Does TAC cover wages?

by Road Accidents site | Mar 7, 2022 | Work

Does TAC cover wages?

Does TAC cover wages header

The TAC will pay income benefits following an accident in which you suffered an injury, if your ability to work has been impacted.

Whether that means you are not able to work at all or you are able to work some hours, but not what you were doing prior to the accident.

For the first 18 months after the accident, the TAC will pay loss of earnings benefits

Loss of earnings benefits are fortnightly payments made to a person who has suffered a loss of earnings in the first 18 months post accident (or alternatively, 18 months after an injury first becomes apparent).

From 18 months to 3 years, they will pay loss of earning capacity benefits

This is the different between what you were earning before the accident and what your capacity is to earn a wage post accident.

So if your post accident earnings are lower than what they were before the accident, the TAC can make income payments to you.

After three years, the TAC will cease making payment for loss of earnings

There is however one instance in which they will continue to pay loss of earnings and that is if you have been assessed as having a 50% or greater whole person impairment rating.

Being assessed as having a 50% whole person impairment rating is not common at all and is a very significant impairment rating.

This assessment (or if you have multiple injuries, assessments) usually occur if you pursue an impairment benefit claim where your whole person impairment rating is used to calculate your entitlements to lump sum compensation.

Not compensated for all of your lost wages

Unfortunately, after an accident and while in receipt of income payments from the TAC, you will not be compensated for 100% of your lost wages.

There will be a gap between your pre injury income and what the TAC will pay you.

Unfortunately, there is nothing that you can do about this because that is what the legislation says that the TAC are to pay to injured people who have a restriction in their ability to work.

Common law claim and lost wages

If you pursue a common law claim, wish you can read about here, you may be entitled to be compensated for loss of earnings.

So if your ability to work has been impacted and there is a gap between what the TAC were paying you by way of income payments, this can form part of your claim for loss of earnings under a common law claim.

If your ability to work into the future is likely to be impacted and this is supported by medical material, then you can also be compensated for this.

So here’s a basic example.

Say that had you not been injured you may have earned $100,000 a year with a probably yearly increase of 3% up until retirement age, but now you can only work at about 50% of your pre accident capacity at best.

In this instance then the gap between what you are likely to be able to earn now and what you were likely to be able to earn pre accident is what you can be compensated for.

However keep in mind that you will not be compensated dollar for dollar. So if you calculate your total loss of earnings to the date of retirement as $800,000, this is not the figure that you’ll be entitled to receive.

The loss of earnings payment you receive will need to be reduced as it takes into account the fact that you are receiving all of your lost income in one lump sum, rather than over many years.

It also takes into account something called vicissitudes.

The vicissitudes deduction is to take into account the risk that (in the circumstances that you did not sustain the work injury) earnings would not have continued until the assumed retirement age. For example, an intervening event such as illness or death may have meant you ceased work earlier that retirement age.

There will also a be claim for a modest amount claimable for the difference between net amounts received in weekly payments, versus the gross amount repayable (or deductible) to the insurer when a matter resolved. The matter of Fox v Wood allows you to claim the additional tax paid on the refundable payments.

Conclusion

If your ability to work has been impacted then the TAC will cover lost wages cost.

However they will not cover 100% of your lost wages and in most cases will only pay for up to 3 years post accident.

In a limited number of cases they will pay beyond three years if you have been assessed as having a 50% whole person impairment rating which is not very common at all.

If you pursue a common law claim for damages then you can potentially compensated for lost wages both to the date of settlement and potentially into the future all the way to retirement age.

TAC and returning to work

by Road Accidents site | Mar 4, 2022 | Work

TAC return to work

TAC return to work graphic

If you’ve been off work due to injury following a car accident, you’ve probably got a few questions regarding returning to work.

This page will outline what you know what you need to know in relation to a return to work.

When can you return to work?

This depends upon the opinion of your doctors.

Your doctors need to certify that you are able to return to work, either on a restricted basis or on an unrestricted basis which means a return to full pre injury employment.

For the purposes of your work capacity certification, the certificate of capacity is a very important document.

If you’ve been receipt of TAC income benefits for a period of time, you’ll be well aware as to what a TAC certificate of capacity looks like.

In relation to a possible return the work, you’ll see on page 2 of the certificate at the top there is a section for the medical practitioner to indicate what your capacity for work is.

