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15.2 What does 'Deeming Able-to-Earn' mean?
The abbreviation 'AE' means 'Able-to-Earn'.
While NWE is a representation of what the client could earn but for the injury, the AE is a representation of what he/she is capable of earning after that accident. Although NWE is a relatively fixed amount (although subject to annual indexation) the AE may be a more variable amount contingent upon the client's actual circumstances, i.e. including the degree of physical recovery from injury, retraining status etc. Thus, 'Ability to Earn' in suitable employment may vary from week to week with changes in his/her medical condition and progress of the rehabilitation program. Delegates are responsible for ensuring that the AE is an accurate reflection of ability to work rather than mere employment status.
Delegates may at the termination of a successful rehabilitation program deem a client AE an amount the delegate is satisfied the client could earn in suitable employment, even though the client in fact remains unemployed (i.e. unemployed for reasons other than the effects of the injury). This of course affects the amount of compensation for incapacity paid to the client under S19(2), S19(3) or S132A.
It is sometimes asserted by some clients or their representatives that the SRCA does not contain any explicit 'deeming' provisions and that the delegate therefore has no power to make any such determination about AE. That assertion is clearly not correct, as the necessary legislative authority lies with S19(4). Subsection19(4) quite clearly states that 'the amount per week that an employee is able to earn in suitable employment' is a matter for determination by the delegate.
Nevertheless, operation of S19(4) requires the delegate to take into account a wide range of issues in determining an AE.
Detailed discussion of S19(4) provisions, processes and the practical matter of determining AE are included in Chapter 20.