Calculation

Settlement, redemption, commutation

New South Wales

Part 3, Div 2 (Workers Compensation Act 1987).

No current work capacity *

• First 13 weeks — lesser of:
• 95 % pre-injury average weekly earnings (PIAWE) or
• the maximum weekly compensation amount ($2,282.90) minus any deductible amount.
• 14–130 weeks — lesser of:
• 80% PIAWE or
• the maximum weekly compensation ($2,282.90)

Notes:

1. Workers will be subject to work capacity assessments at any point throughout the duration of the claim to gather information about the workers ability to return to work in pre-injury employment or suitable employment.

• 31–260 weeks:

A worker has no entitlement to weekly payments after receiving weekly payments for 130 weeks unless:

• the insurer has made an assessment that they have no current work capacity and this is likely to continue indefinitely

Weekly payments are the lesser of:

• 80% PIAWE minus the value of any deductible amount, or
• the maximum weekly compensation amount ($2,128.50) minus any deductible amount.

Workers will be subject to a work capacity assessment at least every two years.

• After 260 weeks (five years) ***

Weekly payments will cease except for:

• workers who are determined to be workers with high needs (greater than 20% permanent impairment) and meet the requirements of s38(3A) of the 1987 Act.

Weekly payments are the lesser of:

• 80% PIAWE or
• the maximum weekly compensation amount ($2,282.90) Workers will be subject to a work capacity assessment at least every two years. However, workers with highest needs (greater than 30% permanent impairment) continue to be entitled to weekly payments without the requirement for a work capacity assessment.

*** Workers with highest needs are entitled to receive a minimum weekly payment of $871.00 providing they meet the requirements under s38A of the 1987 Act.

Current work capacity*

• First 13 weeks — lesser of:
• 95% PIAWE minus earnings** or
• the maximum weekly compensation amount ($2282.90) minus earnings and the value of any deductible amount.
• 14–130 weeks

Working 15 hours or more per week, the lesser of:

• 95% PIAWE minus earnings or
• the maximum weekly compensation amount ($2282.90) minus earnings and the value of any deductible amount.

Working less than 15 hours per week, the lesser of:

• 80% PIAWE minus earnings or
• the maximum weekly compensation amount ($2282.90) minus earnings

Workers will be subject to work capacity assessments at any point throughout the duration of the claim to gather information about their ability to return to work in pre-injury employment or suitable employment.

• 131–260 weeks

A worker has no entitlement to weekly payments after receiving weekly payments for 130 weeks unless:

·      the worker is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity , or

•  the worker (other than a worker with high needs) has completed an ‘Application for continued weekly payments after 130 weeks: Form’ and submitted it to the insurer, and
• the worker is working 15 hours or more per week and earning at least $202 per week and has been assessed by the insurer as indefinitely incapable of undertaking further employment to increase their earnings, and

Weekly payments are the lesser of:

• 80% PIAWE minus earnings or
• the maximum weekly compensation amount ($2282.90) minus any earnings

Except for workers with highest needs, workers will be subject to a work capacity assessment at least every two years.

• After 260 weeks (five years) ***

Weekly payments will cease, except for:

• workers with greater than 20% permanent impairment who meet the requirements of s38, 1987 Act.

Weekly payments are the lesser of:

• 80% PIAWE minus earnings or the amount or
• the maximum weekly compensation amount ($2282.90) minus any earnings and the value of any deductible amount.

*** Workers with highest needs are entitled to receive a minimum weekly payment of $871.00.

*Claims by the following exempt workers continue to be managed and administered as though the June 2012 changes never occurred and the above weekly payment regime does not apply:

• police officers, paramedics and firefighters
• workers injured while working in or around a coal mine
• bush fire and emergency service volunteers, and
• people with a dust disease claim under the Workers’ Compensation (Dust Diseases) Act 1942.

**Earnings means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:

• the amount the worker is able to earn in suitable employment, or
• the workers current weekly earnings.

*** Workers who were in receipt of weekly payments immediately before 1 October 2012 (existing recipients) may continue to be entitled to weekly payments after 260 weeks if:

• an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
• the insurer is satisfied that the degree of permanent impairment is likely to be more than 20% (whether or not the degree of permanent impairment has previously been assessed).

