For employers, insurers, and other providers

When calculating an aggregate period of 260 weeks of weekly compensation, this could either be consecutive or non-consecutive weeks.

Any week in which a payment of weekly compensation has been made or is payable (including part of a day, or a full day), is counted as one week of entitlement.

A ‘weekly payment of entitlement’ commences on the day of the worker’s first incapacity (total or partial) from a work related injury that results in a weekly payment of greater than $nil. A week is counted over the following seven-day period.

What constitutes a week will vary for each worker; there is no set period (i.e. Sunday to Saturday).

Under workers compensation legislation, the weekly payment count start date depends on when the worker was injured and made a claim.

For a claim made prior to 1 October 2012 (referred to as an ‘existing claim’) the 260 week count commences 1 January 2013.

For claims made on or after 1 October 2012 the 260 week count commences on the workers first day of incapacity.

The insurer will continue to communicate with the worker regarding their entitlements to weekly payments.

Communications should clearly inform the worker how the insurer has counted the entitlement weeks so that it can be easily understood by the worker. The information provided should include:

• a summary of all payments made
• how many entitlement weeks have been paid, or are payable
• when a worker's weekly payments are expected to cease.

Where there are queries or disagreement as to the number of entitlement weeks paid (or payable), these should be discussed directly with the insurer as soon as possible.

It is important that all matters are fully resolved well in advance of 260 weeks, when entitlement to weekly payments ceases.

Centrelink assess each application based on individual circumstances, and the worker is encouraged to do their own research by visiting the website or contacting the Centrelink call centre on 13 24 68.

If your worker is an exempt category of workers (such as police officers, paramedics or fire fighters, coal miners or volunteers) the maximum (aggregate) period of 260 weeks (five years) of weekly payments does not apply.

Any week in which a payment of weekly compensation has been made (or is payable) to a worker, including part of a day or a full day, is counted as one week of entitlement. After a worker has received a total of 260 weeks (five years) of entitlements, their weekly payments of compensation will cease.

Workers will however continue to receive reasonably necessary medical treatment and services as follows:

Everyone’s circumstances are different. Workers should speak to the insurer and/or treating health provider regarding their situation.

The injury management plan must be kept updated at all times to reflect the current rehabilitation, treatment and return to work goals of the worker. Support service programs specific to the worker’s needs will continue to be identified and made available.

The insurer will contact the worker and treating doctor or health professionals (where appropriate), to ensure the necessary steps are fully understood and the required level of support continues to be provided.

Where a worker has ceased entitlement to weekly payments under section 39, there are some limited circumstances where the worker may become re-eligible to weekly payments. Workers should contact the insurer directly to discuss their claim and eligibility.

Entitlement to weekly payments re-commences from when the worker was first assessed as having permanent impairment of 21 per cent of more.

If a worker once again becomes eligible to weekly payments, then the insurer will need to determine the worker’s entitlements in accordance with section 38 of the 1987 Act.

Information provided is this fact sheet is based on the Workers Compensation Act 1987.

Two new transitional provisions have been introduced into the Workers Compensation Regulation 2016,which may allow eligible workers to access ongoing entitlement to weekly payments beyond 260 weeks (five years), provided they satisfy the provisions at section 38 of the Workers Compensation Act.

These provisions provide that certain workers:

• may be excluded from the five year cap on weekly payments
• are able to undertake a further assessment of the level of permanent impairment.

These provisions take effect from 1 October 2012 and apply to workers who were in receipt of weekly payments immediately before 1 October 2012 (‘existing recipients’).

A new transitional regulation provides that section 39 of the Workers Compensation Act 1987 (1987 Act) does not apply to a worker (‘existing recipient’) if the injury has resulted in permanent impairment and:

• an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
• the insurer is satisfied that the degree of permanent impairment is likely to be more than 20 per cent (whether or not the degree of permanent impairment has previously been assessed).

Workers compensation legislation currently provides that:

• only one assessment may be made of the degree of permanent impairment of a worker - section 322A of the Workplace Injury Management and Workers Compensation Act 1998, and
• only one claim can be made for permanent impairment compensation resulting from an injury - section 66(1A) of the 1987 Act.

An amending transitional regulation now permits one further assessment of the degree of permanent impairment in respect of existing recipients, that is, workers in receipt of weekly benefits immediately before 1 October 2012.

