If you are an exempt worker such as a police officer, firefighter, or paramedic, you may be eligible for a type of lump sum compensation called “pain and suffering”. It is no longer available to any other type of worker following the 2012 workers’ compensation scheme reforms.
Lump sum compensation for pain and suffering is designed to compensate workers for their actual pain and/or the distress and anxiety caused by their injury. Both lump sum compensation for permanent impairment and for pain and suffering are claimed at the same time. Lump sum compensation for pain and suffering is paid ‘on top’ of your lump sum compensation for permanent impairment, provided you meet the necessary thresholds.
Section 67 of the Workers’ Compensation Act 1987 (now repealed) stated that a worker who has a 10% Whole Person Impairment or more is entitled to receive compensation for their pain and suffering. This 10% threshold applies to physical injuries only.
If you have a primary psychological injury such as PTSD and you are an exempt worker, you need to have a 15% Whole Person Impairment or more to be eligible for both payments.
The maximum amount that can be claimed for pain and suffering is $50,000. How much pain and suffering compensation you get depends on how your pain and suffering compares to a theoretical “most extreme case”. The amount payable is different for each worker and depends on how your injury affects you. It cannot be calculated like permanent impairment compensation.
The amount of pain and suffering you receive is either agreed by negotiation with the insurer at the time that your permanent impairment compensation is finalised, or, if the amount cannot be agreed, by a Member of the Personal Injury Commission.
What matters are considered when deciding how much pain and suffering compensation I will get?
Pain and Suffering means the actual pain and/or anxiety and distress caused by your impairment.
Some of the matters considered when deciding an appropriate amount of pain and suffering compensation include:
- Your age. If you are young, it is more likely that your condition will deteriorate with age, and you may receive more compensation for your pain and suffering.
- Your actual pain and how it impacts your life.
- The distress and/or anxiety caused by interference with your activities of daily living and recreational activities.
- The effect of your injury on your social activities and relationships (including marriage).
- The number of procedures you’ve had to undergo because of your injury, and any extended periods of recovery.
Other things to note are:
- Your pain and suffering must arise from your loss or impairment.
- There is no correlation between your percentage Whole Person Impairment and the amount of your pain and suffering.
- Your past and future pain and suffering are considered from the date of injury and not the date that your percentage of permanent impairment was decided.
The above list is not exhaustive, but it gives you an idea of the considerations weighed-up when deciding an appropriate payment for pain and suffering.
Personal Injury Commission Cases
Below are some recent cases in the Personal Injury Commission regarding pain and suffering:
B v State of New South Wales (NSW Police)
Mr B, a police officer, was kneed in the face by an offender while he was conducting a search. He suffered, amongst other things, a fractured nose, facial disfiguration, nasal obstruction, and a permanent loss of his sense of smell and taste. He underwent two painful surgical procedures and was assessed as having a 10% Whole Person Impairment.
When awarding lump sum compensation for pain and suffering, the Member took into consideration that the officer had significant ongoing physical symptoms, facial disfigurement, loss self-esteem and self-confidence, sleeplessness and fatigue, interference with his social and recreational activities, and the loss of his sense of smell and taste.
The officer was assessed as 45% of a most extreme case, mostly because of the significant impact his permanent loss of taste and smell had on his social and professional life.
D v State of New South Wales (Fire & Rescue NSW)
Mr D, a firefighter, suffered a chronic and severe primary psychological injury due to exposure to traumatic events. He was assessed as having a 20% Whole Person Impairment.
When considering the appropriate amount for pain and suffering, the Member noted the extensive amount of treatment that the firefighter had required (including being scheduled at a public hospital). He had also suffered ongoing cognitive and behavioural difficulties, and his injury had impacted significantly on his social activities and relationships. Mr D had a life expectancy of another 33 years.
The Member assessed Mr D as 55% of a most extreme case, largely due to the severity of Mr D’s chronic symptoms and his extensive treatment.
As you can see from the above cases, lump sum compensation for pain and suffering is not a science capable of calculation. A range of factors are taken into consideration when deciding an appropriate amount.