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The Court of Appeal gave a different explanation of section 40 and said that there are three steps to be followed in calculating the award for partial incapacity under section 40: 1.

Calculate what the employee would have earned but for the injury, assuming the same or comparable employment.

2.

Assess the employee’s post-injury earning capacity.

3.

Exercise discretion based on the circumstances of the case.

The Court of Appeal stated that the correct approach was to determine the weekly amount the worker would probably have been earning but for the injury and secondly to determine the amount that the worker would, at the present time, be able to earn in some suitable employment. It is at this second stage that the Court held that the worker’s visa status was not a relevant consideration as the calculation under section 40 was only a theoretical exercise. Similarly, the Court of Appeal said that the worker’s change in visa status occurred after his workplace injury and this was an important factor to consider. The Court of Appeal ordered that the matter be remitted to the Workers Compensation Commission for determination in accordance with the findings of the Court. This decision is significant in finding that a migrant worker’s visa status should not be taken into consideration when determining an entitlement to section 40 compensation. This is contrary to the approach traditionally taken by insurers and employers based on the decision of the Compensation Court in Viliami v National Springs (1993). Importantly, Singh’s case has set a standard that if an injured worker’s visa status does change making it illegal for them to work in Australia, this does not disentitle them to workers compensation payments.

For more information please contact: Angellina Katsidis Lawyer T: 02 8257 5759 angellina.katsidis@turkslegal.com.au

Sydney | Level 29, Angel Place, 123 Pitt Street, Sydney, NSW 2000 | T: 02 8257 5700 | F: 02 9239 0922 Melbourne | Level 11 | 350 Collins Street , Melbourne, VIC 3000 | T: 03 8600 5000 | F: 03 8600 5099

Business & Property | Commercial Disputes & Insolvency | Insurance & Financial Services Workers Compensation | Workplace Relations www.turkslegal.com.au This Tur k Aler t is cur rent at its date of public ation. While eve r y c a re h a s b e e n t a k e n i n t h e p re p a rat i o n o f t h i s Tu r k Al e r t i t d o e s n o t co n s t i t u te l e g a l advice and should not b e relied up on for this pur p ose. Sp e c i f i c l e g a l a dv i ce s h o u l d b e s o u g ht o n p a r t i c u l a r m at te r s. Tu r k s Le g a l d o e s n o t a c ce p t resp onsibilit y for any er rors in or omissions from this Tur kAl e r t . Th i s Tu r k Al e r t i s co py r i g ht a n d n o p a r t m ay b e re p ro d u ce d i n a ny fo r m w i t h o u t t h e p er mission of Tur ksLegal. For any enquir ies, please contac t t h e a u t h o r o f t h i s Tu r k Al e r t .

Migrant Workers Compensation Payments: A Change of Attitude  

A recent decision of the Supreme Court of New South Wales Court of Appeal in the case of Singh v TAJ (Sydney) Pty Limited (2006) NSWCA 330 h...

Migrant Workers Compensation Payments: A Change of Attitude  

A recent decision of the Supreme Court of New South Wales Court of Appeal in the case of Singh v TAJ (Sydney) Pty Limited (2006) NSWCA 330 h...

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