What Are My Entitlements to Weekly Compensation in New South Wales?

A worker who suffers a work injury resulting in economic loss may be entitled to weekly payments. Weekly payments may not exceed $2,177.40 (from 1 April 2019), which is the maximum prescribed amount, adjusted every April and October.

No weekly payments are payable after 12 months after retirement age for any injury which occurs prior to retirement age. If a worker suffers an injury after retirement age, weekly payments are payable for up to twelve months from the first date of incapacity. Retirement age is defined in the legislation as the age at which the person would, subject to otherwise qualifying, be eligible to receive an aged pension.

The entitlement to receive weekly payments, along with the rate of weekly compensation, is periodically examined with payments ascertained according to the length of time weekly compensation has been paid or is payable to the worker.

How are my weekly compensation claim entitlements calculated?

  1. Weekly payments are calculated generally on pre-injury average weekly earnings (PIAWE). In the first 52 weeks for which weekly payments are payable AWE also includes overtime and shift allowances.

The legislative provisions are quite complex and should be reviewed from time to time or when circumstances change. Our team of expert workers compensation lawyers will explain your potential claim outcomes and entitlements in a comprehensive, no-obligation case assessment with you. Set out hereunder is a brief explanation of your entitlements.

(a) Weekly Payments First Entitlement Period

This period comprises the first 13 weeks, consecutive or not, during which a weekly payment has been paid or is payable to the worker. A worker who has no capacity is entitled to weekly payments at 95% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of any non-pecuniary benefits payable by the employer in that week (non-pecuniary benefits could be provision of free housing, school fees, health fees, car etc. as part of the employee package).

A worker who has some current work capacity is entitled to weekly payments at 95% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of the worker’s earning capacity and the value of any non-pecuniary benefits payable by the employer in that week.

The capacity to earn is determined by what a worker can earn on the open labour market, considering the worker’s skills, regardless of whether he or she has a job.

(b) Weekly Payments Second Entitlement Period

This period covers weeks 14 – 130, consecutive or not, after the first entitlement period in respect of which weekly payments have been paid or are payable to the worker.

A worker who has no work capacity is entitled to weekly payments at 80% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of any non-pecuniary benefits payable by the employer in that week.

A worker who has some current work capacity and who has returned to work for at least 15 hours per week is entitled to weekly payments at 95% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of the worker’s earning capacity and the value of any non-pecuniary benefits payable by the employer in that week.

A worker who has some current work capacity and who has not returned to work for at least 15 hours per week (or who has not returned to work) is entitled to weekly payments at 80% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of the worker’s earning capacity and the value of any non-pecuniary benefits payable by the employer in that week.

After 52 weeks of payments (including the First Entitlement Period) AWE is adjusted by deducting any amount previously attributable to overtime and shift allowances.  This provision is due to be repealed but has not been as at the time of writing.

(c) Weekly Payments after the Second Entitlement Period

Weekly payments are payable after the second entitlement period only if the worker is assessed by the insurer to have:

  1. no work capacity and has been assessed by the insurer as likely to continue indefinitely to have no work capacity; or
  2. some current work capacity, and:
  • the worker has applied for ongoing weekly payments, and
  • the worker has returned to work for at least 15 hours per week, and
  • the worker is earning at least $176.00 per week (a prescribed amount adjusted every July), and
  • the worker has been assessed by the insurer as being unlikely indefinitely to be able to undertake further additional employment to earn a larger amount.

Paragraphs b, c and d do not apply to a worker who has sustained permanent impairment of more than 20%. The assessment of permanent impairment is described below.

A worker who has no work capacity is entitled to weekly payments at 80% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of any non-pecuniary benefits payable by the employer in that week.

A worker who has some current work capacity is entitled to weekly payments at 80% AWE (or the maximum prescribed amount – whichever is the lesser), less the value of the worker’s earning capacity and the value of any non-pecuniary benefits payable by the employer in that week.

(d) Weekly Payments after 260 weeks

If the worker is entitled to weekly payments, payment is made at the same rate as set out in (c) above, i.e. after the Second Entitlement Period.

