New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987 - SECT 40

40 Weekly payments during partial incapacity-general

(cf former ss 9, 11)

(1) Entitlement The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.

Note: Section 35 limits the maximum weekly payment of compensation under this section.

(2) Calculation of reduction in earnings of worker-general The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:

(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment, and

(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury.

Note: The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.

(2A) Calculation of reduction in earnings of worker-workers rejecting suitable employment If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:

(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and

(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).

Note: The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.

(2B) For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:

(a) a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or

(b) the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.

(3) Ability to earn in suitable employment The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:

(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,

(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.

(4) Rehabilitation-unemployed (or not fully employed) workers An injured worker who duly undertakes rehabilitation training under section 38 is not to be disadvantaged under this section by any increase in the amount that the worker would be able to earn merely because of that training, unless the worker unreasonably refuses an offer of suitable employment for which the worker has been trained. The Commission may determine any dispute about the operation of this subsection.

(5) Maximum rate of compensation The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.

(6) Adjustment of compensation-indexation If it appears proper in the circumstances of the case, the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work may (subject to subsection (5)) be adjusted to take account of any adjustment because of the operation of Division 6 in the weekly payment that would be payable to the worker if it were a period of total incapacity for work.

(7) Adjustment of maximum amounts-application If an amount mentioned in subsection (2A):

(a) is adjusted by the operation of Division 6, or

(b) is adjusted by an amendment of this section,

the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of partial incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.

(8) Exemption This section does not apply to any period of partial incapacity for work during which the worker is compensated under this Act as if the worker’s incapacity for work were total.