The Shock of Section 39 Continues


Thousands of injured workers continue to experience the devastating effect of Section 39.
Section 39 of the Workers Compensation Act 1987 (as amended) provides that the vast majority of injured workers will have their entitlement to weekly compensation payments terminated after 260 weeks (5 years) of compensation.   The only class of injured workers who are able to continue to receive payments of weekly compensation after 260 weeks, are those who have been assessed with at least 21% whole person impairment.

One supportive part of the legislation, is that for workers who were injured before 1 October 2012, the insurer cannot count the payment of weekly benefits before 1 January 2013 toward the total 260 weeks.

The first round of workers were cut off their weekly payments on or about 26 December 2017. We have however, seen Section 39 continue to affect workers since that date and unfortunately, many of them have no chance of ever getting back on payments.

If you have received a letter from the worker’s compensation insurer that discusses Section 39, or you believe you will be reaching the 260 weeks in the next 6 months and are yet to seek advice from a lawyer, you should do so immediately.  It can take months to reach an agreement with the insurer or have the Workers Compensation Commission confirm that a person’s whole person impairment is 21% or above, so the sooner you start this process the better.

If you are worried about how much it is going to cost you to see a lawyer about Section 39, then don’t be. The WorkCover Independent Review Office (WIRO) provides lawyers a grant of funding to provide advice to injured workers affected by Section 39 and will also fund us to send you to an independent medico-legal doctor to have your whole person impairment assessed.

It is also important to know that workers being cut off by Section 39 may be entitled to apply for Centrelink benefits up to 13 weeks before weekly payments cease. In order to apply, you will need to provide a letter from the insurer confirming the expected date your payments will cease, your latest Certificate of Capacity, and any updated treatment information relating to your injury.

Please don’t wait until just before your payments cease before you begin to gather the required information for Centrelink or before you lodge your application with Centrelink. There are thousands of other injured workers in New South Wales who continue to lose their benefits, and I would expect Centrelink will continue to be inundated with applications for months to come. The best thing you can do is begin getting organised now, so that you are ready for the transition.

The information in this blog is not intended to be legal advice, and should not be taken as such. If you have any queries, phone us now to discuss your specific circumstances.