For exempt category of workers (such as police officers, paramedics or fire fighters, coal miners or volunteers) the maximum (aggregate) period of 260 weeks (five years) of weekly payments does not apply.

This information is based on:

• The Workers Compensation Act 1987
• The Workplace Injury Management and Workers Compensation Act 1998
• The Workers Compensation Regulation 2016
• Workers Compensation Act 1987

Workers should seek independent legal advice to properly understand their rights and impact on entitlements prior to accepting an assessment of the degree of permanent impairment.

The Independent Review Office (WIRO) oversees the independent legal assistance and review service (ILARS).

ILARS provides funding to external lawyers acting for workers to enable resolution of disputes about workers compensation entitlements.

Information regarding legal funding, including the Section 39 Fast Track ILARS Grant Application Form is available on the IRO website.

Should you require more information please contact:

State Insurance Regulatory Authority (SIRA)
Phone 13 10 50 or email [email protected].

New employment assistance of up to $1,000 is available when a worker is unable to return to work with their pre-injury employer.

A cumulative total of $1,000 can be claimed for expenses involved in commencing to work with a new employer, including for example, transport, childcare, clothing, education or training, or equipment.

To be eligible, the worker must have accepted a written offer of employment for a period of three months or more with a new employer. Additionally, the worker will need to confirm:

• how the item or service will assist them to return to work
• the amount being claimed along with supporting quotes or invoices.

Following a claim for new employment assistance, the insurer has 14 days to determine whether to accept the claim.

Note: where costs exceed the maximum $1,000, there are vocational rehabilitation programs that may be used in conjunction with the new employment assistance.

Return to work assistance payments are not available to exempt workers, coal miners or volunteers prescribed by the Workers Compensation Act 1987.

A number of vocational programs are available to assist workers to return to work. These are:

Legislation

Information provided in this fact sheet is based the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998.

For exempt category of workers (such as police officers, paramedics or fire fighters, coal miners or volunteers) the maximum (aggregate) period of 260 weeks (five years) of weekly payments does not apply.

This information is based the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998.

Centrelink

Centrelink provides financial assistance to:

• carers
• families
• indigenous Australians
• job seekers
• older Australians
• people with disability
• rural and remote Australians
• students and trainees
• visa holders

Call 13 24 68 or visit Centrelink.

Financial Rights Legal Centre

If you are concerned about your finances such as credit, banking, debt or personal insurance, you can obtain free advice and information from the Financial Rights Legal Centre. The centre is community based and specialises in providing financial advice and advocacy services, including:

• credit and debt hotline – advice over the phone
• financial counsellor search tool
• face to face meeting with a financial counsellor if needed
• self-help centre (fact sheets, guides, sample letter templates)
• legal advice and representation.

Call 1800 007 007 or visit Financial Rights.

Housing Pathways

If you need assistance with housing, you should consider contacting Housing Pathways for Aboriginal housing and community housing. Applications can also be made for private rental assistance or for a transfer if already living in social housing.

Call 1800 422 322 or visit Housing Pathways.

Ability Links NSW

Ability Links NSW is a free program to assist people with disabilities aged up to 64 years, and carers and families of people with disability. 'Linkers' work closely with you to provide short-term support that achieves a particular outcome. For example you might want to participate in sport, education, volunteering, or other activities.

Visit Ability Links.

National Disability Insurance Scheme

The National Disability Insurance Scheme provides community links and individualised support for people with permanent and significant disability, their families and carers. The NDIS will be rolled out across NSW between 1 July 2016 and 30 June 2018.

Call 1800 800 110 or visit NDIS.

In addition to services offered by your treatment provider, you can seek additional mental health support via these providers.

Lifeline

Lifeline provides access to crisis support, suicide prevention and mental health support services 24 hours a day, seven days per week.

Call 13 11 14 or visit Lifeline.

Beyond Blue

Beyond Blue offers support services 24 hours a day, seven days a week. They provide online tools and information to assist in managing stressful situations.

Call 1300 224 636 or visit Beyond Blue.

Mental health line

Anyone with a mental health issue can call and speak with a mental health professional 24 hours a day, seven days a week. Mental Health Line can also help you find local treatment options.

Call 1800 011 511.

If you are experiencing acute mental health issues, you should contact the Mental Health Crisis Team in your local area.

