Are your workers' compensation weekly benefits being cut off?The NSW state government made a number of reforms to worker’s compensation in NSW in 2012. The reforms have resulted in ongoing instability for injured workers as changes have been implemented.
The most recent of these reforms was introduced through section 39 of the Workers Compensation Act 1987 (NSW), and will have a drastic impact on injured workers across the state. Workers who are assessed with a whole person impairment of less than 21% will have their weekly payments terminated once they have received 260 weeks of payments. This applies to all workers injured prior to 1 October 2012. The calculation of these weekly payments commenced on 1 January 2013, meaning for many workers, 260 weeks will expire towards the end of 2017.
In light of this, workers' compensation insurance companies are writing to injured workers who have been assessed as having a whole person impairment of less than 21%, and advising that their weekly payments will cease towards the end of 2017.
What is section 39 of the Workers Compensation Act 1987 (NSW)?Section 39 of the Worker’s Compensation Act 1987 (NSW) addresses the end of weekly payments for workers' compensation claims after five years or 260 weeks; a worker will lose their entitlement to weekly payments after a period of 260 weeks of payments have been made.
It does not matter whether or not these 260 weeks are consecutive. A week of payment includes any payment during the week even if the payment did not represent a full weeks pay. If your weekly wage is being topped up by your workers' compensation insurer because you have returned to work in a reduced capacity, that will constitute a weekly payment.
If an injured worker has an injury which results in a permanent impairment of 21% or more, they will be exempt from these changes. This is because an injured worker with a whole person impairment of 21% or more is considered a “worker with high needs” under the legislation.
What is a “worker with high needs?”A “worker with high needs” is defined by the legislation as a worker with a whole person impairment of more than 20%.
A worker with high needs has certain benefits under the worker’s compensation legislation, which includes no time limits on weekly payments or medical expenses.
The Insurer’s AssessmentIf an injured worker receives correspondence from their worker’s compensation insurer, it will either invite the injured worker to attend an Independent Medical Examination or provide them with a copy of an assessment which the insurer has relied upon to determine their whole person impairment.
The insurer’s correspondence implies that the examination and report from their Independent Medical Examiner will determine whether you are entitled to receive weekly payments on an ongoing basis.
Shine Lawyers is of the view that that is not correct in many circumstances.
All injured workers who have received a letter like this from their workers' compensation insurer are entitled to obtain legal advice to ensure they have been adequately assessed. This advice should be specific to the nature of the injury, the percentage of impairment and the outcome of the insurer’s examination.
Where to from here?This legislation is estimated to impact more than seven thousand injured workers throughout New South Wales, so if this legislation has impacted you, you are not alone.
The workers' compensation insurers are required to advise all injured workers about the assessment of their whole person impairment by the end of August 2017. If you have received a letter from your workers' compensation insurer before this date, you will be entitled to legal advice in relation to the insurer’s letter.
Once your weekly payments have been stopped pursuant to section 39, it is much more difficult for them to be re-instated. We recommend that all injured workers investigate their entitlements as soon as possible.
In light of this, Shine Lawyers suggests that all injured workers to read up on their rights to workers’ compensation payments, to challenge the assessment of their insurers and to seek legal advice if they are unsure of their entitlements.
If you have received a letter from your workers' compensation insurer, or are unsure of your rights, visit your local Shine Lawyers’ branch today. A member of our expert legal team will assess your claim, guide you through the review process, and work towards a resolution that protects your legal rights.
This is not a change that Australians should sweep under the carpet. It’s not a change purely affecting injured workers today; this could be you or a loved one next week, next month or next year.
Written by Shine Lawyers. Last modified: June 30, 2020.