ACCIDENT COMPENSATION ACT 1985 - SECT 114 Termination or alteration of weekly payments
ACCIDENT COMPENSATION ACT 1985 - SECT 114
Termination or alteration of weekly paymentsS. 114(1) amended by No. 81/1998 s. 23(o).
(1) The Authority or self-insurer may in accordance with this Act terminate a worker's entitlement to weekly payments or alter the basis on which the amount of the weekly payment is to be calculated whether or not the worker is currently receiving weekly payments.
S. 114(1A) inserted by No. 28/2005 s. 23(1).
(1A) Subsections (2) to (13) only apply if the worker is currently receiving weekly payments as at the date of the change in the entitlement of the worker to weekly payments.
S. 114(2) amended by No. 81/1998 s. 23(o).
(2) In addition to other grounds under this Act for termination or alteration of weekly payments, the Authority or a self-insurer—
(a) may increase or reduce weekly payments on the ground that there is not, or is no longer, an entitlement to weekly payments of the existing amount; and
(b) may terminate weekly payments on the ground that—
(i) the worker is not entitled to compensation under Division 1 or 2; or
(ii) the worker is not, or is no longer entitled to weekly payments; or
(c) may terminate or alter weekly payments on the ground that—
(i) the worker has returned to any work whether as a self employed person or in employment; or
S. 114(2)(c)(ii) amended by No. 26/2000 s. 4(3), substituted by No. 9/2010 s. 45(1).
(ii) in the case of a worker who has current weekly earnings, the amount of the worker's current weekly earnings alters; or
S. 114(2)(c)(iii) inserted by No. 26/2000 s. 4(3), amended by No. 67/2013 s. 635(3).
(iii) payments for regular overtime or shift allowances are no longer included in the worker's pre-injury average weekly earnings; or
S. 114(2)(c)(iv) inserted by No. 67/2013 s. 635(4).
(iv) an amount referred to in section 155(1)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 is varied or no longer paid; or
S. 114(2)(c)(v) inserted by No. 67/2013 s. 635(4).
(v) a non-pecuniary benefit within the meaning of section 155(1)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 is varied or no longer paid.
S. 114(2A) inserted by No. 9/2010 s. 45(2).
(2A) If the current weekly earnings of a worker who—
(a) has an incapacity for work resulting from, or materially contributed to by, an injury; and
(b) is receiving, or but for the worker's current weekly earnings, would have been entitled to receive, compensation in the form of weekly payments—
are reduced because—
(c) the worker no longer resides in Victoria; or
(d) the worker's employment was terminated because of the worker's misconduct; or
(e) the worker—
(i) has resigned; or
(ii) reduced the hours worked otherwise than in the circumstances referred in section 93CDA—
for reasons unrelated to the worker's incapacity—
the Authority or a self-insurer may determine—
(f) not to alter the amount of compensation in the form of weekly payments paid to the worker; or
(g) not to pay compensation in the form of weekly payments.
S. 114(2B) inserted by No. 9/2010 s. 45(2).
(2B) If the Authority or a self-insurer makes a determination under subsection (2A)—
(a) the Authority or self-insurer must give written notice to the worker of the determination and the reasons for it; and
(b) the worker's entitlement to compensation in the form of weekly payments is adjusted in accordance with the determination.
S. 114(2C) inserted by No. 9/2010 s. 45(2).
(2C) A determination under subsection (2A) takes effect from the day on which the current weekly earnings were reduced or, if the Authority or self-insurer specifies a later date in the determination, on that later date.
S. 114(2D) inserted by No. 9/2010 s. 45(3).
(2D) If the current weekly earnings of a worker are reduced because the worker is on paid annual leave or long service leave, the Authority or self‑insurer must not, by reason only of that reduction, alter the amount of compensation in the form of weekly payments.
S. 114(3) amended by No. 81/1998 s. 23(o).
(3) The Authority or a self-insurer may terminate weekly payments if it considers that payments were obtained fraudulently.
(4) A termination or alteration of weekly payments on the grounds specified in subsection (2)(a) or (2)(b) has effect—
(a) only if written notice in accordance with subsection (10) is given; and
(b) after the expiry of the required notice period.
