Section 40 of the Workers Compensation Act 1987 outlines weekly payments during partial incapacity and states that a worker's entitlement in respect of any period of partial incapacity is 'an amount not exceeding the reduction in the worker's weekly earnings'.

Section 40 (2) states:

'The reduction in the worker's weekly earnings is the difference between:

• the weekly amount which the worker would probably have been earning as a worker but for the injury, and
• the average weekly amount the worker is earning or would be able to earn in some suitable employment'.

In other words, section 40 make-up entitlement is usually based on the difference between your pre-injury weekly earnings (including overtime and allowances, if applicable) and the average amount which you are actually earning or capable of earning while on suitable duties (including overtime and allowances if applicable).

The insurer will determine section 40 make-up pay entitlement considering all the facts of the case, including information provided by the employer as to anticipated pre-injury earnings.

Note:  There are maximum limits to make-up pay. In most cases, the maximum payable will be either the award/enterprise agreement rate, or 80% of average weekly earnings for the first 26 weeks, and the statutory rate after 26 weeks.