A liability in respect of an injury may be commuted to a lump sum with the agreement of the worker. A commutation is a lump sum paid by the insurer on behalf of the employer, the receipt of which brings to an immediate end all future entitlements to weekly payments, hospital, medical and related treatment and rehabilitation expenses in respect of that injury. A commutation is only available if the following pre-conditions are met:

• the injured worker has a permanent impairment of at least 15%
• compensation for that permanent impairment has been paid
• the worker is currently eligible for ongoing weekly payments and must have received weekly payments regularly and periodically during the previous six months
• the worker has an existing and continuing entitlement to weekly payments of compensation
• it is more than two years since worker first claimed compensation
• injury management and return to work opportunities have been fully exhausted, and
• weekly payments have not been stopped or reduced as a result of the worker not complying with their return to work obligations

[section 87EA, 1987 Act]

Prior to receiving a commutation:

• the worker must receive and understand independent legal advice and be advised of the desirability of obtaining independent financial advice
• the insurer, and worker must agree with the commutation
• SIRA must certify the commutation meets the preconditions, and
• all agreements must be registered with the Workers’ Compensation Commission

[section 87F, 1987 Act]

There is no entitlement to commute weekly payments for workers under the Workers’ Compensation (Dust Diseases) Act 1942 however dependant entitlements may be redeemed.

Victoria

Due to statutory changes to scheme on 12/11/97, benefit rates depend on date of entitlement.

Pre 12/11/97 claims: Worker is entitled to receive weekly payments — old rates apply.

Post 05/04/10 claims:

First 13 weeks:

If no current work capacity: 95% of pre-injury average weekly earnings (PIAWE)* less deductible amount** or maximum (twice State average weekly earnings — $2,570), whichever is the lesser.

If current work capacity: the difference between 95% PIAWE less deductible amount and the worker’s current weekly earnings or the difference between the maximum (twice State average weekly earnings — $2,570) less the worker’s current weekly earnings, whichever is the lesser — s161, Workplace Injury Rehabilitation and Compensation Act 2013

• >13 weeks:
• If no current work capacity: 80% of PIAWE less deductible amount or maximum (twice State average weekly earnings — $2,570), whichever is the lesser.
• If current work capacity: the difference between 80% of PIAWE less deductible amount and 80% of the worker’s current weekly earnings or the difference between the maximum (twice State average weekly earnings — $2,570) less 80% current weekly earnings, whichever is the lesser — s162
• >52 weeks:
• Weekly payments continue as above, except PIAWE is reduced as no further entitlement to shift allowance or overtime (earnings enhancements) — s152, s153 and s157.
• >130 weeks (Note for pre 1 Jan 2005 claim ≥ 104 weeks):
• Weekly payments can continue to be paid until retirement age (except where worker injured within or after 130 weeks of retirement age where maximum of 130 weeks applies) as long as:

1. The worker is likely to have no current work capacity indefinitely. The weekly payment is then 80% of PIAWE less deductible amount or maximum (twice State average weekly earnings — $2,570), whichever is the lesser — s163, or
2. The worker has a current work capacity and has returned to work at his/her maximum capacity and is working at least 15 hours per week and earning at least $220 per week. The weekly payment is then the difference between 80% of PIAWE less deductible amount and 80% of the worker’s current weekly earnings or the difference between the maximum which is twice State average weekly earnings — $2,570) and 80% current weekly earnings, whichever is the lesser — s165, or
3. The worker is working 15 hours per week and earning at least $220 per week and requires surgery and is incapacitated for work — worker entitled to maximum of 13 weeks of weekly payments on same basis as s162 above if worker applies more than 13 weeks after weekly payment entitlement has ceased after 130 weeks — s164.

*Pre-injury average weekly earnings is defined in s152 to s158 but generally means a worker’s average ordinary earnings during the 12 months prior to injury excluding any week that the worker was not actually working and not on paid leave expressed as a lump sum and any earnings enhancements (shift allowance, overtime) in that 12 months. Earnings enhancements are included in PIAWE for the first 52 weeks of weekly payments only.

**Deductible amount is defined in s152 but generally means the total value of any ongoing employment benefits including non-pecuniary benefits such as the value of residential accommodation, motor vehicle use, health insurance and education fees.

A settlement of weekly payments in a lump sum is allowable in some circumstances — Part 5, Division 9. The settlement is only for weekly payments and does not include reasonable medical and like expenses which continue to be paid.

