Craig Bell, Stephanie Wigan and Andrew Gawthorne | May 2012 | Employers Liability
In accordance with Section 66(2A) of the Workers Compensation Act 1987 (WCA 1987), an injured worker is entitled to a 5% uplift for the lump sum compensation payable under Section 66 for back injuries sustained on or after 1 January 2006.
Who does this impact?
In the past, the 5% uplift has not always been applied consistently. However the recent case of The Trustee for Bradbury Shopping Centre Trust and Bruce McNair (WCC matter no. 8947/11) has confirmed the approach that the Commission has adopted in applying the 5% uplift. This is consistent with the WorkCover Authority’s Operational Instruction 1.9.
The Facts
Insurers and employers calculating the Section 66 lump sum component of a claim where a worker has been assessed as having an injury to the back on or after 1 January 2006.
What action should be taken? The process discussed below outlines the steps to calculate the 5% uplift.
TurkAlert
5% Uplift for the back and the application of Section 66(2A)
Definition of the back Unfortunately the “back” is not defined in the Legislation, and case law provides no authoritative conclusion as to whether the cervical spine should be included as part of an assessment of the back and thus be afforded the 5% uplift pursuant to Section 66(2A). However the Workers Compensation Commission E-Bulletin No.46 from January 2012 exemplifies that the cervical spine is not to be included as part of the definition of the back: the back includes the lumbar spine and thoracic spine only.
The 5% uplift Section 66 (2A) of the WCA 1987 states: “To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%. Note: A person suffers 10% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $13,750 (10 x $1,375). If the whole of the impairment is to the
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