Permanent Impairment in New South Wales
Intro: You’re listening to a Bourke Legal podcast.
Dan: If you have been injured at work and are considering compensation, it’s likely that you may have heard of the term permanent impairment. But what is it and how does it impact upon any compensation that you may receive? Well, to find out today, I’m with Pania Watt, Director of Bourke Legal. So, Pania, what is Whole Person Impairment?
Pania: Whole Person Impairment. We often call it WPI, shortened to that. Now whole person impairment can be assessed with regard to lots of different claims. But for the purpose of today’s discussion, I’m going to limit my responses to the New South Wales workers compensation scheme, but whole person impairment can also be referred to as permanent impairment, and those terms are really interchangeable. So talking about an actual whole person impairment assessment, it’s an assessment of the degree of permanent impairment of any body part system or function which has been impaired as a result of an injury, and that injury could be a broken leg, or that injury could be a psychological injury like post-traumatic stress disorder.
So you can have a whole person and payment assessment of any injury.
Dan: Really that you sustain and what’s actually involved in the assessment of WPI.
Pania: So if you’re going to be assessed for WPI, it’s carried out on a referral by either the workers’ compensation insurer or if you are an injured worker and you’ve engaged a solicitor, then your solicitor will refer you for that assessment. The whole person impairment can’t be assessed by just any doctor. It needs to be a doctor who is a Syria approved assessor of permanent impairment, and that’s not usually going to be the treating doctor. It should be an independent medical examiner. And if you’re wondering what Sara is, it stands for State Insurance Regulatory Authority and SIRA is the regulator for the Workers’ Compensation and Motor Accidents Insurance schemes in New South Wales.
Pania: So SIRA regulates those systems.
Dan: What’s actually involved in the assessment of WPI? I’m assuming it’s fairly complex. Why would somebody actually need the assessment at the outset?
Pania: That’s a pretty loaded question. But in relation to needing an assessment of whole person impairment, it’s a different scenario depending on whether you’re what we call an exempt worker or a non-exempt worker. So an exempt worker is a paramedic firefighter, police officer. So emergency services volunteers, coal miners and people with a dust disease claim. So if you’re one of those types of workers, the only reason that you would need a whole person impairment assessment is to determine your entitlement to claim a lump sum compensation. If you’re not an exempt worker so that’s everybody else, then you would need a whole personal payment assessment to determine your entitlement to claim not just lump-sum compensation, but that whole person impairment assessment and the amount of whole person impairment that you’re ultimately agreed at or awarded determines how long you can claim weekly benefits, which is your wages and your medical expenses.
Pania: So it’s a much more important assessment if you are a non-exempt worker than if you are an exempt worker.
Dan: So how about the assessment itself? What’s actually involved in it?
Pania: All Personal Impairments tend to be calculated on an examination. So you’ll go to see an independent medical examiner and that’s a doctor with the required specialty to assess the type of injury that you have. And so that particular doctor will assess number one whether your injury has reached what we call maximum medical improvement. And in other words, that means that your injury is stable and it’s as good as it’s going to get. And if that doctor considers that you have reached maximum medical improvement, the doctor then needs to look at whether or not you have an impairment.
If that impairment is permanent, and then decide what the degree of permanent impairment is, and then assess whether or not there is a proportion of permanent impairment that relates to a previous injury or a pre existing condition. If you have a previous injury or a preexisting condition, then you may be assessed with a deduction on your total of whole person impairment to account for that which is not work related.
Dan: How’s the actual amount of compensation worked out?
Pania: Tania that’s the money question. So in order to claim a lump sum, there are certain thresholds that need to be met, and there’s obviously a difference between exempt and nonexempt workers. So starting with your exempt exempt workers, so that’s the emergency services personnel, paramedic, firemen, police officers, there’s no threshold that you need to meet to claim a whole person impairment for a physical injury. However, there is a threshold for a psychological injury which is 15% WPI. So exempt workers are also entitled to a second amount of lump sum compensation if they meet the threshold of 10% whole person impairment or more in respect of one injury.
And that second lump sum is claimable under section 67 of the Workers Compensation Act prior to amendment in 2012, we refer to it as a lump sum for pain and suffering, and the maximum that you can claim for pain and suffering under section 67 is $50,000 for everybody else, all of the non-exempt workers, the threshold is 11% whole person impairment for a physical injury and 15% for a psychological injury. So any assessment that’s falling under those thresholds means that there’s no lump sum compensation payable for that injury.
So a person who has a psychological injury, for example, and receives an assessment of 7% whole person impairment gets zero for lump-sum compensation and nonexistent workers can’t make a claim for section 67 pain and suffering. That section was repealed back in 2012, turning to the amount that you can get for lump sum compensation, it depends on the date of your injury, and if your injury occurred before the 1 January 2002, then it depends on the type of injury as well. And Ciara has a Benefits Guide.
It’s available online. It’s updated at regular intervals, which will tell you what the dollar amount is for any assessment of whole person and payment based on against those types of injury. But just to give everybody an example, if you have a non exempt worker with a date of injury of the 15 July 2019 and who has been assessed with 11% whole person impairment, the lump sum that’s claimable is $24,100 and the same person with a date of injury of the 15 July 2021 and 11% whole person impairment can claim a lump sum of $24,810, so those amounts increase slightly each year.
And there are issues and updated Benefits Guide that explains all of that party.
Dan: Practically speaking, at what point should an injured worker reach out for legal advice in relation to all this? Because it is a complex area of law.
Pania: It is. The worker’s Compensation Scheme in New South Wales has had a lot of change. It has been in a state of flux since 2012. There’s been a great number of amendments to the Workers Compensation Act. It’s very complicated. So if you are an injured worker and you are considering whether or not you should seek legal advice, my answer to that would be contact someone. Now you are more than likely going to be entitled to free and independent legal advice under a grant from Iro and who Iro are and what they do is a subject for a different podcast.
But there is really no impediment to any injured worker out there struggling along, trying to work out what exactly is going on with their workers compensation claim. There’s really no reason for those people to do that. You can always pick up the phone and call a lawyer, including ourselves. We’re all approved legal service providers with Iro and have a free and independent chat.
Dan: Thanks for joining me.
Pania: Great thanks, Dan.
Outro: Thanks for listening. If you have any questions, please do not hesitate to contact Coolangatta Compensation lawyers at Bourke Legal on 1300 026 875.