3.3.5.5 Process for application after second entitlement period
Follow these steps to manage an application for weekly payments after the second entitlement period.
| Step | Agent action |
|---|---|
| Advise worker |
Write to advise workers who have weekly payments terminated after the second entitlement period of their right to apply for a continuation of weekly payments. The notice should include an explanation of the eligibility criteria that a worker must satisfy to be eligible for continuing weekly payments beyond the second entitlement period. If the Agent is satisfied at the time of issuing the notice that the worker may meet the criteria then an Application for Weekly Payments after the Second Entitlement Period form should be provided with the notice. |
| Worker makes application | If a worker considers they meet the criteria, the worker must make an application to the Agent. |
| Review application |
Send an acknowledgement letter to the worker. Contact the worker if further information is required to assess the application. |
| Determine eligibility |
Review the worker’s application and establish the worker’s eligibility. Workers with a date of injury on or after 5 April 2010 The Agent has 28 days from receiving the worker’s application to write to the worker advising if the application has been approved or rejected. If the application is rejected the Agent must give the worker a statement outlining the reasons for the decision. Workers with a date of injury before 5 April 2010 The Agent has 90 days from receiving the worker’s application to write to the worker advising if the application has been approved or rejected. If the application is rejected the Agent must give the worker a statement outlining the reasons for the decision. |
| Conciliation - medical panel referral |
If the worker disagrees with the Agent’s decision the worker can lodge a Request for Conciliation. If a medical question arises in a dispute about a worker's entitlement to weekly payments after the second entitlement period, the Conciliation Officer must refer the medical question to the Medical Panel within seven days of becoming aware of the medical question. |
3.3.5.6 Ongoing management
After deciding the worker’s ongoing entitlement the Agent should diarise the claim for ongoing review.
Information to be provided
The Agent should ensure they receive regular, clear and written information to assess the worker’s ongoing entitlement. This information includes:
- hours worked by the worker each week
- current weekly earnings
- Certificates of Capacity.
Information to be assessed
The information needs to be assessed to:
- determine if the worker continues to work the necessary hours per week
- confirm the worker’s capacity to work a minimum of 15 hours per week
- confirm the worker is earning at least $228 per week.
If the information provided indicates that any of the criteria are not being met, the Agent needs to determine if the worker continues to have an entitlement to weekly payments.
See: Six monthly reviews
If information is not provided
If the information is not received the Agent should contact the worker or their representative and advise them that weekly payments cannot be calculated until the required information is provided.
If the information is still not received within a reasonable timeframe - see: Terminate weekly payments after second entitlement period.
Changes to worker’s status
If the information provided indicates that there has been a change in the worker’s work or medical circumstances a review will need to be conducted to determine the worker’s ongoing entitlements.
See: Terminate weekly payments after second entitlement period
Fluctuations in hours worked and/or increased current weekly earnings (CWEs)
Workers receiving weekly payments under section 165 can have their hours worked or CWEs fluctuate without their entitlement ceasing, provided it meets the acceptable criteria outlined in section 166.
To determine if the fluctuations fall within the acceptable criteria, entitlements must be reviewed in consecutive 12 week blocks from the acceptance date of the section 165 application. If earnings or hours fluctuate for more than a 4 week period within one of the 12 week blocks, it is important to understand the reason to determine if the worker has an entitlement under the Act.
Acceptable reasons that should not impact the worker’s entitlement are limited to a short term increase in hours/CWEs (e.g. approved leave, staff shortage/coverage, and small increase in seasonal workload).
The increase in hours/CWEs must not demonstrate a significant deviation from certified capacity as determined at acceptance of the section 165 application, as this may warrant further review of ongoing capacity, and entitlement under the Act.
3.3.5.7 Six monthly reviews
Reviews should be conducted at least every six months.
Information for six monthly reviews
As part of the review Agents should consider a:
- review by the worker’s treating practitioner of whether the worker:
- continues to have no capacity to increase hours or take on additional work because of the injury
- is likely to continue indefinitely to be incapable of undertaking further or additional employment
- review by an independent medical examiner of whether the worker has a capacity to:
- take on additional work because of the injury
- is likely to continue indefinitely to be incapable of undertaking further or additional employment
- vocational assessment
- a vocational assessment could be used to assess the worker’s capacity to increase hours.
Outcome of review
If the review indicates that the worker has and is likely to continue to have, no capacity to increase their hours or take on additional duties, a further review should be conducted at either:
- six months from the date of previous review or
- at a date determined by the Agent to be more appropriate.
If the review indicates that the worker has a capacity to increase their hours - see: Terminate weekly payments after second entitlement period.
3.3.5.8 Weekly payments for surgery post 130 weeks
A worker who suffers an injury on or after 5 April 2010 may apply to the Agent to receive up to 13 weeks of weekly payments after the second entitlement period if they require time off work for surgery for their work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment. injury.
Criteria
To be entitled to weekly payments for surgery the worker must meet all these criteria
- have suffered an injury arising out of or in the course of employment on or after 5 April 2010
- have received weekly payments
- have returned to work for at least 15 hours per week and have CWE Current Weekly Earnings of at least $228 per week
- not be entitled to weekly payments after the second entitlement period, that is, the worker has not after 130 weeks been assessed as having 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 likely to continue indefinitely to have no current work capacity OR Occupational Rehabilitation be entitled to weekly payments after second entitlement period
- not have had their entitlement to weekly payments terminated on the basis of having no entitlement
- not have received weekly payments (except where there is an entitlement to weekly payments after the second entitlement period) for at least 13 consecutive weeks after the expiry of the second entitlement period
- not apply for weekly payments for surgery until 13 weeks post the 130 weeks second entitlement period
- have obtained the Agent’s acceptance of liability for the surgery
- suffer an incapacity resulting from or materially contributed to by the surgery
- not reached retirement age before the surgery occurs. The worker is able to reach retirement during the limited period of weekly payments.
If an application for weekly payments for incapacity from surgical treatment post 130 weeks is accepted a worker may receive weekly payments for the period of incapacity resulting from or materially contributed to by the surgery for up to a period of 13 consecutive weeks commencing on the day on which the surgery is performed.