GN 5.5 Payments to workers with highest needs
Application: this guidance does not apply to exempt workers
Overview
June 2012 workers compensation reforms
The Workers Compensation Legislation Amendment Act 2012 introduced a number of changes to workers compensation benefits.
This included new weekly payment arrangements where a worker’s entitlement to weekly payments are made with reference to their pre-injury average weekly earnings (PIAWE). Changes to these weekly payment arrangements came into effect on 1 October 2012 for all new claims, and 1 January 2013 for existing claims.
Workers with a degree of permanent impairment of more than 30 per cent (‘seriously injured workers’) are entitled to additional benefits, this change came into effect on 17 September 2012.
2015 benefit reforms
In 2015, the Workers Compensation Amendment Act 2015 (2015 Amendment Act) introduced amendments providing additional benefits to meet the needs of the most seriously injured workers.
The 2015 amendments also replaced the definition of ‘seriously injured worker’ with that of ‘worker with highest needs’. As defined in section 32A of the Workers Compensation Act 1987 (1987 Act), a worker is a ‘worker with highest needs’ if they have an injury which has resulted in permanent impairment, and:
- the degree of permanent impairment has been assessed by a trained assessor of permanent impairment as being more than 30 per cent, or
- an assessment of degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment because 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 30 per cent.
An additional entitlement was introduced for 'workers with highest needs’ to enable access to a special provision amount.
Special provision for workers with highest needs
Section 38A of the 1987 Act commenced on 4 December 2015 and provides that the amount of weekly compensation that a worker with highest needs may be eligible to receive is $788.32 (as indexed). This is known as the special provision amount. The special provision amount applies to periods of incapacity from 17 September 2012.
The special provision amount is indexed in April and October each year, with the applicable rate found in the Workers compensation benefits guide.
When the special provision does not apply
Transitional provisions (Parts 19H and 19I of Schedule 6 to the 1987 Act and Schedule 8 to the Workers Compensation Regulation 2016) provide that in certain circumstances, section 38A of the 1987 Act does not apply.
These circumstances include periods of incapacity before 17 September 2012 when seriously injured workers were first transitioned. This also includes workers whose pre-injury average weekly earnings have been deemed to be equal to the transitional amount for the purposes of the application under clauses 9 or 10 of Part 19H of Schedule 6 to the 1987 Act of the weekly payments' amendments.
The table below outlines the differences between the special provision amount provided by section 38A of the 1987 Act and the amount available to existing recipients, being 80 per cent of the transitional rate as indexed twice a year.
From | To | Transitional rate | 80% of Transitional rate | Section 38A special provision amount |
---|---|---|---|---|
1/04/2024 | 30/09/2024 | $1,231.10 | $984.88 | $996.00 |
1/10/2023 | 31/03/2024 | $1,194.50 | $955.60 | $978.00 |
1/4/2023 | 30/9/2023 | $1,180.60 | $944.48 | $955.00 |
1/10/2022 | 31/03/2023 | $1,154.20 | $923.36 | $917.00 |
1/04/2022 | 30/09/2022 | $1,142.50 | $914.00 | $887.00 |
1/10/2021 | 31/03/2022 | $1,125.20 | $900.16 | $871.00 |
1/04/2021 | 30/09/2021 | $1,111.20 | $888.96 | $861.00 |
1/10/2020 | 31/03/2021 | $1,105.20 | $884.16 | $854.00 |
1/04/2020 | 30/09/2020 | $1,096.20 | $876.96 | $854.00 |
1/10/2019 | 31/03/2020 | $1,082.20 | $865.76 | $845.00 |
1/04/2019 | 30/09/2019 | $1,073.20 | $858.56 | $840.00 |
1/10/2018 | 31/03/2019 | $1,057.40 | $845.92 | $831.00 |
1/04/2018 | 30/09/2018 | $1,049.10 | $839.28 | $826.00 |
1/10/2017 | 31/03/2018 | $1,035.90 | $828.72 | $814.00 |
1/04/2017 | 30/09/2017 | $1,027.60 | $822.08 | $808.00 |
1/10/2016 | 31/03/2017 | $1,014.40 | $811.52 | $796.00 |
1/04/2016 | 30/09/2016 | $1,006.90 | $805.52 | $793.00 |
1/10/2015 | 31/03/2016 | $993.70 | $794.96 | $788.32 |
Entitlement to weekly payments
The worker's entitlement to the special provision amount commences from the date confirming a worker is a worker with highest needs and not the date of injury (see Meat Carter Pty Limited v Melides [2020] NSWCA 307).
Insurers should note the NSW Court of Appeal decision in Hee v State Transit Authority [2019] NSWCA 175 regarding section 38A of the 1987 Act. Insurers are required to apply section 38A of 1987 Act in a manner consistent with the Court's interpretation.
Insurers should also note:
- a work capacity assessment of a worker with highest needs is not to be conducted unless the insurer thinks it appropriate to do so and the worker requests it (section 44A(4) of the 1987 Act).
- a work capacity decision can be made for a worker with highest needs, however only workers with a ‘current work capacity’ or ‘no current work capacity’ (as defined under clause 9 to Schedule 3 of the 1987 Act) have an entitlement to weekly payments.
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