Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113

Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113

On the proper construction of s 39(2) Workers Compensation Act 1987 (NSW), the 260-week limitation on weekly compensation payments does not apply to a worker whose injury results in a degree of permanent impairment exceeding 20%, regardless of when that threshold is crossed or assessed. Section 39(3) does not require a prior formal assessment as a precondition to the application of s 39(2); it merely prescribes the methodology by which impairment is to be determined in the event of a dispute. The date on which the threshold is crossed or assessment is made is not relevant to engagement of the exemption—the relevant inquiry is what degree of permanent impairment has resulted from the...

Jurisdiction
Australia
Judgment Date
17 June 2020
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeals allowed
Legal Topics
['assessment and Amount of Compensation' 'discontinuation of Payments' 'statutory Construction' 'permanent Impairment' 'weekly Compensation Payments']
["workers' Compensation"] ['assessment and Amount of Compensation' 'discontinuation of Payments' 'statutory Construction' 'permanent Impairment' 'weekly Compensation Payments']

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Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether s 39(2) of the (NSW) Workers Compensation Act 1987 exempts workers with permanent impairment over 20% from the 260-week limit on weekly compensation, regardless of when that threshold is assessed or crossed' 'Whether a formal assessment of impairment is a precondition to engagement of s 39(2)' 'Whether s 39(2) contains a temporal element requiring the assessment to occur at or before the expiry of the 260-week period']

Ratio Decidendi

On the proper construction of s 39(2) Workers Compensation Act 1987 (NSW), the 260-week limitation on weekly compensation payments does not apply to a worker whose injury results in a degree of permanent impairment exceeding 20%, regardless of when that threshold is crossed or assessed. Section 39(3) does not require a prior formal assessment as a precondition to the application of s 39(2); it merely prescribes the methodology by which impairment is to be determined in the event of a dispute. The date on which the threshold is crossed or assessment is made is not relevant to engagement of the exemption—the relevant inquiry is what degree of permanent impairment has resulted from the...

Court Disposition

Appeals allowed

Orders

  • ["In proceedings 2019/153561 (Hochbaum v RSM Building Services): (a) the orders made by the President of the Workers Compensation Commission on 18 April 2019 be set aside; (b) the appeal from the decision of the Senior Arbitrator be dismissed and the Senior Arbitrator's Certificate of Determination dated 7 January...