Under the NSW Workers Compensation system a worker is assessed, once they have reached maximum medical improvement, based on a percentage of whole person impairment. This percentage then equates to varying levels of compensation. If a worker is assessed at greater than 30% whole person impairment the worker is then considered a worker with Highest Needs.
Section 38A of the Workers Compensation Act 1987 then comes into play as it provides a special provision for workers with Highest Needs. Provided the worker has some level of incapacity, the worker has access to a minimum weekly payment of compensation. Under section 38A the amount is $788.32 indexed, and is currently $840 per week.
Previously, if a worker with Highest Needs had some capacity to work, was earning income less than the minimum weekly payment, and their pre injury average weekly earnings was less than the minimum weekly payment, it was presumed that the workers compensation insurer would top up the worker’s wage until it reached the figure stipulated under s38A. However, the case of Vostek Industries Pty Ltd v White  NSWWCCPD 47 has found differently. Mr White who was the injured worker was assessed at 32% whole person impairment. He returned to work and was earning $984.50. He then made a claim for the amount under s38A, in addition to his earnings from employment.
Mr White was successful in his claim and it is now confirmed, as a result of this case, that the injured worker is entitled to earnings plus the amount under s38A provided they are a worker with Highest Needs, and have some level of incapacity. If you think you are or know someone who fits this criteria and has not been receiving the additional amount under s38A please contact our office because Helping You is Our Business.
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