NSW workers compensation blog
Section 40 NSW: no current work capacity test after 130 weeks
Section 40 is where many long-running weekly payment claims are won or lost. Insurers often use this test to stop payments after 130 weeks by asserting you can do some form of work. The issue is not theoretical job ideas — it is whether you have current, realistic capacity in the real labour market.
1) Separate section 38 timing from section 40 capacity criteria
Section 38 sets the post-130-weeks payment framework, but section 40 is usually the decisive filter for whether payments continue at all. Start by matching the insurer reasoning against the statutory tests described in the section 38 guide so you can challenge the correct legal basis.
2) Force specificity: no current work capacity means practical, not hypothetical
Insurer vocational reports often list generic roles without addressing your pain pattern, medication side effects, flare frequency, travel tolerances, and attendance reliability. Ask treating doctors to respond directly to those practical constraints and explain why any suggested role is not sustainably available to you.
3) Build evidence for likely ongoing incapacity, not just today's symptoms
Section 40 disputes fail when evidence only describes current restrictions. Add longitudinal material: repeated treatment history, failed return-to-work attempts, specialist prognosis, and consistency between clinical records and functional outcomes over time.
4) Escalate quickly through work-capacity review and PIC strategy
If weekly payments are reduced or stopped, request reasons immediately and run the section 44 review sequence in parallel with preparation for Personal Injury Commission proceedings. Delay usually makes arrears and evidentiary gaps harder to recover.
5) 14-day section 40 action plan before further payment loss
Days 1-3: obtain full insurer reasons, vocational assumptions, and relied-upon medical material. Days 4-7: update treating evidence to address sustainable attendance, task tolerance, medication side effects, and transport limits. Days 8-11: rebut suggested roles against actual labour-market availability and your restrictions. Days 12-14: finalise internal review submissions and PIC-ready evidence so the next pay cycle is not left to insurer assumptions.
Section 40 evidence checklist
- Insurer reasons identify section 40 criteria, not only generic vocational conclusions
- Treating evidence addresses sustainable attendance, duties, and labour-market realism
- Longitudinal records support likely ongoing no current work capacity
- Review and PIC escalation milestones diarised before next payment cycle
If the insurer says you have capacity you do not realistically have, request a free claim check to pressure-test the decision before payment loss compounds.