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 $2,042.80 (from 1 April 2016), which is the maximum prescribed amount, adjusted every April and October.

No weekly payments are payable 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 for compensation are calculated generally on pre-injury average weekly earnings (AWE). AWE includes the average of ordinary earnings per week excluding any week when the worker was either on leave or did not work. 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.

(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 more than 20%.

(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 $793.00 (from 1 April 2016) which is a prescribed amount adjusted every April and October.

Is permanent impairment compensation for life?

Recovery from damaging injuries is variable. Fortunate people regain full health quickly, while others recover in stages and some only partially. There are different payments according to individual circumstances. Motor vehicle accident permanent impairment claims, for example, can follow different avenues.

  • Permanent impairment benefit is paid regardless of who is at fault in an accident
  • Common law damages are paid if the accident was someone else’s fault

Permanent impairment benefit can be paid several ways: weekly; a one-off lump sum; or a combination of the two payment methods. Lump sum payments can amount to more than $500,000 to assist with quality of life for the foreseeable future.

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 case-by-case, taking the degree of impairment and other compensation arrangements into consideration.

A medical specialist assessor will determine if the injury condition has stabilised prior to complete recovery and with only minor change expected during the following year, with or without treatment. 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.