Key Takeaways

A worker’s entitlement to weekly benefits beyond the second entitlement period (130 weeks) is governed by s38 of the Workers Compensation Act 1987 (the 1987 Act).

Under that provision, benefits are payable if the worker is ‘assessed by the insurer’ as meeting the necessary preconditions.

S38(4) of the 1987 Act requires an insurer to conduct a work capacity assessment within the last 52 weeks of the second entitlement period for the purposes of assessing a worker’s entitlement beyond 130 weeks.

Recent Decisions

Section 11A (1) defence: what evidence is required to establish ‘reasonable action’

Whittle v State of New South Wales (Hunter New England Local Health District) (NSWPIC 2021)

Section 78 notices and their importance when raising disputes

Key Takeaways

In this matter, Member Harris determined that particular matters relevant to a s11A defence could not be relied upon given that they were not sufficiently particularised in a s78 notice.

The matter highlights the importance of identifying all relevant particulars to a defence, especially if a respondent seeks to rely on s11A of the Workers Compensation Act 1987 (NSW) (the Act).

Brief Facts

The worker suffered psychological injury in the workplace deemed to have occurred on 19 September 2017.

Key Takeaways

The evidence required to establish reasonableness depends on the circumstances of the case. In this case, providing a worker with all relevant material before a factual investigation into that worker’s conduct was not a prerequisite to the proof of reasonableness.

Brief Facts

The worker, a nurse, had been suspended from work following complaints of misconduct by other staff.