Section 38 NSW: protecting weekly payments after 130 weeks

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.

The practical question is not only “what did the insurer decide?” but “which statutory condition do they say is no longer met?” A worker may be told payments are changing because of capacity, because of actual earnings, because of suitable employment assumptions, or because the insurer says the worker can earn more than they presently earn. Those are different problems and they need different evidence responses.

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. If the insurer uses “no current work capacity” language, treat that as a section 40 legal test (not a generic phrase) and compare your records against the section 40 no-current-work-capacity test.

Useful certificates and specialist letters usually explain what you can do, for how long, with what breaks, and why repeated attendance or production targets may not be sustainable. If a doctor supports restricted work only, ask them to comment on lifting, sitting, standing, travel, concentration, attendance reliability, and whether symptoms worsen after consecutive shifts. That detail often matters more than a bare conclusion.

Step 3: test whether the insurer's suitable work assumptions match reality

Post-130-week disputes often turn on theoretical jobs. Ask whether the insurer has identified work that is actually available to you, compatible with your restrictions, and reasonably sustainable in travel, hours, and productivity. Compare any vocational report with your treating evidence, prior duties, transferable skills, and the practical barriers you face in the labour market.

If the insurer mixes section 38 language with assumptions about current work capacity, review the interaction with the section 41 current-work-capacity guide and the suitable employment guide. This helps separate a genuine statutory issue from an over-optimistic paper assessment.

Step 4: 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.

Check payslips, overtime history, shift penalties, allowances, post-injury earnings, and any periods of partial return to work. A wrong wage figure can make a section 38 outcome look inevitable when it is actually based on a flawed payment calculation. It is often worth building one evidence pack that deals with both eligibility and arithmetic instead of splitting them into separate, inconsistent responses.

Step 5: 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 map your submission sequence against the section 44 review timeline before escalating through the Personal Injury Commission process with a defined evidence calendar.

Time limits and review steps can depend on the type of decision and the pathway used. That is why it helps to keep a dated file of insurer notices, certificates, wage records, rehabilitation reports, and your written requests for reasons or reconsideration. If a payment reduction is imminent, get advice quickly rather than waiting for several reduced pay cycles to pass.