Section Sch1-43 — Injury Prevention, Rehabilitation, and Compensation Act 2001: Weekly earnings if employment ended before commencement of incapacity

43 Weekly earnings if employment ended before commencement of incapacity (1) Subclause (2) applies to a claimant who, before his or her incapacity commenced, has ceased to be in employment. (2) The claimant is deemed to continue to be in employment and have earnings from that employment for the purposes of this schedule for the longer of— (a) 28 days from the date he or she ceased to be in employment, if he or she— (i) had been in employment within 28 days before his or her incapacity commenced; and (ii) would have been an employee within the period specified in subclause (3) after the date on which his or her incapacity commenced, but for the incapacity; or (b) the period for which payments that the claimant is entitled to receive on ceasing employment and on which earner levy is payable constitute earnings under subclause (4). (3) For the purposes of subclause (2)(a)(ii), the period is,— (a) unless paragraph (b) applies, 3 months if the claimant had entered into an employment agreement, or had arranged to enter into an employment agreement, before the incapacity commenced; or (b) 12 months if— (i) the claimant was employed in seasonal employment with the same employer as he or she had been employed in the 2 seasons before the claimant’s incapacity commenced; and (ii) the employer confirms that the claimant could reasonably have expected to be re-employed in the season after the claimant’s incapacity commenced. (4) A claimant, who is deemed by subclause (2)(b) to continue to be in employment, is also deemed to be deriving earnings at the same rate as he or she derived earnings while in employment immediately before he or she ceased to be an employee, a self-employed person, or a shareholder-employee, as the case may be. (5) For the purposes of calculating the claimant’s weekly earnings, the date his or her incapacity commenced is deemed to be the last date on which the claimant was in employment. (6) Unless the personal injury is a motor vehicle injury, a work-related personal injury, or a treatment injury, payments under this clause come from the Earners’ Account. (7) In this clause— employee includes an employee who is on unpaid leave that is not unpaid parental leave employment means employment as— (a) an employee; or (b) a self-employed person; or (c) a shareholder-employee. Schedule 1 clause 43: substituted, on 1 August 2008, by section 33(1) of the Injury Prevention, Rehabilitation, and Compensation Amendment Act 2008 (2008 No 46). Subclause (3)(a) was substituted, as from 1 July 2005, by section 60(1) Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45). Subclause (6) was amended, as from 1 April 2007, by section 13(1) Injury Prevention, Rehabilitation, and Compensation Amendment Act 2007 (2007 No 8) by substituting “ Treatment Injury Account ” for “ Medical Misadventure Account ” . See sections 14 to 16 of that Act for the transitional provisions.