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9 1934

WORKMEN'S COMPENSATION ACT, 1934

PART III.

Amount of Compensation and Review and Redemption of Weekly Payments.

“Earnings” and “Average weekly earnings”.

21. —For the purposes of the provisions of this Act relating to “earnings” and “average weekly earnings” of a workman the following provisions shall have effect, that is to say:—

(a) average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated;

(b) where by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature of the employment, or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remuneration, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district;

(c) where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident;

(d) employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause;

(e) where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings;

(f) upon request of the workman to the employer liable to pay compensation, that employer shall furnish in writing a list of the earnings of that workman upon which the amount of the average weekly earnings may be calculated for the purpose of determining the amount of any weekly payment under this Act.

Compensation in fatal cases.

22. —(1) Where compensation is payable under this Act in respect of an injury to a workman which results in his death, the following provisions shall have effect, that is to say:—

(a) if such workman leaves an adult dependant but does not leave any juvenile dependant, the compensation shall be a lump sum (in this Act referred to as the adults' lump sum), of an amount calculated in accordance with the rules contained in the Second Schedule to this Act;

(b) if such workman leaves an adult dependant and also leaves a juvenile dependant, the compensation shall consist of—

(i) the adults' lump sum, and

(ii) a lump sum (in this Act referred to as the children's lump sum) of an amount calculated in accordance with the rules contained in the Second Schedule to this Act;

(c) if such workman leaves no adult dependant but leaves a juvenile dependant, the compensation shall be a lump sum (in this Act also referred to as the children's lump sum) of an amount calculated in accordance with the rules contained in the Second Schedule to this Act;

(d) if the workman leaves neither an adult dependant nor a juvenile dependant, the compensation shall be a lump sum, not exceeding fifteen pounds, equal to the reasonable expenses of his medical attendance and burial.

(2) If any weekly payments payable to a workman have been redeemed either by order of the Court or by agreement made under this Act, or if the liability to make weekly payments has been redeemed by an agreement made under this Act, or if where an employer disputed his liability to make a weekly payment under this Act to a workman, such employer and workman entered into an agreement under this Act whereby in consideration of the payment by such employer to such workman of a lump sum, such workman released such employer from his liability (if any) to make such weekly payments and the amount paid in respect of such redemption or release (as the case may be) equals or exceeds six hundred pounds, no compensation shall be awardable under this Act in respect of the death of such workman.

Amount of compensation in non-fatal cases.

23. —Where compensation is payable under this Act in respect of an injury to a workman which does not result in his death, the compensation shall be a weekly payment during the period of incapacity (except, where the incapacity lasts less than four weeks, the first three days of such incapacity) of an amount calculated in accordance with the rules contained in the Third Schedule to this Act.

Treatment of partial incapacity as total incapacity.

24. —(1) Subject to the provisions of this section if a workman, who has so far recovered from the injury as to be fit for employment of a certain kind, has failed to obtain employment and it appears to the Court either—

(a) that, having regard to all the circumstances, it is probable that the workman would, but for the continuing effects of the injury, be able to obtain work in the same grade in the same class of employment as before the accident; or

(b) that his failure to obtain employment is a consequence, whether wholly or mainly, of the injury,

the Court shall order that the workman's incapacity shall be treated as total incapacity resulting from the injury for such period, and subject to such conditions, as may be provided by the order, without prejudice, however, to the right of review conferred by this Act.

(2) No order shall be made under this section if it appears to the Court that the workman has not taken all reasonable steps to obtain employment.

(3) Every order under this section shall be made subject to the condition that it shall cease to be in force if the workman receives unemployment benefit.

(4) An order under this section may be made notwithstanding that any order or orders under this section has or have been previously made in relation to the same workman in respect of the same injury.

Reviews of weekly payments.

25. —(1) Where a workman is in receipt of a weekly payment, the Court may on the application of either the employer or the workman review such weekly payment and on such review may confirm, end, diminish or increase such weekly payment, but shall not increase such weekly payment beyond the maximum amount provided under the Third Schedule to this Act.

(2) Where the workman was at the date of the accident under twenty-one years of age and the review takes place more than six months after the accident and the application for the review is made before, or within six months after, the workman attains the age of twenty-one years, the amount of the weekly payment may be increased to such amount as would have been awarded if the workman had at the time of the accident been earning the weekly sum which he would probably have been earning at the date of the review if he had remained uninjured.

