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Can I make a second claim for lump sum compensation for permanent impairment?

The assessment of whole person impairment is now vitally important as it effects all entitlements to workers compensation under the Act.

The Workers Compensation Act allows an injured worker to make only one claim for lump sum compensation for permanent impairment if the claim was made after 19 June 2012. You cannot return and try to increase the assessment of whole person impairment once the claim has been made.
Often injuries deteriorate over time or an injured worker may require further surgery some years after the initial injury and this may increase the level of whole person impairment.

However, if you have already obtained an assessment of whole person impairment the Workers Compensation Act prevents you from returning and trying to claim an increase in the level of whole person impairment.

Medical expenses are payable for a maximum of either two or five years (after the last day on which you receive weekly payments of compensation) unless you have a whole person impairment of 21% or greater.

You are unable to make a claim for Work Injury Damages (a negligence claim against your employer) unless your whole person impairment is 15% or greater.

It is important not to make any claim for whole person impairment unless you are satisfied that your injury is unlikely to deteriorate further, or you are satisfied that you will exceed 21% whole person impairment.

If you exceed 21% whole person impairment this entitles you to ongoing payments of weekly compensation until retirement age (subject to the insurer conducting work capacity assessments every 2 years) and payment of medical expenses for life.It also allows you to investigate whether you may have a claim for Work Injury Damages, that is, a negligence claim against your employer.

At Garling and Co we are starting to receive many enquiries from people who have seen a Lawyer and have had their whole person impairment assessed without considering that they only have one chance to make a claim for lump sum compensation.

If you have obtained an assessment of whole person impairment of 14% or less, this will prevent you from making a claim for Work Injury Damages and you can only received weekly payments for a maximum of 5 years and medical expenses for a maximum of 5 years thereafter.

It is therefore a very important decision to make as to when to make a claim for lump sum compensation and how this decision will affect you rights to ongoing weekly compensation and medical expenses and whether or not you can make a claim for Work Injury Damages.

You should ensure that this decision is not made lightly and that your Lawyer discusses with you the ramifications of what will happen to your future entitlements to workers compensation should you not obtain an assessment of 15% or 21% whole person impairment.

Having said that, it may be possible to make a further claim for lump sum compensation for whole person impairment in certain circumstances.

Section 350(3) of the 1998 Act allows for a Certificate of Determination to be set aside or rescinded by the Workers Compensation Commission.

The Workers Compensation Commission considered in the matter of Samuel v Sebel that a Certificate of Determination may be set aside in consideration of the following:

  1. The Section gives the Commission a wide discretion to reconsider its previous decisions.
  2. While the discretion is a wide one it must be exercised fairly and with due regard to relevant considerations including the reasons for any delay in bring the application for reconsideration.
  3. One of the factors to be weighed in deciding whether to exercise the discretion is the public interest that litigation must not proceed indefinitely.
  4. Reconsideration may be allowed if there is new evidence that could not with reasonable diligence have been obtained at the first decision and is later obtained and that new evidence, if it had been put before an doctor on the first occasion, would have been likely to lead to a different result.
  5. A mistake or oversight by a legal advisor will not give rise to a ground for reconsideration.
  6. The Commission has a duty to do justice between the parties in accordance with the substantial merits of the case.

In taking all those matters into consideration the Commission may decide to rescind or set aside a previous Certificate of Determination assessing the level of whole person impairment if it is in the interest of justice to do so.

This may include cases where there has been a significant deterioration of a worker’s condition that was not foreseen previously or where a worker has sustained a subsequent consequential injury and would be entitled to additional lump sum compensation.

It is certainly a Section which will be looked at over the next few years to determine whether injured workers can return for a second assessment of whole person impairment under Section 350 of the Act.

