29 Compensation for injuries resulting in incapacity—covered former members
(1) This section applies to a covered person who is:
(a) a covered former member; and
(b) incapacitated for work as a result of an injury;
(2) Subject to this Part, the Commonwealth is liable to pay to the covered person in respect of the injury, for each week:
(a) that is a maximum rate compensation week; and
(b) to which section 28 does not apply in relation to the person; and
(c) during which the covered person is incapacitated;
an amount of compensation worked out using the formula:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the covered person is able to earn in suitable employment;
(b) the amount per week (if any) that the covered person earns from any employment (including self‑employment) that is undertaken by the covered person during that week.
(3) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to a covered person to whom this section applies, if:
(a) it is a week during which the covered person’s incapacity prevents the covered person working the covered person’s normal weekly hours because the covered person is unable to work or unable to work at the level at which the covered person worked before the injury; and
(b) the total of the following hours does not exceed 45 times the covered person’s normal weekly hours:
(i) the hours that the covered person has been prevented from working, or working at the level referred to in paragraph (a), during that incapacity, in that week and in all previous weeks, if any, to which that paragraph applies;
(ii) if any previous week was a maximum rate compensation week for the purposes of subsection 28(2) in relation to the covered person and the incapacity—the number of hours worked out using the formula in subsection (4) of this section.
(4) For subparagraph (3)(b)(ii), the formula is as follows:
notional hourly rate means the total amount of relevant allowance or salary which the covered person was, immediately before the covered person ceased to be a covered current member, entitled to receive in respect of a week divided by 37.5.
section 28 compensation means the amount of compensation (if any) that the Commonwealth has paid, or is liable to pay, to the covered person under section 28 in respect of the injury.
(5) If, before the end of a particular week, the total of the hours referred to in subparagraphs (3)(b)(i) and (ii) will exceed 45 times the covered person’s normal weekly hours:
Section 29 - Parliamentary Injury Compensation Scheme Instrument 2016 - Compensation for injuries resulting in incapacity—covered former members | Zoe
(a) subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (6); and
(b) subsection (8) applies in respect of the remainder of the week in accordance with subsection (7).
(6) For the purposes of paragraph (5)(a), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
(a) that would have counted towards the covered person’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total of the hours referred to in subparagraphs (3)(b)(i) and (ii) exceeds 45 times the covered person’s normal weekly hours.
(7) For the purposes of paragraph (5)(b), the compensation payable in respect of the part of the week to which that paragraph refers is an amount worked out using the formula:
reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (8) applied throughout the whole week.
(a) that would have counted towards the covered person’s normal weekly hours (whether those hours are worked or not); and
(b) that elapse before the total of the hours referred to in subparagraphs (3)(b)(i) and (ii) exceeds 45 times the covered person’s normal weekly hours.
(8) Subject to this Part, the Commonwealth is liable to pay compensation to the covered person, in respect of the injury, for each week during which the covered person is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:
(a) if the covered person is not employed during that week—75%; or
(b) if the covered person is employed for 25% or less of his or her normal weekly hours during that week—80%; or
(c) if the covered person is employed for more than 25% but not more than 50% of his or her normal weekly hours during that week—85%; or
(d) if the covered person is employed for more than 50% but not more than 75% of his or her normal weekly hours during that week—90%; or
(e) if the covered person is employed for more than 75% but less than 100% of his or her normal weekly hours during that week—95%; or
(f) if the covered person is employed for 100% of his or her normal weekly hours during that week—100%.
(9) If, as a result of the incapacity:
(a) the amount per week payable to the covered person in respect of his or her continued employment is reduced; and
(b) a pension under a superannuation scheme is payable to the covered person;
subsection (8) applies in relation to the covered person in relation to a week during which the covered person is incapacitated as if the references in the subsection to the amount he or she was able to earn during the week in suitable employment were instead references to the sum of that amount and any amount of the pension referred to in paragraph (b) that is payable to the covered person in respect of that week.
(10) In determining, for the purposes of this section, the amount per week that a covered person is able to earn in suitable employment, Comcare must have regard to the following:
(a) if the covered person is in employment (including self‑employment)—the amount per week that the covered person is earning in that employment;
(b) if, after becoming incapacitated for work, the covered person received an offer of suitable employment and failed to accept that offer—the amount per week that the covered person would be earning in that employment if he or she were engaged in that employment;
(c) if, after becoming incapacitated for work, the covered person received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the covered person would be earning in that employment if he or she were engaged in that employment;
(d) if, after becoming incapacitated for work, the covered person received an offer of suitable employment on condition that the covered person completed a reasonable rehabilitation or vocational retraining program and the covered person failed to fulfil that condition—the amount that the covered person would be earning in that employment if he or she were engaged in that employment;
(e) if, after becoming incapacitated for work, the covered person has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the covered person could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) if paragraph (b), (c), (d) or (e) applies to the covered person—whether the covered person’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances;
(g) if an assessment of the covered person’s capability of returning to work in suitable employment has been carried out under section 63—the results of the assessment;
(h) any other matter that Comcare considers relevant.
(11) If an amount of compensation calculated under subsection (8) exceeds 150% of the amount called the Average Weekly Ordinary Time Earnings of Full‑time Adults, as published from time to time by the Australian Statistician, the amount so calculated must be reduced by an amount equal to the excess.
(12) If an amount of compensation calculated under subsection (8) for a week during which the covered person is not employed is less than the minimum earnings of the covered person, the amount so calculated must be increased by an amount equal to the difference between that amount and the minimum earnings.
(13) For the purposes of subsection (12), the minimum earnings of a covered person are taken to be:
(a) $454.44, or, if subsection (14) or (15) applies in relation to the covered person, the sum of $454.44 and the amount or amounts required to be added under whichever of those subsections applies; or
(b) an amount equal to 90% of the covered person’s normal weekly earnings;
(14) If there are prescribed persons wholly or mainly dependent on the covered person, there must be added to the amount of $454.44 specified in paragraph (13)(a) the amount of $112.53.
(15) If there are prescribed children (whether born before, on or after the date of the injury) wholly or mainly dependent on the covered person, there must be added to the amount of $454.44 specified in paragraph (13)(a) the amount of $56.22 for each of those children, but an amount must not be so added for a child in relation to any period before the date of birth of that child.
(16) If a prescribed child is:
(b) the only prescribed person who is wholly or mainly dependent on the covered person;
subsection (15) does not apply in relation to that child.
(17) If 2 or more prescribed children are each:
(b) wholly or mainly dependent on the covered person;
subsection (14) applies in relation to one of those children and subsection (15) applies in relation to the remainder of those children.