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Special provisions for existing recipients of weekly payments

What’s the change?

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).

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’).

Certain workers may be excluded from the five year cap on weekly payments

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:

  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 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.
Note: workers who made a claim for lump sum compensation before 19 June 2012 are eligible to make one further deterioration claim. A claim for lump sum compensation should only be made when the worker has reached maximum medical improvement.

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.

Note: the further permanent impairment assessment is for the purposes of Part 3 of the 1987 Act. Accordingly, access to other compensation benefits including reasonably necessary medical treatment and services will also be dependent on the further assessment, and the degree of permanent impairment.

Exempt categories of workers

The information provided in this fact sheet does not apply to:

  • exempt categories of workers (police officers, paramedics or fire fighters)
  • coal miners
  • volunteers prescribed by the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, or other voluntary work or unpaid employment.

Legislation

This information is based on:

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

Legal advice

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 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 contact@wiro.nsw.gov.au

Questions

Should you have any queries please contact the insurer. If you are unable to resolve your enquiry with them you can seek assistance from the:

State Insurance Regulatory Authority (SIRA)
Customer Service Centre
T: 13 10 50 or email contact@sira.nsw.gov.au.

You may also contact your union representative, a lawyer, or the Workers Compensation Independent Review Office (WIRO) on   13 94 76.