Under s.68, 71 and 75 of the MRCA, compensation is generally payable once a determination has been made that a person is eligible for that compensation (having regard to the requirements of s.77). Other than the ‘choice’ under s.78 there is no further positive action required on the part of the person for the compensation to be required to be paid.
Part 2 of Chapter 4 of the MRCA provides for the payment of compensation for Permanent Impairment. Section 68 provides an entitlement to compensation for permanent impairment (i.e. an original condition) and Section 71 provides for ‘additional compensation’ in circumstances where there is an increase in impairment ratings (i.e. either a deterioration in the original condition/s or additional compensation from another condition/s). Section 74 specifies the maximum amount of weekly compensation (indexed) to a person under the Part and Section 77 of the MRCA provides when weekly compensation becomes payable (Section 75 provides for interim compensation payments to be made). Section 78 is titled ‘Choice to take lump sum’ and specifies the circumstances around the choice to convert an entitlement of a weekly amount of compensation into a lump sum.
When s.68, 74, 77 and 78 are read together, the only statutory ‘choice’ available under s.78 is to take a lump sum payment and in certain circumstances, a combination of a lump sum and a weekly payments.
A person does not need to make any choice under the MRCA to receive weekly payments of compensation for permanent impairment – that is a self-executing mechanism by which that form of compensation is paid. While a person may have to turn his or her mind to whether or not they want to receive weekly permanent impairment payments the MRCA does not require them to do anything if they make the decision that is how they wish to proceed. It is reasonably apparent that no statutory ‘choice’ is required under s.78 if a person decides they wish to receive weekly permanent impairment payments.
From a practical perspective, that would mean that, if in the six month period permitted under s.78 (3) a person first notified the MRCC that they had ‘chosen’ to continue to receive weekly payments of permanent impairment, it would arguably be still open to them to make a statutory choice under s.78 (1) to receive a lump sum instead so long as the six month period had not expired, or the Commission decided that special circumstances permitted the extension of the period.
Therefore in summary, no ‘choice’ is required under s.78 of the MRCA for a person to continue to receive weekly payments of permanent impairment compensation. A ‘choice’ is only required to be made under that section if a person wishes to receive a lump sum of permanent impairment compensation.