South Australian Numbered Acts South Australian Numbered Acts15—Substitution of section 35
Section 35—delete the section and substitute:
35—Preliminary
(1) Subject to this
Act, where a worker suffers a compensable disability that results in
incapacity for work, the worker is entitled to weekly payments in respect of
that disability in accordance with this Division.
(2) Weekly payments
are not payable under this Division in respect of a period of incapacity for
work falling after the date on which the worker reaches retirement age.
(3) However, if a
worker who is within 2 years of retirement age or above retirement age becomes
incapacitated for work while still in employment, weekly payments are payable
for a period of incapacity falling within 2 years after the commencement of
the incapacity.
(4) A worker is not
entitled under this Division to receive, in respect of 2 or more
disabilities, weekly payments in excess of the worker's notional weekly
earnings.
(5) If a liability to
make weekly payments is redeemed, the worker is taken, for the purposes of
this Division, to be receiving the weekly payments that would have been
payable if there had been no redemption.
(6) Subject to
subsection (7) (and any other relevant provision of this Act) a reference
in this Division to a worker making "every reasonable effort to return to work
in suitable employment includes any reasonable period during which—
(a) the
worker is waiting for a response to a request for suitable employment made by
the worker and received by the employer; and
(b) if
the employer's response is that suitable employment may or will be provided at
some time, the worker is waiting for suitable employment to commence; and
(c) if
the employer's response is that suitable employment cannot be provided at some
time, the worker is waiting for a response to requests for suitable employment
from other employers; and
(d) the
worker is waiting for the commencement of a rehabilitation and return to work
plan, after approval has been given.
(7) A worker must not
be treated as making "every reasonable effort to return to work in suitable
employment for the purposes of this Division if the worker—
(a) has
refused to have an assessment made of the worker's employment prospects; or
(b) has
refused or failed to take all reasonably necessary steps to obtain suitable
employment; or
(c) has
refused or failed to accept an offer of suitable employment from any person;
or
(d) has
refused or failed to participate in a rehabilitation program or a
rehabilitation and return to work plan.
(8) In this
Division—
(a)
"first entitlement period" means an aggregate period not exceeding
13 weeks (whether consecutive or not) in respect of which a worker has an
incapacity for work and is entitled to the payment of compensation under this
Act on the account of that incapacity;
(b)
"second entitlement period" means an aggregate period not exceeding 13 weeks
(whether consecutive or not) commencing after the end of the
first entitlement period, in respect of which a worker has an incapacity for
work and is entitled to the payment of compensation under this Act on account
of that incapacity;
(c)
"third entitlement period" means an aggregate period not exceeding
104 weeks (whether consecutive or not), commencing after the end of the
second entitlement period, in respect of which a worker has an incapacity for
work and is entitled to the payment of compensation under this Act on the
account of that incapacity;
(d)
"retirement age" means—
(i)
if there is a normal retirement age for workers in
employment of the kind from which the worker's disability arose—that age
of retirement; or
(ii)
the age of 65 years,
whichever is the lesser;
(e) a
reference to weekly earnings, or current weekly earnings, is a reference to
weekly earnings exclusive of prescribed allowances.
35A—Weekly payments over designated periods
(1) Subject to this
Act, a worker is, in respect of a particular compensable disability, entitled
to weekly payments while incapacitated for work during the
first entitlement period as follows:
(a) for
any period when the worker has no current work capacity—the worker is
entitled to weekly payments equal to the worker's notional weekly earnings;
(b) for
any period when the worker has a current work capacity—the worker is
entitled to weekly payments equal to the difference between the worker's
notional weekly earnings and the worker's designated weekly earnings.
(2) Subject to this
Act, a worker is, in respect of a particular compensable disability, entitled
to weekly payments while incapacitated for work during the
second entitlement period as follows:
(a) for
any period when the worker has no current work capacity—the worker is
entitled to weekly payments equal to 90% of the worker's notional weekly
earnings;
(b) for
any period when the worker has a current work capacity—the worker is
entitled to weekly payments equal to 90% of the difference between the
worker's notional weekly earnings and the worker's designated weekly earnings.
(3) Subject to this
Act, a worker is, in respect of a particular compensable disability, entitled
to weekly payments while incapacitated for work during the
third entitlement period as follows:
(a) for
any period when the worker has no current work capacity—the worker is
entitled to weekly payments equal to 80% of the worker's notional weekly
earnings;
(b) for
any period when the worker has a current work capacity—the worker is
entitled to weekly payments equal to 80% of the difference between the
worker's notional weekly earnings and the worker's designated weekly earnings.
(4) For the purposes
of this section, but subject to subsection (5),
the "designated weekly earnings" of a worker will be taken to be—
(a) the
current weekly earnings of the worker in employment or self-employment; or
(b) the
weekly earnings that the Corporation determines that the worker could earn
from time to time (including, but not limited to, the amount of any current
weekly earnings) in employment, whether in the worker's employment previous to
the relevant disability or in suitable employment, that the Corporation
determines the worker is capable of performing despite the disability,
whichever is the greater, but not to include a prescribed benefit under
subsection (6).
