1
Step 1
Weekly Payments
If you have sustained an injury during your employment and are unfit for work or fit for suitable work only then you are entitled to obtain weekly payments of compensation from your employer’s workers compensation insurer.
Before you can receive weekly payments of compensation you must:
- Have sustained an injury in the course of your employment.
- Give notice of that injury to your employer within six months of the date of injury.
- A notice of injury may be given orally or in writing.
- The employer must then within 24 hours of such notice notify the workers compensation insurer of the injury.
- A written claim form is not necessary.
Once the insurer has been notified of the injury, it must within 7 days do one of the following:
- Accept provisional liability and commence payment of weekly compensation; or
- Issue a “Reasonable Excuse Notice” outlining the reasons why provisional liability has not been accepted. If a reasonable excuse notice is provided the insurer has a further 21 days to determine whether they will provisionally accept the claim.
If a “Reasonable Excuse Notice” is provided, then you may be required to complete a written claim form.
How to claim weekly payments
If because of an injury sustained at work you are totally or partially unfit for work and are losing income, you have a right to make a claim for weekly payments.
To make a claim for weekly payments you need to attend your General Practitioner (known as the Nominated Treating Doctor) and obtain a Certificate of Capacity. This certificate sets out whether you are totally or partially unfit for work and if partially unfit for work, what restrictions both in terms of the hours and the type of duties you can perform. The Certificate of Capacity needs to be completed and provided to your employer as soon as possible.
If liability for your claim is declined, you need to contact an Accredited Specialist in Personal Injury Law immediately so this can be investigated and if necessary, challenged.
If the insurer accepts liability for your claim, then they will commence weekly payments of compensation.
The amount payable for weekly compensation varies depending on the following:
- Whether you are totally or partially unfit for work.
- Whether the employer has suitable work available for you.
- The amount of your pre-injury average weekly earnings.
Payments when not able to work
If you are totally unfit for work as a result of a work place injury, then you are entitled to receive weekly benefits as follows:
Payments for the first 13 weeks
For the first 13 weeks, you have no current capacity for work, your weekly payment is based on the following:
- 95% of your pre-injury average weekly earnings known as PIAWE.
Payments for 14 – 130 weeks
From 14 to 130 weeks of weekly payments, if you continue to have no current work capacity, your weekly payment is based on the following:
- 80% of your pre-injury average weekly earnings
Payments for 131 – 260 weeks
Between 131 to 260 weeks, to continue to receive weekly payments of compensation, the following must have occurred:
1. The worker must have applied to the insurer in writing for continuation of weekly payments.
2. The insurer has made a work capacity decision that you continue to have no current capacity for work and that this is likely to continue indefinitely.
3. If so, then you continue to receive weekly payments as follows:
- 80% of your pre-injury average weekly earnings
After 260 weeks (5 years) of weekly payments
Weekly payments will stop after 5 years unless your level of impairment is greater than 20% whole person impairment.
The insurer has made a work capacity decision that you continue to have no current capacity for work which is likely to continue indefinitely.
Weekly benefits are payable up to one year after your Commonwealth retirement age. Ongoing weekly benefits up to retirement age are subject to the insurer conducting a work capacity decision every 2 year.
If your assessment of whole person impairment cannot be determined as your injury has not stabilised, then weekly payments can continue as long as the insurer accepts that your injury has not stabilised and has made a work capacity decision that you have no current capacity which is likely to continue indefinitely.
If you have an assessment of whole person impairment of 20% or less, then weekly payments will stop.
Weekly payments if injury sustained after retirement age
If you sustained an injury at work after your Commonwealth statutory retirement age, then you are entitled to weekly compensation for a period of 52 weeks. At the end of 52 weeks, the weekly payments stop.
Payments when working
If following injury, you have some capacity to work and you return to work in suitable employment either with your pre-injury employer or another employer, you will earn income for the hours that you work.
Weekly payments will vary depending on the amount of income you are able to earn in this suitable employment.
Payments for the first 13 weeks
During the first 13 weeks of weekly compensation, if you are able to return to work in suitable employment then you will be paid weekly payments as follows:
- 95% of your pre-injury average weekly earnings less your current weekly earnings (or the amount that you have been assessed as able to earn in some suitable employment).
Payments for 14 – 130 weeks
During the period 14 to 130 weeks, if you have a capacity to work in suitable employment, then you are paid as follows:
- If you are working 15 hours or more per week and being paid at least $176.00 per week you are paid as follows:
- 95% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).
