NSW Work Injury Claim

NSW workers compensation blog

Section 38 NSW: protecting weekly payments after 130 weeks

The move past 130 weeks is where many NSW weekly payment claims are reduced or cut off. This guide breaks down what section 38 decisions usually rely on and how to prepare evidence before income drops.

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Quick answer: what section 38 usually changes after 130 weeks

Section 38 does not automatically end weekly payments at 130 weeks. It changes the eligibility test and increases the importance of precise work-capacity evidence, realistic earnings assumptions, and fast dispute timing. If your insurer relied on broad role assumptions, compare those findings with the work capacity dispute pathway before the next pay cycle.

Step 1: isolate the exact reason for the post-130-week reduction

Ask for the precise insurer reasoning, including whether the decision is based on work-capacity assumptions, medical evidence, or earnings inputs. If the insurer uses a formal denial framework, align your response with the section 78 dispute pathway so issues are framed correctly from day one.

Step 2: replace generic certificates with targeted restrictions

At this stage, broad statements like “unfit for normal duties” are rarely enough. Treating evidence should address functional tolerances, likely sustainability, and the practical mismatch between your restrictions and any insurer-nominated suitable roles. For the stricter incapacity threshold, compare your records against the section 40 no-current-work-capacity test.

Step 3: audit wage assumptions and concurrent disputes together

Many section 38 disputes overlap with underpayment errors. Review your earnings inputs through the PIAWE calculation guide and, where relevant, run a formal PIAWE recalculation request in parallel.

Step 4: set escalation timing before the arrears problem expands

Delay creates pressure and weakens your negotiation position. If capacity findings are central to the decision, follow the work capacity dispute guide and prepare escalation through the Personal Injury Commission process with a defined evidence timeline.

Section 38 rapid-check list

  • Written insurer reasons and relied-on documents collected
  • Targeted treating specialist evidence requested with deadlines
  • PIAWE and post-injury earnings assumptions independently checked
  • Review/escalation pathway planned before further payment loss

If your income has already dropped or a reduction date is near, request a free claim check for a practical next-step map based on your insurer notice and medical records.

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