The medical practitioner is asked to certify whether you have a capacity for full unrestricted work duties, modified duties or no duties at all.

So, in order to return to work after an accident, you should obtain from your medical practitioner a certificate of capacity that certifies you as having a capacity for some work.

If your medical practitioner is to certify you as having a capacity for some work with restrictions, the doctor needs to indicate what those restrictions are on the certificate.

For example, restrictions may be that you should not work full hours and should work perhaps a quarter of the hours that you normally would and work towards full-time employment.

Or restrictions may be to avoid lifting anything over 10 kg or avoid being on your feet for more than half an hour at a time.

There are a number of different possible restrictions that could be listed.

For the above reasons, it’s very important that your medical practitioners understand the work that you do, which includes making sure that they understand all of your duties that could potentially aggravate any injuries that you suffered in the accident so they can take these into account when certifying you.

Your medical practitioners (in addition to your employer) are the key people when it comes to considering a return to work after an accident.

If you think it’s appropriate, you can also organise for your employer to speak to your GP or physio or another person that has been treating you to discuss suitable duties and returning to work.

Return to work plans

In some cases the TAC may initiate a return to work program.

This can include a number of things.

They may organise for an assessment of the workplace to be conducted to see whether any modifications can be made or specialist equipment supplied to you.

The TAC may organise for a return to work specialist to assist you to return to work.

They may also in some cases organise for vocational rehabilitation services to be provided to people that cannot return to their old job because of an injury or injuries.

If you believe that you need assistance returning to work then it’s a good idea to contact the TAC and see whether there is any assistance they can provide to you.

Does the employer need to keep my job open for me?

Unfortunately, an employer is under no obligation to keep a job open for you if you are not able to work because of an injury suffered in a motor vehicle accident.

In relation to a WorkCover matter, if you suffered an injury and had an accepted WorkCover claim and you were unable to work, the employer would be obliged to offer you suitable duties for 52 weeks and if you could not work those suitable duties they would need to keep your job open for a minimum of 52 weeks.

Unfortunately, no such protection applies to those people that have a TAC claim.

However, this does not mean that an employer is just able to terminate an employee because they are not able to work following a motor vehicle accident.

Let’s say that you suffered an injury and you are unable to work for a period of time because of that injury.

If the employer was to terminate you, they should obtain medical material that comments on your ability to work and whether if there is a restriction on your ability to work, you might be able to return to unrestricted restricted duties in the future.

If the employer terminates you in circumstances that are harsh, unjust or unreasonable, you may be able to pursue an unfair dismissal application with the Fair Work Commission.

If you believe the dismissal is due to your injury and being away from work for a period of time, you may also be able to pursue what’s called a general protections application also through the Fair Work Commission.

If it appears that your employer is looking to terminate your employment after an accident, you should get legal advice as soon as possible.

What impact will a return to work have on TAC entitlements?

Returning to work will not impact your entitlement to the payment of medical and like expenses.

Whether that means GP attendances, physiotherapy treatment, medication or something else.

Your entitlement to the payment of income payments will cease if you have returned to full time employment earning what you were earning prior to the accident.

If you however are only able to return and work limited hours, you may be entitled to top up pay from the TAC and you should speak to your lawyer or alternatively the TAC if this applies to you.

In relation to an impairment benefit lump sum claim, returning to work will not have any impact on either your entitlement to claim an impairment benefit or the amount that you will be entitled to claim under this claim.

In relation to a common law lump sum claim, returning to work will not prevent you from pursuing a claim however it may impact what you can claim.

You can be compensated for two things under a common law claim. The first is pain suffering in the second is loss of earnings.

Obviously, if you return to work, the amount that you can claim by way of loss of earnings will be reduced both to the date that you settle the common law claim and also the fact that you have returned to work will be factored in to any potential loss of earnings in the future.

Conclusion

In order to return to work after a car accident you should be guided by your treating medical practitioners.

You should be certified on your certificate of capacity as being okay to return to work, whether that means being certified as having a capacity for modified duties or a capacity for full duties.

The TAC is in some cases able to assist people that have been involved in car accidents to return to work.

Returning to work will mean that if you return to full time employment earning what you were earning prior to the accident you will not be entitled to income payments from the TAC, however your entitlement to medical expenses and an impairment benefit will be unaffected by your return to work.

A common law claim may be impacted in that your return to work will be factored in to calculations regarding any loss of earnings.