- If you are working less than 15 hours per week, your weekly payments are paid as follows:
- 80% of your pre injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).
Payments for 131 – 260 weeks
There is no entitlement to weekly payments of compensation if you are certified fit for suitable work after 130 weeks unless you satisfy the following:
- You have completed an application for continued weekly payments after 130 weeks form and sent it to the insurer.
- You are working at least 15 hours or more per week and are earning at least $176.00 per week.
- The insurer has made a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.
If you satisfy the above, then you are paid as follows:
- 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed in the work capacity decision as able to earn in suitable employment).
If you have some capacity to work but are not working 15 hours or more per week and are earning at least $176.00 per week weekly payments will stop.
After 260 weeks (5 years) of weekly payments
Weekly payments of compensation will cease after five years unless your level of whole person impairment is greater than 20%.
If you have an assessment of whole person impairment of greater than 20% whole person impairment, then you are entitled to continue to receive weekly payments of compensation as long as you continue to satisfy the following:
- You are working at least 15 hours or more per week and earning at least $176.00 per week; and
- You have been assessed by the insurer in a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.
- If you satisfy the above, then you are paid as follows:
- 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).
For all workers, weekly payments cease 12 months after they reach the Commonwealth retirement age.
Payments when work is not available
If you have some capacity to return to work in suitable employment but your employer fails to provide you with suitable employment, or you are unable to find any such suitable employment, then you are entitled to weekly compensation as follows:
Payment for the first 13 weeks
During the first 13 weeks if you continue to have a current work capacity and are not working because suitable employment is not available your weekly payments are calculated as follows:
- 95% of your pre-injury average weekly earnings minus the amount that you have been assessed by the insurer as able to earn in suitable employment.
Payments for 14 – 130 weeks
During 14 – 130 weeks if you continue to have a current work capacity and are not working because suitable employment is not available your weekly payments are calculated as follows:
- 80% of your pre-injury average weekly earnings minus the amount that you have been assessed by the insurer as able to earn in suitable employment.
Payments for 131 to 260 weeks
There is no entitlement to weekly payments of compensation if you are certified fit for suitable work after 130 weeks unless you satisfy the following:
- You have completed an application for continued weekly payments after 130 weeks’ form and sent it to the insurer.
- You are working at least 15 hours or more per week and are earning at least $176.00 per week.
- The insurer has made a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.
If you satisfy the above, then you are paid as follows:
- 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed in the work capacity decision as able to earn in suitable employment).
If you have some capacity to work but are not working 15 hours or more per week and are earning at least $176.00 per week weekly payments will stop.
After 260 weeks (5 years) of weekly payments
Weekly payments of compensation will cease after five years unless your level of whole person impairment is greater than 20%.
If you have an assessment of whole person impairment of greater than 20% whole person impairment, then you are entitled to continue to receive weekly payments of compensation as long as you continue to satisfy the following:
- You are working at least 15 hours or more per week and earning at least $176.00 per week; and
- You have been assessed by the insurer in a work capacity decision as indefinitely incapable of undertaking further employment to increase your earnings.
If you satisfy the above, then you are paid as follows:
- 80% of your pre-injury average weekly earnings minus your currently weekly earnings (or the amount that you have been assessed as able to earn in suitable employment).
For all workers, weekly payments cease 12 months after they reach the Commonwealth retirement age.
Weekly payments stopped, suspended or reduced
The insurer may suspend, reduce or stop weekly payments of compensation if certain requirements are not met.
Providing documents
To receive weekly payments, you must provide to the insurer at all times a Certificate of Capacity. The insurer will not pay you for periods during which a doctor has not certified that you are totally or partially unfit for work.
Not complying with return to work obligations
If your Certificate of Capacity certifies that you are fit to return to suitable work, then you must, if available, undertake the following:
- Return to work with your employer in suitable employment.
- Return to suitable work at another place of employment.
If you fail to comply with your return to work obligations then the insurer may suspend or terminate your weekly payments.
If your employer offers you suitable employment, then you must accept such an offer or your weekly payments may be suspended or terminated.
If your employer is unable to provide you with suitable duties, then you have an obligation to look for suitable employment on the open labour market. If you fail to prove to the insurer that you are looking for suitable employment, then your weekly payments may be suspended or terminated.
After 130 weeks of weekly payments
The insurer is required prior to 130 weeks of weekly payments conduct a work capacity assessment and make a work capacity decision.
The insurer assesses your capacity for work based on your functional, vocational and medical status. The insurer relies on medical evidence available to it from your treating doctors and from its own independent medical examination.
