Section 6 (1) (b) (viii) cases

It can be difficult to know how to determine an employee's NWE under such circumstances.

To ensure fair entitlement is paid, the NWE applicable will be either 100% NWE at the date of the second injury (and a fresh 45 weeks entitlement) or 75% NWE of the first injury, whichever is greater.

However, this does not mean that the employee is entitled to more than one payment for incapacity.  Irrespective of how many incapacitating conditions an employee may have, he or she can only be paid incapacity benefits once.

Should the employee suffer a new compensable injury under the circumstances indicated above, will she be entitled to 75% NWE or 100% NWE based on her new claim?

The following applies:

• If the employee is totally incapacitated due to her first claim, she cannot be “more” incapacitated, and therefore would continue to receive 75% NWE.

• If the employee is only partially incapacitated from the first claim but becomes totally incapacitated as a result of the second injury then, she is entitled to 100% NWE at the date of the second injury and a fresh 45 week period, or 75% NWE of the first injury, whichever is the greater.

This can all get quite messy, particularly where periods of incapacity are spread between both claims.  Generally, a common-sense approach applies, where the more serious of the compensable conditions is considered to be the incapacitating factor.  However, medical evidence will play a critical part in this decision.