Procedural Direction PIC5 – Schedule of Earnings

Introduction

1.    This Procedural Direction concerns the requirements around the preparation and lodgment of the following:

(a)   a schedule of earnings in proceedings in the workers compensation division and proceedings in the motor accidents division concerning claims made under the Motor Accidents Injury Act 2017 (the 2017 Act), and

(b)   a schedule of damages concerning claims made under the 2017 Act and the Motor Accidents Compensation Act 1999 (the 1999 Act).

Preliminary

2.     This Procedural Direction is made by the President under section 21 of the Personal Injury Commission 2020(the PIC Act).

3.     The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.

4.     Nothing in this Procedural Direction prevents the President or a member directing a party to take any appropriate step in proceedings.

5.     This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).

Applicable legislation and rules

6.     Parties should be familiar with the following provisions:

(a)    Div 2 of Pt 3 of the Workers Compensation Act 1987 (the 1987 Act);

(b)    Div 3.3 of Pt 3 and Sch 1 of the  2017 Act;

(c)    Parts 3 and 4 of the Motor Accident Injuries Regulation 2017 (the 2017 Regulation);

(d)    Chapter 5 of the 1999 Act, and

(e)    rules 68, 100, and 115(4) of the PIC Rules.

Requirement for a schedule of earnings

7.     If the amount of weekly compensation/weekly payments of statutory benefits is in dispute you must complete a schedule of earnings in the approved form. When lodging a reply to an application, if the lodging party does not agree with the amounts stated in the schedule of earnings attached to the application, it should provide full details of the amounts it says are correct.

8.     It is inappropriate for any party to state “not known” or “to be provided” in relation to earnings or earning capacity.

Proceedings in the workers compensation division

9.     The following Commission forms in the workers compensation division contain a schedule of earnings:

(a)    Application for Expedited Assessment;

(b)    Application to Resolve a Dispute;

(c)    Reply to Application to Resolve a Dispute, and

(d)    Wages Schedule.

10.   There are two alternative schedules of earnings in the forms:

(a)    Schedule of Earnings (non-exempt workers) – Part A, and

(b)    Schedule of Earnings (exempt workers) – Part B.

11.    Each schedule has a table detailing the period and amount of weekly compensation in dispute. If the claim is a continuing claim (beyond the date of the preparation of the schedule) insert the date on which the entitlement period commences and add “and continuing”.

12.    If the applicant is an exempt worker with dependants who rely on the applicant for support, there is a single table that needs to be completed in the schedule of earnings.

Schedule of earnings (non-exempt workers)

13.    For non-exempt workers, the Schedule of Earnings is separated into three entitlement periods:

(a)    “first entitlement period”, being the aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which weekly compensation has been paid or is payable to the worker (ss 32A, 36 of the 1987 Act);

(b)    “second entitlement period”, being the aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which weekly compensation has been paid or is payable to the worker (ss 32A, 37 of the 1987 Act), and

(c)     the period “after 130 weeks”, being continued entitlement after the expiry of the second entitlement period, if special requirements are met (s 38 of the 1987 Act).

14.    The amount to be claimed in the entitlement periods cannot exceed the maximum under s 34 of the 1987 Act

15.    In each entitlement period there are different methods of calculating entitlements to weekly compensation. The methods are contained in ss 36, 37 and 38 of the 1987 Act as those legislative provisions existed at the relevant time. Familiarity with the applicable definitions in s 32A of the 1987 Act and Sch 3 to the 1987 Act is essential to determining which method to apply.

16.    The main differences in the methods to apply concern the calculation of a worker’s pre-injury average weekly earnings (PIAWE):

(a)     for injuries received before 26 October 2018, PIAWE means the average of the worker’s ordinary earnings during the relevant period expressed as a weekly sum. Ordinary earnings are determined with reference to s 44E of the 1987 Act, as it stood prior to the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). In determining ordinary earnings, regard must be had to the worker’s base rate of pay, actual earnings paid or payable, and the monetary value of non-pecuniary benefits in respect of a week. Overtime and shift allowance payments are only included in the calculation of PIAWE for the purpose of the first 52 weeks of weekly payments (see s 44C–44I and Sch 3 of the 1987 Act, as it stood prior to the 2018 amending Act);

(b)     for injuries received on or after 26 October 2018, but before 21 October 2019, PIAWE means the average of the worker’s ordinary earnings during the relevant period expressed as a weekly sum. Overtime and shift allowance payments are permitted to be included in the calculation of PIAWE, and

(c)     for injuries received on or after 21 October 2019, PIAWE means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury during the relevant earning period. Gross earnings include wages, overtime and shift allowance payments, commission and piece rates, and the cash value of a non-monetary benefit that the worker no longer has the use of after injury (see Sch 3 of the 1987 Act).

