Ultimate guide to weekly compensation payments under the WC Act

Before you can receive weekly payments of compensation you must:

• Have sustained an injury in the course of your employment.
• Have given notice of that injury to your employer within six months of the date of injury.
  • A notice of injury may be given orally or in writing.
• The employer must within 24 hours of such notice notify the workers compensation insurer of the injury.
• A written claim form is not necessary.

Once the insurer has been notified of the injury they must, within 7 days, do one of the following:

• Accept provisional liability and commence payment of weekly compensation; or
• Issue a “Reasonable Excuse Notice” outlining the reasons why provisional liability has not been accepted. If a reasonable excuse notice is provided the insurer has a further 21 days to determine whether or not, they will provisionally accept the claim.

If a “Reasonable Excuse Notice” is provided, then you may be required to complete a written claim form.

How to claim weekly payments

If you are totally or partially unfit for work and are losing income as a direct result of a workplace injury you have a right to make a claim for weekly payments.

To make a claim for weekly payments you need to attend your General Practitioner (known as the Nominated Treating Doctor) and obtain a WorkCover Certificate of Capacity. This certificate sets out whether you are totally or partially unfit for work. If partially unfit for work, the certificate will detail what restrictions you have in terms of the hours and the type of duties you can perform. The WorkCover Certificate of Capacity needs to be completed and provided to your employer as soon as possible.

If liability for your claim is declined, you need to contact an Accredited Specialist in Personal Injury Law immediately so this can be investigated and if necessary, challenged.

If the insurer accepts liability for your claim they will commence weekly payments of compensation.

The amount payable for weekly compensation varies depending on the following:

• Whether you are totally or partially unfit for work.
• Whether the employer has suitable work available for you.
• The amount of your pre-injury average weekly earnings.

Payments when not able to work

If you are totally unfit for work as a result of a work place injury, then you are entitled to receive weekly benefits as follows:

Payments for the first 13 weeks

For the first 13 weeks if you have no current capacity for work, your weekly payment is based on the following:

• 95% of your pre-injury average weekly earnings known as PIAWE.

Payments for 14 – 130 weeks

From 14 to 130 weeks of weekly payments, if you continue to have no current work capacity, your weekly payment is based on the following:

• 80% of your pre-injury average weekly earnings

Payments for 131 – 260 weeks

Between 131 to 260 weeks in order to continue to receive weekly payments of compensation the following must have occurred:

1. The worker must have applied to the insurer in writing for continuation of weekly payments.
2. The insurer has made a work capacity decision that you continue to have no current capacity for work and that this is likely to continue indefinitely.

If this is the case then you continue to receive weekly payments as follows:

• 80% of your pre-injury average weekly earnings

After 260 weeks (5 years) of weekly payments

Weekly payments will stop after 5 years unless your level of impairment is greater than 20% whole person impairment.

The insurer has made a work capacity decision that you continue to have no current capacity for work, which is likely to continue indefinitely.

Weekly benefits are payable up to one year after your Commonwealth retirement age. Ongoing weekly benefits up to retirement age are subject to the insurer conducting a work capacity decision every 2 years.

If your assessment of whole person impairment cannot be determined because your injury has not stabilised, weekly payments can continue as long as the insurer accepts that your injury has not stabilised and has made a work capacity decision that you have no current capacity which is likely to continue indefinitely.

If you have an assessment of whole person impairment of 20% or less, then weekly payments will stop.

Weekly payments if injury sustained after retirement age

If you sustained an injury at work after your Commonwealth statutory retirement age, then you are entitled to weekly compensation for a period of 52 weeks. At the end of 52 weeks, the weekly payments stop.

Payments when working

If following injury, you have some capacity to work and you return to work in suitable employment either with your pre-injury employer or another employer, you will earn income for the hours that you work.

Weekly payments will vary depending on the amount of income you are able to earn in this suitable employment.

Payments for the first 13 weeks

During the first 13 weeks of weekly compensation, if you are able to return to work in suitable employment then you will be paid weekly payments as follows:

• 95% of your pre-injury average weekly earnings less your current weekly earnings (or the amount that you have been assessed as able to earn in some suitable employment).