S. 114(5) amended by No. 80/2010 s. 67.
(5) A termination or alteration of weekly payments on the grounds specified in subsection (2)(c) or section 93E, 93F, 96, 97(2), 97(7), 134AB(36) or 135A(18) has effect—
(a) without the giving of notice; and
(b) as from the day on which the circumstances establishing the relevant ground first arise.
S. 114(5A) inserted by No. 41/2006 s. 15(3).
(5A) A termination of weekly payments under section 93EA has effect—
(a) without the giving of notice; and
(b) as from the expiry of the period not exceeding 13 weeks for which the payment is granted under that section.
(6) A termination of weekly payments on the ground specified in subsection (3) has effect—
(a) if written notice in accordance with subsection (10) is given; and
S. 114(6)(b) amended by No. 81/1998 s. 23(a).
(b) as from the day (whether before, on or after the giving of the notice) on which the Authority or self-insurer makes the decision.
S. 114(7) amended by No. 107/1997
s. 30(11)(a), repealed by No. 9/2010 s. 130(3)(b).
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S. 114(8) amended by Nos 107/1997
s. 30(11)(b), 9/2010 s. 33(1)(a).
(8) A reduction of weekly payments solely on the ground of the expiry of the first entitlement period has effect—
(a) if written notice in accordance with subsection (10) is given; and
(b) if section 114A has been complied with.
S. 114(9) amended by Nos 7/1996
s. 16(3), 107/1997
s. 30(11)(c), 9/2010 s. 33(1)(b).
(9) A termination of weekly payments solely on the ground of the expiry of the second entitlement period [21] has effect—
(a) if written notice in accordance with subsection (10) is given; and
(b) if section 114B has been complied with.
S. 114(9A) inserted by No. 9/2010 s. 45(4).
(9A) A termination of weekly payments under section 93CA has effect—
(a) without the giving of notice; and
(b) as from—
(i) the day on which the worker ceases to suffer incapacity resulting from, or materially contributed to by, the subsequent surgery, or a recurrence of that incapacity, whichever is the later; or
(ii) the expiry of the period of 13 weeks commencing on the day on which the relevant surgery is performed—
whichever first occurs.
(10) A notice must—
(a) be given to the worker; and
(b) state the reasons for giving the notice; and
(c) state—
(i) in the case of termination, when weekly payments will be stopped; and
(ii) in the case of alteration, the new level of weekly payments and when payments at the new level will commence.
S. 114(11) amended by No. 81/1998 s. 23(o).
(11) If a worker—
(a) has received weekly payments of compensation for a continuous period of at least 12 weeks; and
S. 114(11)(b) amended by No. 81/1998 s. 23(o).
(b) has provided the worker's employer, or where applicable, the Authority or self‑insurer with a certificate of capacity in accordance with section 111—
the Authority or self-insurer must not terminate or reduce weekly payments during the period of incapacity so specified without giving the worker the required period of notice of intention to do so.
S. 114(12) amended by No. 81/1998 s. 23(o).
(12) If weekly payments are terminated or reduced in contravention of subsection (11), the worker may recover from the Authority or self-insurer an amount of compensation that—
(a) if no period of notice has been given—is equal to the amount of compensation or additional compensation, that would have been payable during the required period of notice if weekly payments had not been terminated or reduced; or
(b) if less than the required period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the required period of notice if weekly payments had not been terminated or reduced.
S. 114(13) amended by No. 9/2010 s. 130(3)(a).
(13) The required period of notice, unless expressly otherwise provided in this Act is—
(a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year—14 days; or
S. 114(13)(b) amended by No. 41/2006 s. 20(a).
(b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more—28 days; or
S. 114(13)(c) inserted by No. 41/2006 s. 20(b), amended by No. 9/2010 ss 33(1)(b), 45(5)(a).
(c) if the termination of weekly payments is solely on the ground of the expiry of the second entitlement period—13 weeks; or
S. 114(13)(d) inserted by No. 9/2010 s. 45(5)(b).
(d) if the worker has been receiving compensation in the form of weekly payments under section 93CD and ceases to be entitled to receive such compensation—28 days; or
S. 114(13)(e) inserted by No. 9/2010 s. 45(5)(b).
(e) if the worker has been receiving compensation in the form of weekly payments under section 93CD and the termination is because the employer has withdrawn the employment—13 weeks commencing on the day on which the employer informs the worker of the withdrawal of employment.
S. 114AA inserted by No. 9/2010 s. 46 (as amended by No. 80/2010 s. 159(i)).