Entitlement to weekly compensation after 26 weeks of partial incapacity
42 Entitlement to weekly compensation after 26 weeks of partial incapacity
If a worker is entitled to receive weekly compensation under this section for a period, the worker is entitled to receive weekly compensation equal to the difference between the weekly amount the worker is being paid for working or could earn in reasonably available suitable employment and—
if 100% of the worker’s average pre-incapacity weekly earnings is less than the statutory floor—100% of the worker’s average pre-incapacity weekly earnings; or
if the relevant percentage of the worker’s average pre-incapacity weekly earnings is less than the statutory floor—the statutory floor; or
if the relevant percentage of the worker’s average pre-incapacity weekly earnings is more than the statutory ceiling—the statutory ceiling; or
in any other case—the relevant percentage of the worker’s average pre-incapacity weekly earnings.
For this section, the relevant percentage is—
if the worker is not working or works 25% of the worker’s average pre-incapacity weekly hours or less—65%; or
if the worker is working more than 25% of the worker’s average pre-incapacity weekly hours but not more than 50%—75%; or
if the worker is working more than 50% of the worker’s average pre-incapacity weekly hours but not more than 75%—85%; or
if the worker is working more than 75% of the worker’s average pre-incapacity weekly hours but not more than 85%—95%; or
if the worker is working more than 85% of the worker’s average pre-incapacity weekly hours—100%.
Examples
1 Bronwyn injures herself at work in her full-time job. Bronwyn’s injury causes her to become partially incapacitated and prevents her from fulfilling her normal duties over normal work hours for 28 weeks. In those 28 weeks, Bronwyn works, on average, 50% of her pre-incapacity weekly hours. Bronwyn returns to normal duties for 4 weeks but suffers from a relapse, becoming partially incapacitated again and staying that way for a further 7 weeks. Bronwyn’s employer is required to pay Bronwyn her wage for the time she has worked during the 35 weeks of partial incapacity. Bronwyn is also entitled to the following weekly compensation:
weekly compensation equal to the amount she has lost in wages for the first 26 weeks of reduced hours work;
weekly compensation for the remaining 9 weeks of working on reduced hours equal to the difference between the weekly amount Bronwyn is being paid for working and the statutory ceiling (because Bronwyn is earning more than 150% of AWE at the time the compensation is being paid).
2 Nicholas works full time in a job that pays him an amount equivalent to the statutory floor. Nicholas injures himself at work and is totally incapacitated for 6 weeks and partially incapacitated for 26 weeks. Nicholas is advised he could work on light duties for 3 weeks of the partial incapacity period. However, suitable employment is not provided for this period. Nicholas’ condition improves to the point where he returns to work on a part-time basis and works 20% of his average pre-incapacity hours for 10 weeks. Nicholas’ condition further improves to the point where he works on average 60% of his pre-incapacity weekly hours for the last 13 weeks of partial incapacity. Nicholas’ entitlements are as follows:
the following amounts for wages (paid to Nicholas by his employer) for the time he has worked during the 35 weeks of partial incapacity:
for the first 3 weeks when Nicolas suffers from partial incapacity but is capable of undertaking suitable work and is not provided with it—nothing;
20% of his normal pre-incapacity earnings for the next 10 weeks of partial incapacity;
60% of his normal pre-incapacity earnings for the last 13 weeks of partial incapacity;
the following amounts for weekly compensation:
for the initial 6 weeks he is totally incapacitated—compensation equal to his average pre-incapacity weekly earnings;
for the first 3 weeks of partial incapacity when he is capable of undertaking suitable work but is not provided with it—100% of his normal pre-incapacity earnings;
for the next 17 weeks of partial incapacity—the difference between the average weekly amount that Nicholas is paid for working and his pre-incapacity earnings;
for the remaining 6 weeks—the difference between the statutory floor (because Nicholas is paid at the same rate as the statutory floor) and the amount that Nicholas is paid for working.
For this section, in working out the average weekly amount the worker could earn, consideration may be given to the following:
suitable employment that the worker unreasonably rejects;
suitable employment that the worker obtains but unreasonably discontinues.
In this section:
statutory ceiling, in relation to an amount, means 150% of AWE at the time the amount is to be paid.
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