The insurer then makes a work capacity decision in which they decide whether you are:
- Fit to return to your pre-injury employment.
- Fit to return to suitable employment with your pre-injury employer or at another place of employment.
- Totally unfit for work.
Following a work capacity decision there is no entitlement to weekly payments unless:
- The work capacity decision has assessed that you have no capacity for work and this is likely to continue indefinitely; or
- You have applied to the insurer for continuing weekly payments and:
- You are working 15 hours or more per week; and
- Earning at least $176.00 per week; and
- You have been assessed as being indefinitely incapable of undertaking further employment or additional work to increase your earnings.
If you have been assessed as having some current capacity for work but are not working or are working less than 15 hours or earning less than $176.00 per week, your weekly payments will stop.
After 260 weeks (5 years) of weekly payments
All weekly payments stop after 5 years unless you have a permanent impairment greater than 20%.
If the assessment of whole person impairment is between 21-30% then you continue to receive weekly benefits as you would for the period between 130-260 weeks however you are subject to the insurer conducting a work capacity decision every 2 year. Such payments are made until 12 months after your Commonwealth statutory retirement age.
Payments however may be reduced or stopped at any time subject to the work capacity decision and whether the insurer is of the view that you remain partially or totally unfit for work.
If you have an assessment of whole person impairment of 31% or greater, then the insurer is not allowed to conduct a work capacity assessment or make a work capacity decision without your consent. The effect of this is that the insurer will not be able to make a work capacity decision and you should continue to receive weekly benefits until 12 months following your Commonwealth retirement age.
Complaints about weekly compensation
If at any time you are unsure about your entitlements, dissatisfied with the insurer’s response or wish to make a complaint about the insurer, you should contact the Workers Compensation Independent Review Office (WIRO) at www.iro.nsw.gov.au or call them on 13 94 76. WIRO is responsible for:
- Investigating complaints made by workers about insurer where their entitlements, rights or obligations are effected and making recommendations for action to be taken by the insurer.
- Reviewing work capacity decisions by insurers.
- Encouraging high quality complaint resolution by insurers and employers.
- Administering the independent legal assistance and review service.
IRO should be able to assist you in determining whether the insurer is correctly paying weekly payments of compensation.
IRO can also assist you with reviewing a work capacity decision by an insurer.
Injured workers exempt from weekly payments amendments
The Workers Compensation Act was amended on 1 October 2012. Some workers were exempt from these reforms. Injuries sustained to police officers, paramedics, fire fighters, volunteer bush fire fighters, emergency service volunteers, coal miners or those making a dust diseases claim are exempt from the weekly compensation benefits as outlined above.
Such workers continue to be entitled to weekly payments of compensation as was payable under the Workers Compensation Act prior to the amendments on 1 October 2012.
Legal costs and disbursements
Under the Workers Compensation Act, insurers are no longer required to pay a worker’s legal costs and disbursements.
A worker’s legal costs and disbursements are now paid through the Independent Legal Assistance and Review Service (ILARS) which is a function of IRO. ILARS approves Lawyers to be able to act for injured workers.
If you require a lawyer to assist you in a dispute with an insurer, then the lawyer applies to ILARS for payment of legal costs and disbursements. ILARS will generally approve payment of legal costs and disbursements and your lawyer will be paid directly by ILARS at the conclusion of your claim.
You are therefore not responsible for payment of any legal costs and disbursements as long as ILARS approves funding.
If you have any question at all please contact us as follows;
- Complete our FREE case assessment form HERE
- Email us at
- Give us a call on (02) 83299500
Further Articles on Worker Compensation can be found HERE
Definitions
Pre Injury Average Weekly Earnings (PIAWE) – Definition
Pre injury average weekly earnings are calculated by the insurer based on the information provided by both you and your employer and are designed to reflect how much you were earning prior to the injury. The insurer is required to calculate pre injury average weekly earnings based on the average of your ordinary earnings including overtime and shift allowance payments for the 52 weeks prior to your injury.
If you were employed for less than 52 weeks, then you use the average the weeks you did work up to injury.
PIAWE does not include any non-pecuniary benefits such as a car, phone or accommodation allowance.
After 52 weeks of receiving weekly payments the PIAWE is recalculated by removing earnings from overtime or shift allowance, so it becomes the average of ordinary earnings only.
The maximum amount you can claim for the PIAWE is currently $2,042.80 gross per week.
