3.3.4 Review of entitlement approaching the end of the second entitlement period

3.3.4.1 Preparing for the SEP (130 week) review | 3.3.4.2 Impairment assessment for SEP (130 week) review | 3.3.4.3 Capacity assessment for SEP (130 week) Review | 3.3.4.4 Worker advised of 130 week decision | 3.3.4.5 Worker disputes ongoing eligibility determination |3.3.4.6 Ongoing eligibility determinations after interim determinations | 3.3.4.7 Invite worker to make an impairment benefit claim |

A worker is not entitled to weekly payments after the expiry of the second entitlement period unless:

• the worker has no current work capacity Under the legislation, unless inconsistent with the context or subject-matter — current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment, declared training program and this is likely to continue indefinitely (NCI No Capacity Indefinitely); and

• for claims reaching 130 weeks on or after 31 March 2024, the worker’s whole person impairment (WPI Whole person impairment) has been determined as 21% or more, based on all injuries and or illnesses arising from the same event or circumstance.

Before the end of the second entitlement period the Agent /or Self-insurer must review the claim to determine if the worker will have an ongoing entitlement to weekly payments. This second entitlement period (SEP) review, also known as the 130 week review, consider the worker’s:

• work capacity (capacity assessment) and

• for claims reaching 130 weeks on or after 31 March 2024, degree of whole person impairment.

At the outcome of the review, the Agent or Self-Insurer must advise the worker of the determination to cease or maintain weekly payments.

3.3.4.1 Preparing for the SEP (130 week) review

Timing of review

Agents and Self-Insurers should begin the review process by no later than week 78 to allow enough time for:

• compensable injuries and or illnesses arising from the same event or circumstance to be identified for impairment assessment purposes;

• any assessments of the worker’s work capacity and/or impairment to be undertaken

• an entitlement decision to be made by week 116

• the required notice period under the legislation to be provided to the worker if the worker’s weekly payments are to cease

Identifying an injury or illness

To assist in identifying injuries or illnesses when making an impairment determination, Agents and Self-Insurers should:

• review the worker’s claim form, treating medical practitioner reports, forms, incident/accident reports and any other documentation submitted by the worker

• determine if the injuries arise from the same or from multiple events or circumstances

• where there is uncertainty around the identification of injuries or illnesses, request additional treating practitioner reports (using the worker’s medical authority on the claim form)

It is critical that Agents make robust and evidence based decisions at this stage as to which injuries to include in the SEP review to assist with liability determinations for any future IB Impairment Benefits claim.

See: Guidelines to determine liability

Multiple injuries or illnesses on different occasions

Only injuries arising out of the same event or circumstance can be the subject of an impairment determination for the purpose of the SEP review.

Where the weekly payments claim relates to injuries arising from multiple events or circumstances, there needs to be an impairment assessment or determination for each event or circumstance. The event or circumstance that yields the highest WPI will be relied on in the SEP review for the purposes of ongoing eligibility determination.

Process

Follow these steps to prepare for the 130 week review:

Step	Action
Obtain important medical information	The Agent or Self-Insurer should obtain relevant medical information before commencing the 130 week review. This may include: clinical notes, medical reports, hospital records, admission and discharge summaries, operation notes, pathology and laboratory test reports, diagnostic investigation reports previous medical reports, including IME ORP reports to understand retraining and other assistance provided which is relevant to assessing capacity. The Agent or Self-Insurer should also request medical information from the worker’s treating practitioners to confirm whether there is any impending surgery, and/or whether stabilisation has been reached.
Confirm week count and due dates	The Agent or Self-Insurer must confirm: the week count See: Count weekly payments week 117 and week 130 due dates. Note: claims reaching 130 weeks: before 31 March 2024, are subject to the capacity assessment only; on or after 31 March 2024, are subject to both capacity and impairment determinations.
Confirm any Impairment Benefits (IB) claim	The Agent or Self-Insurer must confirm if there is any current or prior IB activity on the claim (such as IB claim lodged, IIA report received).
Complete an Initial Eligibility Review (IER)	The Impairment Specialist completes an IER to identify: compensable injuries or illnesses under the claim which have arisen from the same event or circumstance (i.e. those that will be assessed) whether those injuries or illnesses have stabilised the estimated degree of whole person impairment (WPI) for each injury or illness. See: Guidelines to determine liability If an IB claim has been made by the worker, the WPI determined in the IB claim should be used for the 130 week review.
Provide worker with information	The Agent or Self-Insurer should provide the worker with information about: 130 week review process, including possible outcomes transition supports, and the HelpConnect service See: Transition Support Service | HelpConnect Where applicable, the Agent or Self-Insurer should provide the worker with other relevant information such as information about occupational rehabilitation. See: OR Services

