114Termination or alteration of weekly payments

114 Termination or alteration of weekly payments S. 114(1) amended by No. 81/1998 s. 23(o). (1) The Authority or self-insurer may in accordance with this Act terminate a worker's entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated whether or not the worker is currently receiving weekly payments. S. 114(1A) inserted by No. 28/2005 s. 23(1). (1A) Subsections (2) to (13) only apply if the worker is currently receiving weekly payments as at the date of the change in the entitlement of the worker to weekly payments. S. 114(2) amended by No. 81/1998 s. 23(o). (2) In addition to other grounds under this Act for termination or alteration of weekly payments, the Authority or a self-insurer— (a) may increase or reduce weekly payments on the ground that there is not, or is no longer, an entitlement to weekly payments of the existing amount; and (b) may terminate weekly payments on the ground that— (i) the worker is not entitled to compensation under Division 1 or 2; or (ii) the worker is not, or is no longer entitled to weekly payments; or (c) may terminate or alter weekly payments on the ground that— (i) the worker has returned to any work whether as a self employed person or in employment; or S. 114(2)(c)(ii) amended by No. 26/2000 s. 4(3), substituted by No. 9/2010 s. 45(1). (ii) in the case of a worker who has current weekly earnings, the amount of the worker's current weekly earnings alters; or S. 114(2)(c)(iii) inserted by No. 26/2000 s. 4(3), amended by No. 67/2013 s. 635(3). (iii) payments for regular overtime or shift allowances are no longer included in the worker's pre-injury average weekly earnings; or S. 114(2)(c)(iv) inserted by No. 67/2013 s. 635(4). (iv) an amount referred to in section 155(1)(c) of the **Workplace Injury Rehabilitation and Compensation Act 2013** is varied or no longer paid; or S. 114(2)(c)(v) inserted by No. 67/2013 s. 635(4). (v) a non-pecuniary benefit within the meaning of section 155(1)(d) of the **Workplace Injury Rehabilitation and Compensation Act 2013** is varied or no longer paid. S. 114(2A) inserted by No. 9/2010 s. 45(2). (2A) If the current weekly earnings of a worker who— (a) has an incapacity for work resulting from, or materially contributed to by, an injury; and (b) is receiving, or but for the worker's current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments— are reduced because— (c) the worker no longer resides in Victoria; or (d) the worker's employment was terminated because of the worker's misconduct; or (e) the worker— (i) has resigned; or (ii) reduced the hours worked otherwise than in the circumstances referred in section 93CDA— for reasons unrelated to the worker's incapacity— the Authority or a self-insurer may determine— (f) not to alter the amount of compensation in the form of weekly payments paid to the worker; or (g) not to pay compensation in the form of weekly payments. S. 114(2B) inserted by No. 9/2010 s. 45(2). (2B) If the Authority or a self-insurer makes a determination under subsection (2A)— (a) the Authority or self-insurer must give written notice to the worker of the determination and the reasons for it; and (b) the worker's entitlement to compensation in the form of weekly payments is adjusted in accordance with the determination. S. 114(2C) inserted by No. 9/2010 s. 45(2). (2C) A determination under subsection (2A) takes effect from the day on which the current weekly earnings were reduced or, if the Authority or self-insurer specifies a later date in the determination, on that later date. S. 114(2D) inserted by No. 9/2010 s. 45(3). (2D) If the current weekly earnings of a worker are reduced because the worker is on paid annual leave or long service leave, the Authority or self‑insurer must not, by reason only of that reduction, alter the amount of compensation in the form of weekly payments. S. 114(3) amended by No. 81/1998 s. 23(o). (3) The Authority or a self-insurer may terminate weekly payments if it considers that payments were obtained fraudulently. (4) A termination or alteration of weekly payments on the grounds specified in subsection (2)(a) or (2)(b) has effect— (a) only if written notice in accordance with subsection (10) is given; and (b) after the expiry of the required notice period. S. 114(5) amended by No. 80/2010 s. 67. (5) A termination or alteration of weekly payments on the grounds specified in subsection (2)(c) or section 93E, 93F, 96, 97(2), 97(7), 134AB(36) or 135A(18) has effect— (b) as from the day on which the circumstances establishing the relevant ground first arise. S. 114(5A) inserted by No. 41/2006 s. 15(3). (5A) A termination of weekly payments under section 93EA has effect— (b) as from the expiry of the period not exceeding 13 weeks for which the payment is granted under that section. (6) A termination of weekly payments on the ground specified in subsection (3) has effect— S. 114(6)(b) amended by No. 81/1998 s. 23(a). (b) as from the day (whether before, on or after the giving of the notice) on which the Authority or self-insurer makes the decision. S. 114(7) amended by No. 107/1997 s. 30(11)(a), repealed by No. 9/2010 s. 130(3)(b). S. 114(8) amended by Nos 107/1997 s. 30(11)(b), 