In a recent decision Meat Carter Pty Ltd v Melides [2020] NSWCA 307 the NSW Court of Appeal held there is no entitlement to backpay of special compensation for a worker with highest needs.
A "worker with highest needs" is a worker who:
has a permanent impairment of more than 30% on the assessment of an Approved Medical Specialist; or
the insurer has accepted the degree of permanent impairment is likely to be more than 30%; or
an Approved Medical Specialist has determined the worker has not reached maximum medical improvement.
A worker with highest needs has has a special entitlement to compensation under section 38A of the Workers Compensation Act 1987. Section 38A prescribes a minimum weekly payment that must be paid to the worker with a reduced work capacity regardless of the actual loss of earnings: Hee v State Transit Authority of New South Wales (2019) 100 NSWLR 274; [2019] NSWCA 175 For workers injured after 21 October 2019, the actual loss of earnings must be more than zero.
The Court of Appeal determined special compensation is only payable from the date the worker satisfies one of the above assessment criteria and is classified a "worker with highest needs".
Workers are generally only entitled to one assessment of permanent impairment so expert advice should be sought as to the timing of the assessment.
Contact us for more information.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
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