in section 151H of the 1987 Act.

• There was otherwise no basis for the Member to allow the worker to pursue a further claim for section 66.

• There was no dispute the MAC No 2 was accepted for any threshold purpose.

• The worker had no entitlement to use section 329 of the 1998 Act to pursue a section 66 claim and that section 322A of the 1998 Act provided the worker had exhausted his one assessment due to the exercise of the appeal.

• The case of Hochbaum v RSM Building Services Pty Ltd [2020] NSWCA 113 was saliently referred to which determined “section 329 (referral for further assessment) does not extend to permanent impairment, because of section 322A.”

• Ultimately Principal Member Harris did not accept the worker had any entitlement to further lump sum compensation pursuant to section 66 of the 1987 Act, and therefore reasoned COD No 3 be revoked pursuant to section 57 of Personal Injury Commission Act 2020.  

Takeaway message

The case presented a novel and complex issue which had potential ramifications for the Workers Compensation Scheme, particularly regarding a worker’s ability to pursue additional lump sum compensation after an initial claim has been made and resolved.

The worker in this case, erroneously tried to change the goal post of the original dispute, that being the threshold dispute pursuant to section 151H of the 1987 Act; and in a roundabout way, attempted to use the avenue of a reconsideration application for the purposes of a threshold dispute, to assert he was entitled to further lump sum compensation simply because a COD was rescinded for the purpose of a reconsideration application.   

Had this case been determined otherwise, and the further lump sum compensation granted, the implications would have meant a worker could apply for a reconsideration application for threshold purposes, and if a new Medical Assessor came back higher, the worker gets another shot at lump sum compensation.

This case now re-affirms that a worker cannot use the vehicle of section 329 (by way of referral for further assessment in this situation, with respect to a threshold dispute) to pursue a further section 66 claim as it is effectively barred by the operation of section 322A (given the worker had exhausted his one assessment due to the exercise of the appeal).

Ultimately, this case highlights that a worker cannot claim additional compensation or seek to amend their original claim and reinforces the ‘principal of finality’ adhered to by the Commission for the purposes of one claim under section 66. 

Authors: Peter Lichaa and Izabella Bozinoski