65 Long-term incapacity
(1) This section applies to a worker who is totally or partially
incapacitated for work as the result of an injury out of which his or
her incapacity arose or that materially contributed to his or her
(1B) A worker to whom this section applies must be paid compensation,
in accordance with subsections (1BA) to (1D), equal to whichever of
the following is the lesser at the time the payment is made:
(a) 75% of the worker's loss of earning capacity;
(b) 150% of average weekly earnings.
(1BA) Compensation under this Subdivision for a worker, other than a
worker who suffers relevant permanent impairment at a percentage
of the whole person equal to not less than 15%:
(a) is payable under this section for a period that does not exceed
a period of 260 weeks in the aggregate (which includes the
first 26 weeks for which compensation is payable under
section 64) in respect of the injury; and
(b) is otherwise subject to this Part.
(1C) Compensation under subsection (1B):
(a) is payable to a worker only after the first 26 weeks of
incapacity (for which compensation is payable under
section 64 to the worker); and
(b) is in addition to any other compensation to which, under this
Part, the worker is entitled; and
(c) is otherwise subject to this Part.
Note for subsection (1C)
Compensation under this section and section 64 is not payable for the same
period. That is, a worker is not entitled to double dip for the first 26 weeks of
(1D) The following applies for the calculation of the period during which
compensation is to be paid to a worker under this section:
(a) if the worker's injury date is 2 years or more before the date
on which the worker attains the worker's future pension age
and the worker suffers relevant permanent impairment at a
percentage of the whole person equal to not less than 15% –
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the compensation is to be paid:
(i) if the worker's normal retiring age is later than the
worker's future pension age – until the worker attains the
worker's normal retiring age; or
(ii) otherwise – until the worker attains the worker's future
pension age;
(b) if the worker's injury date is 2 years or more before the date
on which the worker attains the worker's future pension age
and the worker suffers relevant permanent impairment at a
percentage of the whole person equal to less than 15% – the
compensation is to be paid:
(i) if the worker's normal retiring age is later than the
worker's future pension age – until the earlier of the
(A) the end of the last week in the period of 260 weeks
in the aggregate mentioned in subsection (1BA);
(B) the date on which the worker attains the worker's
normal retiring age; or
(ii) otherwise – until the earlier of the following:
(A) the end of the last week in the period of 260 weeks
in the aggregate mentioned in subsection (1BA);
(B) the date on which the worker attains the worker's
future pension age; or
(c) the compensation is to be paid for 104 weeks from the injury
date if:
(i) the worker's normal retiring age is later than the worker's
future pension age and the injury date is less than
2 years before the date on which the worker attains the
worker's normal retiring age; or
(ii) the worker's normal retiring age is later than the worker's
future pension age and the injury date is on or after the
date on which the worker attains the worker's normal
retiring age; or
(iii) the worker's normal retiring age is not later than the
worker's future pension age and the injury date is less
than 2 years before the date on which the worker attains
the worker's future pension age; or
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(iv) the worker's normal retiring age is not later than the
worker's future pension age and the injury date is on or
after the date on which the worker attains the worker's
future pension age.
(2) For the purposes of this section, loss of earning capacity in relation
to a worker is the difference between:
(a) his or her normal weekly earnings indexed in accordance with
subsection (3); and
(b) the amount, if any, he or she is from time to time reasonably
capable of earning in a week in work he or she is capable of
undertaking if:
(i) in respect of the period to the end of the first 104 weeks
of total or partial incapacity – he or she were to engage
in the most profitable employment (including
self-employment), if any, reasonably available to him or
her; and
(ii) in respect of the period after the first 104 weeks of total
or partial incapacity – he or she were to engage in the
most profitable employment that could be undertaken by
that worker, whether or not such employment is
available to him or her,
and having regard to the matters referred to in section 68.
(3) The normal weekly earnings of a worker for the calculation of the
worker's loss of earning capacity, or for subsection (8) or (9), at a
particular date, are the amount calculated by using the formula in
subsection (3A).
(3A) The formula for subsection (3)(a) is the following:
N x A
C
where:
N is amount of the normal weekly earnings of the worker
immediately before the first compensation date;
A is the amount of average weekly earnings at the particular date
mentioned in subsection (3);
C is the amount of average weekly earnings applying at the first
compensation date.
