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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 receive 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 adviser 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.

If you need assistance with your claim, please do not hesitate to contact us as follows;

  1. Complete our FREE case assessment form HERE
  2. Email us at info@garlingandco.com.au
  3. Give us a call on (02) 8329 9500 and talk to our specialised lawyers

Insurance companies and their employees won’t tell you everything you need to know to get all the compensation you’re entitled to. You need to fight back by arming yourself with all the knowledge you can. Read this 6-point guide which will help you understand your rights and entitlements under Workers’ Compensation legislation when making a successful claim for work injury compensation or damages.

Garling & Co Lawyers

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...
Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
READ ALL TESTIMONIALS

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Kimberly B.
23:14 14 Feb 24
Mathew is very knowledgable and has been of great assistance to me. All the staff are friendly and helpful. I'm so happy I found this firm.Thank you Mathew and team for your great work in my case.... I am 100% happy with what you achieved for me.read more
Julie M.
10:16 16 Jan 24
My last stage of Workers compensation claim was managed by Emma Perkins, Natasha Stojanovic, Rebecca Dunshea and Kelli Robinson at Garling and Co. Lawyers who went the extra mile with their service... from the beginning to the end of 3 years of my case. I have become very anxious with almost everything after a workplace injury and a lot of times I probably ask more questions than I need to, but Emma Perkins always finds clear answers to my questions in a short time and explains to me patiently even using her mealtime or between her meeting and make me feel that I have been very well take care and supported. I am so grateful and extremely satisfied. The excellent service, attitude, and culture of Metthew Garling and his team are second to none with a very high success rate. If you going to battle with your workplace injury for a short or long period, you are better off with Garling and Co. lawyers who are able back you up every step of the way. I strongly recommend it to anybody who needs their service like me. Julieread more
patrick P.
01:46 19 Dec 23
I like to say that I had a very wonderful experience,And the support, and also understanding with all my requests,I could not ask for a better team!Thank you Emma and also her assistant Rebecca... thank youread more
Kazi H.
13:38 13 Dec 23
Work cover fund is GOVT’S money but insurer think that it is from their 14th generation. So only they can have it. Not only that, people from the work, IME doctor from insurer, back to work... coordinator from work, Rehab provider from any side push the worker as hard as possible that the worker (doesn’t matter how the workers mental or psychical condition) either go back to his pre injury duty or leave the job.More over on that very bumpy any difficult journey some of them only treat the worker as a MONEY MAKING MECHINE .in some point worker feels like, no rooms to breath. On that moment need someone to support legally, someone to care, someone to relive.On my case I believe that, somehow, I manage to make my God happy. That’s why God sends me to Matthew Gerling and his team Allison, Rebecca and Nathan, and all of GARLING & co Lawyers.I am not good enough in English, can’t express my gratitude.Matthew, Allison, Rebecca and Nathan, please accept my appreciation and pass it to others.read more
Carol L.
01:32 29 Nov 23
Professional, understanding and friendly
Sean G.
23:21 14 Nov 23
Matthew Garling and everyone I spoke to at Garling and Co were kind, caring and compassionate. They were sensitive to my psychological condition and were patient in explaining everything to me, so... that I clearly understood the legal process. I am exceptionally grateful for the settlement outcome that Garling and Co obtained for me. Many thanks.read more
waqas A.
08:33 13 Nov 23
Great Experience with Garling & Co. Matthew explained everything in detail during the first appointment. Allison, Nathan, Rebecca and the staff have been extremely helpful. Thank You to the team and... lawyers at Garling & Co. for making the long process easy for me and getting an excellent outcome for my compensation claim.I would highly recommend Garling & Co. Lawyersread more
Saskia L.
21:42 08 Nov 23
The world of workers compensation is long, hard and confusing, but Emma and Rebecca at Garling & Co always treated my case with kindness, respect and understanding. No question was ever silly and... they always had time to make sure I knew what would happen next and how we could best prepare. I am so thankful for their expertise and could not have chosen anyone better to represent me.read more
Antonio P.
08:46 06 Nov 23
Thank you Matthew and his team for taking care of my case couldn’t ask for a better results and couldn’t have better team to do that thank you
Julie M.
00:40 06 Nov 23
Garlic & Co Lawyers have been wonderful, supporting me through some difficult times. With their assistance, positive outcomes were achieved. Many thanks to the Team.Julie
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
The law society of nsw professional standards scheme logo.
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
The law society of nsw professional standards scheme logo.
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