9/2010 s. 33(1)(a). (8) A reduction of weekly payments solely on the ground of the expiry of the first entitlement period has effect— (b) if section 114A has been complied with. S. 114(9) amended by Nos 7/1996 s. 16(3), 107/1997 s. 30(11)(c), 9/2010 s. 33(1)(b). (9) A termination of weekly payments solely on the ground of the expiry of the second entitlement period[[19]](#endnote-20) has effect— (b) if section 114B has been complied with. S. 114(9A) inserted by No. 9/2010 s. 45(4). (9A) A termination of weekly payments under section 93CA has effect— (b) as from— (i) the day on which the worker ceases to suffer incapacity resulting from, or materially contributed to by, the subsequent surgery, or a recurrence of that incapacity, whichever is the later; or (ii) the expiry of the period of 13 weeks commencing on the day on which the relevant surgery is performed— whichever first occurs. (10) A notice must— (a) be given to the worker; and (b) state the reasons for giving the notice; and (c) state— (i) in the case of termination, when weekly payments will be stopped; and (ii) in the case of alteration, the new level of weekly payments and when payments at the new level will commence. S. 114(11) amended by No. 81/1998 s. 23(o). (11) If a worker— (a) has received weekly payments of compensation for a continuous period of at least 12 weeks; and S. 114(11)(b) amended by No. 81/1998 s. 23(o). (b) has provided the worker's employer, or where applicable, the Authority or self‑insurer with a certificate of capacity in accordance with section 111— the Authority or self-insurer must not terminate or reduce weekly payments during the period of incapacity so specified without giving the worker the required period of notice of intention to do so. S. 114(12) amended by No. 81/1998 s. 23(o). (12) If weekly payments are terminated or reduced in contravention of subsection (11), the worker may recover from the Authority or self-insurer an amount of compensation that— (a) if no period of notice has been given—is equal to the amount of compensation or additional compensation, that would have been payable during the required period of notice if weekly payments had not been terminated or reduced; or (b) if less than the required period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the required period of notice if weekly payments had not been terminated or reduced. S. 114(13) amended by No. 9/2010 s. 130(3)(a). (13) The required period of notice, unless expressly otherwise provided in this Act is— (a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year—14 days; or S. 114(13)(b) amended by No. 41/2006 s. 20(a). (b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more—28 days; or S. 114(13)(c) inserted by No. 41/2006 s. 20(b), amended by No. 9/2010 ss 33(1)(b), 45(5)(a). (c) if the termination of weekly payments is solely on the ground of the expiry of the second entitlement period—13 weeks; or S. 114(13)(d) inserted by No. 9/2010 s. 45(5)(b). (d) if the worker has been receiving compensation in the form of weekly payments under section 93CD and ceases to be entitled to receive such compensation—28 days; or S. 114(13)(e) inserted by No. 9/2010 s. 45(5)(b). (e) if the worker has been receiving compensation in the form of weekly payments under section 93CD and the termination is because the employer has withdrawn the employment—13 weeks commencing on the day on which the employer informs the worker of the withdrawal of employment. S. 114AA inserted by No. 9/2010 s. 46 (as amended by No. 80/2010 s. 159(i)). 114AA Termination of compensation in the form of superannuation contributions (1) Subject to this section, the Authority or a self‑insurer may terminate the payment of compensation in the form of superannuation contributions in respect of a worker on the ground that the worker— (a) is not, or has ceased to be, entitled to such compensation; or (b) is not, or has ceased to be, entitled to compensation in the form of weekly payments. (2) The Authority or self-insurer must not terminate payments in the form of superannuation contributions (otherwise than because the worker is not, or has ceased to be, entitled to compensation in the form of weekly payments) unless the Authority or self-insurer gives a notice in writing in accordance with subsection (3) to the worker— (a) stating the reasons for the termination; and (b) stating when the payments will cease. (3) A notice in writing under subsection (2) must be given— (a) if compensation in the form of superannuation contributions has been paid in respect of a worker for a continuous period of at least 12 weeks and not more than 1 year—at least 14 days before the termination; (b) if compensation in the form of superannuation contributions has been paid in respect of the worker for a continuous period of 1 year or more—at least 28 days before the termination. S. 114A (Heading) inserted by No. 9/2010 s. 33(2). S. 114A inserted by No. 50/1994 114A Reduction of weekly payments after the first entitlement period (1) Weekly payments must not be reduced under section 114(8)— S. 114A(1)(a) amended by Nos 107/1997 s. 30(11)(e), 81/1998 s. 23(o), 9/2010 s. 33(3)(a)(i). (a) unless the Authority or self-insurer has made a determination