Assessments that should be undertaken

Estimated WPI	Impairment assessment by IIA	Capacity assessment
15% or less	Required (unless already arranged as part of IB claim).	Not required, unless WPI is ultimately assessed as 16% or more
16%-26%	Required (unless already arranged as part of IB claim).	Required
27% or more	Not required for physical injuries - administrative determination can be made. Required for non-secondary psychiatric injuries.	Required

Note: Refer below for further detail about making WPI determinations (including administrative and interim).

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3.3.4.2 Impairment assessment for SEP (130 week) review

A worker’s whole person impairment (WPI) must be assessed or determined as the worker approaches the end of the second entitlement period.

WPI is based on all injuries and illnesses arising from the same event or circumstance.

WPI is the measurement used to determine the percentage of impairment suffered as a result of their compensable injuries or illnesses. The impairment is the greater of the worker’s:

1. degree of impairment resulting from one or more physical compensable injuries, or

2. degree of impairment resulting from one or more psychiatric injuries (excluding any secondary psychiatric injuries).

See: Psychiatric injury

A worker’s WPI can either be:

1. assessed by an independent impairment assessor (IIA Independent impairment assessment); or

2. determined or estimated by an Impairment Specialist A suitably qualified person at the agent or self-insurer, such as an IB Specialist or WPI specialist, who is responsible for managing the end-to-end impairment determination process for workers in accordance with the requirements of the legislation. Suitably qualified means at a minimum, having completed AMA4 Guides training and applied those Guides at an operational level where:

   1. it is considered not necessary or practicable to refer the worker for an assessment by an IIA. This determination is called an ‘administrative determination’.

   2. a worker’s WPI cannot be assessed by an IIA (e.g. their injury has not stabilised). This determination is called an ‘interim determination’.

Where a worker’s WPI has already been determined through their IB claim, that WPI must be used for the purposes of the SEP Review.

Independent impairment assessments

Agents and Self-Insurers should arrange for an Independent Impairment Assessor (IIA) to conduct a whole person impairment assessment when all accepted injuries have stabilised. Alternatively, Agents can consider whether an administrative or interim determination could be made based on the guidance outlined.

Where one or more injury is not stable and the IIA has already been booked, the Impairment Specialist must cancel the examination and schedule a new IIA appointment once all accepted injuries have stabilised.

See: Independent impairment assessors (IIA) | Stabilisation of injuries

Reviewing IIA reports

Once received, an Impairment Specialist must review the IIA report and verify:

• the worker has been assessed for all accepted injuries and/or illnesses and

• the assessor has specified in the report:

  • a percentage WPI for the injuries referred to the examiner

  • an opinion on whether the worker has suffered a total loss injury mentioned in the no disadvantage compensation table

  • a correctly combined whole person impairment

  • if any psychiatric impairment has been assessed in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians

  • any impairment from pre-existing or unrelated injuries or causes has been disregarded

• whether there is any deviation of impairment determinations between the IIA’s assessment and the Impairment Specialist estimated WPI.

