An existing recipient of weekly payments is an injured worker who is in receipt of weekly payments of compensation immediately before 17 September 2012 if a seriously injured worker, or before 1 October 2012 for other workers. Seriously injured worker (more than 30% WPI) The new weekly payments have applied to seriously injured workers from 17 September 2012. •
A transitional rate of $920.90 is to be used as PIAWE for all seriously injured workers.
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For a worker without current work capacity, the weekly payment rate is $736.72 (being 80% of the deemed PIAWE) or the rate under previous table of weekly benefits if that is higher.
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The payment rate will change if a seriously injured worker is assessed as having a capacity to earn in suitable employment or returns to work in suitable employment.
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Weekly payments for seriously injured workers are not limited to 5 year maximum under s39.
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Weekly payments cease on reaching retirement age.
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No limit on payment of reasonably necessary treatment expenses.
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No requirement for work capacity assessments unless the worker requests one.
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Transitional arrangements for existing recipients of compensation
Other incapacitated worker (30% WPI or less) Continues to receive weekly payments in accordance with previous table of weekly benefits, until the weekly payments amendments apply to the worker. Workers Compensation Act 1987 Sch. 6 Part 19H cl. 6 Work capacity assessment to be conducted by insurer within 12 months of 27 June 2012 (date of assent). Sch. 6 Part 19H cl. 8 The weekly payments amendments do not apply to the worker until 3 months after an insurer first conducts a work capacity assessment. Sch. 6 Part 19H cl. 9 (1) However, if the worker is still within the first 26 weeks of incapacity (as per the former s34) the weekly payments amendments do not apply until after the 26 weeks expire. Sch. 6 Part 19H cl. 9 (2) Also, if an existing recipient is receiving weekly compensation pursuant to the former s38 (failure by employer to provide suitable duties) the weekly payments amendments do not apply until expiry of the period for which the worker is entitled to receive those s38 payments. Sch. 6 Part 19H cl. 11
Note: This paper was prepared in October 2012 and there have been amendments to the legislation since then.
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Once the weekly payments amendments apply to a worker, the transitional rate (currently $920.90) is to be used as PIAWE when calculating weekly payments to the worker. Sch. 6 Part 19H cl. 9 (3). Important: The periods during which an existing recipient has been paid, or is entitled to be paid, weekly compensation prior to the weekly benefits amendments applying to that worker, are to be taken into account when determining the calculation of weekly payment rate once the amendments apply to the worker (except as noted in the next paragraph). Sch. 6 Part 19H cl. 9 (4) However, those periods when weekly compensation was paid or payable do not count when calculating the 5 year maximum period under s39. Sch. 6 Part 19H cl. 13. That is, the 5 years period under s39 is counted only from the date that the benefit amendments first apply to the worker.
Benefits payable to workers once the weekly payments amendments apply Once the weekly payments amendments apply to a worker, the transitional rate (currently $920.90) is to be used as PIAWE when calculating weekly payments to the worker. In determining which entitlement period applies to an existing recipient once the weekly benefits apply to that worker, you are to take into account the periods of compensation received previously. That is, if the worker had been paid or was entitled to be paid weekly compensation for no more than 130 weeks prior to when the new weekly payments start to apply to that worker, the worker would be within the second entitlement period for calculating the new weekly payments. (Sch. 6 Part 19H cl. 9 (2) provides that the weekly payments amendments do not apply to existing recipients until after the initial 26 weeks of incapacity expire, and accordingly there cannot be any existing recipients who will come within the first entitlement period.)
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If the worker had previously been paid, or was entitled to have been paid, for more than 130 weeks prior to when the new weekly payments start to apply to that worker, the calculations would be subject to the rules that apply after the second entitlement period. In the second entitlement period (up to week 130) – A worker without a current work capacity is to be paid 80% of PIAWE (minus any deductible). A worker with current work capacity but who is not working at least 15 hours per week is also entitled to 80% of PIAWE (minus any deductible and minus the amount the worker is earning or could earn in suitable employment). A worker with current work capacity who is working at least 15 hours per week is entitled to 95% of PIAWE (minus any deductible and minus the amount the worker is earning). After the second entitlement period (weeks 131 to 260) – A worker without a current work capacity continues to be paid 80% of PIAWE (minus any deductible). A worker with current work capacity but who is not working at least 15 hours per week is not entitled to any weekly payment. A worker with current work capacity who is working at least 15 hours per week is entitled to 80% of PIAWE (minus any deductible and minus the amount the worker is earning) subject to meeting the other requirements set out in section 38 (3).
