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32.5.3 Do we continue to pay top ups if the client decides not to return to work at the end of the confinement period?


Has there been any real change in the client's incapacity? If not and if we would have paid incapacity “top ups” in any case then we would continue to pay them after the confinement period.

In this case nothing has really changed. The client still has a Defence caused injury and incapacity. Presuming the level of incapacity would have continued we would be paying a similar level of top up into the future if the client had returned to work.

The fact the client decides to not return to work does not in itself alter the underlying incapacity (it would have continued anyway) nor our liability (which also continues).

What we should pay after the 12 weeks period (if the client does not return to work) is the s19(3) percentage of NWE (75%) (and only 75% as she is not actually working) less any income she continues to earn or would have earned (deemed) if she had returned to work.

Unless not returning to work materially affects our ability to provide additional RTW assistance aimed at increasing her AE or we can point to some other material affect on the compensation we would otherwise have paid her then its the % of NWE less AE that applies.

Further issues to consider which may affect the level of compensation are:

Are we satisfied with our current level of medical and other evidence that concerning the clients full work potential (ie is our ATE  at an appropriate level)? This should be reviewed at the end of the 12 weeks and then periodically.

Does the choice to leave the workforce materially affect our ability to provide rehabilitation support aimed at increasing the ATE? Would we realistically be looking at providing additional rehabilitation? If so is the client able and prepared to comply with our attempts to provide that rehabilitation

'AE' – S19(4): Chapter 32
  • Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2001, Pt 3 Sch 2 : Amendments to calculation of AE
  • Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584 : Self-employment
  • Hardin and Comcare (1997) (AAT 11727, 27/3/97) : Loss-making self-employment