3.5 Impacts on weekly payments

A worker’s entitlement to continue to receive weekly payments is linked to:

their capacity for work
current weekly earnings, leave and other payments
for claims reaching 130 weeks on or after 31 March 2024, their level of whole person impairment
their ability to return to suitable employment and
their reasonable effort, cooperation and participation in returning to work.

3.5.1 Work capacity

Current work capacity Under the legislation, unless inconsistent with the context or subject-matter — current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment, declared training program (CWC Current Work Capacity) means that as a result of their work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment. injury, a worker is presently unable to return to their pre-injury employment (1) In this Part — pre-injury employment means the employment of a worker in a position which is the same as or equivalent to the position in which the worker was employed before receiving the injury but is able to return to work in suitable employment.

No current work capacity (NCWC No Current Work Capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment) means that as a result of their injury, a worker is presently unable to return to work either in pre-injury employment or in suitable employment.

Certificates of Capacity might not provide enough information to determine if a worker is incapacitated for their pre-injury employment. Agents can use other medical information, such as reports from independent medical examiners or treating medical practitioners.

See: Medical exams, certificates & reports

WIRC s5

AC s5

3.5.2 Suitable employment

Suitable employment means employment in work for which the worker is currently suited (whether or not that work is available), having regard to:

the nature of the worker’s incapacity and the details provided in medical information including the Certificate of Capacity Ongoing certificate is issued for up to 28 days and can be issued by a: medical practitioner, osteopath, physiotherapist, chiropractor.
the nature of the worker’s pre-injury employment
the worker’s age, education, skills and work experience
where the worker lives
any plan or document prepared as part of the return to work process
any OR Occupational Rehabilitation services that are provided.

The availability of suitable employment is not relevant to whether the worker is capable of doing the work.

Determine suitable employment

To determine what suitable employment a worker is capable of Agents must consider:

what capabilities the worker has to carry out work including the nature of the worker’s incapacity, pre-injury employment and details in available medical information
what are the attributes of a particular job
would the worker’s residual capacity be enough for them to do a particular job taking into account the worker’s pre-injury employment, age, education, skills and work experience
where the worker lives.

WIRC s5

AC s5

3.5.3 Current weekly earnings

A worker’s current weekly earnings (CWE) are relevant to calculating their weekly payment entitlements.

For claims made on or after 5 April 2010, a determination can be made not to increase the weekly payment amount if there has been a reduction in CWE for reasons unrelated to the worker’s incapacity. A determination can also be made not to pay compensation in the form of weekly payments.

See: Reduction in CWE

When a worker is incapacitated for their pre-injury duties but is able to carry out other employment, their CWE comprises the earnings from that other employment.

Accumulated leave entitlements are not CWE.

See: Annual leave & long service leave

CWE can be with existing or new employer

CWE can include earnings from:

working modified pre-injury duties at reduced hours or alternative duties
working in a completely new job, possibly with a new employer
self-employment.

If a worker with two or more jobs is injured and is incapacitated from working in only one of those jobs, CWE comprises the earnings from the other job/s.

Calculate CWE

CWE is usually calculated similar to a worker’s PIAWE.

If a worker’s base rate of pay is calculated on the basis of the ordinary hours worked, their CWE for the week comprises the total of:

their earnings for the ordinary hours worked that week
overtime and/or shift allowance Under the legislation, unless inconsistent with the context or subject-matter — shift allowance means an allowance or loading paid or payable for shift work or working on public holidays, Saturdays or Sundays paid or payable for that week and
piece rate amounts or commissions paid or payable for that week
any other amount paid for the performance work that the worker instructs the employer to apply or deal with on their behalf, except incentive-based payments or bonuses, loadings, monetary allowances or other amount not included in the base rate of pay.

If the worker does not have a base rate of pay, their CWE are calculated based on their actual earnings (includes payments for overtime, shift allowances, piece rates or commissions) for that week but this does not include:

incentive based payments or bonuses
loadings
monetary allowances
other separately identifiable amount paid as a non-pecuniary benefit (NPB Non-pecuniary Benefit). NPB retained or received are deducted from the weekly payment amount as a deductible amount.

See: Deductible amount

CWE from self-employment need to be declared, and include earnings from sharing economy activities, e.g. Uber, Deliveroo.

The worker should provide supporting documentation to the Agent to assist the Agent in determining their CWE from self-employment. These documents may include:

Time sheets and pay slips for the work performed for the period.
Time sheets and pay slips for the work performed by others involved in the business.
Business Activity Statements, financial statements, reports and profit and loss statements for the business, or if not available, documentation evidencing the takings and expenses of the business for the period.
Documents, such as bank statements, detailing any distribution or profit paid to the worker or anyone else from the business, or from the trust relevant to the business.
Documents regarding any loans in relation to the business and the repayment of these loans during the period.

WIRC s185

AC s114(2A)

WIRC s152

AC s5B

Note: GST Goods and Services Tax should not be included in PIAWE or CWE, as it is a liability passed on to the ATO Australian Tax Office, rather than income to the worker.

JobKeeper payments

If an eligible worker is still working for an eligible employer, whether in a full or reduced capacity or performing modified/alternate duties, they may be eligible to receive the JobKeeper payment.

This payment is not considered current weekly earnings (CWE) within the meaning of s152 of the Workplace Injury Rehabilitation and Compensation (WIRC) Act for the purposes of calculating a worker’s top up payments.

If a worker is totally incapacitated for work and currently in receipt of weekly compensation, they will not be eligible for these payments.

ITA s17.5 (a)

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