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When are you on weekly payments?

The maximum amount that can be paid a worker by way of weekly payments is limited. The current “prescribed amount” is $212,980.00. This seems like a lot of money, and it is, unless you don’t fully fully recover from your injury, or take a long time to get better. If a worker is paid, say, about $60,000 per year gross, he or she has about 3.5 years maximum on weekly payments ($212,980 divided by $60,000 = 3.55 years).

Serious injuries, such as those to the spine, or to a major joint (eg to the hip, knee or shoulder), usually have a lengthy work-up period before a surgeon will offer surgery (12 – 18 months) and a lengthy convalescence following surgery. Sometimes revision surgery is required, further lengthening the process. The more severe an injury, the longer healing and treatment will take.

Often, during the course of such a claim, a worker will be required to perform “light” or alternate duties with his or her employer. For example, a manual worker my be taken off the tools and given work in the office. An example would be a roof plumber who  undergoes a hip replacement and is trained into alternative lighter to work as a Health and Safety Officer.

However, problems arise where a worker is given a lighter job, expecting to return to his or her normal occupation after recovering from surgery. A couple of years pass with the worker is completing all the tasks required of the alternative role. At about the 2.5 year mark the surgeon says that the operation has been successful, but not to the extent that the worker will be able to return to manual work. Bad luck. Meanwhile, the employer “restructures” and  decided to cull the office staff, and you-know-who is the first cab off the rank.  We are now at the three year mark, and since the worker cannot medically return his or her old manual job, and the employer is no longer offering alternative duties, the worker decides to claim compensation, until he or she can be rehabilitated into a new line of work.

The problem is that all the time the worker was performing alternative work he or she was on comp (not wages), and consequently there are  no weekly payments left to survive on, whilst looking another occupation.

This is roughly the type of factual scenario dely with in an appeal from a decision of an Arbitrator in  Glenn v Compass Group [2014] WADC 86. It appears that  this decision is authority for the proposition that anything paid by an employer, outside a return to normal duties, is a payment of compensation, and not wages. Workers watch out, because even when you are working full time at a real alternative  job, you could still be on comp and eating away  your limited right to weekly payments. The decision is being appealed, we’ll keep you posted.

One implication concerns a worker’s “Duty to Mitigate”. If returning to work doesn’t involve  payment of wages, then how is a worker mitigating his or her loss by participating in a return to work scheme?

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