45Partial loss of earnings

45 Partial loss of earnings (1) The Commission is liable to pay to an earner who is injured as a result of a transport accident and suffers a partial loss of earnings as a result of, or materially contributed to by, the injury a weekly payment under this section in respect of loss of earnings during the period of entitlement. (2) Subject to subsection (3), if the earner is employed the amount of the weekly payment under subsection (1) is— (a) 85 per centum of the difference between the earner's current weekly earnings and the earner's pre-accident weekly earnings; or S. 45(2)(b) amended by No. 84/1994 s. 55(2)(f). (b) if the earner has no dependants—$304, less the earner's actual weekly earnings; or S. 45(2)(c)(i) amended by No. 84/1994 s. 55(2)(f). S. 45(2)(c)(ii) amended by No. 84/1994 s. 55(2)(d). S. 45(2)(c)(iii) amended by No. 84/1994 s. 55(2)(b). less the earner's actual weekly earnings— (3) A weekly payment under this section for an earner who is employed must not exceed— S. 45(3)(a) amended by No. 84/1994 s. 55(2)(i). (a) $621, less the earner's current weekly earnings; or (b) 100 per centum of the earner's pre-accident weekly earnings, less the earner's actual weekly earnings— (4) Subject to subsection (5), if the earner is not employed, the amount of the weekly payment under this section is— (a) 80 per centum of the earner's pre-accident weekly earnings; or S. 45(4)(b) amended by No. 84/1994 s. 55(2)(f). (b) if the earner has no dependants—$304; or S. 45(4)(c)(i) amended by No. 84/1994 s. 55(2)(f). S. 45(4)(c)(ii) amended by No. 84/1994 s. 55(2)(d). S. 45(4)(c)(iii) amended by No. 84/1994 s. 55(2)(b). (5) A weekly payment under this section for an earner who is not employed must not exceed— S. 45(5)(a) amended by No. 84/1994 s. 55(2)(i). (b) 100 per centum of the earner's pre-accident weekly earnings— S. 45(5A) inserted by No. 18/2022 s. 26. (5A) For the purposes of this section and despite anything to the contrary in section 4, 4A or 5, the pre-accident weekly earnings for an earner who was, immediately before the transport accident, receiving a weekly payment under section 44 or this section in respect of loss of earnings suffered as a result of, or materially contributed to by, an injury resulting from a previous transport accident, are the pre-accident weekly earnings for the earner immediately before the previous transport accident. S. 45(6) def. of *current weekly earnings* amended by No. 94/2004 s. 5(2). ***current weekly earnings*** in relation to an earner means the earnings of the earner during the week in respect of which a weekly payment is made; ***period of entitlement*** in relation to a person injured as a result of a transport accident means the period during which the person suffers a partial loss of earnings as a result of, or materially contributed to by, the injury but does not include— (a) subject to section 43(2), the first five days after the accident or after the injury first manifests itself, whichever last occurs, in respect of which, or any part of which, the earner suffers any loss of earnings as a result of, or materially contributed to by, the injury; or (b) any period after the first 18 months after the accident. S. 45AA inserted by No. 94/2004 s. 8. 45AA Interim payments to self-employed person (1) This section only applies to an earner who was a self-employed person at the time he or she was injured in a transport accident. (2) If the person suffers a total loss of earnings that is a result of, or that is materially contributed to by, the injury, the Commission is liable to pay the person 75% of the amount specified for the purposes of section 44(3)(a) until the day on which the first of these events occurs— (a) the person's period of entitlement (as defined by section 44(4)) ends; or (b) the expiry of the first 12 weeks of that period of entitlement; or (c) the Commission determines the amount of the person's pre-accident weekly earnings. This section only applies to a person who was injured in a transport accident that occurs on or after the date of commencement of section 8 of the **Transport Accident (Amendment) Act 2004**—see section 186. S. 45AB inserted by No. 94/2004 s. 8. 45AB Interim payments to be reconciled with actual entitlements (1) This section applies if the Commission makes a payment to a person under section 45AA. (2) Once the Commission determines the amount of the person's pre-accident weekly earnings, the Commission must then determine the difference between— (a) the amount that the person has been paid under section 45AA; and (b) the amount that the person would have been paid under section 44 or 45, during the period in respect of which payments under section 45AA were made, had the amount of the person's pre-accident weekly earnings been determined on the day of the accident. (3) If the person was paid less than he or she was entitled to under section 44 or 45 for the relevant period, the Commission must pay the amount of the difference to the person as soon as is practicable after determining the amount. (4) If the person was paid more than he or she was entitled to under section 44 or 45 for the relevant period, the Commission may recover the amount of the difference by way of offset from any future payments it is required to make to the person under that section. S. 45AC inserted by No. 94/2004 s. 9. 45AC Seasonal earners may opt to receive loss of earnings payments on seasonal basis (1) This section applies if a seasonal earner is injured in a transport accident and suffers a loss of earnings as a result of the injury. (2) For the purposes of this section— (a) a ***seasonal earner*** is a person who engages in one or more seasonal activities; (b) ***seasonal activities*** are activities that occur on an annual basis but that only provide employment for most of the people engaged in them for less than 6 months in any 12 month period. **Example** Fruit-picking, skiing instruction, acting in a television series that is only in production for 5 months each year, acting in school holiday plays, operating a whale-watching boat, making Christmas puddings. (3) For the purposes of sections 44 and 45, a seasonal earner may elect to be compensated under those sections during the period of entitlement on a week to week basis as if a reference in those sections to the earner's pre-accident weekly earnings was a reference in a particular week to the earnings the earner could reasonably have expected to earn in that week had the injury not occurred. This subsection enables a seasonal earner to elect to receive weekly loss of earnings payments on the same pattern that he or she was accustomed to before the injury, that is, for instance, higher payments in weeks in which he or she would normally have been working full time and no, or lower, payments in weeks when he or she would normally have been unemployed or working part time. If no election is made the earner will receive the same amount each week based on a weekly average of his or her earnings in the last 12 months (unless another provision of section 44 or 45 applies). (4) An election under subsection (3)— (a) must be made in writing and be given to the Commission within 14 days after the earner becomes entitled to receive any payment under section 44 or 45; and (b) has effect for the remainder of the period of entitlement that applies in respect of the injury; and (c) cannot be revoked once any payment under section 44 or 45 is made to the earner in accordance with the election. (5) Despite subsection (4)(a), the Commission may waive the 14 day period referred to in that subsection if, in the opinion of the Commission, it is appropriate to do so in particular circumstances. This section only applies to a person who was injured in a transport accident that occurs on or after the date of commencement of section 9 of the **Transport Accident (Amendment) Act 2004**—see section 187. S. 45A inserted by No. 32/1988 s. 10, substituted by No. 84/1994 s. 31.