New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 39

39 Incapacity treated as total-“odd-lot” rule

(cf former s 12)

(1) If:

(a) a worker is fit for employment of a kind not commonly available for a person in the worker’s circumstances, and

(b) but for this section, the worker would be entitled to be compensated under this Division as totally incapacitated for work,

the worker is not entitled to be so compensated unless:

(c) the worker proves to the satisfaction of the Commission that the worker has taken all reasonable steps to obtain (but has failed to obtain) employment for which the worker is fit, and

(d) payment is made in accordance with the Commission’s order.

(2) An order of the Commission under this section may be limited to such period, and be subject to such conditions, as may be specified in the order.

(3) The Commission may, in determining whether a worker has taken all reasonable steps to obtain employment for the purposes of this section, have regard to:

(a) whether the worker was made aware of the worker’s obligation to take those steps, and

(b) circumstances of the kind referred to in section 38A (5).

(4) The “odd-lot” rule and any similar rule for determining whether a worker is totally or partially incapacitated for work is subject to the provisions of this section.

(5) This section does not affect the operation of section 38 or 55.

(6) The Registrar may make any order that the Commission may make under this section if the matter must be determined for the purposes of any interim payment direction by the Registrar.