17.    Where a worker was, at the time of injury, under the age of 21 years, or an apprentice, or working under a contract where s/he was required to undergo training, instruction or examination in order to become qualified to carry on an occupation, and but for the injury would have been entitled to increments in earnings at certain ages or stages, regard should be had to Sch 3 of the 1987 Act as in force at the relevant time.

18.    Where a worker was, at the time of injury, employed by two or more employers:

(a)    for injuries before 21 October 2019, regard should be had to Sch 3, Items 2–8 of the 1987 Act as it stood prior to the 2018 amending Act, and

(b)    for injuries on or after 21 October 2019, the average weekly earnings from each job are to be added together to determine the worker’s pre-injury average weekly earnings.

Schedule of earnings (exempt workers)

19.    The references to legislation in this part concern the law as it stood prior to the commencement of the Workers Compensation Legislation Amendment Act 2012.

20.    The following matters are relevant:

(a)     the weekly amount that the worker would probably have been earning but for the injury, including the earnings of comparable employees (s 40(2)(a) of the 1987 Act);

(b)     the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after injury (s 40(2)(b) of the 1987 Act);

(c)     the worker’s current weekly wage rate (s 42 of the 1987 Act), and

(d)     the relevant wage in occupations the worker is able to pursue.

21.    The first three items in the paragraph above are referred to in the schedule of earnings. The fourth item in the paragraph above is relevant to circumstances where the worker is not in employment or where the worker’s actual earnings are not an accurate measure of his or her earning capacity.

22.    For the first 26 weeks of total incapacity, the weekly payment of compensation is the amount of the worker’s “current weekly wage rate” (s 36 of the 1987 Act). After the first 26 weeks, weekly payments of compensation during total incapacity are calculated in accordance with s 37 of the 1987 Act.

23.    For periods of partial incapacity, weekly payments of compensation are calculated in accordance with ss 38 and 40 of the 1987 Act.

24.    The most common approach to calculating the reduction in a worker’s earnings is set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, at 529–530.

25.    The amount to be claimed for any period of total or partial incapacity cannot exceed the maximum under s 35 of the 1987 Act.

26.    If a worker is not in employment or if a worker’s actual earnings post-injury are not an accurate measure of his or her earning capacity, it will be necessary to assess his or her ability to earn in suitable employment in the labour market reasonably accessible to the worker (s 43A of the 1987 Act).

Proceedings in the motor accidents division

Schedule of earnings under the 2017 Act

27.    A schedule of earnings is required for claims arising under Div 3.3 of Pt 3 of the 2017 Act, that is weekly payments of statutory benefits to injured workers. Schedule 1 of the 2017 Act provides relevant definitions for terms contained in that division.

28.    There are three entitlement periods for weekly payments:

(a)     the first entitlement period (the first 13 weeks after motor accident);

(b)     the second entitlement period (weeks 14-78 after motor accident), and

(c)     after the second entitlement period (after week 78).

29.    In each entitlement period there are different methods of calculating entitlements to weekly payments of statutory benefits. The methods are contained in ss 3.6, 3.7 and 3.8 of the 2017 Act. Familiarity with the applicable definitions in Sch 3 to the 2017 Act is essential when preparing a schedule of earnings.

30.    There are minimum and maximum statutory benefits amounts that apply. The maximum statutory benefits amount is specified in section 3.9 of the 2017 Act, and is indexable on 1 October each year. The minimum statutory benefits amount is prescribed by cl 7 of the 2017 Regulation to be 2.5% of the maximum statutory benefits amount.

31.    A schedule of earnings must be completed and attached to any application in which entitlement to weekly payments, or statutory benefits are in dispute, including in claims for damages, miscellaneous claims, and merit review matters.

Schedule of damages under the 1999 Act

32.    A schedule of damages must be provided by the parties in the application and reply in respect of any claim for damages.

33.    The schedule must set out the quantum of any heads of damage in dispute, including, but not limited to:

(a)     non-economic loss;

(b)     past economic loss;

(c)     future economic loss;

(d)     past superannuation;

(e)     future superannuation;

(f)      past treatment;

(g)     future treatment;

(h)     past gratuitous care;

(i)      future gratuitous care;

(j)      past paid care;

(k)     future paid care;

(l)      any other matters claimed.

Schedule of damages under the 2017 Act

34.    A schedule of damages must be provided by the parties in the application and reply in respect of any claim for damages.

35.    The schedule must set out the quantum of any heads of damage in dispute, including, but not limited to:

(a)     non-economic loss;

(b)     past economic loss;

(c)     future economic loss, and

(d)     any other matters claimed.