19Compensation for injuries resulting in incapacity

#### 19 Compensation for injuries resulting in incapacity (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies. (2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:  where: > AE is the greater of the following amounts: (a) the amount per week (if any) that the employee is able to earn in suitable employment; (b) the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week. > NWE is the amount of the employee’s normal weekly earnings. (2A) For the purposes of subsection (2), a week is a maximum rate compensation week, in relation to an employee to whom this section applies, if: (a) it is a week during which the employee’s incapacity prevents the employee working the employee’s normal weekly hours because the employee is unable to work or unable to work at the level at which the employee worked before the injury; and (b) the total number of hours that the employee has been prevented from working, or working at that level, during that incapacity, in that week and in all previous weeks, if any, to which paragraph (a) applies, does not exceed 45 times the employee’s normal weekly hours. (2B) If, before the end of a particular week, the total of the hours that the employee has been prevented from working, or working at that level, in that week and in previous weeks, will exceed the total number of hours worked out in accordance with paragraph (2A)(b), then: (a) subsection (2) applies in respect of the part of the week before that total number of hours is exceeded in accordance with subsection (2C); and (b) subsection (3) applies in respect of the remainder of the week in accordance with subsection (2D). (2C) For the purposes of paragraph (2B)(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:  where: > AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2). > NWE is the amount of the employee’s normal weekly earnings. > NWH means the number of normal weekly hours worked by the employee before his or her injury. > X is the total of the hours in that particular week: (a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and (b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours. (2D) For the purposes of paragraph (2B)(b), the compensation payable in respect of the part of the week to which that paragraph refers is worked out using the formula:  where: > NWH means the number of normal weekly hours worked by the employee before his or her incapacity. > reduced rate compensation entitlement is the rate of compensation that would have been applicable for the whole week had subsection (3) applied throughout the whole week. > X is the total of the hours in that particular week: (a) that would have counted towards the employee’s normal weekly hours (whether those hours are worked or not); and (b) that elapse before the total number of hours worked out in accordance with paragraph (2A)(b) exceeds 45 times the employee’s normal weekly hours. (3) Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula:  where: > adjustment percentage is a percentage equal to: (a) if the employee is not employed during that week—75%; or (b) if the employee is employed for 25% or less of his or her normal weekly hours during that week—80%; or (c) if the employee 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 employee 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 employee 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 employee is employed for 100% of his or her normal weekly hours during that week—100%. > AE applies in relation to the whole of that particular week and has the same meaning as in subsection (2). > NWE is the amount of the employee’s normal weekly earnings. (3A) If, as a result of the incapacity: (a) the amount per week payable to the employee in respect of his or her continued employment is reduced; and (b) a pension under a superannuation scheme is payable to the employee; subsection (3) applies in relation to the employee in relation to a week during which the employee 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 employee in respect of that week. (4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: (a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment; (b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; (c) where, after becoming incapacitated for work, the employee 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 employee would be earning in that employment if he or she were engaged in that employment; (d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment; (e) where, after becoming incapacitated for work, the employee 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 employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; (f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’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; and (g) any other matter that Comcare considers relevant. (5) Where an amount of compensation calculated under subsection (3) 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 shall be reduced by an amount equal to the excess. (6) Where an amount of compensation calculated under paragraph (3)(a) is less than the minimum earnings, the amount so calculated shall be increased by an amount equal to the difference between that amount and the minimum earnings. (7) For the purposes of subsection (6), the minimum earnings of an employee shall be taken to be: (a) $202, or, if subsection (8) or (9) applies in relation to the employee, the sum of $202 and the amount or amounts required to be added under whichever of those subsections applies; or (b) an amount equal to 90% of the employee’s normal weekly earnings; whichever is less. (8) If there are prescribed persons wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $50. (9) If there are prescribed children in relation to whom this Act applies (whether born before, on or after the date of the injury) wholly or mainly dependent on the employee, there shall be added to the amount of $202 specified in paragraph (7)(a) the amount of $25 for each of those children, but an amount shall not be so added for a child in relation to any period before the date of birth of that child. (10) If a prescribed child is: (a) a prescribed person in relation to the employee; and (b) the only prescribed person who is wholly or mainly dependent on the employee; subsection (9) does not apply in relation to that child. (11) If 2 or more prescribed children are each: (a) a prescribed person in relation to the employee; and (b) wholly or mainly dependent on the employee; subsection (8) applies in relation to one of those children and subsection (9) applies in relation to the remainder of those children. (12) In this section, prescribed person, in relation to an employee, means: (a) the spouse of the employee; or (b) any of the following persons, being a person who is 16 or more: (i) the parent, step‑parent, father‑in‑law, mother‑in‑law, grandparent, child, stepchild, grandchild, sibling or half‑sibling of the employee; (ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee; (iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent on the employee. > Note: In relation to subparagraph (12)(b)(i), see also subsection 4(2). (14) For the purposes of the definition of prescribed person in subsection (12), a person who has the care of a child referred to in subparagraph (12)(b)(iii) shall not be taken not to be wholly or mainly maintained by an employee merely because the employee pays remuneration to the person for caring for that child.