Amendments to Section 38 of the Workers Compensation Act – Continuing Workers Compensation Payments After 130 Weeks
Worker's Compensation
3 February 2026
Key Takeaways
After 130 weeks (2.5 years) of workers compensation, your entitlement to ongoing weekly payments depends on permanent impairment assessment.
Section 38 requires three pathways to continue payments:
- Apply in writing to the insurer, return to work 15+ hours per week, or be assessed with no current work capacity
- Workers with 21% – 30% whole person impairment can continue receiving weekly payments, subject to a work capacity assessment
- Workers with 31%+ impairment receive automatic insurer payment without work capacity assessments unless the worker requests one
Insurers can conduct work capacity assessments every 2 years for workers with 21-30% impairment
In August 2016 the Workers’ Compensation Act was amended to change a workers’ entitlements to ongoing weekly compensation based on the level of permanent impairment obtained.
Such workers continue to be entitled to payment of weekly compensation. It is paid at 80% of pre-injury average weekly earnings (not including overtime and allowances). Deducting any current work capacity which the insurer has determined under a Work Capacity Decision.
For more information regarding payments after 130 weeks, speak to the team at Garling & Co today.
These changes affect a workers' entitlements to weekly payments after 130 weeks (i.e. the second entitlement period).
Amendments to Section 38 of the workers Compensation Act – continuing payments after 130 Weeks
The Workers Compensation Act added the following definitions:
- “A worker with high needs” means a worker whose injury has resulted in a permanent impairment of more than 20%; or an approved medical specialist has declined to make an assessment of whole person impairment on the basis that the injury has not reached maximum medical improvement.
- “A worker with highest needs” means a worker whose injury has resulted in a permanent impairment of 30% or more.
Section 38 states that at 130 weeks (2.5 years) to be entitled to continue to receive workers compensation after this time, the worker must:
- Apply to the insurer in writing for continuation of weekly payments
- Have returned to work for a period of not less than 15 hours per week; or
- The worker has been assessed as having no current capacity for work.
If your assessment of whole person impairment is 20% or less, you need to satisfy one of the above to continue to receive weekly payments of compensation.
A worker with high needs however (that is worker who has a 21% whole person impairment assessment or greater) is entitled to continue to receive weekly payments. After 130 weeks you will need to apply to the insurer in writing before the end of the second entitlement period for continuation of weekly payments.
Such workers do not need to be working at least 15 hours per week. The insurer however is still entitlement to conduct a Work Capacity Assessment at the end of the second entitlement period and thereafter at least once every 2 years.
If you are a worker with highest needs (an assessment of 31% or greater) an insurer must continue to pay weekly compensation and is not to conduct a Work Capacity Assessment unless the worker requests that to be done. This effectively means that the insurer will be required to pay weekly payments of compensation if the injured worker continues to submit a Certificate of Capacity.
For more information on Workplace Compensation Claim Success, read our guide here.
Disclaimer
The information contained on this article is of a general nature only and is not intended to be legal advice. The law may have changed since the information was published. There is no intention to create a lawyer-client relationship and you should always seek legal advice about your own personal circumstances.
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