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(4) Where a worker is totally incapacitated for work, his or her normal
weekly earnings in respect of the period of his or her total
incapacity after the expiration of 2 years after the first day of the
period in respect of which he or she first became entitled under
section 64 or this section to compensation shall be taken to be:
(a) in the case of a worker who was an apprentice (including an
adult apprentice) immediately before the date on which he or
she first became entitled to compensation:
(i) as from the date on which he or she would otherwise
have completed his or her apprenticeship – the full
award wage for a tradesman in the trade in which the
worker was an apprentice; and
(ii) until that date – the normal weekly earnings that would
have been his or hers had he or she continued in the
apprenticeship; and
(b) in the case of a worker who was a junior employee
immediately before the date on which he or she first became
entitled to compensation:
(i) as from the date on which he or she would otherwise
have ceased to earn wages at a junior rate of pay – the
full award wage for a person performing the work that
the junior worker performed; and
(ii) until that date – the normal weekly earnings that would
have been his or hers had he or she continued
performing that work.
(5) For the purposes of subsections (2) and (6), the most profitable
employment available includes:
(a) self employment; and
(b) employment in a geographical location (including a place
outside the Territory) away from the place where the worker
normally resides where it would be reasonable to expect the
worker to take up that employment and the person liable to
pay compensation to the worker has undertaken to meet the
reasonable expenses in moving him or her and his or her
dependants to that location and other reasonable relocation
expenses.
(6) For the purposes of this section, a worker shall be taken to be
totally incapacitated if he or she is not capable of earning any
amount if he or she were to engage in the most profitable
employment, if any, reasonably available to him or her, and having
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regard to the matters referred to in section 68.
(7) Where a worker is totally incapacitated for work and the
compensation the worker is entitled to under subsection (1B) is less
than the amount calculated in accordance with subsection (12), the
worker shall, notwithstanding subsection (1B), but subject to
subsection (10), be entitled to compensation equal to 90% of his or
her loss of earning capacity or the amount so calculated, whichever
is the lesser.
(8) Where a worker is partially incapacitated for work and 75% of his or
her normal weekly earnings indexed in accordance with
subsection (3) is less than the amount calculated in accordance
with subsection (12), the worker shall, notwithstanding
subsection (1B), but subject to subsection (10), be entitled to
compensation equal to 90% of his or her loss of earning capacity or
the percentage of his or her loss of earning capacity as determined
in accordance with subsection (9), whichever is the lesser.
(9) For the purposes of subsection (8), the percentage is the amount
calculated in accordance with subsection (12) expressed as a
percentage of the worker's normal weekly earnings.
(10) Subsections (7) and (8) do not apply where the normal weekly
earnings of the spouse of the worker is equal to or more than 150%
of average weekly earnings.
(11) For the purposes of subsection (10), normal weekly earnings of the
spouse of a worker shall be determined, as for a worker, in
accordance with section 49A and, for that purpose, a reference to a
worker shall be construed as a reference to the spouse of a worker.
(12) For the purposes of subsections (7) and (8), the amount is 50% of
average weekly earnings and, in addition:
(a) 12.5% of average weekly earnings, where the worker has a
spouse who is, at the date of the relevant injury and at the
time when compensation is paid under this section, wholly or
mainly dependent on the worker; and
(b) 6.25% of average weekly earnings for each prescribed child of
the worker.
(13) In subsection (12), prescribed child means a child of the worker,
or a child in relation to whom the worker stood in loco parentis, and
who:
(a) has not attained the age of 16 years; or
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(b) having attained that age but not having attained the age of
21 years, is a full-time student or is physically or mentally
handicapped,
other than such a child who is the spouse of another person.
(13A) For this section, a worker's relevant permanent impairment is to be
assessed as follows:
(a) subject to paragraph (b), the relevant permanent impairment is
to be assessed as if it were being assessed under section 72
as permanent impairment for Subdivision C;
(b) permanent impairment is not to be included in the assessment
if it is:
(i) a psychological or psychiatric impairment; and
(ii) consequential on a physical injury other than a heart
attack injury or stroke injury for which compensation is
payable under section 58.
(13B) In this section, a reference to a week, in relation to payment, or
(14) In this section:
future pension age, for a worker, means the age at which (once
attained) the worker would, subject to satisfying any other qualifying
requirements, be eligible to receive an age pension under the
Social Security Act 1991 (Cth).
injury date, for a worker, means the date of the injury the result of
which is the worker's total or partial incapacity for work or that
materially contributed to the worker's total or partial incapacity for
work.
injury pension age, for a worker who is totally or partially
incapacitated, means the age that, at the injury date, the worker
would, subject to satisfying any other qualifying requirements, be
eligible to receive an age pension under the Social Security
Act 1991 (Cth).
Note
The injury pension age for a worker may be 65, 65.5, 66, 66.5 or 67 years.
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normal retiring age, for a worker, means the age that workers in
the industry or occupation in which the worker is employed usually
retire.
Note
The normal retiring age may be expressed other than as a whole number of
years, for example, 68.5 years or 68 years and 8 months.