Published: 28 July 2020
Author: Stringer Clark TAC Law team
TAC Loss of Earnings Benefits and returning to work after a road accident
When you have been injured on the road it is important to know that you can claim loss of earnings. It is also vital to know where you stand with your employer when it comes to getting back to work safely after the accident.
Injured on the road? Did you know you can claim for loss of earnings? It is also vital to know where you stand with your employer to assist a safe return to work.
Loss of Earnings Benefits
The Transport Accident Act sets out the law dealing with Transport Accident Commission (TAC) claims and provides for loss of earning benefits to be paid to “earners” who are at least 15 years old who have an accepted TAC claim.
Full-time employment is not a requirement of being able to claim loss of earnings, and in some cases, even if you were not working at the time of the accident, the TAC may pay loss of earnings benefits. For the first five days of the injury, you or your employer have to cover your loss and from there, the TAC will pay loss of earnings up to a maximum of three years (unless the accident injuries are assessed with an impairment of more than 50 per cent, which is rare). In those cases of severe injury where a 50% whole person impairment is assessed, the TAC may pay loss of earning benefits until the normal retirement age.
In all cases, your doctor will need to provide a certificate of capacity that states your capacity to work is affected because of your accident injuries.
How is the dollar value of your payments calculated?
The TAC averages out your pre-accident weekly earnings from the 12 months prior to the accident, then pays 80% of that amount, with a cap of $1,430 per week. The maximum amount payable changes from year to year and current maximums can be found on the TAC website: Indexation of benefits schedule.
You may be entitled to a higher rate if you have dependants.
As mentioned above, you don’t have to be a full time worker to get a payment. If you were on less than full time hours you will still receive the 80% of your average wage.
If you have used leave entitlements for periods off work due to your accident injury, the TAC will apply the same formula of 80% of your leave pay to reimburse you for the leave taken.
Returning to work
Unlike the workers’ compensation scheme, the law governing road injuries is completely silent when it comes to the obligations of both employees and employers about return to work and this can lead to uncertainty for everyone.
What will likely happen is that when your doctor believes you are ready to try going back to work and this is stated on a certificate of capacity, the TAC will get in contact with your employer to try and arrange modified duties/hours in accordance with your certificates.
The TAC can offer financial support to an employer by funding necessary equipment or modifications in the workplace, as well as subsidising wages. They can also arrange vocational rehabilitation services to perform a worksite assessment and prepare a return to work plan that you, your employer and your doctor will need to sign off on before you start. In some cases, the TAC can also assist you with travel to and from work.
However, there are many reasons why not all employers can or may be able to continue to provide modified duties on a long-term basis to employees injured in a road accident. In these circumstances, the TAC scheme does not contain any measures to protect employment or set out employer obligations to assist in the return to work process. You do however have rights both under employment and anti-discrimination laws.
The TAC can assist with retraining, to help you get a new job if you can’t return to the job you had before the accident. Retraining can be in addition to payment of loss of earnings benefits, keeping in mind that these benefits are only payable for a maximum of three years.
If your accident injuries are keeping you from returning to work, your first step should be to seek advice from a TAC lawyer, which is a completely free consultation and assessment at Stringer Clark.
This article was first published on 7 August, 2018 and updated on July 28, 2020.