Overview
How this affects your claim in practice
The first 130 paid or payable weeks are aggregate weeks, not necessarily consecutive calendar weeks. Before that point, ask the insurer for its week count, injury classification, work capacity position and the evidence it says is needed for continuation. Weekly payments do not automatically continue or stop under one test for every worker.
For physical injuries, section 38 governs important continuation pathways after the second entitlement period and section 39 can later impose a 260-week limit unless the impairment threshold is exceeded. Primary psychological injuries first notified from 1 July 2026 use separate sections 39A and 39B, including different impairment bands and a possible additional 52-week period. Indexed earnings amounts must be checked for the current period.
- No current work capacity must be assessed as likely to continue indefinitely.
- A current-capacity worker who is not high needs must satisfy every limb of section 38(3).
- The current indexed earnings minimum is $251 per week from 1 July 2026.
- The approved-form application cannot be made earlier than 52 weeks before the second entitlement period ends.
- Workers with high needs who have current capacity have a modified application test under section 38(3A).
- Primary psychological injury claims notified or made from 1 July 2026 have separate WPI-linked limits under sections 39A and 39B.
Practical review
What to check in this situation
- Request the insurer's aggregate paid-or-payable week ledger and proposed transition date.
- Identify physical injury, primary psychological injury and any applicable WPI assessment status before applying a continuation rule.
- Prepare current capacity, hours, gross earnings, employment and permanent-impairment evidence for the actual statutory pathway.
Records that may help
Keep the full payment ledger, Certificates of Capacity, payslips, rosters, current duties, work capacity reports, WPI assessment material and every proposed cessation or continuation notice.
Next procedural step
Ask for the insurer's written legal and calculation basis before week 130 and obtain advice while there is still time to correct missing evidence or challenge a decision.
Who can continue under section 38?
Current section 38 entitlement pathways
| Worker position | Requirements | Rate if entitled |
|---|---|---|
| No current work capacity | The insurer assesses no current work capacity and that it is likely to continue indefinitely. | 80% of PIAWE, subject to the maximum weekly compensation amount. |
| Current work capacity; not high needs | Approved-form written application; at least 15 hours of actual return to work; current earnings (with any deductible amount) at least the indexed minimum; and inability indefinitely to undertake further work that would increase earnings. | The lesser of 80% of PIAWE minus current weekly earnings, or the maximum weekly amount minus current weekly earnings. |
| Current work capacity; high needs | Approved-form written application no earlier than 52 weeks before the end of the second entitlement period. Section 38(3A) removes the ordinary paragraphs (b) and (c) tests. | The current-capacity formula in section 38(7), subject to any other applicable provision. |
The statutory base amount in sections 38, 40 and 41 is indexed. SIRA’s July 2026 Benefits Guide states that the amount applying from 1 July 2026 is $251 per week.
The written application and work capacity assessment
The written approved-form application applies to the current-capacity routes in sections 38(3) and 38(3A). It cannot be made earlier than 52 weeks before the second entitlement period ends. A worker with no current work capacity relies on section 38(2), which has the separate indefinite-capacity test.
For the purpose of deciding entitlement after week 130, the insurer must ensure a work capacity assessment is conducted during the last 52 weeks of the second entitlement period and thereafter at least once every two years. Section 38 also allows entitlement to be reassessed at any time. Highest-needs workers have a separate restriction on insurer-initiated assessments.
Evidence should address every statutory limb
- The approved continuation application and proof of receipt.
- The current certificate of capacity and treating reports about the likely long-term position.
- Rosters, timesheets and payslips proving at least 15 hours and the indexed earnings minimum where required.
- Rehabilitation, vocational and workplace evidence about whether further earnings can realistically be increased under the statutory test.
- The insurer work capacity assessment and every report relied on.
- PIAWE, current weekly earnings and maximum-amount calculation worksheets.
- Any permanent impairment material relevant to high-needs or primary psychological injury status.
Primary psychological injury claims from 1 July 2026
The 2026 amendments created a separate limit for primary psychological injury claims notified or made on or after 1 July 2026. A worker assessed at 0-20% WPI generally has no weekly entitlement after an aggregate 130 weeks. A worker at 21-24% WPI may qualify for an additional 52 weeks under section 39B if the capacity and work/earnings conditions are met. The section 39B rate is the lesser of 60% of PIAWE minus current weekly earnings or the maximum weekly amount minus current weekly earnings.
For claims in that commencement group, a worker at 25% WPI or more may continue beyond 130 weeks subject to the applicable section 38 requirements. SIRA identifies 31% or more as highest needs. Transitional dates and later staged threshold changes mean the notification or claim date must be checked before applying these percentages.
Do not use the ordinary section 38 table alone for a primary psychological injury. Check sections 39A and 39B, the 2026 amending Act and the current SIRA psychological-injury guidance.
If the insurer says payments will stop
Read the decision to identify whether the dispute concerns current capacity, the 15-hour or earnings test, ability to increase earnings, permanent impairment status, the application form or a liability issue. Each issue needs different evidence.
For a work capacity decision, SIRA says insurer review is optional and the worker may proceed directly to PIC. If optional insurer review is requested, the insurer has 14 days to respond. A PIC application filed before the notice period expires may temporarily stay the decision. A liability or medical dispute is not a section 43 work capacity decision and can require a different pathway.
Illustrative preparation example before week 130
An ordinary worker with a physical injury is approaching the end of the second entitlement period. The insurer ledger shows 120 aggregate paid or payable weeks. The worker currently works 16 hours and earns $300 gross each week, supplies the approved continuation application and provides medical and vocational evidence about why earnings cannot be increased indefinitely.
At the 1 July 2026 indexed amount, the hours and gross earnings are above the stated minimums, but those facts alone do not establish continuation. The insurer must still apply every section 38 requirement, the current indexed amount and the correct capacity and PIAWE evidence. The figure is indexable and must be rechecked for later periods. This example illustrates preparation only and does not predict entitlement.
Official sources
Sources are listed for transparency. This guide is general information only and is not legal advice.
Frequently asked questions
Do weekly payments always stop after 130 weeks?
No. They stop unless the worker satisfies section 38 or an applicable special provision. The test depends on work capacity, hours, earnings, long-term earning ability, high-needs status and, for some primary psychological injury claims, WPI.
What is the current earnings minimum in section 38?
SIRA’s current Benefits Guide states that the indexed amount applying from 1 July 2026 is $251 per week. The figure is indexed, so it should be checked again for later dates.
Does every worker need to submit the continuation form?
The approved-form written application is part of the current-capacity pathways in sections 38(3) and 38(3A). Section 38(2) contains the separate route for a worker assessed as having no current work capacity likely to continue indefinitely.
Are primary psychological injury claims treated the same way?
No. Claims notified or made from 1 July 2026 have separate sections 39A and 39B limits linked to WPI and transitional dates. The ordinary section 38 analysis is not enough.
Can the insurer reassess entitlement later?
Yes. Section 38 says entitlement may be reassessed at any time, subject to the Act’s special rules for workers with highest needs.
Need help applying this to a live claim?
If an insurer has issued a notice, scheduled an assessment, reduced payments or refused treatment, consider obtaining advice about the documents and any applicable review steps.