Receiving weekly compensation after 130 weeks of weekly compensation payments is not an automatic occurrence for an injured person still recovering from an injury.
There are somewhat complex eligibility criteria to be met that, aside from exempt workers, apply to all NSW physical injury claims and all psychological injury claims notified before 1 July 2026.
The recent decision of Personal Injury Commission (PIC) Member Gabriel in Stuart v Crooke Brothers Pty Ltd [2026] NSWPIC 431 (“Stuart”) explores an insurer’s decision that an injured worker was ineligible for weekly compensation after 130 weeks, helpfully profiling the issues that can arise.
Section 38
Section 38 of the Workers Compensation Act 1987 (NSW) contains the criteria to meet to continue to receive weekly compensation beyond 130 weeks of payments.
When an injured person is assessed as having a current work capacity, the eligibility requirements are found in section 38(3), reproduced in full here:
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $225 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
The facts in “Stuart”
- Mr Stuart injured his lower back on 15 July 2022 and received weekly compensation and treatment.
- By early 2025, Mr Stuart had capacity for work in suitable employment for 12 hours a week (para 22).
- Mr Stuart found work as a casual disability support worker in April 2025 (para 16).
- After securing the employment, but prior to commencing employment, the insurer had undertaken a functional assessment with a workplace rehabilitation provider. The functional assessment assessed Mr Stuart as having capacity for work for 24 hours a week as a disability support worker (paras 26, 31).
- After commencing employment, Mr Stuart increased to 18 hours a week and maintained that level of capacity, hours per week wise, ever since (paras 23 and 24).
- Mr Stuart reported he was only just managing with the 18 hours a week; an opinion the nominated treating doctor (NTD) affirmed in a report in November 2025 (para 25).
The insurer’s decision
The insurer issued a “notice” (para 4) on 26 June 2025 indicating Mr Stuart was not eligible for weekly compensation pursuant to section 38(3). The “notice” gave six weeks’ notice before Mr Stuart’s weekly compensation ceased. It’s not clear from the decision whether the “notice” was a work capacity decision (usually 3 months’ notice) or a liability decision (often 6 weeks’ notice) or some other mysterious sort-of-decision, decision? A topic for another day.
There was no argument Mr Stuart had capacity for work and met a number of the requirements of section 38(3). He had found work at least 15 hours a week and was earning at least the minimum required rate.
Putting their trust in the functional assessment findings of a capacity for work for 24 hours a week, the insurer took the view that the worker was capable of more work to increase his earnings. On this basis they ceased weekly compensation relying on section 38(3)(c) not being met.
The Member’s decision
After hearing out both of the excellent and greatly admired counsel for both sides, ultimately the Member accepted Mr Stuart’s current capacity for work was a maximum of 18 hours, as certified by the NTD, opposed to the 24 suggested by the insurer’s functional assessment.
The Member noted (para 89) the functional “assessment was made at a point in time when the applicant had not commenced working in his new role. The suggestion that the applicant could work 24 hours per week in the role was made without the input of the applicant engaging in the work itself and examining how he was dealing with same.”
In order to satisfy section 38(3)(c) the Member also needed to be satisfied Mr Stuart’s capacity for work at 18 hours a week was “indefinitely” the case.
The Member accepted Mr Stuart’s capacity for work for 18 hours a week was indefinite, saying:
“92 I preferred the applicant’s evidence that he was unable to undertake further additional work beyond the 18 hours per week in which he is currently engaged. The reports of Dr Rivett and Dr Porteous were consistent with the applicant’s statement, that he could not work more than 18 hours per week, and that he was exerting himself to the point where he was in considerable pain and discomfort as it is. These reports also had the benefit of assessing what the applicant was likely able to do from a point in time when he was already working 18 hours per week.”
Takeaways
It is well known that return to work rates are not ideal in the NSW workers compensation scheme and this means there are a significant amount of injured people receiving weekly compensation on or around 130 weeks after their injury.
Section 38 eligibility decisions are becoming more and more frequent as a result.
This decision is helpful in ventilating the considerations that arise when an injured person is working at least 15 hours a week and the insurer still finds them not to be eligible for continuing weekly compensation.
If you have had a section 38 decision applied on your claim and have questions, please reach out to our expert team via our website or contact us on 02 8046 9700.
