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7.2 When a person is continuously incapacitated
Whether a person is continuously incapacitated affects the calculation of the maximum rate (compensation) weeks. When a person is only incapacitated for part of a week, i.e. one day, then the person is not continuously incapacitated. Only that part of the week that they are incapacitated for is counted in the calculations of the maximum rate (compensation) weeks (the rate of entitlement though is based on a weekly figure and is calculated over a weekly period).
A continuous period of incapacity for work includes any period where the person has been or will receive incapacity and the person is:
- not working at all for the period because of the accepted condition/s; or
- working the same number of hours but is unable to work at the same level i.e. restricted duties (though there is no time off work the person is still continuously incapacitated for the period); or
- only able to work part of normal weekly hours and the work is not at the same level.
If a person is working at a level equal to or greater than their pre-injury/incapacity level but only for part of their normal weekly hours for the week, they are not continuously incapacitated.
Example 1 – Time off work due to medical appointment
A person takes time off (2 hours) from his civilian employment to visit his GP concerning the compensable condition. The 2 hours is counted towards 45 weeks.
Example 2 – Full-time employment but not at the same level
A person may have capacity to engage in full-time employment after discharge but with less earning capacity than in their pre injury employment.
A Sergeant with an annual salary of $45,000 in the Army is medically discharged because of an accepted injury. After participating in a rehabilitation program, the person is able to earn $35,000 in another occupation commensurate with his or her skills and physical limitations. The Sergeant is able to work full-time in the new job but because of the injury remains unable to work at the pre injury earning capacity, and receives weekly compensation. Although working full-time and not actually taking time off work, any period during which the person is receiving weekly compensation will count toward the 45 weeks.
Example 3 – Graduated return to work
A person is on a Graduated Return To Work plan, attending work 3 days per week. Each week the person is receiving incapacity payments counts as a full week toward the 45 weeks.