Workers Rehabilitation and Compensation Corporation v James

The High Court of Australia considered an application for special leave to appeal in a matter between the Workers Rehabilitation and Compensation Corporation (applicant) and James (respondent). The dispute concerned the assessment of compensation for income maintenance under section 35(1)(b)(ii) of the *Workers Compensation and Rehabilitation Act 1986* (SA) for workers who are partially incapacitated for work, specifically for the period after the first two years of incapacity. The applicant argued that the issue was of significant importance due to the large number of similar cases awaiting hearing.

The legal issue before the Court was the relationship between section 35(1)(b)(ii) and the provisions of section 35(2) of the Act. Section 35(1) establishes entitlements to weekly payments for workers with a compensable disability, distinguishing between total and partial incapacity and different time periods following injury. Section 35(1)(a) covers the first year, while section 35(1)(b) addresses the period after the first year, reducing the maximum entitlement to 80 per cent of notional weekly earnings. The specific question revolved around how to calculate the income maintenance for a partially incapacitated worker after the initial two-year period, particularly when the worker is not in actual employment.

The applicant's argument focused on the interpretation of section 35(1)(b)(ii) in conjunction with section 35(2). Section 35(1)(b) provides for weekly payments of 80 per cent of notional weekly earnings in cases of partial incapacity after the first year. However, the amount to be subtracted from this entitlement, if the worker is not in actual employment, is the amount the worker could earn in suitable employment. The applicant sought clarification on the factors to be considered in determining this "could earn" amount for the purposes of calculating compensation beyond the initial two-year period.