Queensland

For the first 26 weeks: Workers under an industrial instrument s150(1)(a), Workers’ Compensation and Rehabilitation Act 2003 — the greater of:

1.    85% of the worker’s NWE, or

2.    amount payable under the worker’s industrial instrument.

Workers not under an award or agreement s151(1)(a) — the greater of:

1.    85% of NWE*, or

2.    80% of QOTE**.

Queensland Ordinary Time Earnings (QOTE) is $1,615.40 as at 1 July 2021.

Workers on contract s152(1)(a) — the greater of:

1.    85% NWE*, or

2.    the amount payable under the worker’s contract of service.

From the end of the first two years to the end of the first five years: where a worker demonstrates that the injury could result in a degree of permanent impairment (DPI) of more than 15% — s150(1)(c)(i), s151(1)(c)(i) and s152(1)(c)(i) — the greater of:

1.    75% of the worker’s NWE*, or

2.    70% of QOTE**.

Workers with DPI less than or equal to 15%, receive an amount equal to the single pension rate.

Total amount payable for weekly benefits is $349,170 as at 1 July 2021.

*NWE can include amounts paid to the worker regularly for overtime, higher duties, penalties and allowances. It cannot include some allowances (such as those paid for travelling, meals, education, and living away from home), superannuation contributions or lump sum payments made on termination of a workers’ employment for superannuation or accrued leave — s98 Workers’ Compensation and Rehabilitation Regulation 2014.

**QOTE for a financial year, means the amount of Queensland full-time adult persons ordinary time earnings declared by the Australian Statistician in the original series of the statistician’s average weekly earnings publication most recently published before the start of the financial year (s107).

Liability for weekly compensation payments can be discharged by a redemption payment agreed between the insurer and worker if worker has been receiving weekly payments for at least two years and the worker’s injury is not stable and stationary for the purpose of assessing permanent impairment — Chapter 3, Part 9, Division 7.

After a redemption payment has been made the worker has no further entitlement to compensation for the injury, including weekly benefits, and medical and rehabilitation expenses.

Western Australia

A cap on weekly payments of $2,772 applies for the duration of claims. This amount is indexed annually (every 1 July).

Workers whose earnings are prescribed by an industrial award:

First 13 weeks of claim — Weekly payments will consist of the rate of the worker’s average weekly earnings payable under the relevant industrial award, plus any over award or service payment paid on a regular basis, including overtime, bonuses or allowances up to a maximum of $2,2,772. Overtime, bonuses or allowances are averaged over the 13 weeks before the disability occurred — Schedule 1, clause 11(3)(a).

14th week onward — Weekly payments consist of the rate of weekly earnings payable under the relevant industrial award, plus any over award or service payment paid on a regular basis, any allowance paid on a regular basis as part of the worker’s earnings and related to the number and pattern of hours worked but excluding overtime, bonuses or allowances. Maximum payment is $2,772. Subject to the cap of $2,772, the minimum rate of weekly earnings payable, at the time of the incapacity, for the appropriate classification under the relevant award — Schedule 1, clause 11(3)(b).

Workers whose earnings are not prescribed by an industrial award:

First 13 weeks of claim — Weekly payments will consist of the worker’s average weekly earnings (including overtime, bonuses and allowances) averaged over the year before the disability occurred, up to a maximum of $2,772 — Schedule 1, clause 11(4)(a).

14th week onward — Weekly payments ‘step down’ to 85% of the worker’s average weekly earnings, maximum payment is 2,665.70. Minimum rate: The minimum rate of weekly earnings payable under the Minimum Conditions of Employment Act 1993 — Schedule 1, clause 11(4)(b).

Lump sum redemption payment for loss of future wages, medical and like expenses, as a result of a permanent total or partial incapacity.

Criteria: worker received weekly payments for not less than six months, worker and employer agree to redemption and the lump sum amount, the worker will automatically waive their common law rights and the Director of Conciliation Services is satisfied the worker is aware of the consequences of redeeming their claim — s67, Workers’ Compensation and Injury Management Act 1981.

Compensation for permanent impairment is also available under Schedule 2 of the Act which lists specific compensable injuries against which a percentage of the prescribed amount is listed.