See: Review IIA report | Combining impairment level of multiple injuries | Deviation of impairment determinations

Administrative determinations

Administrative determinations can be made where it is not necessary or practicable for an IIA to assess a worker’s impairment (s167C). An administrative determination is an ongoing eligibility determination and only relevant to the worker’s entitlement to weekly payments after the expiry of the second entitlement period.

The Agent or Self-Insurer should only make an administrative determination of a worker’s WPI regarding physical injuries if either of the following apply:

1. the worker's degree of impairment for physical injuries has been estimated at 27% or more and is likely to be permanent; or

2. it is not reasonable or practicable for the worker to attend an assessment by an IIA (e.g. the worker resides overseas or interstate or has an unrelated debilitating medical or health condition).

Administrative determinations in respect of psychiatric injuries:

• cannot be made for primary (non-secondary) psychiatric injuries;

• for secondary psychiatric injuries, Agents should not have regard to these injuries when determining WPI (s56).

The Agent and Self-Insurer should have regard to the following when making an administrative determination of a worker’s WPI:

1. the available medical evidence

2. whether the worker’s impairment resulting from an injury is likely to be permanent

3. any practical barriers to the worker being assessed by an IIA

4. whether determining the degree of impairment of the worker without an independent impairment assessment is likely to disadvantage the worker.

The Agent must seek WorkSafe’s approval on any proposed administrative determinations where the WPI is estimated as 27% or more. Seek approval by emailing WorkSafe’s SER Inbox indicating the degree of impairment, the rationale for an administrative determination and a summary of the evidence.

See: Capacity assessment for SEP (130 week) Review | Worker advised of ongoing eligibility determination

Note: If a worker makes an IB claim following an administrative determination, an IIA assessment must be obtained.

Interim determinations

An interim determination should only be made where the worker’s WPI can’t be assessed. An interim determination is a temporary decision and only relevant to the worker’s entitlement to weekly payments after the expiry of the second entitlement period.

Agents and Self-Insurers can make an interim determination to cease or maintain weekly payments in the following circumstances (s167D(2)):

• a worker’s injury has not stabilised, including diagnosed eligible progressive disease which is unlikely to stabilise

• a worker has multiple injuries arise from the same incident and one or more injuries have not stabilised

• worker is under 18 years old or

• information required to make the WPI determination is not available.

Agents or Self-Insurers must estimate the worker’s WPI for an interim determination based on the worker’s current WPI, and the likely WPI if it were able to be assessed.

The Agent or Self-Insurer should have regard to the following when making an interim determination:

1. any medical evidence relevant to the degree of impairment

2. any medical and vocational evidence available about the worker’s work capacity

3. information that confirms the worker’s condition has not stabilised (e.g. treater requests for worker to undergo further surgery or treatment).

4. whether the worker is under 18 years old

5. what further information is required for a WPI determination to be made.

Agents and Self-Insurers should only make an interim determination when:

For interim determination to maintain weekly payments	For interim determination to cease weekly payments
the worker’s impairment is likely to be permanent; and if the worker’s WPI was able to be assessed, it would likely be 21% or more; and the worker has no current work capacity and is likely to continue indefinitely to have no work capacity.	the worker's impairment is not likely to be permanent; if the worker's WPI was able to be assessed, it would likely be 20% or less; or the worker has a current work capacity.

Prior to making an interim determination, the Agent or Self-Insurer must obtain approval from an authorised, suitably qualified person within their organisation.

See: Capacity assessment for SEP (130 week) Review | Worker advised of ongoing eligibility determination

An interim determination is not a final determination. At any time, the Agent or Self-Insurer may review the interim determination to cease or maintain weekly payments and make:

• a further interim determination; or

• an ongoing eligibility determination.

Periodic review of interim determinations

Agents are expected to manage each case on its merits, and acknowledge there may be circumstances where there is both insufficient medical information and an unstable injury. Agents are expected to be aware of actions taken by the claims teams (i.e. determining whether a post-operative report has been requested, obtaining latest treating medical information and IME Independent Medical Examiner / Independent Medical Examination reports).

