Workers in NSW* who suffer a loss of wages as a result of a workplace injury may be able to claim weekly payments of compensation for loss of wages.
The amount that can be claimed is the difference between the amount you are earning (or are capable of earning) in a suitable duties position, and a percentage of your pre-injury average weekly earnings (PIAWE).
First entitlement period (weeks 1-13)
For the first 13 weeks you are entitled to claim up to 95% of your PIAWE.
Second entitlement period - weeks 14-130
During this period you can claim up to 80% of your PIAWE if you are working less than 15 hours a week. If you are working 15 hours a week or more, you can claim up to 95% of your PIAWE.
After the second entitlement period
If you are assessed with 21% whole person impairment (WPI) or more, you can claim up to 80% of your PIAWE.
Otherwise you will only be entitled to compensation if you meet the following "special criteria":
you have no current capacity for work; or
you are working at least 15 hours a week, earning at least $200 per week and the insurer is satisfied you could not increase your earnings by undertaking further work; and
that is likely to continue indefinitely.
Special compensation - may be payable if you have no other entitlement to weekly payments, are working at least 15 hours a week and you need time off for injury related surgery. A maximum of 13 consecutive weeks can be paid.
What is included in the calculation of PIAWE?
PIAWE is generally your pre-injury average weekly earnings for 52 weeks before your injury (or a shorter period if there was a change in your employment).
If you were injured on or after 21 October 2019, your PIAWE includes all earnings from all employment in that period.
For injuries between 26 October 2018 and 20 October 2019, your PIAWE will be the sum of your base rate of pay for ordinary hours, the value of some fringe benefits like a car and accommodation, commissions and piece rates and any overtime and shift allowance (if you would have continued to earn those but for your injury).
If you worked for more than one employer at the time of the injury, unless you have returned to work for one employer but not the other, your PIAWE will not include all earnings from both employers.
If you were injured before 26 October 2018, your PIAWE is the same as above but overtime and shift allowance are only included in the calculation for the first 52 weeks.
The PIAWE is indexed based on CPI increases on 1 April and 1 October each year provided that does increase your payment to more than you would have received in your pre-injury job.
Transitional provisions apply to workers injured before 1 October 2012.
What about superannuation?
There is no statutory compensation for your lost superannuation. This may only be recovered if you are eligible to make a separate damages claim.
When will my weekly payments end?
There are a number of other ways your weekly payments can end.
The 5 year cap - You cannot receive weekly payments for more than 260 weeks unless you are assessed with 21% WPI or more.
If you cease to reside in Australia (unless the Personal Injury Commission has certified that your incapacity for work resulting from the injury is likely to be permanent).
Retirement Age - If your injury was sustained before reaching the retirement age, weekly payments will cease on the first anniversary of reaching the retirement age. If your injury was sustained after you reached the retirement age, weekly payments cease one year from the date you were first incapacitated for work.
If you fail to comply with your injury management obligations or you refuse to submit yourself for medical examination arranged and paid for by the employer/insurer, your weekly payments may be suspended until you comply.
Contact us for more information.
*This information does not apply to coal miners and other exempt emergency services personnel who have different entitlements.
Click here for more information about benefits for police officers, paramedics and fire fighters.
DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment.
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