South Australia

A worker’s average weekly earnings rate will be calculated by reference to the worker’s average earnings over the 12 months before the injury s5, Return to Work Act 2014. A cap of twice the State Average Weekly Earnings applies for the duration of the claim ($3,214.20 per week as at 19/08/2021) — s5(15)(c)

An injured worker who is not seriously injured, is entitled to income maintenance for 2 years from the date of first entitlement to weekly payments — s4(11). For the first 52 weeks the worker is entitled to 100% of their average weekly earnings. This entitlement reduces to 80% for the following 52 weeks.

A worker may be entitled to an additional 13 weeks of income support for any pre-approved surgery (s40, s41). If the combined amount that a worker would receive would result in the worker receiving less than the Federal minimum wage, the amount of compensation paid will be increased so that the combined amount equals the Federal minimum wage.

Seriously injured workers are those whose work injury results in a degree of whole person impairment to be 30% or more. Seriously injured workers will be eligible to receive income support until retirement age (100% average weekly earnings for the first 52 weeks, 80% until retirement age). An adjustment to the amount may be made annually to account for movement in wages (s41).

A liability to make weekly payments may, by agreement, be redeemed by a capital payment to the worker. An agreement for the redemption of a liability of weekly payments cannot be made unless;

• the worker has received competent professional advice about the consequences of redemption and about the investment or use of money to be received on redemption.
• the Corporation has consulted with the employer out of whose employment the injury arose and has considered any representations made by the employer; and
• a recognised health practitioner has certified that the extent of the worker’s incapacity resulting from the work injury can be determined with a degree of confidence — s53.

Tasmania

s69B, Workers Rehabilitation and Compensation Act 1988

≤ 26 weeks:

100% of weekly payment i.e. the greater of normal weekly earnings (NWE), or ordinary-time rate-of-pay for work engaged in immediately prior to incapacity.

NWE is the worker's average weekly earnings with that employer over the previous 12 months or the period of employment if less than 12 months. Overtime is included if it was regular and would have continued to be paid if the worker was not incapacitated.

> 26 weeks to ≤ 78 weeks:

90% of weekly payment. The Act provides that the worker is to receive 95% of the weekly payment if the employer fails to provide suitable alternative duties.

> 78 weeks:

80% of weekly payment. The Act provides that the worker is to receive 85% of the weekly payment if the employer fails to provide suitable alternative duties.

Cessation of entitlement to weekly payments depends on the worker’s degree of whole person impairment (WPI):

• 9 years if < 15% WPI
• 12 years if ≥15% WPI but < 20% WPI
• 20 years if ≥20% WPI but < 30% WPI, or
• To date of cessation of employment under s87 (normally the pension age) if ≥ 30% WPI.

Minimum amount payable is 70% of the basic salary (which is $667.95 per week, as at 1 January 2021) or 100% of the weekly payment determined under s69 — whichever is the lesser amount (or pro rata equivalent) — s69B(3).

s132A

Settlements made within two years of the date of claim:

Settlement by agreement of outstanding entitlements to compensation made within two years of the date of the claim must be approved by the Tasmanian Civil and Administrative Tribunal.

The Tribunal must be satisfied that:

• all reasonable steps have been taken to enable the worker to be rehabilitated, retrained or to return to work, or
• the worker has returned to work, or
• there has been a reasonably arguable case determination, that the proposed agreement is in the best interests of the worker, or
• there are special circumstances that make rehabilitation, retraining or return to work impracticable and the proposed agreement is in the best interests of the worker.

The Tribunal must also be satisfied that the worker has received appropriate professional advice about the proposed agreement to settle and that the worker’s entitlement to lump sum compensation for permanent impairment has been considered.

Settlements made after two years of the date of claim:

Agreements to settle made more than two years after the date of the claim do not have to be approved by the Tribunal. A party can subsequently refer the agreement to the Tribunal to be reviewed and possibly set aside. Referral must be made within three months of the date of the agreement.

The Tribunal can set aside an agreement if it is of the opinion that:

• a party entered the agreement under duress, or
• the worker has not received appropriate advice, or
• a party was induced to enter the agreement by a misrepresentation by another party (or their agent).

