Insurers have often faced difficulties when seeking to bring weekly benefits to an end after 130 weeks where a worker remains employed but works fluctuating or reduced hours.
The recent decision in Macarthur Fresh Wholesalers Pty Ltd v Deitz [2026] NSWPICPD 23 has provided further guidance on the operation of section 38(3)(c) of the Workers Compensation Act 1987 (NSW). In a welcome outcome for insurers and employers, the Appeal Panel overturned the original decision and confirmed that a worker's entitlement to weekly payments after 130 weeks requires a forward looking assessment of their capacity to increase earnings, not merely a review of their current earnings position.
For employers and insurers, the decision provides useful guidance on the evidence that insurers should obtain when assessing a worker's ongoing entitlement.
