[1993] 1 VR 379
ACCIDENT COMPENSATION COMMISSION v ALGER
SUPREME COURT OF VICTORIA APPEAL DIVISION
MARKS, SMITH AND ASHLEY JJ
9, 28 September 1992
[1993] 1 VR 379
Accident compensation — Worker's "current weekly earnings" — "Actual earnings
during the week" — Whether net profits of business conducted by worker
constitute worker's "actual earnings" — Redemption of weekly benefits — Accident Compensation Act 1985 (No 10191), s5B(1), s93A, s115(2), and
s115(6).
.
S93 of the Accident Compensation Act 1985 provides that where a worker's
incapacity for work results from or is materially contributed to by
compensable injury then compensation shall be in the form of weekly payments
subject to and in accordance with Pt4 of the Act. While incapacity for work
continues, a worker's ordinary entitlement will be to weekly payments of an
amount mainly influenced by whether the worker has "current weekly earnings"
(s93A), defined in s5B (1), inter alia, as "the worker's actual earnings
during the week". Subs115(2) allows a worker with a compensable permanent
incapacity to apply to the Accident Compensation Commission for redemption of
the whole or part of the worker's weekly compensation payments for a period
of up to 5 years for the purpose of engaging in an approved income-producing
project (approved by the Victorian Accident Rehabilitation Council).
Terrence Alger received weekly compensation payments for a permanent back
injury from 1987 to the time of the appeal (apart from a period when the
commission had improperly terminated the payments). Alger applied to the
commission for a redemption pursuant to s115(2) of the Act, as he was
contemplating purchasing an aquarium business. After substantial enquiry and
the taking of financial advice as to the viability of the business, and
gaining the approval of the Victorian Accident Rehabilitation Council, Alger
and his wife purchased the business. The commission refused the redemption
sought. The evidence was that the business was operating at a net loss, and
the Accident Compensation Tribunal on appeal concluded that Alger had no
"current weekly earnings", as the negative weekly income represented Alger's
actual weekly earnings. The commission appealed to the Supreme Court on
questions of law.
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[1993] 1 VR 379
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