Northern Territory

< 26 weeks —

NWE i.e. worker’s pre-injury gross weekly remuneration from all employment, including overtime and shift penalties (where worked in a regular and established pattern) — s49A (for NWE) and s64 Return to Work Act 1986

> 26 weeks —

Whichever is the greater of:

1. 75% of NWE to a maximum of $2,354.55 — s65(1B) or
2. $784.85 plus $196.21 for a dependant spouse and $98.11 for each dependent child; or 90% of NWE (whichever is the lesser) — s65(7)

Post 26 weeks weekly benefits are indexed annually on 1 January in accordance with movements in average weekly earnings as published by ABS for Northern Territory Full Time Adult Persons Ordinary Time Earnings. — s3(1), s65(3) and s65(3A).

< 104 weeks — Weekly benefits may reduce or cease, if the worker has been deemed to have an earning capacity, provided that suitable employment is reasonably available — s65(2)(b)(i)

> 104 weeks —

Weekly benefits may reduce or cease, if the worker has been deemed to have an earning capacity, without having regard to the availability of suitable employment — s65(2)(b)(ii)

> 260 weeks —

Entitlement ceases unless WPI 15% or greater s65(1BA) where entitlement can continue until pension age

Settlement by agreement between worker and employer/insurer — s78A

• Prior to a settlement the worker must receive legal advice, paid for by the employer and if requested, financial advice paid for by the employer - s78A(4)
• If settlement is before 104 weeks, there is a 6 month cooling off period — s78A(6)

Australian Capital Territory

First 26 weeks of incapacity — Where the worker is totally incapacitated, weekly compensation is payable at the worker’s average pre-incapacity earnings — s39(4)(a), Workers Compensation Act 1951

Where the worker is partially incapacitated during the first 26 weeks, weekly compensation is payable calculated as the difference between:

• the worker’s average pre-incapacity weekly earnings, and
• the average weekly amount that the worker is being paid for working or could earn in reasonably suitable employment: s39(4)(b)

After first 26 weeks of incapacity — If the worker is totally incapacitated for any period after the 26-week period, s/he is entitled to weekly compensation equal to:

1. 100% of the worker’s average pre-incapacity weekly earnings — if 100% of the worker’s average pre-incapacity weekly earnings is less than the pre-incapacity floor for the worker, or
2. the statutory floor — if 100% of the worker’s average pre-incapacity weekly earnings is more, but 65% of those earnings is less, than the pre-incapacity floor for the worker, or
3. whichever is more — if 65% of the worker’s average pre-incapacity weekly earnings is more than the pre-incapacity floor for the worker — s41(1)

If the worker is partially incapacitated for period after the 26-week period, s/he is entitled to weekly compensation equal to:

1. 100% of the worker’s average pre-incapacity weekly earnings if that amount is less than the statutory floor, or
2. the statutory floor if the relevant percentage of the worker’s average pre-incapacity weekly earnings is less than the statutory floor, or
3. the statutory ceiling if the relevant percentage of the worker’s average pre-incapacity weekly earnings is more than the statutory ceiling 3, or
4. in any other case — the relevant percentage of the worker’s average pre-incapacity weekly earnings — s42(1)

For these purposes the ‘relevant percentage’ is:

1. 65% if the worker is not working or works 25% of the worker’s average pre-incapacity weekly hours or less, or
2. 75% if the worker is working more than 25% of the worker’s average pre-incapacity weekly hours but not more than 50%, or
3. 85% if the worker is working more than 50% of the worker’s average pre-incapacity weekly hours but not more than 75%, or
4. 95% if the worker is working more than 75% of the worker’s average pre-incapacity weekly hours but not more than 85%, or
5. 100% if the worker is working more than 85% of the worker’s average pre-incapacity weekly hours — s42(2)

Definitions:

• Pre-incapacity floor, for a worker, means the statutory floor that applied immediately before the initial incapacity date for the worker in relation to the injury — s41(2)
• Statutory floor, means the national minimum wage set by a national minimum wage order in an annual wage review by Fair Work Australia — s36G(1)
• Statutory ceiling, in relation to an amount, means 150% of AWE at the time the amount is to be paid — s42(4).

• Negotiated between injured worker and employer/insurer. Schedule 1 of the Act provides a list of injuries, including for the loss of toes, taste and smell, and sets out a % rate (from 2% to 100%) of the single loss amount payable.
• Unlimited Common Law.
• Benefits may be commuted.