(3) Where the review takes place more than six months after the accident and it is claimed and proved that, had the workman remained uninjured and continued in the same class of employment as that in which he was employed at the date of the accident, his average weekly earnings during the twelve months immediately preceding the review would, as the result of fluctuations in rates of remuneration, have been greater or less by more than twenty per cent. than his average weekly earnings during the twelve months previous to the accident or, if the weekly payment has been previously varied on a review, during the twelve months previous to that review or the last of such reviews, the weekly payment shall be varied so as to make it such as it would have been if the rates of remuneration obtaining during the twelve months previous to the review had obtained during the twelve months previous to the accident.

Restriction on ending or diminishing weekly payments by employer.

26. —(1) An employer shall not be entitled otherwise than under an order of the Court or under a variation agreement duly registered under Part VI . of this Act or under and in accordance with this section to end or diminish a weekly payment.

(2) An employer shall be entitled to end or diminish a weekly payment in the following cases—

(a) where a workman in receipt of a weekly payment in respect of total incapacity has actually returned to work;

(b) where the weekly earnings of a workman in receipt of a weekly payment in respect of partial incapacity have actually been increased.

(3) Where the medical practitioner who has under the provisions of this Act relating to medical examination of workman by employer's medical practitioner examined a workman in receipt of a weekly payment has certified that the workman has wholly or partially recovered or that the incapacity is no longer due in whole or in part to the accident, and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with notice of the intention of the employer at the expiration of twenty-one clear days from the date of the service of the notice to end the weekly payment or to diminish it by such amount as is stated in the notice has been served by the employer upon the workman, the following provisions shall have effect, that is to say:—

(a) if before the expiration of the said twenty-one clear days the workman sends to the employer the report of a duly qualified medical practitioner (which report shall set out the grounds of his opinion) disagreeing with the certificate so served by the employer, the weekly payment shall not be ended or diminished except in accordance with such report, or if and so far as the employer disputes such report, except in accordance with a certificate given by the medical referee in pursuance of the provisions of this Act relating to examination of workman by medical referee;

(b) if no such report is sent to the employer within the said time, the employer may end or diminish the weekly payment in accordance with the terms of the said notice.

(4) Where an application has been made in pursuance of the provisions of this Act relating to examination of workman by medical referee to refer the dispute to a medical referee it shall be lawful for the employer, pending the settlement of the dispute, to pay into Court—

(a) where the employer's notice was a notice to end the weekly payment, the whole of each weekly payment becoming payable in the meantime;

(b) where the employer's notice was a notice to diminish the weekly payment, so much of each weekly payment so payable as is in dispute;

and the sums so paid into Court shall, on the settlement of the dispute, be paid to the employer or the workman according to the effect of the certificate of the medical referee, or if the effect of that certificate is disputed, as in default of agreement may be determined by the Court.

(5) This section shall apply to weekly payments under the Workmen's Compensation Act, 1906, as well as weekly payments under this Act, and for the purpose of such application to weekly payments under the said Workmens Compensation Act, 1906, the following provisions shall have effect—

(a) the reference in sub-section (3) of this section to the provisions of this Act relating to medical examination of workman by employer's medical practitioner shall be construed as a reference to paragraph (14) of the First Schedule to the said Workman's Compensation Act, 1906; and

(b) the references in sub-sections (3) and (4) of this section to the provisions of this Act relating to examination of workman by medical referee shall be construed as references to paragraph (15) of the First Schedule to the Workman's Compensation Act, 1906.

Redemption of weekly payments.

27. —(1) Where any weekly payment to a workman, whose incapacity is permanent, has been continued for not less than six months, the employer of such workman may, at any time after such workman has attained the age of twenty-one years and before he has attained the age of fifty years, apply to Court for an order redeeming his liability to make such weekly payment, and upon such application being made the Court shall order that such liability shall be redeemed, as from the date of such application, by the payment by such employer of a lump sum of such amount as would, if invested on the date of such application in the purchase of an immediate life annuity, purchase an annuity for such workman equal to seventy-five per cent. of the annual value of such weekly payment.

(2) For the purposes of the immediately preceding sub-section a life annuity shall be deemed to be puchasable at a price calculated in accordance with the Table set out in the Fourth Schedule to this Act and not otherwise.

(3) Where any weekly payment to a workman, whose incapacity is not permanent, has been continued for not less than six months, the liability of the employer of such workman for such weekly payment may, on application to the Court by or on behalf of such employer, be redeemed by the payment of a lump sum of such amount as may be determined by the Court.

(4) Any such lump sum as is mentioned in sub-sections (1) or (3) of this section may be ordered by the Court to be invested or otherwise applied for the benefit of the person entitled thereto.

(5) Where an application is made under sub-section (3) of this section for the redemption of the weekly payment to a workman under the age of twenty-one years at the date of such application, the right which such workman, if the redemption did not take place, would have to have such weekly payment increased on a review under sub-section (2) of section 25 (which relates to reviews of weekly payments) of this Act shall be taken into account.