69Amount of compensation in case of incapacity

### 69 Amount of compensation in case of incapacity > > (1)  [*\[Section 69 Subsection (1) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpa@EN) [*\[Section 69 Subsection (1) amended by No. 65 of 2004, s. 17, Applied:17 Dec 2004\]*](/view/html/inforce/2004-12-17/act-2004-065#GS17@EN) *\[Section 69 Subsection (1) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (1) amended by No. 16 of 1995, s. 46 \]*Subject to this section, where total or partial incapacity for work results from an injury suffered by a worker and where the existence of such total or partial incapacity is supported by a certificate in a form approved by the Board signed by a medical practitioner or accredited person, the compensation payable to him under this Act is– > > > > > > (a) [*\[Section 69 Subsection (1) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpb@EN) in the case of the total incapacity of the worker for work, weekly payments equal to– > > > > > > > > > > (i) the normal weekly earnings of the worker; or > > > > > > > > > > > (ii) the ordinary time rate of pay of the worker for the work in which, and for the hours during which, the worker was engaged immediately before the period of incapacity– > > > > > > > > whichever is the greater; or > > > > > > > (b) [*\[Section 69 Subsection (1) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpd@EN) [*\[Section 69 Subsection (1) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpc@EN) in the case of the partial incapacity of the worker for work, weekly payments for the period of that incapacity equal to the difference between the worker's weekly payment calculated in accordance with [paragraph (a)](#GS69@Gs1@Hpa@EN) and the amount that the worker is earning or would be able to earn in suitable employment or business during that period of incapacity. > > > (2)  *\[Section 69 Subsection (2) amended by No. 16 of 1995, s. 46 \]*[*\[Section 69 Subsection (2) substituted by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpe@EN) For the purposes of this section, if the period of employment is 14 days or less, the normal weekly earnings of the worker before the commencement of the period of incapacity are to be taken to be – > > > > > > (a) equivalent to the normal weekly earnings of another worker who is employed by the same employer and performing comparable work; or > > > > > > > (b) if there is no such other worker, the worker's expected weekly salary calculated on the hourly rate of pay for the work that he or she agreed, or was rostered, to perform in the pay period in which the incapacity occurred. > > > (2A)  [*\[Section 69 Subsection (2A) inserted by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpe@EN) For the purposes of [subsection (2)(b)](#GS69@Gs2@Hpb@EN) , the hourly rate of pay of a worker is – > > > > > > (a) the rate to which the worker is entitled under the worker’s contract of employment or industrial instrument, for each of his or her hours of work, excluding overtime and shift or other allowances; or > > > > > > > (b) if a rate cannot be determined under the worker's contract of employment or industrial instrument, the rate for each of those hours as previously agreed between the worker and the employer. > > > (3)  [*\[Section 69 Subsection (3) amended by No. 85 of 2009, s. 16, Applied:01 Jul 2010\]*](/view/html/inforce/2010-07-01/act-2009-085#GS16@EN) [*\[Section 69 Subsection (3) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpg@EN) [*\[Section 69 Subsection (3) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpf@EN) *\[Section 69 Subsection (3) substituted by No. 16 of 1995, s. 46 \]**\[Section 69 Subsection (3) substituted by No. 48 of 1996, s. 11 \]*If, during the period of incapacity of a worker, the ordinary hourly rate of pay for the work in which, and for the hours during which, the worker was engaged immediately before the commencement of that period increases or decreases in accordance with the worker's entitlement under the worker's contract of employment or industrial instrument, the weekly payment to which the worker is entitled is to be increased or decreased by the like amount. > > > (4)  *\[Section 69 Subsection (4) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (4) amended by No. 16 of 1995, s. 46 \]*The foregoing provisions of this section have effect subject to the following provisions of this subsection: > > > > > > (a) [*\[Section 69 Subsection (4) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpi@EN) [*\[Section 69 Subsection (4) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hph@EN) in fixing the amount of the weekly payment to a worker under this section, regard shall be had to any payment, allowance, or benefit that the worker may receive in respect of his or her employment during the period of his or her incapacity, not being a payment, allowance, or benefit paid in respect of a period of long service leave or of any entitlement to long service leave or in lieu of the taking of a period of long service leave; > > > > > > > (b) when the question of the amount that a worker is earning or would be able to earn arises, if it appears to the Tribunal that, because of the injury that the worker has suffered (including the physical disfigurement of the worker) he is, or will be, unable to obtain employment or to remain in reasonably regular employment, the Tribunal may decide that the worker is incapacitated by the injury, either totally or partially and either permanently or temporarily, as the circumstances of the case require, and, on the Tribunal so deciding, compensation is payable to the worker in accordance with this Division; > > > > > > > (c) where a worker – > > > > > > > > > > (i) has so far recovered from an injury suffered by him as to be fit for employment (but only for employment of a more limited kind than the employment in which he was engaged before the date when he suffered the injury); and > > > > > > > > > > > (ii) satisfies the Tribunal that he has taken all reasonable steps to obtain, and has failed to obtain, employment of a kind referred to in [subparagraph (i)](#GS69@Gs4@Hpc@Hqi@EN) , and that his failure to obtain that employment is a consequence wholly or mainly of the injury (including the physical disfigurement) of the worker – > > > > > > > > the Tribunal may, notwithstanding any other provision of this Act or any earlier determination of the Tribunal under this Act, or any order, award, determination, or decision made by a judge under the [repealed Act](/view/html/inforce/2026-04-12/act-9999-999#) , in respect of that worker, determine that his incapacity shall continue to be treated as total incapacity for such period and subject to such conditions as the Tribunal thinks fit and, on the making of the determination, compensation is payable to the worker in accordance with this Division. > > > > > > > (d) .  .  .  .  .  .  .  .   > > > (5)  In determining the amount of compensation payable under any of the foregoing provisions of this section, no regard shall be had to any sum paid or payable under any contract of assurance or insurance (including a contract made with a friendly society or other benefit society or association or a trade union) or out of any relief, superannuation, or sustentation fund, or other fund (whether statutory or otherwise) of the like nature. > > > (6)  *\[Section 69 Subsection (6) amended by No. 16 of 1995, s. 46 \]*[*\[Section 69 Subsection (6) omitted by No. 99 of 2000, s. 35, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2000-099#GS35@Hpa@EN) .  .  .  .  .  .  .  .   > > > (7)  *\[Section 69 Subsection (7) omitted by No. 16 of 1995, s. 46 \]*.  .  .  .  .  .  .  .   > > > (8)  *\[Section 69 Subsection (8) amended by No. 50 of 1992, s. 10 \]**\[Section 69 Subsection (8) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (8) amended by No. 16 of 1995, s. 46 \]*[*\[Section 69 Subsection (8) substituted by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpj@EN) If of the opinion that an amount of weekly payments calculated in accordance with this section is insufficient or excessive, a worker, an employer or a licensed insurer of the employer may refer the matter to the Tribunal. > > > (9)  *\[Section 69 Subsection (9) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (9) amended by No. 16 of 1995, s. 46 \]*[*\[Section 69 Subsection (9) substituted by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpj@EN) The Tribunal, in relation to a matter referred to it under [subsection (8)](#GS69@Gs8@EN) , is to determine the amount of weekly payments which appears to it to be reasonable and appropriate in the circumstances, having regard to – > > > > > > (a) the current weekly earnings of another worker of the same grade or classification as the worker and employed by the same employer in similar work to the worker; and > > > > > > > (b) the earnings that the worker might reasonably have earned during the period of incapacity; and > > > > > > > (c) any other relevant matter. > > > (10)  [*\[Section 69 Subsection (10) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpk@EN) *\[Section 69 Subsection (10) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (10) amended by No. 16 of 1995, s. 46 \]*In determining the amount of weekly payments under [subsection (9)](#GS69@Gs9@EN) , the Tribunal shall have regard to the principle that a worker should not receive, during a period of incapacity, weekly payments greater than the payments the worker would have received if he had worked in his usual employment during that period. > > > (11)  [*\[Section 69 Subsection (11) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpm@EN) [*\[Section 69 Subsection (11) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpl@EN) *\[Section 69 Subsection (11) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (11) amended by No. 16 of 1995, s. 46 \]*The amount of weekly payments determined by the Tribunal under [subsection (9)](#GS69@Gs9@EN) shall be the amount of weekly payments payable to the worker notwithstanding that it may be a greater or lesser amount than the compensation otherwise payable under this section. > > > (12)  [*\[Section 69 Subsection (12) amended by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpn@EN) *\[Section 69 Subsection (12) amended by No. 43 of 1993, s. 17 \]**\[Section 69 Subsection (12) amended by No. 16 of 1995, s. 46 \]*Where the weekly payments determined by the Tribunal under [subsection (9)](#GS69@Gs9@EN) involve a reduction in the amount of weekly payments being made to a worker, the Tribunal shall determine the date from which that reduction is to take effect, being a date that is not earlier than the date of the determination of the Tribunal. > > > (13)  [*\[Section 69 Subsection (13) inserted by No. 99 of 2000, s. 35, Applied:01 Jul 2001\]*](/view/html/inforce/2001-07-01/act-2000-099#GS35@Hpb@EN) If the period specified in a medical certificate provided by a worker under this section expires and the worker provides a further certificate more than 14 days after the expiration of that specified period, the employer, on receipt of the subsequent certificate, may treat that certificate as a claim for compensation to which [section 81A](#GS81A@EN) applies. > > > (14)  [*\[Section 69 Subsection (14) inserted by No. 42 of 2007, s. 15, Applied:31 Oct 2007\]*](/view/html/inforce/2007-10-31/act-2007-042#GS15@Hpo@EN) In this section – > > > > > ***normal weekly earnings***, in relation to a worker who is incapacitated for work, means the average weekly earnings of the worker during the relevant period; > > > > > ***relevant period*** means – > > > > > > > > (a) if the worker has been continuously employed by the same employer for 12 months or more, the 12 months immediately before the commencement of the period of incapacity; or > > > > > > > > > (b) if the worker has been continuously employed by the same employer for less than 12 months, the period for which he or she was employed before the commencement of the period of incapacity.