Victorian Consolidated Legislation

Transport Accident Act 1986 - SECT 49

Total loss of earning capacity

49. Total loss of earning capacity



(1) The Commission is liable to pay to an earner who, as a result of a
transport accident-

   (a)  is injured; and

   (b)  suffers total loss of earning capacity-

a weekly payment in respect of that loss after the first 18 months after the
accident or after the earner ceases to be entitled to payments under section
44 or 45, whichever last occurs, while that loss continues.

(2) Subject to subsection (3), the amount of the weekly payment under this
section is-

   (a)  80 per centum of the earner's pre-accident earning capacity; or



   (b)  if the earner has no dependants-$270; or





   (c)  if the earner has dependants-an amount equal to the sum of-

   (i)  $270; and

   (ii) $76 for one dependant; and

   (iii) $25 for each other dependant-

whichever is the greater.

(3) A weekly payment under this section must not exceed-

   (a)  $504; or





   (b)  100 per centum of the earner's pre-accident earning capacity-

whichever is the lesser.

(4) A person who receives a weekly payment under this section in respect of a
transport accident must, within two months after each anniversary of the date
on which the person first received a payment under this section in respect of
that accident, give the Commission a statement of earnings in the prescribed
form with particulars about the person's earnings (if any) in the year
preceding that anniversary.

(5) In this section-

earner includes a person injured as a result of a transport accident who, at
the time of the accident, was not an earner, but has attained the age of 18
years after the accident;

pre-accident earning capacity in relation to an earner who suffers loss of
earning capacity as a result of an injury in a transport accident, means the
amount the Commission determines as the weekly amount the earner had the
capacity to earn before the transport accident in employment reasonably
available to the earner in view of the earner's training, skills and
experience less such amount as the Commission reasonably considers to be the
amount of income tax that would have been payable on that weekly amount under
the Commonwealth Income Tax Assessment Act 1936.

(5A) If an amount cannot be determined in accordance with the definition of
pre-accident earning capacity, the amount is deemed to be the amount which is
equal to 80 percent of average weekly earnings of all employees for Victoria
last published by the Australian Statistician.

(6) For the purpose of the definition of pre-accident earning capacity in
subsection (5), if at the time of the accident, the earner was an apprentice
or was employed under an award containing, or under conditions under which
there were, at that time, different rates of pay for earners of different
ages, the earner's pre-accident earning capacity shall be calculated-

   (a)  until the earner attains the age at which the highest rate is payable
        or 21 years, whichever is the earlier-as if, at the time of the
        accident, the earner had the capacity to earn at the rate applicable
        to the age of the earner for the time being; and

   (b)  on and after the earner attains the age at which the highest rate is
        payable or 21 years, whichever is the earlier-as if, at the time of
        the accident, the earner had the capacity to earn at the rate
        applicable to the highest of those ages or to age 21.

(7) For the purposes of subsection (6), if there is no rate applicable to an
earner of or over the age of 21, the amount an earner of or over the age of 21
has the capacity to earn shall be deemed to be 80 per centum of $504.

(8) The amount of a weekly payment under this section to which a person is
entitled on or after 1 July 2000 in respect of a transport accident that
occurred before 1 July 2000 is increased by 4 percent.

(9) An earner's entitlements under this section are not affected by the earner
starting or continuing paid employment if-

   (a)  he or she has a severe injury as a result of a transport accident; and

   (b)  he or she is participating in a supported employment program in
        respect of that employment; and

   (c)  he or she receives $120 per week or less as earnings from that
        employment.