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30.4.5 1971 Act - client wholly incapacitated and received superannuation pension

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Where the client was 'totally incapacitated for work' during a period while the 1971 Act was current, S45 of that Act has effect.

S45(7) applies when the client was in receipt of a superannuation pension, during the same period of incapacity for work, for which compensation is now being claimed.

S45(7) says:

45(7) If the employee:

(a)is retired from his employment as a result of the incapacity for work, and

(b)as a result of the retirement is in receipt of a pension under a superannuation or provident scheme established or maintained by the Commonwealth or by a prescribed authority of the Commonwealth.

The compensation payable to the employee in respect of each week during the period of the incapacity shall not exceed the amount, if any, by which the average weekly earnings of the employee before the injury exceed:

(c)if a part of the pension is, under the scheme, attributable to contributions for the pension paid by the employee – the part of the pension paid or payable to the employee in respect of that week that is not attributable to those contributions

(d)if the employee has paid contributions under the scheme, the scheme does not identify a part of the pension as being attributable to those contributions and the Commissioner has determined that it is reasonable that a part of the pension should be treated as if it were attributable to those contributions – the part of the pension paid or payable to the employee in respect of that week that is determined by the Commissioner to be the part that is to be treated as not attributable to contributions for the pension paid by the employee, or

(e)in any other case – the pension paid or payable to the employee in respect of that week.

Note, that for the purposes of S45(7)(d) the benefits paid by the military superannuation schemes are deemed to include a self-funded component of 20%. This 20% is the amount to be disregarded when calculating compensation under S45(7).

Note: This 20% is to be deducted initially, but once only. It does not apply to subsequent indexation pension rises.

Where a client was receiving superannuation at the time of the incapacity claimed under the 1971 Act, the amount payable may be represented thus:

Compensation/Week = (AWE – employer funded portion of weekly super pension)