The minimum requirements for managing the periodic review of an interim decision are as follows:

• file note at time of interim determination, detailing reasons for the determination, including reference to the evidence supporting decision

• documentation on file substantiating workers condition as not stable

• in cases where worker is to undergo surgery/further treatment, determine date/s this is to occur

• obtain prognosis and anticipated timeframes for stabilisation (i.e. THP Treating Health Practitioner report, post-op report)

• regular file reviews noted on ACCtion to monitor the progression of claim.

Agents should determine a suitable timeframe for review of the claim. However, WorkSafe recommends the following periodic reviews of the information on file and case management action plan as a minimum:

• once every three months following surgical intervention

• once every two months for further medical treatment (non-surgical)

• once every month for asthma or mental injury.

If less time is anticipated for stabilisation, Agents should review the claim more regularly, as deemed appropriate on a case by case basis.

See: Ongoing eligibility determinations after interim determinations

3.3.4.3 Capacity assessment for SEP (130 week) Review

As part of the SEP (130 week) review, Agents and Self-Insurers may need to assess work capacity and whether any incapacity for suitable employment is likely to continue indefinitely (sometimes referred to as NCI).

A capacity assessment is required on claims reaching 130 weeks:

• before 31 March 2024

• on or after 31 March 2024 where the WPI has been assessed or estimated as 16% or more.

Agents or Self-Insurers may need to obtain evidence specifically commenting on the worker’s capacity for work. This includes:

• THP reports and independent medical reports

• vocational assessments, return to work plans and current job offers

• details about any work being undertaken by the worker, to assist the Agent, Self-Insurer or Medical Panel Under the legislation, unless inconsistent with the context or subject-matter — Medical Panel means a Medical Panel constituted under Division 2 of Part 12 when evaluating an application by the worker for continuation of entitlement to weekly payments after the second entitlement period.

  This includes:

  • restrictions in duties and hours

  • confirmation from the employer of the actual hours being worked and the worker’s CWE Current Weekly Earnings

  • advice from the employer as to whether they can offer additional or increased hours to increase earnings.

See: Independent medical examinations and reports | After the second entitlement period

 

The incapacity ‘not likely to continue indefinitely’ ground

The incapacity ‘not likely to continue indefinitely’ ground for terminating weekly payments (i.e. the worker has no current work capacity but this is not likely to continue indefinitely) should only be used where:

• medical opinion confirms that the worker will have a capacity for suitable employment in the foreseeable future

• the normal or expected course of recovery is that the worker will have a capacity for suitable employment based on evidence-based clinical practice and/or previous experience

• the duration of the worker's current incapacity can be defined and is proximate (e.g. < 9 months)

• there are reasons why the worker will gain a capacity for suitable employment (e.g. surgery recovery, gaining a qualification etc).

Vocational assessments

As part of the assessment of a worker’s capacity, the Agent or Self-Insurer may arrange a 130 week vocational assessment of the worker. The Agent or Self-Insurer must:

• provide the worker with a list of at least three OR Occupational Rehabilitation providers for the worker to select their preferred provider

• advise the worker that the purpose of the assessment is to identify suitable jobs that the worker has a capacity to perform

• advise the worker that the outcome could affect the worker’s ongoing entitlement to weekly payments.

See: Approve occupational rehabilitation services

 

3.3.4.4 Worker advised of 130 week decision

When the Agent or Self-Insurer has made an ongoing eligibility determination, they must send written notice to the worker and if applicable, the employer (s167F).

See: Review of entitlement approaching end of the second entitlement period

Any notice to cease or maintain weekly payments must include:

• the WPI (only if assessed by an IIA*), and

• Statement of Injuries - s167C(5) and s167B(3).