No weekly payments are payable to a worker after 260 weeks (whether consecutive weeks or not) unless the worker has sustained permanent impairment of at least 21%

(e) Weekly Payments Special Compensation

A worker who does not otherwise qualify for weekly payments after the second entitlement period and who needs surgery for a work injury may be entitled under this provision to weekly payments for up to 13 weeks from the surgery. There are complicated pre-conditions to qualify for these weekly payments. Our expert team of workers compensation lawyers will be able to explain the pre-conditions in our free case assessment with you.

(f) Weekly Payments Highest Needs Workers

A Highest Needs Worker (a worker having permanent impairment greater than 30%) is entitled to a minimum weekly payment of $840.00 (from 1 April 2019) which is a prescribed amount adjusted every April and October.

Is permanent impairment compensation for life?

If a worker has suffered permanent impairment as a result of an injury of at least 11% (for injuries since 2002) the worker is entitled to lump sum compensation in addition to other benefits.  For the highest levels of permanent impairment, the payment exceeds $600,000.00.

How do I claim Lump Sum Compensation for permanent impairment?

In cases where injury symptoms persist and complete recovery is unrealistic, a permanent impairment lump sum can be claimed. The amount paid can be in addition to weekly compensation and medically related expenses. Payment is made  on the basis of the date of injury and the assessed percentage according to scales which are now adjusted annually.

A medical specialist assessor will determine if the injury condition has stabilised and reached maximum medical improvement.  A permanent impairment compensation claim must be supported by documentation proving the impairment is more than 10% for physical injury, or 15% for primary psychological or psychiatric impairments.

How do workers compensation payments work?

Workers compensation is paid by the workplace insurer to employees who suffer an injury or become ill while at work or while performing work-related duties. Workers compensation legislation includes the means of accessing payments designed to cover loss of earnings along with other issues related to recovery. These include:

  • Wages while the employee is not fit for work or only able to work part-time.
  • Medical expenses and rehabilitation required after a workplace injury or illness.

Payments can be made directly by the insurer, via the employer, or by the workers compensation regulator. A work related injury or occupational illness should be reported to your employer as soon as possible. The following steps are taken.

  1. Visit a medical professional immediately and retain all medical records wherever possible. Your treating doctor’s reports are an essential component of your workplace injury compensation claim.
  2. Commence the claim process. Your employer is obliged by law to provide the appropriate forms and information about the claims process, along with the contact details of the relevant insurance company.
  3. Follow correct guidelines for filing a claim with the employer’s insurance company within the acceptable time frame. Your Taylor & Scott Lawyer can commence provisional action, assist with paperwork and forms, obtain medical records and oversee the entire claim process.
  4. Start receiving workers compensation benefits to cover medical expenses, rehabilitation costs and a percentage of wages while you are medically unfit to return to work.
  5. Return to work at a reduced capacity or full time, according to you treating doctor’s recommendation. Your employer should take reasonable steps to accommodate your needs for making a successful transition back into the workforce.

Are workers compensation payments taxable?

If your NSW workers compensation payments relate only to lost income, the amount paid is considered assessable and taxable income, regardless of whether you are paid periodically or in a lump sum. Workers compensation is a substitute for taxable income and so takes on the same character. However, if compensation for your workplace personal injury is agreed upon by settlement through negotiation, or a court order, your compensation is tax-free.

What percentage of your pay do you get for workers compensation?

The percentage of pay received through workers compensation is decided according to your level of incapacitation caused by the injury or illness. Payments are based on a range of factors.

  • Average weekly earnings before the injury;
  • Your present capacity to work, or inability to work at all due to permanent impairment;
  • The amount of time you have been receiving compensation payments;
  • Your ability to earn in suitable employment relevant to your qualifications and skills;
  • Non-monetary benefits provided by your employer.

Taylor & Scott Lawyers offer a comprehensive case assessment of your specific circumstances. Our specialist workers compensation lawyers will help you understand your rights and obligations, and we are ready to negotiate with opposing insurers and legal teams on your behalf. If you are an injured worker considering a workers compensation claim, contact Taylor & Scott today for valuable advice, strong support, and the best chance of maximising your claim’s potential.

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