C’wealth Comcare

Current Employees

  < 45 weeks — see s19(2), Safety, Rehabilitation and Compensation Act 1988:

– 100% NWE which includes overtime if regular and required and penalties, with no maximum cap applied

45 weeks — see s19(3):

a) If not working — 75% of NWE.

b) If working >0% to <=25% of pre injury hours — 80% of NWE less Able to Earn

c) If working >25% to <=50% of pre injury hours — 85% of NWE less Able to Earn

d) If working >50% to <=75% of pre injury hours — 90% of NWE less Able to Earn

e) If working >75% to <100% of pre injury hours — 95% of NWE less Able to Earn

f) If working 100% of pre injury hours — 100% of NWE less Able to Earn.

  Minimum earnings — see s19(7): $478.01 p/w

  Additional for prescribed person — see s19(8): $118.37 p/w,

  Additional for each dependent child — see s19(9): $59.14 p/w

  Maximum amount of compensation after 45 weeks’ incapacity — see s19(5):

– $2,379.30 p/w from 16 August 2018 (150% of Average Week Ordinary Time Earnings for Full-time Adults as published by Australian Bureau of Statistics).

  Compensation payments for ex-employees are increased by reference to the ABS Wage Cost Index for year ending 31 December applicable from 1 July each year.

Retired Employees (those not currently working and earning any income)

The combined workers’ compensation and employer funded superannuation benefit payable to retired employees is the equivalent of 70% of their former normal weekly earnings. This is calculated by subtracting from the amount of compensation otherwise payable

(i) the employer-funded part of their weekly superannuation pension (or its deemed weekly interest from the employer funded lump sum), and

(ii) 5% of the employee’s former normal weekly earnings to equate with the typical superannuation contribution most employees would have been paying had the employee not retired.

The above mentioned ‘amount of compensation otherwise payable’ takes into account any actual or able to earn amount — see ss20(3), 21(3) and 21A(3).

As per s23(1) compensation ceases to be payable to an employee who has reached pension age, unless their date of injury has reached the age that is 2 years before pension age in which case they will receive a maximum of 104 weeks of compensation as per s23(1A).

Redemptions of weekly benefits are only available in some circumstances and are calculated per s30(1) (or s137(1) for ‘former workers’) under the SRC Act. Medical, rehabilitation or permanent impairment payments are not affected. A redemption lump sum can only be paid out in lieu of ongoing weekly incapacity payments when a worker’s weekly incapacity payments are equal to or less than an indexed amount (currently $116.16 per week, since 1 July 2017) and Comcare is satisfied that the degree of incapacity is unlikely to change. The lump sum payment is calculated by a specified formula.

C’wealth Seacare

1. < 45 weeks — 100% NWE — s31(2), Seafarers Rehabilitation and Compensation Act 1992.
2. > 45 weeks — s31(5):
3. if not working — 75% of NWE.
4. if working >0% to <=25% of pre injury hours — 80% of NWE less Able to Earn, or
5. if working >25% to <=50% of pre injury hours — 85% of NWE less Able to Earn
6. if working >50% to <=75% of pre injury hours — 90% of NWE less Able to Earn
7. if working >75% to >100% of pre injury hours — 95% of NWE less Able to Earn
8. if working 100% of pre injury hours — 100% of NWE less Able to Earn.
9. Minimum earnings — see s31(9) $478.01 per week
10. Additional for prescribed person — see s31(10) $118.37 per week
11. Additional for each dependent child — see s31(11) $59.14 per week
12. Maximum amount of compensation after 45 weeks’ incapacity — see s31(7)
13. Maximum: $2,379.30 per week from 16 August 2018 (150% of Average Week Ordinary Time Earnings for Full-time Adults as published by Australian Bureau of Statistics).

s38(1) compensation ceases to be payable to an employee who has reached pension age, unless their date of injury has reached the age that is 1 year before pension age in which case they will receive a maximum of 104 weeks of compensation as per s38(2).

Redemptions of weekly benefits are only available in some circumstances. Medical, rehabilitation or permanent impairment payments are not affected. A redemption lump sum can only be paid out in lieu of ongoing weekly incapacity payments when a worker’s weekly incapacity payments are equal to or less than the statutory rate ($118.37 per week at 1 July 2018) and the employer is satisfied that the degree of incapacity is unlikely to change. The lump sum payment is calculated by a specified formula (s44).

