Who are exempt workers?
Exempt workers refers to types of workers who were not affected by the 2012 and 2015 amendments to the Workers Compensation Acts and includes:
- Police officers
- Fire fighters
- Workers injured while working in or around a coal mine
These workers have different rights and entitlements compared to your average NSW worker.
Exempt workers have retained the right, in addition to the rights to weekly payments of compensation, medical expenses and lump sum compensation for permanent impairment, to claim pain and suffering provided their level of impairment exceeds certain levels. A claim for pain and suffering is no longer available to the average NSW worker regardless of their level of impairment.
This article will explain exempt workers entitlements to weekly payments.
If due to your injury and in accordance with a medical certificate you are totally or partially incapacitated for work, then you are entitled to be paid weekly benefits calculated as:
- Average weekly earnings (AWE): The average amount received per week during the last 12 months of your employment, including overtime and shift allowance.
- Current weekly wage rate (CWWR): Where you are employed under an agreement that fixes your weekly rate. If no such agreement exists, the CWWR is calculated to be 80% of your average weekly earnings.
Upon receipt of your claim, the insurer has 21 days to decide whether to accept liability and start making weekly payments or deny liability. Note that an insurer can commence making provisional weekly payments for up to 12 weeks, and payment of medical expenses up to $7,500, extending the time required to determine liability.
When you are unable to work
The first 26 weeks
For workers paid under an award, industrial or enterprise agreement, your weekly wage rate is calculated at 100% of your CWWR not including overtime, shift work, payments for special expenses and penalty rates.
If not employed under the above, your weekly rate is calculated at 80% of your average weekly earnings (AWE) including regular overtime and allowances.
Beyond 26 weeks
Unfortunately for some workers, after 26 weeks their weekly rate drastically reduces to the following:
- A rate set under Legislation – the current rate until 31 March 2019 is $504.60; or
- 90% of your average weekly earnings if less than $504.60.
However, if you have a dependent spouse and/or children, additional allowances are paid.
When you are able to return to work
You may be entitled to top-up pay if your income is less than what you earned before the injury. Top-up pay is the difference between your average weekly earnings (AWE) including overtime, shift work and penalty rates and the amount you are now earning. However, the amount of top-up pay cannot exceed the amount you would receive if you were totally incapacitated, that is $504.60 or a lesser amount.
For instance, if your AWE before the injury was $1,200 and now are earning $1,000, you would be entitled to continue receiving $200 known as a top-up payment from the insurer.
During the first 26 weeks, if you are able to return to work, but unable to earn the same amount, you are entitled to be paid:
- Your AWE minus your actual earnings (see above); OR
- The weekly amount that you would be paid if totally incapacitated (see when you are unable to work above).
If CWWR is more than the maximum weekly compensation of $2,145.30, until 31 March 2019 the insurer will use that figure to calculate your entitlements.
After 26 weeks, your weekly payments are capped at the statutory rate which until 31 March 2019 is $504.60. The weekly payment amount is calculated as your AWE minus your actual earnings. See the example above.
Partial capacity to work but no suitable employment available
If no suitable work is provided, you are entitled to receive a weekly payment for 52 weeks while you look for alternative employment.
During the first 26 weeks, including any period of total incapacity, you may receive your current weekly wage rate (CWWR).
From 27 weeks to 52 weeks, you may receive, whichever is higher:
- 80% of your CWWR; or
- The statutory rate which until 31 March 2019 is $504.60.
After this, if you continue to have capacity for work, you may be entitled to top-up pay.
Your livelihood is important, so if you have been injured at work you should get timely advice from an experienced lawyer about your rights and entitlements. Our friendly team has many years of experience in workers compensation and other personal injury claims.