49Total loss of earning capacity

49 Total loss of earning capacity (1) The Commission is liable to pay to an earner who, as a result of a transport accident— (b) suffers total loss of earning capacity— a weekly payment in respect of that loss after the first 18 months after the accident or after the earner ceases to be entitled to payments under section 44 or 45, whichever last occurs, while that loss continues. S. 49(2)(a) amended by No. 84/1994 s. 33(2)(a). (a) 80 per centum of the earner's pre-accident earning capacity; or S. 49(2)(b) amended by No. 84/1994 ss 33(2)(b), 55(2)(e). (b) if the earner has no dependants—$270; or S. 49(2)(c) amended by No. 84/1994 s. 32(2)(c). S. 49(2)(c)(i) amended by No. 84/1994 s. 55(2)(e). (i) $270; and S. 49(2)(c)(ii) amended by No. 84/1994 s. 55(2)(c). (ii) $76 for one dependant; and S. 49(2)(c)(iii) amended by No. 84/1994 s. 55(2)(a). (iii) $25 for each other dependant— S. 49(3)(a) amended by No. 84/1994 ss 32(2)(d), 55(2)(h). (a) $504; or S. 49(3)(b) amended by No. 84/1994 s. 32(2)(e). (b) 100 per centum of the earner's pre-accident earning capacity— (4) A person who receives a weekly payment under this section in respect of a transport accident must, within two months after each anniversary of the date on which the person first received a payment under this section in respect of that accident, give the Commission a statement of earnings in the prescribed form with particulars about the person's earnings (if any) in the year preceding that anniversary. ***earner*** includes a person injured as a result of a transport accident who, at the time of the accident, was not an earner, but has attained the age of 18 years after the accident; S. 49(5) def. of *pre-accident earning capacity* substituted by No. 84/2000 s. 15(1). ***pre-accident earning capacity*** in relation to an earner who suffers loss of earning capacity as a result of an injury in a transport accident, means the amount the Commission determines as the weekly amount the earner had the capacity to earn before the transport accident in employment reasonably available to the earner in view of the earner's training, skills and experience less such amount as the Commission reasonably considers to be the amount of income tax that would have been payable on that weekly amount under the Commonwealth Income Tax Assessment Act 1936. S. 49(5A) inserted by No. 84/2000 s. 15(2), amended by Nos 44/2014 s. 33(Sch. item 29(1)), 18/2022 s. 27. (5A) If an amount cannot be determined in accordance with the definition of ***pre-accident earning capacity***, the amount is deemed to be the amount which is equal to 100% of average weekly earnings of all employees for Victoria last published by the Australian Bureau of Statistics. (6) For the purpose of the definition of pre-accident earning capacity in subsection (5), if at the time of the accident, the earner was an apprentice or was employed under an award containing, or under conditions under which there were, at that time, different rates of pay for earners of different ages, the earner's pre-accident earning capacity shall be calculated— (a) until the earner attains the age at which the highest rate is payable or 21 years, whichever is the earlier—as if, at the time of the accident, the earner had the capacity to earn at the rate applicable to the age of the earner for the time being; and (b) on and after the earner attains the age at which the highest rate is payable or 21 years, whichever is the earlier—as if, at the time of the accident, the earner had the capacity to earn at the rate applicable to the highest of those ages or to age 21. S. 49(7) amended by No. 84/1994 s. 55(2)(h). (7) For the purposes of subsection (6), if there is no rate applicable to an earner of or over the age of 21, the amount an earner of or over the age of 21 has the capacity to earn shall be deemed to be 80 per centum of $504. S. 49(8) inserted by No. 84/2000 s. 15(3). (8) The amount of a weekly payment under this section to which a person is entitled on or after 1 July 2000 in respect of a transport accident that occurred before 1 July 2000 is increased by 4 percent. S. 49(9) inserted by No. 94/2004 s. 14(2). (9) An earner's entitlements under this section are not affected by the earner starting or continuing paid employment if— (a) he or she has a severe injury as a result of a transport accident; and (b) he or she is participating in a supported employment program in respect of that employment; and (c) he or she receives $120 per week or less as earnings from that employment.