It is not uncommon for weekly payments of compensation to be terminated after 130 weeks because the insurance company has disputed the capacity or level of impairment of an injured worker.
With the recent amendments to the WorkCover legislation, we will see fewer and fewer injured workers receive weekly payments after 130 weeks. For more information about the amendments, please refer to Changes to WorkCover laws by the Workplace Injury Rehabilitation and Compensation Modernisation Act 2023.
The first 130 weeks after an injury
If a worker has an accepted WorkCover claim following an injury, they will be entitled to weekly payments of compensation for the 130 weeks following their injury if they can demonstrate that they are unfit for their pre-injury duties.
After 130 weeks, in order to remain in receipt of weekly payments, a worker must satisfy that they have no current work capacity and that this incapacity is likely to continue indefinitely. Injured workers who reach 130 weeks on or after 31 March 2024 will also need to reach a threshold test (%) of more than 20% whole person impairment to receive payments after 130 weeks.
It is common for weekly payments to be terminated after 130 weeks because a worker no longer meets the above tests. However, some workers may remain eligible for ongoing top-up payments.
When can a worker receive top up payments?
In order to be eligible to receive top up payments after 130 weeks, a worker must have returned to suitable duties and must satisfy the following criteria:
- they are working at least 15 hours per week; and
- they are earning at least $228 per week (indexed annually); and
- as a result of the injury, they are likely to remain physically or mentally incapable of working beyond this level indefinitely.
In addition to the above existing requirements, to qualify for top up payments after 130 weeks, injured workers must also have a whole person impairment of more than 20% resulting from one or more compensable injuries.
If a worker meets the above requirements, they may be entitled to claim top-up payments.
How is the top up payment calculated?
- your PIAWE is $1,000
- 80% of your PIAWE is $800
- you returned to work for 15 hours a week earning $450 a week
- 80% of $450 is $360
- you would be entitled to a top up payment of $440, being the difference between 80% of your EARNINGS and 80% of your PIAWE ($800 - $360 = $440)
- this would bring your total payments (both earned and WorkCover) to $890.
An application can be made for top-up payments at any time.
Often we are asked: What if I work 20 hours one week and 10 hours the next week?
The legislation allows workers to continue to receive top up payments despite occasional fluctuations in hours worked. These fluctuations could be caused by the availability of work or the worker’s capacity. However, eight weeks out of every twelve consecutive weeks would need to satisfy the minimum 15 hour per week and the weekly earnings requirement for the worker’s entitlement to remain unaffected.
You can work more than 15 hours per week but you must be working at your full capacity. This capacity must be your ongoing indefinite maximum capacity. If the insurer or Medical Panel believe you have a capacity beyond that which you are exercising, your request for top up payments will be denied.
There are a number of legislative requirements that need to be considered in determining if a worker is entitled top up payments. For this reason, it is important for injured workers to contact a lawyer to obtain advice about their specific circumstances.
For an obligation free discussion, call Redlich's Work Injury Lawyers on (03) 9321 9988 to speak directly with a member of our legal team.
