Subsections 19(4)(b)-(g) of the SRCA provide a basis for deeming an amount earned in suitable employment (AE) in circumstances where the client is not actually engaged in employment (or, while engaged in the labour market, nevertheless remains underemployed, see 32.2.2).
Such deeming is an important and legitimate claim management tool. It should be used carefully, having regard to the factors discussed below, but must be actively considered in all cases where incapacity payments are intended to be made. Furthermore, deeming an AE is a legitimate way of ensuring a focus on rehabilitation and (keeping in mind the factors discussed below and the definition in S4(1)) should be a potential goal of all RTW plans. Deeming should be actively considered at the time of formulating RTW plans and at the time of closure. Clients should be advised up front that deeming may be an outcome at the end of the plan.
In considering the client's AE, regard should be paid to the following provisions:
- S19(4)(b) deems an ability to earn where the client failed to accept an offer of suitable employment. The amount deemed is what the client would have earned in that employment:
- this provision may become relevant at the termination of a vocational rehabilitation program with a job-seeking component, where a client does not take up an offer from a potential employer, perhaps for personal reasons. While delegates may of course exercise discretion in compelling cases, client preferences for other work or perceptions that he/she could do better elsewhere, would not normally be considered a reasonable excuse for declining employment. (i.e. providing the employment is 'suitable'.)
- S19(4)(c) deems an ability to earn where the client, having accepted an offer of suitable employment , failed to engage or continue in that employment. The amount deemed is what the client would have earned in that employment
- this provision is most often relevant to cases where a client voluntarily discharges from the ADF. All such cases where an injured client discharges prior to being formally designated MEC4 fall into this class. The effect of 19(4)(c) in such cases is that incapacity payments can not be payable from the date of discharge, but are only payable from the date where medical evidence demonstrates a further deterioration in the condition
- See 20.20.1 which also deals with this topic.
- S19(4)(d) deems an ability to earn where the client received an offer of employment subject to completing a retraining program, and failed to complete the program. The amount deemed is what the client would have earned in employment after completing the retraining program
- S19(4)(e) deems an ability to earn where the client has failed to seek suitable employment. The amount deemed is what the client could reasonably be expected to earn in suitable employment, having regard to the state of the labour-market
- S19(4)(f) requires the Delegate to consider the reasonableness of the client's actions where S19(4)(b)-(e) apply, and
- S19(4)(g) directs the Delegate to consider any other relevant matter which may impact on the client's ability to earn and the operation of the deeming provisions.