of the worker's entitlement under section 93B; and S. 114A(1)(b) amended by No. 81/1998 s. 23(o). (b) until the Authority or self-insurer has given at least 14 days notice under section 114 of the decision following that determination. S. 114A(2) amended by Nos 107/1997 s. 30(11)(d), 9/2010 s. 33(3)(a)(ii). (2) The notice is not invalid only because the date specified in the notice as the date on which the reduction is to take effect is not a date immediately after the expiry of the first entitlement period but has effect on the date immediately after the completion of the first entitlement period or, if the date specified in the notice is a later date, the later date. S. 114A(3) amended by Nos 107/1997 s. 30(11)(d)(f)–(h), 82/2001 s. 21, 9/2010 s. 33(3)(a)(ii)–(iv). (3) Despite anything to the contrary in section 93B, until notice is given to a worker and the date specified in the notice has expired, the worker is deemed to be entitled to weekly payments in respect of any period after the expiry of the first entitlement period under section 93B(2)(a) or (3)(a) provided that the worker is but for the expiry of 13 weeks otherwise entitled to weekly payments. S. 114A(4) amended by No. 107/1997 s. 30(11)(d), repealed by s. 30(11)(i). S. 114A(5) amended by No. 107/1997 s. 30(11)(j). (5) Subsections (1)(b), (2) and (3) do not apply if— S. 114A(5)(a) amended by No. 107/1997 s. 30(11)(d), repealed by s. 30(11)(k). S. 114A(5)(b) amended by Nos 107/1997 s. 30(11)(d), 9/2010 s. 33(3)(a)(ii). (b) the claim for weekly payments is made within the period of 42 days before the expiry of the first entitlement period. S. 114A(6) amended by Nos 107/1997 s. 30(11) (d)(f)(l), 9/2010 s. 33(3)(a)(ii)(v). (6) If subsection (5)(b) applies and weekly payments are commenced, the entitlement to weekly payments in respect of any period after the expiry of the first entitlement period must be determined in accordance with section 93B. S. 114B inserted by No. 50/1994 114B Termination of weekly payments after expiry of entitlement period S. 114B(1) amended by Nos 7/1996 s. 16(4), 107/1997 s. 30(11)(m), 81/1998 s. 23(o), substituted by No. 41/2006 s. 21(1). (1) Weekly payments must not be terminated under section 114(9)— S. 114B(1)(a) amended by No. 9/2010 s. 33(3)(b)(i). (a) unless the Authority or self-insurer has made a determination of the worker's entitlement to weekly payments after the expiry of the second entitlement period; and (b) until the Authority or self-insurer has given at least 13 weeks notice under section 114 of the determination following the making of the determination. S. 114B(1A) inserted by No. 41/2006 s. 21(1), amended by No. 9/2010 s. 33(3)(b)(i). (1A) A determination under subsection (1) may be made before or after the expiry of the second entitlement period so as to terminate payments at or after the expiry of that entitlement period. S. 114B(2) amended by Nos 7/1996 s. 16(5), 107/1997 s. 30(11)(m), 9/2010 s. 33(3)(b)(i). (2) The notice is not invalid only because the date specified in the notice as the date on which the termination is to take effect is not a date immediately after the expiry of the second entitlement period[[20]](#endnote-21) but has effect on the date immediately after the completion of the second entitlement period or, if the date specified in the notice is a later date, the later date. S. 114B(3) substituted by No. 7/1996 s. 16(6), amended by s. 30(11) (m)–(o), 28/2005 s. 23(2)(a)(b), 9/2010 s. 33(3)(b) (ii)–(iv). (3) If subsection (1) applies and notwithstanding anything to the contrary in section 93C(1), until notice is given to a worker and the date specified in the notice has expired, the worker is deemed to be entitled to weekly payments under section 93B in respect of any period after the expiry of the second entitlement period provided that the worker is but for the expiry of the entitlement period otherwise entitled to weekly payments[[21]](#endnote-22). S. 114B(4) substituted by No. 7/1996 s. 16(7), amended by s. 30(11)(m), 41/2006 s. 21(2), 9/2010 s. 33(3)(b)(iv). (4) Subsections (1)(b), (2) and (3) do not apply if the claim for weekly payments is made within the period of 119 days before the expiry of the second entitlement period[[22]](#endnote-23). S. 114B(5) substituted by No. 7/1996 s. 16(7), amended by s. 30(11) (m)(p), 9/2010 s. 33(3)(b) (iv)(v). (5) If subsection (4) applies and weekly payments are commenced, the entitlement to weekly payments in respect of any period after the expiry of the second entitlement period must be determined in accordance with section 93C(1)[[23]](#endnote-24). S. 114BA inserted by No. 9/2010 s. 16. 114BA Notice of reduction of weekly payments (1) On becoming aware that section 82A, 82B or 82C applies to a worker who is receiving, or is entitled to receive, compensation in the form of weekly payments under this Part— (a) the Authority or self-insurer must give written notice to the worker in accordance with section 114(10) of the reduction in the amount of the worker's weekly payments; and (b) weekly payments must not be reduced before the notice has been given. (2) Section 114(13) does not apply to a notice given under subsection (1) of this section. S. 114C inserted by No. 50/1994