86Matters to be taken into account in calculating weekly payments

86 Matters to be taken into account in calculating weekly payments

(1)  In fixing in accordance with section 85 the amount of the weekly payment to a person under section 84 , regard is to be had to any relevant payment, allowance, or benefit, to the person.

(2)  For the purposes of subsection (1) , a relevant payment, allowance, or benefit, to a person –

(a) includes a payment, allowance, or benefit, that the person would, if he or she remained employed after he or she made his or her application for compensation, receive in respect of his or her employment during the period of incapacity; and

(b) does not include a payment, allowance, or benefit, paid in respect of a period of long service leave or of any entitlement to long service leave or in lieu of the taking of a period of long service leave.

(3)  This subsection applies to a person if the person –

(a) has so far recovered from an asbestos-related disease as to be fit for employment, but only for employment of a more limited kind than the employment in which he or she was engaged during the relevant period; and

(b) satisfies the Commissioner –

(i) that the person has taken all reasonable steps to obtain, and has failed to obtain, employment of the more limited kind referred to in paragraph (a) ; and

(ii) that the person's failure to obtain that employment is a consequence wholly or mainly of his or her having an asbestos-related disease.

(4)  If subsection (3) applies to a person, the Commissioner may determine that the person's incapacity is to continue to be treated as total incapacity for the period, and subject to the conditions, that the Commissioner thinks fit.

(5)  If a determination is made under subsection (4) ,weekly payments are payable to the person in accordance with this Division on the making of the determination.

(6)  Subsections (4) and (5) apply to a person despite –