For the purposes of the 40 per cent loss of earning capacity threshold in s 134AB(38)(f)(ii) of the Accident Compensation Act 1985 (Vic), a worker's pre-injury earning capacity is to be assessed by reference to the worker's physical and mental capacity and willingness to work, not merely the actual hours worked or the availability of work at the pre-injury workplace. A worker who demonstrates capacity and willingness to work hours significantly exceeding their average actual hours may satisfy the threshold even where actual earnings would not. Common law damages principles do not apply to this gateway assessment.
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