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2.7.3 What are the legislative provisions that allow us to deem AE?

Subsections 181(3) - (5) of the MRCA are almost identical to subsection 19(4) of the SRCA

These provisions state that:

  • if a person fails to seek suitable work;
  • the person fails to accept an offer of suitable work;
  • an offer of suitable work is made and accepted but the person fails to begin or continue the work; or
  • an offer of suitable work is made conditional on the person completing a rehabilitation program but the person fails to do so;

then the delegate must have regard to:

  • the weekly amount the person would be earning in that suitable work; and
  • whether the failure was reasonable;

in determining actual earnings.

It is important to note that one of the considerations in determining what work is suitable, is the availability of that work in the labour market.  Delegates should not presuppose that one or more of the conditions outlined in subsections 181(3)-(5) of MRCA or 19(4) of SRCA exist merely because a person has completed a vocational rehabilitation program.

Successful completion of a vocational rehabilitation program is defined by the person actually obtaining suitable work.