Where an interim determination is made, the Agent or Self-Insurer must also advise the worker of the reasons for the interim determination.

Note: Agents should not include the WPI% in notices that rely on interim or administrative determinations.

See: Deviation of impairment determinations

Statement of Injuries (SOI)

The Agent or Self-Insurer must provide the worker with a statement (referred to as List of Compensable Injuries and/or Illnesses) of the compensable injuries and illnesses that entitled the worker to weekly payments and were assessed as part of the SEP Review.

See: Period of notice | Ongoing eligibility determinations after interim determinations | Invite worker to make an impairment benefit claim | Transition Support Service | HelpConnect

3.3.4.5 Worker disputes ongoing eligibility determination

If a worker only disputes the WPI aspect of the ongoing eligibility determination, the Agent or self-insurer must refer medical questions to the Medical Panels within 14 days of being advised by the worker that they only dispute the WPI determination.

See: Medical Panel Referral

If the worker disputes any other part of the ongoing eligibility determination (to cease or maintain weekly payments) or to multiple parts of the determination, a worker must refer their dispute to Internal Review or to WIC Workplace Injury Commission for conciliation. For example, if a worker disputes:

• the list of injuries and/or illnesses (SOI)

• that one or more of their injuries has stabilised

• the decision on capacity for work

• any of the above AND the WPI assessment.

Subsequent to conciliation, there are various dispute paths available.

• There can be a referral to the Medical Panels from conciliation for any and all medical questions including WPI.

• All disputes except WPI can be referred to arbitration.

• All disputes can be challenged in the Magistrates’ Court or the County Court. Where one of the disputes is WPI, the court will refer that to the Medical Panels along with any other medical questions it considers appropriate.

See: Dispute Resolution

3.3.4.6 Ongoing eligibility determinations after interim determinations

An interim determination is not a final determination. It continues to operate until the Agent or self-insurer makes either a further interim determination, or a final determination.

The Agent or self-insurer must revisit the interim determination (regardless of the outcome of the interim determination) when an assessment of the worker’s WPI can be undertaken (for example, when a worker has attained age 18 or when a worker’s injuries have stabilised).

At the appropriate time, the Agent or self-insurer must:

• arrange an impairment assessment with an IIA or where appropriate, make an administrative determination of the WPI

• undertake a capacity assessment, if required

• make a ongoing eligibility determination.

See: Impairment assessment for SEP Review | Capacity assessment for SEP Review | Two year review

The Agent or self-insurer must notify the worker in writing of the ongoing eligibility determination regardless of whether it affirms or modifies the interim determination.

See: Period of notice

No interest is payable on any weekly payments that are in arrears where a final determination amends an interim decision to reinstate payments.

3.3.4.7 Invite worker to make an impairment benefit claim

Where the worker’s WPI has been assessed by an IIA or administratively determined by an agent or self-insurer, and the WPI meets the threshold for an impairment benefit (IB) claim, the agent or self-insurer must invite the worker to make an IB claim.

Where WPI has been assessed by an IIA, the worker has qualified for an IB.

Where there has been an administrative determination, an IIA will have to be arranged if the worker makes an IB claim. An administrative determination will only be an indicator of an IB entitlement.

Impairment	WPI threshold for IB entitlement
Musculoskeletal physical impairment	5% or greater
Other physical impairments	10% or greater
Psychiatric impairment (not secondary to physical injury)	30% or greater

Interim determinations will not receive an invitation to make an IB claim because it has been determined that an impairment assessment is not possible..

Where there are multiple WPI assessments because the worker’s weekly payments claim relates to injuries arising from multiple events or circumstances, the worker should be invited to make an IB claim for each event or circumstance (where the WPI threshold has been met).

See: Impairment Benefits | IB compensation tables

Worker advised of entitlement

When the Agent has made a determination of whether the worker will have an entitlement to weekly payments once the second entitlement period has ended the Agent must send a notice to the worker and employer.

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