C’wealth DVA

Military Rehabilitation and Compensation Act 2004 (MRCA)

• 100% normal earnings (NE) for current members — Chapter 4 Part III.
• <45 weeks — 100% NE for former members — s129.
• >45 weeks — (a) if not working: 75% of NE — s131.
• Minimum: Federal Minimum Wage — s179.
• Compensation payments for ex-workers are increased by reference to the ADF pay scales:

1. if working >0% to <=25% of pre injury hours — 80% of NE less actual earnings (AE)
2. if working >25% to <=50% of pre injury hours — 85% of NE less AE
3. if working >50% to <=75% of pre injury hours — 90% of NE less AE
4. if working >75% to <100% of pre injury hours — 95% of NE less AE, or
5. if working 100% of pre injury hours — 100% of NE less AE.

• Maximum: no maximum.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA)

• <45 weeks — see s19(2): 100% NEW which includes overtime and allowances
• >45 weeks — see s19(3): If not working — 75% of NWE

1. if working >0% to <=25% of pre injury hours — 80% of NWE less Able to Earn
2. if working >25% to <=50% of pre injury hours — 85% of NWE less Able to Earn
3. if working >50% to <=75% of pre injury hours — 90% of NWE less Able to Earn
4. if working >75% to <100% of pre injury hours — 95% of NWE less Able to Earn
5. if working 100% of pre injury hours — 100% of NWE less Able to Earn.

• Minimum earnings — see s19(7): $499.83 pw
• Additional for prescribed person — see s19(8): $123.77 pw
• Additional for each dependent child — see s19(9): $61.83 pw
• Maximum amount of compensation after 45 weeks’ incapacity — see s19(5):
• $2,567.40 (150% of Average Week Ordinary Time Earnings for Full-time Adults as published by Australian Bureau of Statistics).
• Compensation payments are increased by reference to the ABS Wage Cost Index

Compensation where the person is in receipt of superannuation

• The combined workers’ compensation and employer funded superannuation benefit payable to retired employees is the equivalent of 70% of their former normal weekly earnings. This is calculated by subtracting from the amount of compensation otherwise payable
• the employer-funded part of their weekly superannuation pension (or its deemed weekly interest from the employer-funded lump sum), and
• 5% of the employee’s former normal weekly earning to equate with the typical superannuation contribution most employees would have been paying had the employee not retired.
• The above mentioned ‘amount of compensation otherwise payable’ takes into account any actual or able to earn amount — see ss20(3), 21(3) and 21A(3).

MRCA

Redemptions of weekly benefits are only available in some circumstances and are calculated per (s138).

DRCA

Redemptions of weekly benefits are only available in some circumstances and are calculated per s30(1) [or s137(1) for ‘former employee’].

New Zealand

Employees (Accident Compensation Act 2001)

• For weeks two to five, 80% of short term rate, which is defined as:
  • Permanent employees — earnings in the four weeks prior divided by number of weeks in which they were derived — Schedule 1, Part 1, clause 34
  • Non-permanent employees — all earnings in the four weeks prior divided by number of weeks in which they were derived — Schedule 1, Part 1, clause 36
• Week 5, 80% of the long term rate, which is defined as:
  • Permanent employees — earnings from employment with that employer in the 52 weeks prior divided by weeks in which they were derived — Schedule 1, Part 1, clause 34
  • Non-permanent employees — all earnings in the 52 weeks prior divided by 52 weeks — Schedule 1, Part 1, clause 36

Shareholder-employees

Either:

1. earnings as an employee in the 52 weeks prior to incapacity divided by the number of weeks worked
2. earnings as an employee in the 52 weeks prior to incapacity and as a shareholder employee in the relevant year divided by weeks as an employee plus weeks worked as a shareholder-employee, or
3. weeks as an employee divided by 52 plus shareholder-employee earnings divided by 52 — Schedule 1, Part 1, clause 39

• Maximum weekly compensation amount is NZ$1,908.50. Will be reduced by a proportion of any earnings derived in the period of incapacity.
• Minimum for full-time earners — 80% of NZ$610.00. (The IPRC Amendment Act 2008 removed the need for a different minimum earner rate for full-time earners under 18).

Injury prior to 1 April 2002, an independence allowance may be payable if impairment > 10%.

From 1 April 2002, spouse of person killed can apply to have weekly compensation commuted.

The independence allowance can be capitalised for periods of 5 years, weekly compensation and medical costs cannot be commuted.