Bartier Perry Workers Compensation Alert - June 2011

WHAT IS A WEEK? HOW TO CALCULATE THE FIRST 26 WEEKS OF INCAPACITY UNDER SECTION 40 On 21 June 2011, WorkCover NSW issued a guideline (no: 11-01) directing insurers how to calculate the first 26 weeks of incapacity under section 40 of the Workers Compensation Act 1987. WorkCover’s directive Each week is looked at discretely. If any amount of compensation under section 40 has been paid during a working week, the worker is considered partially incapacitated for that entire week. If still applicable, that week would count as one of the “first 26 weeks”. WorkCover dismisses the method of accumulating each day of payment in order to calculate the 26 weeks. It considers partially incapacitated workers are not entitled to be paid 130 days of compensation at the first 26 week rate over an unlimited time frame. Legal status The guideline is important information from the regulator on how it views the operation of section 40. It remains to be seen how the Workers Compensation Commission interprets the “first 26 weeks” in a section 40 context. Insurers are now expected to apply this method of calculation. This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice. Bronwyn Hewish & Mick Franco