Emergencies

In an emergency, call 000 or go to your local hospital emergency department.

HSNet is a website available to anyone looking for community support services in NSW.

The database has over 65,000 support services across NSW covering health, disability, aged care, welfare, community participation, education, legal and housing support.

Each service displays detailed information including opening hours, fees, requirements for eligibility, and where the service is delivered. HSNet assists families in making informed choices about their support needs.

Each service has been validated as an authentic provider and is regularly updated by HSNet.

Ability Links NSW is a free program to assist people with disabilities aged up to 64 years, and carers and families of people with disability. Ability Links NSW coordinators, known as 'linkers' (or case managers) work closely with people (i.e. the worker) to provide support to achieve a particular outcome. Workers do not need to have a registered disability to access Ability Links.

‘Linkers’ have strong local knowledge and work alongside communities. Ability Links NSW Coordinators can help workers to:

• find ways to be part of their local community
• set goals and plan for the future
• build confidence
• develop the worker's existing support networks and create new networks.

There are a number of providers around the state who can put workers in touch with a Linker. Use the search functions on this website to find a Linker nearby.

What is section 39 of the Workers Compensation Act 1987 (the 1987 Act)

Under section 39, entitlement to weekly payments is available for a maximum (aggregate) period of 260 weeks (five years). This applies unless a worker has been assessed as having a permanent impairment of more than 20 per cent.

Where a worker is assessed as having a permanent impairment of more than 20 per cent, entitlement to ongoing weekly payments will be subject to section 38 of the 1987 Act.

What is an entitlement week and when does it commence?

Any week in which a payment of weekly compensation has been made or is payable (including part of a day, or a full day) is counted as one week of entitlement.

If a worker has not received a payment of weekly compensation in a particular week, that week is not to be counted as an entitlement week.

An entitlement week commences on the day the worker is first incapacitated (total or partial) due to a work related injury and that results in a weekly payment of any amount. A week is counted over the following seven-day period.

When does the 260 entitlement week count commence?

Where an injury occurred and a claim was made before 1 October 2012 (known as ‘existing claims’), the 260 week count commences on 1 January 2013.

Note: an ‘existing claim’ refers to a claim for compensation in respect of an injury made before 1 October 2012 (Part 19I of Schedule 6 to the 1987 Act).

Where a claim is made on or after 1 October 2012, the 260 week count commences from the date of the first entitlement week.

This is in accordance with Schedule 8, Part 1, Clause 4, of the Workers Compensation Regulation 2016, and Schedule 6, Part 19H, Clause 13, of the 1987 Act.

After entitlement to weekly payment ceases due to section 39, can a worker again become eligible for weekly payments? If yes, when would weekly payments commence from?

Where a worker has ceased entitlement to weekly payments under section 39, there may be some limited circumstances where they may again become eligible to weekly payments, although this would be an unusual scenario.

Entitlement to weekly payments would commence from when the worker was first assessed as having permanent impairment of more than 20 per cent.

If a worker once again becomes eligible to receive weekly payments then the insurer will need to determine the workers’ entitlements in accordance with section 38 of the 1987 Act. Workers should contact the insurer directly to discuss their claim and eligibility.

What happens to medical entitlements once weekly payments cease?

After weekly payments cease, workers will continue to be entitled to receive reasonably necessary medical treatment and services as follows:

Note: workers will need to contact the insurer to establish their eligibility.

Are there support services a worker can access when returning to work with a new employer?

New employment assistance of up to $1,000 is available when a worker is unable to return to work with their pre-injury employer.

A cumulative total of $1,000 can be claimed for expenses involved in commencing to work with a new employer, including for example, transport, childcare, clothing, education or training, or equipment.

A number of vocational programs are also available to assist workers to return to work outlined in the 'Support services' section above.

Are there community support services that can assist the worker?

Yes, there are a range of additional support services within the community. Depending on the workers’ circumstances, they may be eligible for assistance outlined in the 'Community support services' section above.

Workers can contact the insurer or IRO on 13 94 76 for information on section 39.

Employers, insurers and other providers can contact SIRA’s advisory services on 13 10 50 for information on section 39 and community support services available to assist the worker.

If a worker has entered into a complying agreement with the insurer agreeing to permanent impairment of 21 percent or more, can that complying agreement be relied on for the purposes of section 39?