Matthew Garling

Matthew Garling is an Accredited Specialist in Personal Injury Law approved by New South Wales Law Society. He is admitted to practice in the Supreme Court of NSW and the High Court of Australia. Matthew is also a member of...
Yanthi S.
01:51 18 May 22
I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or kind of negotiation in the... hearing. I assumed that as a Lawyer she should experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Arbitrator only gave me less than 5 minute to make decision and pushed me to accept the disappointed outcome and what she said totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.read more
Lynda S
00:34 04 May 22
For such complicated matters, it is extremely important to have a good team in your corner. The right team.Garling and co is just that and much more.They listen to you and care. They support you... during the entire process. You will have so many questions and they always return your calls and reply to your emails.Thank you so much to Renee, who explained everything to me and what to expect in details and really reassured me. The process felt less heavy and stressful because she was there. She was professional and so efficient. She took over my case from previous lawyer and I wish I could have met her first. She was available to answer the many questions I had along the way. There is also Kelli, she was the first person I got on the phone most of the time when I called and she is nice and very helpful, I had so many questions and doubts, I was stressed yet she had the patience to explain and seek answers to my questions.Natasha took over my case towards the end and she also was great in listening and supporting me and made sure to defend my best interests against the other side at all time.The Worker’s compensation process is very stressful, it can last for a long period. In my case it was three years and it is to the upmost importance to have people who treats you well, are professional and efficient.I am very satisfied with the outcome and I hope that this reviews helps the next person.Your assistance made the difference and I would have not been able to do it without your precious help.read more
Melinda B.
23:57 04 Apr 22
Workers compensation and the medical-legal process is a complicated and a difficult process.If you are looking for a highly professional compensation/personal injury lawyer, I would without... hesitation definitely recommend Matthew Garling who is a genuine, caring & dedicated lawyer.Matthew, Allison Luck and co. are extremely professional, clear and concise with all communication and an exceptional support during the whole process of my claim, I felt confident and secure that I had made the right decision having Matthew represent me, they worked tirelessly and where 100% committed to getting me the best possible outcome.My case was complicated and Matthew never gave up fighting for me, he didn’t just take the first option for a quick and easy resolution.He and his team got me the best possible outcome for my WPI and I will be forever grateful for their hard work and diligence. I now have peace of mind knowing I have lifetime medical assistance and payment till retirement age.read more
Jim M.
12:25 27 Mar 22
Garling and Co lawyers you have done again with Success for my TPD claim! Ms. Emma Perkins and her team have assisted my TPD claim with great success after the hard work, She is a very down-to-earth... person, professional, and highly knowledgeable with insurance claim law. She is very approachable and always willing to help and often reply my question of email after business hours. I will most delighted to recommend Garling and Co Lawyers. Ms. Emma Perkins and her team to any person who needs insurance claim law service like me. by Julieread more
Anthony N
22:13 17 Mar 22
I had Garling & Co Lawyers handle my workplace dispute, I could not be happier with the outcome, handled in such a professional way with excellent communication throughout the entire process.Natasha... and Kelli were very understanding in every aspect, requesting information via phone or email was never an issue, fast response times and helpful in every way. I HIGHLY RECOMMEND the team @ Garling & Co Lawyers. 👍read more
Yvonne M.
05:03 21 Jan 22
Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
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Yanthi S.
01:51 18 May 22
I engaged with Garling and Co to assist me for my weekly payment dispute with the insurance. I was upset with Natasha, as she didn't prepare me to the worse outcome or kind of negotiation in the... hearing. I assumed that as a Lawyer she should experience with the process or the way to solve the case. Even though I asked her what should I do or what would be happened in the hearing a week before but she didn't mentioned anything, and told me not do anything. But in the hearing she and the Arbitrator only gave me less than 5 minute to make decision and pushed me to accept the disappointed outcome and what she said totally different with what she said earlier. I don't trust her at all, her words is not consistent.I would like to express my appreciation to Matthew Garling who had stepped in to handle my weekly payment issue with the insurance. He is very professional, knowledgeable, easy to talk to and very humble. My disappointment earlier has melted away by his kindness and caring to resolve my issue which has came out the great outcome. Now I am satisfied with his expertise therefore I would not hesitate to let him to handle the case I might have in the future.read more
Lynda S
00:34 04 May 22
