Ryan Messenger was newly married at the age of 25 when he died after being trapped under a heavy earth moving excavator at Karuah’s Hunter Quarries.
After medical experts showed he did not die instantly and had survived at least nine minutes after the excavator toppled over him in September 2014, his wife Alexandra, who was widowed at the age of 23, will receive compensation for his workplace injury in addition to a death benefit.
David Jones from Carroll and O'Dea Lawyers said the Supreme Court decided that Mr Messenger had suffered a permanent impairment which gave rise to an entitlement to workers compensation, even though his death followed shortly afterwards. He said it was his death which then gave rise to the separate entitlement to compensation.
Mr Jones said the decision could potentially open the way for other similar claims.
"This case will change the way that workers compensation and work place injury and death matters are dealt with in NSW, and opens the door to an additional compensation payment in such cases,” he said.
Mr Jones said NSW government changes to Workers Compensation law had made it difficult to make claims for permanent impairment after 2002. He said the ability to claim for a workplace injury as well as death benefits had been unclear.
“This case has enormous implications for workers’ compensation in the state as it recognises a separate entitlement to compensation for an injury where death follows within a short time frame,” Mr Jones said.
Mr Jones said the court decision meant that where death is not instant, even if it follows not long afterwards, then compensation is payable for both the injury and death.
"This was the case for injuries prior to 2002; however, the introduction of Permanent Impairment Guidelines for post 1 January 2002 injuries cast some doubt upon the ability to recover for both injury and death," he said.
“Following amendments to the Workers Compensation Scheme in August 2015 the additional impairment is now worth a maximum payment of $598,560 in compensation. This is in addition to the current death benefit of $781,900 and this is one reason why the case now has considerable significance."
Mr Jones said the couple had been married for a short time and had bought their first home before the accident.
“The tragedy of her husband’s death was not something his widow wanted to be meaningless and she sought to gain recognition of the injury he suffered before dying," he said.
Mr Jones said the Supreme Court of NSW had upheld an earlier decision awarding the widow compensation for the injury. The matter was being appealed in the Court of Appeal of New South Wales.
A spokesman for the NSW Government said: "The matter is on appeal with the NSW Court of Appeal and it would be inappropriate to comment on matters before the courts."
Fairfax Media contacted the employer's lawyers but did not receive a response.