Payments for 14 – 130 weeks

During the period 14 to 130 weeks, if you have a capacity to work in suitable employment, then you are paid as follows:

• If you are working 15 hours or more per week and being paid at least $176.00 per week you are paid as follows:
  • 95% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).
• If you are working less than 15 hours per week, your weekly payments are paid as follows:
  • 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).

Payments for 131 – 260 weeks

There is no entitlement to weekly payments of compensation if you are certified fit for suitable work after 130 weeks unless you satisfy the following:

• You have completed an application for continued weekly payments after 130 weeks form and sent it to the insurer.
• You are working at least 15 hours or more per week and are earning at least $176.00 per week. This does not apply if you have an assessment of 21% WPI or more.
• The insurer has made a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.

If you satisfy the above, then you are paid as follows:

• 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed in the work capacity decision as able to earn in suitable employment).

If you have some capacity to work but are not working 15 hours or more per week and are earning at least $176.00 per week weekly payments will stop.

After 260 weeks (5 years) of weekly payments

Weekly payments of compensation will cease after five years unless your level of whole person impairment is greater than 20%.

If you have an assessment of whole person impairment of greater than 20%, you are entitled to continue to receive weekly payments of compensation as long as you continue to satisfy the following:

• You are working at least 15 hours or more per week and earning at least $176.00 per week; and
• You have been assessed by the insurer in a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.

If you satisfy the above, then you are paid as follows:

• 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).

For all workers, weekly payments cease 12 months after they reach the Commonwealth retirement age.

Payments when work is not available

If you have some capacity to return to work in suitable employment but your employer fails to provide you with suitable employment, or you are unable to find any such suitable employment, then you are entitled to weekly compensation as follows:

Payment for the first 13 weeks

During the first 13 weeks if you continue to have a current work capacity and are not working because suitable employment is not available your weekly payments are calculated as follows:

• 95% of your pre-injury average weekly earnings minus the amount that you have been assessed by the insurer as able to earn in suitable employment.

Payments for 14 – 130 weeks

During 14 – 130 weeks if you continue to have a current work capacity and are not working because suitable employment is not available your weekly payments are calculated as follows:

• 80% of your pre-injury average weekly earnings minus the amount that you have been assessed by the insurer as able to earn in suitable employment.

Payments for 131 to 260 weeks

There is no entitlement to weekly payments of compensation if you are certified fit for suitable work after 130 weeks unless you satisfy the following:

• You have completed an application for continued weekly payments after 130 weeks’ form and sent it to the insurer.
• You are working at least 15 hours or more per week and are earning at least $176.00 per week.This does not apply if you have an assessment of 21% WPI or more.
• The insurer has made a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.

If you satisfy the you will be paid as follows:

• 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed in the work capacity decision as able to earn in suitable employment).

If you have some capacity to work but are not working 15 hours or more per week and are earning at least $176.00 per week weekly payments will stop.

After 260 weeks (5 years) of weekly payments

Weekly payments of compensation will cease after five years unless your level of whole person impairment is greater than 20%.

If you have an assessment of whole person impairment of greater than 20% whole person impairment, then you are entitled to continue to receive weekly payments of compensation as long as you continue to satisfy the following:

• You are working at least 15 hours or more per week and earning at least $176.00 per week; and
• You have been assessed by the insurer in a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.

If you satisfy the above, then you are paid as follows:

• 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).

For all workers, weekly payments cease 12 months after they reach the Commonwealth retirement age

Weekly payments stooped, suspended or reduced

The insurer may suspend, reduce, or stop weekly payments of compensation if certain requirements are not met.

Providing documents

To receive weekly payments, you must provide to the insurer at all times a WorkCover Certificate of Capacity. The insurer will not pay you for periods during which a doctor has not certified that you are totally or partially unfit for work.