(5)
Subsection (4)(b) will not apply to a worker who has a current work
capacity during any period or periods during which the worker is incapacitated
for work and in which either of the following circumstances apply:
(a) the
employer has failed to provide the worker with suitable employment and the
worker is making every reasonable effort to return to work in suitable
employment;
(b) the
worker is participating in a rehabilitation and return to work plan which
reasonably prevents the worker from returning to employment.
(6) The following are
"prescribed benefits" for the purposes of subsection (4):
(a) any
amount paid to the worker by the Corporation or a self-insured employer in
respect of an employment program provided or arranged by the Corporation or
self-insured employer for the purposes of this Act;
(b) any
of the following received by the worker from an employer:
(i)
any payment, allowance or benefit related to annual or
other leave;
(ii)
any payment, allowance or benefit paid or conferred by
the employer on the worker's retirement;
(iii)
any payment, allowance or benefit paid or conferred under
a superannuation or pension scheme;
(iv)
any payment, allowance or benefit paid or conferred on
the retrenchment, or in relation to the redundancy, of the worker;
(c) any
other payment, allowance or benefit of a prescribed kind.
35B—Weekly payments after expiry of designated periods—no work
capacity
(1) Subject to
section 35C (and to the other provisions of this Act), a worker's
entitlement to weekly payments under this Division ceases at the end of the
third entitlement period under section 35A (unless brought to an end
before this time) unless the worker is assessed by the Corporation as—
(a)
having no current work capacity; and
(b)
likely to continue indefinitely to have no current work capacity.
(2) If a worker
qualifies under an assessment under subsection (1), the worker is
entitled to weekly payments while incapacitated for work in respect of a
particular disability equal to 80% of the worker's notional weekly earnings as
though the third entitlement period were continuing.
(3) A review of the
assessment of a worker under this section may be conducted by the Corporation
at any time and must be conducted as often as may be reasonably necessary,
being at least once in every 2 years.
(4) In connection with
the operation of subsection (1), a worker who, immediately before the end
of a third entitlement period, is in receipt of weekly payments under
paragraph (a) of section 35A(3) is entitled to continue to receive
weekly payments at the rate prescribed by that paragraph unless or until the
Corporation has assessed whether the worker falls within the category of a
worker who may be considered as—
(a)
having no current work capacity; and
(b)
likely to continue indefinitely to have no current work capacity.
(5) An assessment
under subsection (4) may be made before or after the end of the
third entitlement period.
(6) Despite
section 35A, the Corporation must not discontinue weekly payments to a
worker who is subject to the operation of subsection (4) until it has
given the worker at least 13 weeks notice in writing of the proposed
discontinuance (and the requirements of section 36 will not apply with respect
to this notice).
(7) A notice under
subsection (6) must not be given unless or until the assessment envisaged
by subsection (4) has been undertaken.
(8)
Subsections (4), (5), (6) and (7) do not apply if the Corporation
discontinues the worker's weekly payments under section 36 or suspends
such payments under another provision of this Act.
(9) The Corporation
may, on the basis of a review under subsection (3), discontinue weekly
payments under this section if satisfied that the worker has a current work
capacity.
35C—Weekly payments after expiry of designated periods—current
work capacity
(1) Subject to this
Act, a worker who is, or has been, entitled to weekly payments under
section 35A(3)(b) or 35B, may apply to the Corporation in accordance with
this section for a determination that the worker's entitlement to weekly
payments under this Division does not cease at the end of the third
entitlement period under section 35A or at the expiry of an entitlement
under section 35B (as the case may be).
(2) The Corporation
may determine that the worker's entitlement to weekly payments under this
Division does not cease as contemplated by subsection (1) if the
Corporation is satisfied that the worker is in employment and that because of
the compensable disability, the worker is, and is likely to continue
indefinitely to be, incapable of undertaking further or additional employment
or work which would increase the worker's current weekly earnings.
(3) The
Corporation—
(a) must
within 90 days of receiving an application under subsection (1), make or
refuse to make a determination under subsection (2) and advise the worker
in writing of its decision (unless the Corporation requires an extension of
time because of the operation of paragraph (b)); and
(b) must
not refuse to make a determination under subsection (2) on the ground
that the Corporation is not satisfied under the requirements of that
subsection unless—
(i)
the Corporation has referred the medical question
whether, because of the disability, the worker is, and is likely to continue
indefinitely to be, incapable of undertaking further or additional employment
or work, and if not so incapable, what further or additional employment or
work the worker is capable of undertaking, for the opinion of a Medical Panel
under Part 6C; and
(ii)
the opinion of the Medical Panel is that the worker is
not so incapable and specifies what further or additional employment or work
the worker is capable of undertaking.
(4) If the Corporation
makes a determination under subsection (2), subject to this Division, the
worker is entitled to weekly payments equal to 80% of the difference between
the worker's notional weekly earnings and the worker's current weekly
earnings.
(5) The entitlement to
weekly payments under subsection (4) continues until—
(a) the
Corporation ceases to be satisfied as to the matters specified in
subsection (2); or
(b) the
worker otherwise ceases to be entitled to weekly payments (including by virtue
of the operation of section 36).