Note: This paper was prepared in October 2012 and there have been amendments to the legislation since then.
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For a worker who has received more than 260 weeks of payments before the weekly payment amendments first apply to that worker, the same rules for calculation apply as in weeks 131 – 260. Note: With regard to section 39, which requires payments to cease after 260 weeks unless the worker has more than 20% WPI, only payments made after the weekly payment amendments first apply to the worker can be taken into account, because Sch. 6 Part 19H cl. 13 prevents earlier periods being counted.
Work Capacity Assessments and Decisions Work capacity assessments An assessment by an insurer of a worker’s current work capacity. Section 44A The initial assessment is to be conducted by the insurer within 12 months of 27 June 2012 and at least once every 2 years thereafter in accordance with WorkCover Guidelines. However, a seriously injured worker is not to be assessed unless the worker requests it. Section 44A (4) Weekly payments can be suspended if worker refuses to attend or to properly participate in a work capacity assessment. Section 44A (6) See the Work Capacity Guidelines for more information regarding the process for conducting assessments.
Work capacity decisions
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A decision by an insurer regarding: • • • • • •
the current work capacity of a worker what constitutes suitable employment for a worker the amount a worker is able to earn in suitable employment a worker’s PIAWE or current weekly earnings a worker’s ability to engage in employment without risk of further injury any other decision that affects a worker’s entitlement to weekly payments based on any of the matters noted above. Section 43 (1)
A decision to dispute liability for weekly payments, or a decision which may be the subject of a medical dispute (as defined), is not considered to be a work capacity decision. Section 43 (2) A work capacity decision need not be based on a work capacity assessment. Section 44A (3) A work capacity decision may be made on receipt of new information such as: • • • • •
a change in worker’s personal circumstances confirmation of a return to work, or cessation of work a medical report a rehabilitation report an investigation report. Work Capacity Guidelines cl. 5.1
Before making a work capacity decision that may result in the reduction or discontinuance of weekly payments, an insurer must provide at least 2 weeks’ notice to the worker (by telephone or in person, and confirmed in writing):
Note: This paper was prepared in October 2012 and there have been amendments to the legislation since then.
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that their work capacity is being reviewed and a work capacity decision is going to be made; that this may involve consultation with the employer, nominated treating doctor and other treatment providers; informing the worker of the potential outcome of the review and the material upon which the insurer is relying; that the worker may supply further information for consideration by the insurer, and the date by which this must be done; and advising the worker of the date when it is expected a decision will be made. Work Capacity Guidelines cl. 5.2
Upon making a work capacity decision the insurer must telephone and speak to the worker to inform the worker of the decision and the basis upon which it was made, and explain the review process. Confirmation of the decision must be provided in writing, and must provide 3 months’ notice before the reduction or discontinuance of weekly payments is to take effect. Section 54 (2) and Work Capacity Guidelines cl. 5.4 The specific requirements for a work capacity decision notice are set out in cl. 5.4.2 of the Work Capacity Guidelines.
Effect of work capacity decision on jurisdiction of Commission The Workers Compensation Commission cannot make a decision in relation to a dispute that is inconsistent with an insurer’s work capacity decision. Section 43 (3) The Commission cannot determine a dispute regarding weekly compensation payable to a worker while a review of a work capacity decision of an insurer is pending. Section 44 (5) Sections 43 (3) and 44 (5) apply to proceedings pending in the Commission when a work capacity decision is made. Sch. 6 Part 19H cl. 14 That is, if an insurer makes a work capacity decision after a worker has lodged an application to resolve a dispute with the Commission, an insurer can make a work capacity decision which would then prevent the Commission from determining any dispute regarding weekly compensation payable to the applicant worker. The Commission would not be prevented from determining other aspects of the dispute (e.g. s60 expenses) but not the entitlement to or calculation of weekly compensation.
Note: This paper was prepared in October 2012 and there have been amendments to the legislation since then.
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