13Compensation for loss of earning capacity

13 Compensation for loss of earning capacity (1) Compensation for loss of earning capacity is payable under this section if an eligible person's capacity to earn income from personal exertion (either physical or mental) is, in the opinion of the Commission, reduced as a result of an injury suffered in, or as a result of, the motor accident. Part 4 Payments in respect of injuries Division 1 General benefits Motor Accidents (Compensation) Act 1979 19 (2) Subject to subsections (3), (4) and (5) and section 14, the amount of compensation payable to a person referred to in subsection (1) is to be calculated in accordance with the following: (a) the maximum amount payable per week is the amount determined by the Commission, for each 6 month period commencing on 1 January or 1 July, to be 85% of the average weekly earnings for all employees' total employment earnings in the Territory based on what, in the opinion of the Commission, are the best statistics available to it before 1 January or 1 July (as the case may be), less a notional deduction for income tax; (b) compensation is not payable to the person under subsection (1) for any of the following periods: (i) the day of the accident; (ii) any weekly period that the Commission determines the person is capable of working full-time, regardless of the type of work; (iii) any weekly period that the Commission determines the person earned a sum equal to or exceeding the maximum amount determined by the Commission under paragraph (a); (c) an amount of compensation is payable to the person under subsection (1) for the person's loss of earning capacity, as determined by the Commission, during any 6 month period referred to in paragraph (a), which amount is calculated in accordance with subsection (3); (d) an amount of compensation payable under subsection (1) is to be paid without any deduction for income tax. (2A) For subsection (2), the definition average weekly earnings in section 4 does not apply. (3) For the purposes of subsection (2)(c), the Commission must calculate the amount of compensation payable to a person under subsection (1) in accordance with the following formula: MA 38 X38 ×      − Part 4 Payments in respect of injuries Division 1 General benefits Motor Accidents (Compensation) Act 1979 20 where: X is the number of hours per week (not exceeding 38) the Commission determines, based on a medical assessment, that the person is capable of working in any employment, whether such employment is reasonably available or not; and MA is the maximum amount payable per week determined by the Commission under subsection (2)(a). (4) Where a person referred to in subsection (1) is admitted as a full- time patient in a hospital or rehabilitation institution for any period which, in the opinion of the Commission, is likely to exceed 6 months, the Commission may suspend payment of the whole or part of the amounts otherwise payable under this section to that person for all or such part of that period as it thinks fit and, where that person has dependants, may make payments otherwise payable to that person to or for the benefit of such dependants, and in such amounts, as it thinks fit. (5) The entitlements conferred by this section are subject to the following qualifications: (a) a person stops being entitled to benefits under this section: (i) if the day of the accident is more than 2 years before the day the person reaches pension age – on the day the person reaches pension age; or (ii) otherwise – 104 weeks after the day of the accident; (b) a person is not entitled to benefits under this section while detained in a penal institution (within or outside the Territory); (c) a person is not entitled to benefits under this section while outside Australia. (5A) Despite subsection (1), if the person mentioned in that subsection is pension age or older on the day of the accident, compensation is not payable under this section unless the Commission is satisfied that, on the day of the accident, the person was someone who earns income from personal exertion. (6) An amount of benefit payable under this section may be paid in such instalments and at such times as the Commission, from time to time, determines, and the Commission may make any such payment in advance pending the calculation of a person's actual entitlement under this section. Part 4 Payments in respect of injuries Division 1 General benefits Motor Accidents (Compensation) Act 1979 21 (7) In this section: pension age, see section 23(1) of the Social Security Act 1991 (Cth).