Not complying with return to work obligations

If your WorkCover Certificate of Capacity certifies that you are fit to return to suitable work, then you must, if available, undertake the following:

• Return to work with your employer in suitable employment.
• Return to suitable work at another place of employment.

If you fail to comply with your return to work obligations then the insurer may suspend or terminate your weekly payments.

If your employer offers you suitable employment, then you must accept such an offer or your weekly payments may be suspended or terminated.

If your employer is unable to provide you with suitable duties, then you have an obligation to look for suitable employment on the open labour market. If you fail to prove to the insurer that you are looking for suitable employment, then your weekly payments may be suspended or terminated.

After 130 weeks of weekly payments

Prior to 130 weeks of weekly payments the insurer is required to conduct a work capacity assessment and make a work capacity decision.

The insurer assesses your capacity for work based on your functional, vocational, and medical status. The insurer relies on medical evidence available from your treating doctors and from its own independent medical examination.

The insurer then makes a work capacity decision in which they decide whether you are:

1. Fit to return to your pre-injury employment.
2. Fit to return to suitable employment with your pre-injury employer or at another place of employment.
3. Totally unfit for work.

Following a work capacity decision there is no entitlement to weekly payments unless:

• The work capacity decision has assessed that you have no capacity for work and this is likely to continue indefinitely; or
• You have applied to the insurer for continuing weekly payments and:
  • You are working 15 hours or more per week; and
  • Earning at least $176.00 per week; and
  • You have been assessed as being indefinitely incapable of undertaking further employment or additional work to increase your earnings.

If you have been assessed as having some current capacity for work but are not working or are working less than 15 hours or earning less than $176.00 per week, your weekly payments will stop. This does not apply if you have an assessment of 21% WPI or more.

After 260 weeks (5 years) of weekly payments

All weekly payments stop after 5 years unless you have a permanent impairment greater than 20%.

If the assessment of whole person impairment is between 21-30% then you continue to receive weekly benefits as you would for the period between 130-260 weeks. However, you are subject to the insurer conducting a work capacity decision every 2 years. Such payments are made until 12 months after your Commonwealth statutory retirement age.

Payments may be reduced or stopped at any time subject to the work capacity decision and whether or not the insurer is of the view that you remain partially or totally unfit for work.

If you have an assessment of whole person impairment of 31% or greater, then the insurer is not allowed to conduct a work capacity assessment or make a work capacity decision without your consent. The effect of this is that the insurer will not be able to make a work capacity decision and you should continue to receive weekly benefits until 12 months following your Commonwealth retirement age.

Complaints about weekly compensation

If at any time you are unsure about your entitlements, dissatisfied with the insurers’ response or wish to make a complaint about the insurer, you should contact the Workers Compensation Independent Review Office (WIRO) at www.wiro.nsw.gov.au or call them on 13 94 76. WIRO is responsible for:

• Investigating complaints made by workers about insurer where their entitlements, rights or obligations are effected and making recommendations for action to be taken by the insurer.
• Reviewing work capacity decisions by insurers.
• Encouraging high quality complaint resolution by insurers and employers.
• Administering the independent legal assistance and review service.

WIRO should be able to assist you in determining whether the insurer is correctly paying weekly payments of compensation.

WIRO can also assist you with reviewing a work capacity decision by an insurer.

Injured workers exempt from weekly payments amendments

The Workers Compensation Act was amended on 1 October 2012. Some workers were exempt from these reforms. Injuries sustained to police officers, paramedics, fire fighters, volunteer bush fire fighters, emergency service volunteers, coal miners, or those making a dust diseases claim are exempt from the weekly compensation benefits as outlined above.

Such workers continue to be entitled to weekly payments of compensation as was payable under the Workers Compensation Act prior to the amendments on 1 October 2012.

Legal costs and disbursements

Under the Workers Compensation Act, insurers are no longer required to pay a workers legal costs and disbursements.

A workers legal costs and disbursements are now paid through the Independent Legal Assistance and Review Service (ILARS) which is a function of WIRO. ILARS approves Lawyers to be able to act for injured workers.

