WorkCover top up payments

Workcover top up payments

With a WorkCover claim, there are two ways you can potentially claim top up payments:

  1. Once you’ve received 130 weeks of payments and you’ve returned to work, but on limited basis.
  2. If top up payments (or as it is also called, accident make up pay) are provided for in an award or an agreement.

This page will explore both of the above options.

After the second entitlement period (130 weeks) top up payments

Your weekly payments will likely be terminated at the 130 week mark if you are determined as having a work capacity and/or you fail to reach the 21% or greater whole person impairment rating requirement.

However, post 130 weeks it is possible to obtain top up payments from the insurer if you have returned to employment.

Relevant criteria

In order to be eligible to receive top up payments after 130 weeks, you must have returned to work duties and must satisfy all of the following criteria:

  1. You’ve returned to work with any employer – it does not need to be with the employer that you suffered the injury with.
  2. You are working at least 15 hours per week.
  3. You are earning at least $228 per week (this is the 2024 figure and is indexed annually)
  4. You are not capable of undertaking further additional employment or work which would increase the your earnings
  5. You are likely to continue indefinitely to be incapable of undertaking further additional employment or work for which would increase your weekly earnings

The above is the criteria you must satisfy if you reached the 130 week mark prior to 31 March 2024.

If you reached the 130 week mark on or after 31 March 2024, then in addition to satisfying the above criteria, you also must have a whole person impairment rating of 21% or greater.

The 21% or greater whole person impairment rating addition to the test was introduced in 2024 by Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2023.

How do you apply for the top up payments?

You should contact the insurer and ask them to send you the appropriate form.

You can advise them that you wish to make a request for payment of weekly payments post the second entitlement period – and ask them to send you the appropriate form you should use.

You can make an application for top up payments at any time.

So you could make it immediately after you’ve returned to work post the 130 week period.

Or you could wait and do it several years down the track.

When completing the application, you should also obtain medical support from your treating doctor that confirms that you’re currently working to your full capacity, taking into account your injury, and that you’re not likely to ever be able to undertake further additional employment or work which would increase your weekly earnings.

Once you’ve made the application and sent it off to the insurer, they’ll consider the application.

However, in our experience it can take much longer than that with some insurers.

So if, after a few weeks, you haven’t heard from the insurer in relation to your request for top up payments, it would be a good idea to follow them up and see how your application is progressing.

Sometimes an insurer will want to have you assessed by an IME if you make an application for top up payments, so keep that in mind.

Essentially the question the insurer will be asking the IME to answer is whether you’re working to your full capacity at the moment.

Once the insurer has made a determination to either accept or reject your application for top up payments, they should send you a letter confirming the decision in writing.

If their decision is to reject your application, then the reason/s as to why they made that decision should be listed on the letter.

You can appeal the decision to reject your application to conciliation, which you can initiate by completing a lodging a request for conciliation form.

If the insurer doesn’t change their decision to reject your application at the conciliation, then the only option you have if you wish to continue pursuing the matter is to request that the matter be referred from conciliation to the medical panel.

This is assuming that there are no factual issues in dispute. If there are, then the matter cannot be referred to the medical panel and a genuine dispute certificate must be obtained.

If the matter does end up at the medical panel, then the panel will generally be asked two questions, which will be (or variations thereof):

a)     Is the worker incapable of undertaking further additional employment or work which would increase the worker’s current weekly earnings?

b)     If yes, is the worker likely to continue indefinitely to be incapable of undertaking further additional employment or work which would increase the worker’s current weekly earnings?

If you succeed at the medical panel, then you’re entitled to top up payments from the date of the application for top up payments.

If you don’t succeed at the medical panel, then in limited instances you can appeal the opinion of the medical panel (you should seek advice from a lawyer at this point, if you haven’t already done so).

How are top up payments calculated?

You’re entitled to be paid the difference between 80% of your pre injury average weekly earnings (PIAWE) and 80% of your earnings in your current post 130 weeks job.

As an example, lets say that your PIAWE was $1200. Your 95% figure, which you’d be paid for the first 13 weeks would therefore be $1140, and your 80% figure, which you would be paid thereafter up to 130 weeks, would be $960.

The important figure for our purposes here is the $960.

Now, lets say that you’ve returned to work post 130 weeks and you’re now earning $500 per week.

80% of your earnings of $500 would be $400.

So, that would mean you’d be entitled to the difference between $960 and $400, which is $560.

You’d be entitled to a weekly top up payment of $560 in addition to your weekly wage of $500, resulting in a gross weekly payment to you (of both your earnings and top up pay) of $1060.

Top up payments under an award

The second way that you can obtain top up payments while under WorkCover is if you are covered by an award or agreement or similar that specifies that you’re entitled to top up payments in the event of a work related injury.

You’ll see this referred typically as accident make up pay.

Here’s an example of an accident make up pay clause in an agreement:

Accident make up pay EBA example section 1

The above accident make up pay clause caps accident make up pay to 39 weeks.

This capping is typical and the number of weeks that you’ll be entitled to varies.

Essentially, accident make up pay means that while you’re on WorkCover, you can be paid the difference between 95% or 80% (which the WorkCover insurer will pay) and your usually pre injury wages.

So you’ll be paid 100% of your pre injury wage.

One thing to keep in mind however is that some top up or accident make up pay clauses in awards will refer to you only being entitled to get paid top up pay up to any amounts payable under an award.

If pre injury you were getting paid above award rates, there might be an argument made by an employer that you’re not entitled to any accident make up or top up pay because of this.

Conclusion

There’s two ways you can get top up payments while on WorkCover. The first way is if you’ve returned to work after 130 weeks and you satisfy a particular test.

The second is if you’re covered under an award or other isntructment which specifies that your WorkCover payments are to be topped up, usually for a limited period of time.

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

To contact Michael or Peter call 1800 746 442 or email [email protected].

Written by the Work Injury Site team