Am I entitled to more than one weekly payments amount if I have suffered two different injuries at work? Dual weekly payments entitlements, explained.
Published on January 8, 2025 by Sara McLean
Navigating the workers compensation system in NSW can be challenging. What if you sustain two different work-related injuries, for example, a psychological condition and a physical injury, caused by different incidents with the same employer or different employers? Are you entitled to more than one weekly payments amount in those circumstances? The answer depends on several factors such as the nature and extent of the injuries and incapacity suffered as a result. This article looks at the potential weekly payments entitlements available to exempt workers and workers under the Workers Compensation Act 1987.
If you are an exempt worker under the Workers Compensation Act 1987 (NSW emergency service workers including police, fire brigade or ambulance personnel)
If you are totally incapacitated and unable to work as the result of a work-related injury, you are entitled to receive weekly payments. For the first six months (slightly different for police), that you are totally unfit for work, your weekly payments are calculated as the award rate without shift penalties, overtime or allowances. After six months of incapacity (slightly different for police), your weekly payments are reduced to the statutory rate. The statutory rate is the amount specified in s37 of the Workers Compensation Act 1987. This rate is indexed twice each year in April and October. Statutory payments of weekly compensation can be paid up to one year post retirement age (subject to the provisions of the Social Security Act 1991 (Cth)). The current statutory rate for a single worker with no dependants is $593.40 gross per week.
If you are partially incapacitated for work as a result of a work-related injury and return to work on suitable duties, you may still receive a weekly workers compensation payment, often referred to as ‘make-up’ pay, if the income you earn for the hours you work whilst undertaking suitable duties is less than what you earned before your injury. Make up pay is usually calculated based on the difference between your pre-injury earnings and the amount you are earning while on suitable duties but only to the maximum amount of the statutory rate.
However, what is your entitlement to weekly payments if you have sustained two different work-related injuries, for example, a psychological condition and a physical injury, that both cause some incapacity for work?
There have been recent cases determined (Browne v State of New South Wales (NSW Police Force) [2023] NSWPIC 92; and Wakefield v State of New South Wales (NSW Police Force) [2022] NSWPIC 610) where the injured worker has been awarded additional weekly payments where they suffer a separate and distinct incapacity for employment as a result of two different injuries.
The maximum amount payable for weekly payments is “the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment”[1] and deducting “the average weekly amount that the worker is earning or would be able to earn in some suitable employment, from time to time after the injury.”[2]
Therefore, you could potentially be entitled to two amounts of weekly payments at the statutory rate, i.e., up to $1,186.80 gross per week (based on the current statutory rate for a single worker with no dependants), if you are incapacitated for work due to two injuries causing separate and distinct incapacities.
If you are receiving or have previously received income protection payments, you may have to repay the income protection payments you have received and any future income protection payments are likely to be reduced or cease, depending on the amount of additional weekly payments you receive.
If you are a worker under the Workers Compensation Act 1987
Your entitlements to weekly payments under the Workers Compensation Act 1987 are:
- To receive up to 95% of your pre-injury earnings during the first 13 weeks you are incapacitated for work.
- Thereafter, if you are still losing income and you are not working more than 15 hours per week, you are entitled to receive 80% of your pre-injury earnings up to a maximum period of 130 weeks after the injury, or continue to receive 95% of your pre-injury earnings if you have returned to work for at least 15 hours per week up to 130 weeks (2.5 years).
- After 130 weeks (2.5 years) there are significant restrictions on recovering weekly benefits and you must be approved by the insurer as having no work capacity or working a minimum of 15 hours per week and earning no less than $216.00 gross per week (current rate that is indexed yearly) without possibility of further improvement, in order to continue receiving benefits up to 5 years after your injury. You must also have applied to the insurer for continuation of weekly benefits no earlier than 52 weeks before the end of the first 130 weeks of incapacity.
- If your injuries are assessed as being in excess of 20% whole person impairment, you may continue to receive weekly benefits beyond 5 years, and up until one year post retirement age (subject to the provisions of the Social Security Act 1991 (Cth)), subject to work capacity assessments (unless your injuries are assessed as being in excess of 30% whole person impairment and if so, you will not be subject to work capacity assessments).
Using the principles outlined in the cases of Browne v State of New South Wales (NSW Police Force) and Wakefield v State of New South Wales (NSW Police Force) detailed above, where an injured worker suffers a separate and distinct incapacity for employment as a result of two different injuries, you could potentially be entitled to two amounts of weekly payments up to the value of your pre-injury weekly earnings, one at 80% of your pre-injury earnings and the second for the remaining 20% of your pre-injury earnings.
Every worker’s injuries and incapacity are different. If you have sustained two different injuries with the same employer or with different employers, and you would like some advice as to whether you have an entitlement to two amounts of weekly payments, please contact us.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
[1] Wakefield v State of New South Wales (NSW Police Force) [2022] NSWPIC 610
[2] Wakefield v State of New South Wales (NSW Police Force) [2022] NSWPIC 610