For such complicated matters, it is extremely important to have a good team in your corner. The right team.Garling and co is just that and much more.They listen to you and care. They support you... during the entire process. You will have so many questions and they always return your calls and reply to your emails.Thank you so much to Renee, who explained everything to me and what to expect in details and really reassured me. The process felt less heavy and stressful because she was there. She was professional and so efficient. She took over my case from previous lawyer and I wish I could have met her first. She was available to answer the many questions I had along the way. There is also Kelli, she was the first person I got on the phone most of the time when I called and she is nice and very helpful, I had so many questions and doubts, I was stressed yet she had the patience to explain and seek answers to my questions.Natasha took over my case towards the end and she also was great in listening and supporting me and made sure to defend my best interests against the other side at all time.The Worker’s compensation process is very stressful, it can last for a long period. In my case it was three years and it is to the upmost importance to have people who treats you well, are professional and efficient.I am very satisfied with the outcome and I hope that this reviews helps the next person.Your assistance made the difference and I would have not been able to do it without your precious help.read more
Melinda B.
23:57 04 Apr 22
Workers compensation and the medical-legal process is a complicated and a difficult process.If you are looking for a highly professional compensation/personal injury lawyer, I would without... hesitation definitely recommend Matthew Garling who is a genuine, caring & dedicated lawyer.Matthew, Allison Luck and co. are extremely professional, clear and concise with all communication and an exceptional support during the whole process of my claim, I felt confident and secure that I had made the right decision having Matthew represent me, they worked tirelessly and where 100% committed to getting me the best possible outcome.My case was complicated and Matthew never gave up fighting for me, he didn’t just take the first option for a quick and easy resolution.He and his team got me the best possible outcome for my WPI and I will be forever grateful for their hard work and diligence. I now have peace of mind knowing I have lifetime medical assistance and payment till retirement age.read more
Jim M.
12:25 27 Mar 22
Garling and Co lawyers you have done again with Success for my TPD claim! Ms. Emma Perkins and her team have assisted my TPD claim with great success after the hard work, She is a very down-to-earth... person, professional, and highly knowledgeable with insurance claim law. She is very approachable and always willing to help and often reply my question of email after business hours. I will most delighted to recommend Garling and Co Lawyers. Ms. Emma Perkins and her team to any person who needs insurance claim law service like me. by Julieread more
Anthony N
22:13 17 Mar 22
I had Garling & Co Lawyers handle my workplace dispute, I could not be happier with the outcome, handled in such a professional way with excellent communication throughout the entire process.Natasha... and Kelli were very understanding in every aspect, requesting information via phone or email was never an issue, fast response times and helpful in every way. I HIGHLY RECOMMEND the team @ Garling & Co Lawyers. 👍read more
Yvonne M.
05:03 21 Jan 22
Zee
14:20 15 Jan 22
I would like to thank the entire team at Garling and Co for being in my corner throughout the worst years I've experienced in my life.I chose Garling and Co in the end after being seriously injured... at work and needing representation, something I should have done years prior.I met with over 12 other legal firms in Sydney. Large,medium, small and all in between. Some were friends, some family, some were sharks, many were pressuring, many promised the world, Matthew was not like that.Matthew was the benchmark as he was one of the first I spoke with and ultimately he stood out in the end as I felt he was the most genuine.From the outset to the conclusion, I found Matthew to be very polite, easy to communicate with and extremely down to earth.He explained everything simply, he had answers for any questions along the way. He told me it how it was, not just what I wanted to hear.Matthew is a genuine nice guy that runs a very efficient and professional law firm. I made the correct choice engaging him in my claims and would not hesitate in recommending him.Renee was also terrific in handling my TPD claim which was literally finalised faster then international postage.Allison, Rebecca and Kelli were all great, always.Thanks again Garling and Co.read more
mark S.
06:30 23 Dec 21
I found from my very first meeting With Matthew that he was upfront honest and to the point . He thoroughly investigated my claim and we agreed too proceed.The staff at Garling and Co are wonderful... and helpful and I was kept informed and upto date from day one till the end .They made me feel confident and secure and I know I had the best team possible for my best outcome .I can’t thank Matthew and the team for their wonderful serviceread more
Daniel F.
08:48 10 Nov 21
My wife suffered psychological injury.Never having similar experience she had to get legal advice.Workers compensation law is complex and she needed someone to help her navigate her way through.... There are many compensation lawyers but not all with enough experience and strong reputation . We have finally decided to go with Matthew and his team based on the independent website reviews .Looking back now we have made the right choice .There is lot of hurdles and having trustworthy lawyer with great communication skills on your side can make huge difference .My wife can now try to move on with the compensation she deserved.Thanks to Matthew ,Allison ,Emma,Rebecca and rest of the team. Thank you again.Daniel and Veerayaread more
K B.
07:35 28 Oct 21
When you work for an employer for a number of decades and suffer a debilitating injury, you expect compassion, support and belief that you are genuine. When you don’t get that and then also have to... deal with Workers Compensation Insurers it slowly breaks you.That's when you need amazing support like Matthew Garling and his team. From my first meeting with Matthew I was confident I was referred to the right guy. I couldn’t be more pleased with my outcome. Matthew is the Guru of workers compensation, he is professional, easy to work with, nothings a bother and most importantly he gets great results. Do not think twice about using Garling and Co Lawyers.Thank you Matthew, Renee, Allison and Kelli for your invaluable support.read more
University of Technology, Sydney
Member of Law Society of New South Wales
Law Society of NSW Specialist Accreditation
University of Sydney
Legal Profession Admission Board of New South Wales
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