Parties may reach agreement as to the degree of permanent impairment and enter into a complying agreement. Where the degree of permanent impairment is agreed to be 21 percent or more 20 per cent, this can be relied upon for the purposes of section 39. In this instance, the worker’s entitlement to weekly payments will continue after 260 weeks (five years), subject to the requirements outlined in section 38 of the 1987 Act.

What special provisions are there for existing recipients?

On 16 December 2016 the Workers Compensation Amendment (Transitional Arrangements for weekly payments) Regulation 2016 (the Regulation) was published and made available on the NSW Government Legislation Website (see part 2A of Schedule 8 to the Workers Compensation Regulation 2016).

This new part of the Regulation applies to ‘existing recipients’ only.

Note: an ‘existing recipient’ of weekly payments is an injured worker who was in receipt of weekly payments immediately prior to 1 October 2012 (Part 19H of Schedule 6 to the 1987 Act).

The Regulation relevantly provides that section 39 does not apply to a worker (‘existing recipient’) if the injury has resulted in permanent impairment and:

1. an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
2. the insurer is satisfied that the degree of permanent impairment is likely to be 21 per cent or 20 per cent (whether or not the degree of permanent impairment has previously been assessed).

The Regulation also provides that certain workers (‘existing recipients’) are able to undertake a further assessment of the level of permanent impairment.

If the worker requires a further assessment of the degree of permanent impairment, is the insurer required to send the worker back to the same Doctor who conducted the prior Independent Medical Examination (IME).

There is no requirement to send the person to the same practitioner who previously assessed them. The assessor must be listed on the SIRA website as a trained assessor of permanent impairment for each body system they intend assessing. An on-line tool is available to find a permanent impairment assessor.

The worker is currently living overseas and indicated that it would be too difficult to attend an Independent Medical Examination (IME) in Australia and there is no current medical evidence to indicate that the worker’s degree of permanent impairment will be assessed at 21 per cent or more. Can the insurer conduct a file review with an IME to assess permanent impairment or alternatively organise a video conference between the IME and the worker?

Where a worker chooses not to attend a medical examination and the provisions outlined in 'Special provisions for existing recipients of weekly payments – section 39' (see above) do not apply; then a current degree of permanent impairment cannot be determined. If this is the case, the workers entitlement to weekly payments will cease once an aggregate period of 260 weeks is reached.

Failing that, it is at the discretion of the insurer and trained assessor for permanent impairment to determine and endorse the signing off of an assessment that is conducted via video link. Depending on the type of injury, it may not be possible to fully ascertain the degree of permanent impairment being assessed by this method, in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment. Accordingly, there is a real possibility that the assessment will not be considered to be a valid assessment, or it may affect the weight given to the assessment by the Workers Compensation Commission.

Workers can seek independent legal advice to properly understand their rights and impact on entitlements prior to accepting an assessment of the degree of permanent impairment.

What is the process to follow if a worker indicates that they do not want to attend an updated permanent impairment assessment?

If a worker chooses not to attend the medical examination, then the insurer may not be in a position to assess their current degree of permanent impairment and the worker’s entitlement to weekly payments may cease once the 260 week limit is reached.

The insurer will provide the worker with the reasons for the appointment, and potential consequences for non-attendance. The worker should also be encouraged to seek independent legal advice to properly understand their rights and impact on entitlements.

Are parties prevented from negotiating the degree of permanent impairment in NSW?

No, the legislation does not expressly prohibit parties from reaching agreement as to the degree of permanent impairment.

What if the worker wishes to dispute an Independent Medical Assessment (IME) for the purposes of section 39 threshold?

The worker can only lodge a dispute with the Workers Compensation Commission (WCC) if there is evidence supporting an assessment of 21 per cent or more.

How can a worker get legal advice?

Workers should seek independent legal advice to properly understand their rights and impact on entitlements. For instance, a worker may seek legal advice prior to accepting an assessment of the degree of permanent impairment.

The Workers Compensation Independent Review Office (WIRO) oversees the independent legal assistance and review service (ILARS). ILARS provides funding to external lawyers acting for workers to enable resolution of disputes about workers compensation entitlements.

Information regarding legal funding, including the Section 39 Fast Track ILARS Grant Application Form is available on the WIRO website.

Should you require more information please contact: Workers Compensation Independent Review Officer T: 13 94 76 or email [email protected].