Work Capacity Decision – Definition
A work capacity decision is a decision made by the insurer about:
- The worker’s current work capacity
- What constitutes suitable employment for a worker
- The amount the injured worker is able to earn in suitable employment
- The amount of pre injury average weekly earnings and current weekly earnings
- Whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment because of the nature of that employment
- Any other decision that affects a worker’s entitlement to weekly compensation.
A work capacity decision can be made at any time throughout the life of the claim, but will normally be made just prior to weekly benefits having been paid for a period of 130 weeks.
A work capacity decision will find you:
- Have no current capacity for work or;
- Have a current capacity for work and list the hours and type of work you are fit to perform including how much you could earn in that suitable employment.
A work capacity decision can be appealed however you are not entitled to receive the assistance of a lawyer in appealing the work capacity decision. A work capacity decision can be reviewed as followed:
- Review by insurer
- A worker may request an internal review of a work capacity decision by the insurer after receiving that decision, the worker must give a completed Work Capacity – Application for Internal Review by Insurer form to the insurer specifying the grounds on which the review is being sought with any information on why you disagree with the decision and including medical information.
- Review by the Independent Review Office
- The worker may lodge an Application for Receiving Review from the Independent Review Office (IRO) within 30 days of receiving the review decisions, contact IRO on 139 476.
Commonwealth statutory retirement age table
To be eligible for Age Pension you must be 65 years of age or older.
From 1 July 2017, the qualifying age for Age Pension will increase from 65 years to 65 years and 6 months.
The qualifying age will then increase by 6 months every 2 years, reaching 67 years by 1 July 2023.
| If you were born between | You qualify for Age Pension at a |
|---|---|
| 1 July 1952 to 31 December 1953 | 65 years and 6 months |
| 1 January 1954 to 30 June 1955 | 66 years |
| 1 July 1955 to 31 December 1956 | 66 years and 6 months |
| From 1 January 1957 | 67 years |
5 Easy steps to make a
Workers Compensation Claim
From your first consultation to settlement, we guide you through every step of your claim so you know exactly what to expect.
2
Step 2
Seek medical treatment from your Doctor
3
Step 3
Ask the Doctor to provide you with a “Certificate of Capacity”
4
Step 4
Submit the complete “Certificate of Capacity” to your employer
5
Step 5
Your employer must provide the “Certificate of Capacity” to their Workers Compensation Insurer within 24 hours
Have you suffered a
serious injury?
Allowing seriously injured people to secure the compensation they deserve so they can return to enjoying life.
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What Our Clients
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I cannot speak highly enough of my experience with this workers Compensation team. When I first reached out, I was completely overwhelmed and unsure about the process. I hit rock bottom - unable to return to work, struggling emotionally, and feeling like I had no direction. From the very beginning, the solicitors were nothing short of amazing. They were patient, understanding and incredibly supportive at a time when I needed it most. They took the time to explain every step in a way I could understand, never making me feel rushed or alone. Their professionalism was matched only by their compassion and that combination made all the difference. Throughout the entire journey, I felt heard, respected and genuinely cared for. They fought for me when I didn’t have the strength to fight for myself and thanks to their dedication, I was able to get the outcome I needed to rebuild my life. If you’re unsure, scared or feeling lost like I was, I can confidently say you will be in the best hands with this team. They helped me through one of the hardest chapters of my life, and I am truly grateful. I can’t thank or recommend Garling & Co Lawyers enough.
Matthew Garling and his team have provided incredible support and guidance throughout my MVA damages claim this year, and I can’t thank them enough for making this journey feel like such a breeze. When I initially engaged Garling & co, I had no understanding of what was ahead. I was anxious and unsure about the process, while also navigating the physical challenges of my injuries. With assurance that my matter was being handled with high level of expertise, professionalism and integrity, I was able to focus on recovery instead. Throughout the process, Matthew and Allison have been honest, straightforward and efficient in all communication; being a supportive buffer in all dealings with the insurer, and consistently committed to a successful outcome. The outcome was excellent, and it is with huge relief and great thanks that I can put this matter behind me. I would highly recommend the services of Garling and co for any injury claims of a similar nature, and I’m forever grateful to Matthew and his team.
A big thank you to Matthew for his expertise, dedication, and genuine care in handling my matter. The outcome exceeded my expectations, and I am truly grateful for the excellent work of his entire team. Outstanding results - highly recommended.
Why Should I Choose Garling&Co Lawyers?
