Entitlement Periods for Income Maintenance Step-downs

Published: 25 January 2010

After having an entitlement to income maintenance for 13 weeks, injured workers have their income maintenance reduced to 90% of their average weekly earnings, and after another 13 weeks of entitlements, their income maintenance is reduced to 80% of their average weekly earnings.  What constitutes a week of entitlement for the purpose of these entitlement periods?

 

According to section 35(8) of the Workers Rehabilitation and Compensation Act 1986, each of the first two entitlement periods is defined as “an aggregate period not exceeding 13 weeks (whether consecutive or not) in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on account of that incapacity.”  This definition raises a number of points.

 

Firstly, it will be noticed that the periods are made up of an aggregate of 13 weeks and it is not necessary that they be consecutive.  Thus if a worker is only taking time off work due to their injury spasmodically, it may take several months before the aggregate of 13 weeks is reached so as to permit a step down in income maintenance. 

 

However, every week during which a worker does take time off for the injury will be counted towards the entitlement period.  This is so even if the worker has only been off work for an hour in a particular week.  The step-downs do not require the worker to have received the equivalent of 13 weeks’ worth of income maintenance.  All that is required is that the worker has an incapacity for work and is entitled to “the payment of compensation” on account of that incapacity.  Provided an amount of compensation is payable in a given week in respect of the incapacity for work, the week will count towards the aggregate.

 

If a worker needs a short period off work to, for example, attend a medical appointment, the worker could try to negotiate with the employer to make up the time rather than claiming income maintenance for the time off so that it will not count towards the aggregate of weeks for the entitlement period.

 

Another point to mention is that the periods are worked out on the basis of the worker having an “entitlement” to the payment of compensation, not on whether the worker has actually received the payment.  There is the potential for the step-downs to apply to a worker before they have received all of their entitlements for the entitlement period.  This might occur if there is a delay in claiming for the time off or if the Case Manager is aware that time off has been taken but is sorting out with the employer the exact amount of income maintenance that is payable to the worker.

 

Finally, the entitlement periods relate to the incapacity resulting from a particular compensable disability.  If a worker has returned to alternative duties and then suffers another injury at work, he or she will have a new claim, and an incapacity for work resulting from the new injury will attract a new entitlement period.  Time off work for the new injury will not count towards the entitlement period for the previous injury.  However, even where a worker has suffered another injury since being back at work, it is still possible that time taken off work is on account of the incapacity resulting from the first injury rather than the later one. 

 

So if you are in this situation of having more than one compensable disability at the same time, you will need to make it very clear to the Case Manager about which injury is causing you to take time off work, especially if you have been back at work for a while. This is necessary so that the payment of income maintenance will count towards the entitlement period for the right disability.

 

If the doctors are saying that the time off work is due to the combined effect of both disabilities, you will need to discuss with your Case Manager as to which disability the claim for income maintenance should be made against.