If you require a lawyer to assist you in a dispute with an insurer, then the lawyer applies to ILARS for payment of legal costs and disbursements. ILARS will generally approve payment of legal costs and disbursements and your lawyer will be paid directly by ILARS at the conclusion of your claim.

You are therefore not responsible for payment of any legal costs and disbursements as long as ILARS approves funding.

If you have any question at all, no matter how silly you think it is, please contact me on mgarling@garlingandco.com.au and outline your circumstances and I will personally respond. I receive many emails for help each day and personally respond to all.

Pre-injury Average Weekly Earnings (PIAWE) – Definition

Pre-injury average weekly earnings are calculated by the insurer based on the information provided by both you and your employer and are designed to reflect how much you were earning prior to the injury. The insurer is required to calculate pre-injury average weekly earnings based on the average of your ordinary earnings including overtime and shift allowance payments for the 52 weeks prior to your injury.

If you were employed for less than 52 weeks, then you use the average the weeks you did work up to injury.

PIAWE does not include any non-pecuniary benefits such as a car, phone, or accommodation allowance.

After 52 weeks of receiving weekly payments the PIAWE is recalculated by removing earnings from overtime or shift allowance, so it becomes the average of ordinary earnings only.

The maximum amount you can claim for the PIAWE is currently $2,042.80 gross per week.

You can request the insurer re-calculate the PIAWE if you believe it is incorrect by completing the following form HERE

Work Capacity Decision – Definition

A work capacity decision is a decision made by the insurer about:

The workers’ current work capacity.

What constitutes suitable employment for a worker.

The amount the injured worker is able to earn in suitable employment.

The amount of pre-injury average weekly earnings and current weekly earnings.

Whether a worker is, as a result of injury, unable to engage in employment without further injury, because of the nature of that employment.

Any other decision that affects a workers’ entitlement to weekly compensation.

A work capacity decision can be made at any time throughout the life of the claim, but will normally be made just prior to weekly benefits having been paid for a period of 130 weeks.

A work capacity decision will find that you either:

• Have no current capacity for work or;
• Have a current capacity for work and list the hours and type of work you are fit to perform including how much you could earn in that suitable employment.

A work capacity decision can be appealed however you are not entitled to receive the assistance of a lawyer in appealing the work capacity decision. A work capacity decision can be reviewed as followed:

• Review by insurer
• A worker may request an internal review of a work capacity decision by the insurer after receiving their decision. The worker must give a completed Work Capacity – Application for Internal Review by Insurer form to the insurer specifying the grounds and providing evidence on which the review is being sought. An application must also include relevant supporting medical information.
• Review by WorkCover NSW.
• If the worker is not satisfied with the outcome of the insurer’s internal review, or if the review is not completed within 30 days, the worker may lodge a Work Capacity –Application to Merit Review Authority form. The worker must lodge an application of Merit Review within 30 days of receiving the insurer’s decision with WorkCover NSW.
• Review by the WorkCover Independent Review Office
• If the worker is still not satisfied with the outcome of the Work Cover Merit review, the worker may lodge an Application for Receiving Review from the Work Cover Independent Office (WIRO) within 30 days of receiving the review decisions, contact WIRO on 139 476.
• The Work Cover Authority of NSW has issued guidelines for work capacity decisions, for internal review by the insurers and the merit review by the authority which can be found on the Work Cover NSW website.

Unfortunately, the government does not allow lawyers to assist in seeking a review either from the insurer or WorkCover. Workers must lodge this application on their own without assistance.

Commonwealth statutory retirement age table

To be eligible for Age Pension you must be 65 years of age or older.

From 1 July 2017, the qualifying age for Age Pension will increase from 65 years to 65 years and 6 months.

The qualifying age will then increase by 6 months every 2 years, reaching 67 years by 1 July 2023.

If you would like further information in relation to worker’s compensation, please review our other blog articles or our Workplace Compensation Claim Success Guide.
If you would like a Free Confidential Case Assessment to see if we can assist you with a claim, please contact us on 8518 1120