At Garling&Co Lawyers, we treat our clients with respect and support through what can be difficult process. Our lawyers have extensive experience and are all Accredited Specialists in Personal Injury Law, who are dedicated to achieving the best outcomes for our clients. Here are some key reasons to choose us.
Weekly Payments Frequently Asked Questions
Yes.
Weekly payments may be suspended, reduced or stopped by the insurer as a result of the following:
i. Failure to provide documents
If you fail to provide a WorkCover Medical Certificate of Capacity then the insurer will stop making weekly payments of compensation
ii. Comply with return to work obligations
If you fail to comply with reasonable request to return to suitable employment, weekly payments may be suspended
iii. The insurer issues a work capacity decision
The insurer can stop or reduce weekly payments if they disagree with your certificate of capacity and believe you have a greater capacity for work.
iv. The insurer declines liability for the claim
The insurer can stop payments if they believe your injury is no longer work related.
v. After 130 weeks of weekly payments
A worker has no entitlement to weekly payments of compensation after 130 weeks unless:
- The insurer has assessed that the worker has no capacity for employment; or
- The worker has capacity for work and has applied to the insurer for continuation of weekly payments; and
- The worker is working 15 hours or more per week; and
- The worker is earning at least $173.00 per week; and
- The worker has been assessed by the insurer as incapable of undertaking further employment to increase their earnings.
If you have a capacity to work and are not working at least 15 hours per week (and earning at least $173.00 per week) weekly payments will be stopped.
vi. After 260 weeks (5 years) of weekly payments:
Weekly payments will stop for all workers after 5 years unless you have greater than 20% whole person impairment. If your impairment is greater than 20% then payments will continue if:
- You are unable to work; or
- You have some capacity for work and are working at least 15 hours or earning more per week and earning at least $173.00 per week
vii. Your entitlement ceases under the Workers Compensation Act due to your age.
Weekly payments of compensation will also cease on the anniversary of your statutory retirement age.
In each of these circumstances the insurer must notify you in writing as to the reasons why your payments have been stopped, reduced or suspended. They must provide you with all reports or other documents they rely upon in stopping, reducing or suspending the payments of weekly compensation.
Find out more about Workers Compensation
Workplace Injury
Workplaces can be dangerous. Care must be taken by the employer to ensure as far as possible that their employees do not sustain workplace injuries whilst during their employment.People spend most of their day at work and under the direction or supervision of the boss and are at a risk of sustaining injury if care is not taken.
Complete our free case appraisal form to find out how we can help you with your claim.
Bullying & Harassment
An employer has a duty of care to ensure your workplace is safe and this includes being free from bullying and harassment from co-workers or supervisors.Employers are required by law to have in place policy and procedures to deal with workplace bullying. If you believe you are the victim of bullying in the workplace, you should refer to these policies and procedures to see what steps you can take to report the issue.
IRO
The Independent Review Office (known as IRO) primary function is to help resolve workers compensation disputes and complaints quickly, fairly and justly, without the need for a lawyer.If you have a question, complaint or dispute with the workers compensation insurer, you should initially contact IRO for assistance. If IRO is unable to help you, funding can be obtained for legal costs to help you with the dispute with the insurer.
SIRA (State Insurance Regulatory Authority)
SIRA – SIRA (State Insurance Regulatory Authority) is the body involved with regulating workers compensation, CTP insurance as a result of a motor accident, workers and home building insurance.
Workcover Claims
Since September 1 2015, WorkCover functions have been assumed by three new organisations:SafeWork NSW – NSW’s primary regulator for workplace health and safety.
SIRA – SIRA (State Insurance Regulatory Authority) is the body involved with regulating CTP insurance as a result of a motor accident, workers compensation and home building insurance.
icare – icare (Insurance and Care NSW) offers insurance and care services in NSW.
Permanent Impairment
If you are injured during your employment and your injuries are permanent, you may be entitled to make a lump sum permanent impairment claim.A lump sum permanent impairment claim is separate to your weekly payments claim. If you are successful in your claim for lump sum compensation you will still be able to receive weekly payments of compensation and medical expenses.
Medical Expenses
If you have had an injury at work, in accordance with section 60 of the Workers Compensation Act 1987, the worker’s compensation insurer is required to pay all “reasonably necessary” medical expenses.
Work Injury Damages
All employers owe their employees a duty to take reasonable care to protect them against any foreseeable injury that may arise during the course of their employment.NSW also has occupational health and safety laws in place that require employers to take proactive steps to identify foreseeable risks, and to implement necessary measures to prevent injury from occurring in the workplace.
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