The Law Handbook 2024

Chapter 10.3: Transport accident injuries 943 • With a current work capacity: 80 per cent of the difference between PIAWE and current weekly earnings or the difference between twice AWE and current weekly earnings, whichever is lesser. If the worker has not returned to work, 80 per cent of PIAWE to a maximum of twice AWE. After the second entitlement period (ss 163, 164, 165) After 130 weeks of weekly payments, payments can be terminated if the worker has a ‘current work capacity’ or is not likely to indefinitely have ‘no current work capacity’. Until a formal notice is served terminating those payments, the worker continues to receive weekly payments. If the issue is decided in the worker’s favour, weekly payments continue to be paid at these rates: • No current work capacity and no prospective work capacity (s 163): 80 per cent of PIAWE or twice AWE, whichever is the lesser. However, even if the worker does have a current work capacity, weekly payments may continue to be paid in the following circumstances. • Incapacity arising from surgery after expiry of second entitlement period (s 164): A worker needing surgery may in certain circumstances receive up to 13 weeks weekly payments even if weekly payments may have previously ceased. • Currently employed for at least 15 hours per week, earning at least $228 per week, and likely to continue indefinitely to undertake further or additional paid work (s 165): 80 per cent of the difference between PIAWE and current weekly earnings or the difference between twice AWE and current weekly earnings, whichever is the lesser. Superannuation (s 168) A worker is entitled to compensation in the form of superannuation contributions after 52 weeks of entitlement to, or payment of, weekly payments. Termination of weekly payments To receive weekly payments, a worker must: • participate in approved rehabilitation and voca­ tional re-education programs; • make every effort to return to work in suitable employment; and • participate in assessments of incapacity, rehabil­ itation progress and future employment prospects as required. If this is not done, weekly payments may be suspended or terminated (see generally ss 111–117). Under the 1985 Act, a worker receiving weekly compensation payments can have those payments stopped or altered by WorkSafe or a self-insurer if the worker: • has returned to work (s 183 (1)(c)(i)); however, the worker may still have a right to payments if there is a continuing loss of wages due to the effects of the injury; or • ‘ceases to reside’ in Australia (s 175); however, going overseas for a short time on holiday does not mean that the worker stops residing in Aus- tralia. A worker’s right to receive weekly payments may be suspended or terminated if the worker: • fails to provide certificates as to incapacity as well as a prescribed declaration as to employment every 28 days or within such extra time as Work- Safe or the self-insurer allows (s 167); or • is in prison (s 177); or • resigns from employment for reasons unrelated to his or her incapacity (s 185); or • is fired from employment for misconduct (s 185). Under section 183, WorkSafe or the self-insurer can give a notice to the worker that weekly payments will be reduced or terminated. The period of this notice depends on the length of time a worker has been receiving weekly compensation payments for a continuous period. If this period is less than 12 weeks, notice can be given immediately. If it is between 12 weeks and one year, 14 days’ notice is required. Weekly payments made for one year or more require a notice period of 28 days. Thirteen weeks notice is required where the sole ground of termination is the expiry of the second entitlement period. If payments are being made under section 164, these cease automatically at the end of the 13 week period or when incapacity from the surgery ceases, whichever occurs first. A notice of reduction or termination of weekly payments may be given according to section 183 if it is considered that: