3.3.6.5 Pre 12 November 1997 claims - weekly payments
Previous assessments under ‘grandfather provisions’
Claims made before 12 November 1997 were previously treated according to the grandfather provisions Claims lodged before 12 November 1997 are treated according to the grandfather provision if the worker was entitled to weekly payments on 12 November 1997. under the legislation which applied between 12 November 1997 and 5 April 2010 and have since been replaced from that date. These provisions detail the weekly payment entitlements for pre 12 November 1997 claims depending on their weekly payment entitlement as at that date and when their claim was made (before 12 November 1997, after that date and before 1 January 2005.
Serious injury
Serious injury, as it applies to pre 12 November 1997 claims, is an injury which entitles a worker to a particular rate of weekly payments under the legislation where the worker has been assessed according to the methods in the AMA Guides (2nd edition), as having a whole person impairment of 30% or more.
Three phases of entitlements for pre 12 November 1997 claims
For pre 12 November 1997 claims there are three distinct phases of benefits:
- first 13 or 26 weeks of incapacity
- after 13 or 26 weeks incapacity until 104 weeks
- after the 104 week entitlement period.
The worker’s incapacity during each of these phases must be substantiated by the provision of medical certificates.
First 13/26 weeks
The first 13 weeks (claim made after 12 November 1997) or 26 weeks (claim made before 12 November 1997) of incapacity is an aggregate period of 13/26 weeks incapacity for work after a worker becomes entitled to weekly payments.
The period of incapacity from 13/26 to 104 (claim made before or after 12 November 1997 and received by the Agent before 1 January 2005) or 130 (claim received by Agent after 1 January 2005) weeks does not necessarily equate to the period when the worker received weekly payments.
13/26 to 104/130 weeks
The pre 12 November 1997 claimant A person who applies for WorkCover benefits. has an entitlement to weekly payments after 13/26 weeks until 104/130 weeks if they have:
- a serious injury
- 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 (previously called ‘total incapacitated’) or
- a current work capacity (previously called ‘partially incapacitated’).
Compensation after 104/130 weeks
Entitlement to weekly payments ceases after 104/130 weeks unless a pre 12 November 1997 claimant meets any of the following:
- has an serious injury
- has NCWC No 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 work, either in the worker's pre-injury employment or in suitable employment indefinitely.
A pre-12 November 1997 claimant who is not seriously injured and has a CWC Current Work Capacity may remain entitled to weekly payments during periods of paid employment after the second entitlement period, subject to criteria.
For information on entitlement to weekly payments and termination procedures after 104/130 weeks – see: After the second entitlement period | Terminate or alter weekly payments.