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8.11 Total Incapacity Excludes Payment of Compensation under S39


Section 39(14) prohibited the payment of lump-sum compensation under S39 of the 1971 Act while a member was totally incapacitated for work, or was likely to become totally incapacitated for work, as a result of the claimed injury.

There was no similar prohibition in respect of the other provisions for lump-sum payment under the 1971 Act, i.e. S40 (sexual impairment), S41 (facial disfigurement) and S42 (loss of the sense of taste or smell).

Section 39 stated:

39(14) An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury.

Section 39(14) of the 1971 Act continues to have effect, in relation to claims for lump-sums payable under the 1971 Act, despite the repeal of the 1971 Act (Hoyle v Telstra Corporation Limited (1997)). Accordingly a person who was totally incapacitated (or likely to become so) on 30 November 1988 is not entitled to claim a transitional PI payment after 1 December 1988 unless their degree of incapacity lessens. Once the person is no longer totally incapacitated for work (or they are no longer likely to become totally incapacitated) from the pre-1988 injury, they are entitled to apply for a transitional PI lump sum payment.

Note also that, where the client is Age Pension age (and is not a former employee), S319(14) can no longer have any effect because the client is no longer entitled to incapacity payments (S23(1) of the DRCA). In this case, the delegate should indicate that the client is not totally incapacitated or likely to become so.

The receipt of a transitional PI payment has no effect on entitlement to incapacity payments for periods of incapacity after 1 December 1988.