Impacts of s38A on Injured Workers
For injured workers found to have at least 31% WPI
A worker with highest needs is an injured worker who has sustained at least 31% Whole Person Impairment (WPI).
Section 38A of the Workers Compensation Act 1987 provides that the minimum amount of weekly compensation that a worker with highest needs will be eligible to receive will be the amount of $788.32, as adjusted bi-annually.
The minimum weekly payment acts as a safety net for workers with highest needs, particularly those who had a lower PIAWE (Pre-Injury Average Weekly Earnings).
The minimum amount will be payable by the insurer, regardless of earnings in current employment.
That amount adjusted bi-annually is as per the below table:
| Period | Minimum weekly amount payable |
|---|---|
| 17 September 2012 to 31 March 2016 | $788.32 |
| 1 April 2016 to 30 September 2016 | $793.00 |
| 1 October 2016 to 31 March 2017 | $796.00 |
| 1 April 2017 to 30 September 2017 | $808.00 |
| 1 October 2017 to 31 March 2018 | $814.00 |
| 1 April 2018 to 30 September 2018 | $826.00 |
| 1 October 2018 to 31 March 2019 | $831.00 |
| 1 April 2019 to 30 September 2019 | $840.00 |
| 1 October 2019 to 31 March 2020 | $845.00 |
| 1 April 2020 to 30 September 2020 | $854.00 |
| 1 October 2020 to 31 March 2021 | $854.00 |
| 1 April 2021 to 30 September 2021 | $861.00 |
| 1 October 2021 to 31 March 2022 | $871.00 |
| 1 April 2022 To 30 September 2022 | $887.00 |
The NSW Court of Appeal Decision in Hee v State Transit Authority of New South Wales [2019] NSWCA 175 provides some important case law when it comes to determining entitlements to the s38A minimum weekly payment.
In that Judgment, three examples were provided by White JA:
Example 1
If a worker with highest needs was previously earning $1,000 per week pre-injury and returned to work earning $800 per week, under Section 37(2), the worker would be entitled to weekly benefits compensation of $950 (95% PIAWE) – $800 (current earnings) = $150 per week.
As a worker with highest needs, this weekly benefits compensation rate would be increased under Section 38A to $788.32 (s38A rate), giving the worker a total weekly income of $788.32 (s38A rate) plus $800 (current earnings from current employer) = $1,588.32.
Example 2
If a worker with highest needs was previously earning $1,000 per week pre-injury and returned to work earning $500 per week, under Section 37(2), the worker would be entitled to weekly benefits compensation under Section 37(2) of $950 (95% PIAWE) – $500 (current earnings) = $450 per week.
As a worker with highest needs, this weekly benefits compensation rate would be increased under Section 38A to $788.32 (s38A rate), giving the worker a total weekly income of $788.32 (s38A rate) plus $500 (current earnings from current employer) = $1,238.32.
Example 3
The above two examples have dealt with a worker with highest needs who was able to return to work in some capacity following their injury. This example deals with a worker who was not able to return to work in any capacity.
If a worker with highest needs was previously earning $1,000 per week pre-injury and has not been able to return to work in any capacity, they are then entitled to the statutory rate of 80% PIAWE which for this worker would be $800 per week.
As this above entitlement is above the Section 38A rate of $788.32 (depending on the period in question due to the bi-annual adjustments), the worker with highest needs is not entitled to further compensation under s38A. Hence, the worker’s weekly benefits compensation entitlement is $800 per week (being 80% PIAWE).
Take-aways
One of the impacts of this legislation and case law is that it seems that, generally, more seriously injured workers with highest needs who are not able to return to work in any capacity will receive less in weekly compensation than a worker that can return to work in at least some capacity.
If you are a worker with highest needs or know someone who might fit this criteria, please get in touch with Walker Law Group so that one of our solicitors can assist you in providing advice on any entitlements you may have to s38A weekly benefits compensation.
Note: this is accurate at the time of publishing, 11th May, 2022
Paralegal
Walker Law Group, Manly Head Office
