It is not uncommon for weekly payments of compensation to be terminated after 130 weeks because the insurance company has disputed the capacity of an injured employee.
However, it is often the case that payments were terminated incorrectly.
If a worker has an accepted WorkCover claim following an injury, they will be entitled to weekly payments of compensation for the 130 weeks following their injury if they can demonstrate that they are unfit for their pre-injury duties.
After 130 weeks, in order to remain in receipt of weekly payments, a worker must satisfy that they have no current work capacity and that this incapacity is likely to continue indefinitely.
It is common for weekly payments to be terminated after 130 weeks because a worker no longer meets the test set out above. However, some workers remain eligible for ongoing “top-up” payments.
If a worker has returned to work and is working 15 hours or more, earning more than $177 per week, then they are entitled to claim top-up payments so that they would be earning up to 80% of their pre-injury average weekly earnings (PIAWE).
For example; if your PIAWE is $1,000, the value of your top-up payment is $800 (this is 80% of your PIAWE). If you returned to work for 15 hours a week earning $450 a week, then you could claim the difference of $350 from WorkCover.
An application can be made for top-up payments at any time.
Often we are asked: “what if I work 20 hours one week and 10 hours the next week?”
As long as eight weeks out of every 12 satisfy the 15 hour per week requirement, the entitlement to the top up payments remains.
You can work more than 15 hours per week but you must be working at your full capacity. This capacity must be your ongoing indefinite maximum capacity. If the insurer or Medical Panel believe you have a capacity beyond that which you are exercising, your request for top up payments will be denied.
There are a number of legislative requirements that need to be considered in determining if a worker is entitled top up payments. This is why it is important that injured workers whose payments are terminated after 130 weeks contact a lawyer to obtain advice.
For free advice regarding your circumstances, call a lawyer directly on (03) 9321 9988.
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