Eligibility for LOEC Benefits
This policy must be read in conjunction with the Loss of Earnings Capacity (LOEC) Benefits policy.
Who is eligible for LOEC benefits?
A person who continues to suffer a loss of earning capacity due to their transport accident injuries, 18 months after the date of the transport accident is eligible for LOEC benefits, as long as they qualify as:
An "earner", an "earner" includes:
- a person who has already qualified as an " earner" at the date of the transport accident; or
- a "minor" who attains the age of 18 years after the date of the transport accident. A "minor" is someone who is under the age of 18 years and was not working at the date of the transport accident.
A "non-earner", ie. the person does not fall into the definition of an "earner" at the date of the transport accident, however the persons pre-accident history indicates a work capacity and an intention to return to work.
Transport Accident Act 1986 reference: s.49, s.50 and s.51
Who is not eligible for LOEC benefits?
The TAC will not pay LOEC benefits to a person:
- who has no on going loss of earning capacity due to their transport accident injuries 18 months after the transport accident
- who has permanently retired from all employment, or has reached retirement age for that occupation, or the age that they can apply for the Commonwealth aged pension where no retirement age is set for that industry
- during any period of time the person is serving a prison sentence for any offence.
Transport Accident Act 1986 reference: s.53(1), s.53(1A) and s.53(1B)
The TAC also will not pay LOEC benefits to a driver of a motor vehicle, who is convicted under Victorian law of the following offences in relation to the transport accident:
- culpable driving, (this is a reference to driving that causes the death of another person by driving a motor vehicle, recklessly, negligently or while under the influence of drugs or alcohol, to the extent of being incapable of having proper control of the vehicle)
- driving or being in charge of a motor vehicle while the concentration of alcohol present in his or her blood or breath was 0.24 grams or more per 100 millilitres of blood or in the person's breath was 0.24 grams or more per 210 litres of exhaled air, as the case requires
- driving or being in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle
- refusing to undergo a preliminary breath test or accompany the police officer to a police station
- refusing or failing to comply with a request or signal to stop a motor vehicle and remain stopped at a preliminary breath testing station
- refusing to comply with a request to go to a police station, a public building, a booze bus or a police car to furnish a sample of blood or breath for analysis
- hinder or obstruct a doctor from taking a blood sample of any other person involved in the transport accident
- refusing to allow a doctor to take a blood sample for analysis after having been brought to a place for examination or treatment as a result of a transport accident.
For all accidents on or after 20 October 2010, LOEC benefits are also not payable if a driver is convicted of:
- dangerous driving causing death under s319(1) of the Victorian Crimes Act 1958, (this is a reference to the driving of a motor vehicle at a speed or in a manner that is dangerous to the public that causes the death of another person).
- driving a motor vehicle or in charge of a motor vehicle while impaired by a drug. s.49(ba) Road Safety Act 1986
- refusing to undergo an assessment of drug impairment in accordance with section 55A of the Road Safety Act 1986 when required to do so or refusing to comply with any other requirement made under section 55A(1) of the Road Safety Act 1986. s.49(ca) Road Safety Act 1986
- refusing to comply with a request for a blood and urine sample. s.49(ea) of the Road Safety Act 1986
- refusing to provide a sample of oral fluid. s.49(eb) of the Road Safety Act 1986
For all accidents on or after 1 August 2015, LOEC benefits are also not payable if a driver is convicted of:
- Driving or being in charge of a motor vehicle while both:
- the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in the person's blood or breath; and
- the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in the person's blood or oral fluid. s.49(1)(bc) Road Safety Act 1986
- A person has had a sample of blood taken from him or her within 3 hours after driving or being in charge of a vehicle and -
- the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in that sample; and
- a prescribed illicit drug was present in that sample in any concentration. s.49(1)(j) Road Safety Act 1986
And the level of concentration of alcohol in the person's blood was 0.24 grams or more per 100 millilitres of blood or in the person's breath was 0.24 grams or more per 210 litres of expelled air, as the case requires.
For all accidents on or after 2 March 2017, LOEC benefits are also not payable if a driver is convicted of an offence in another state or territory, that is equivalent to culpable driving causing death or dangerous driving causing death. Victorian Gazette G9 dated 2 March 2017
For all accidents on or after 6 July 2022, LOEC benefits are also not payable if a person is convicted of murder, manslaughter or child homicide (section 5A of the Crimes Act) involving the use of a motor vehicle at the time of the accident.
Transport Accident Act 1986 reference: s.39(3), s.40(2), s.40(3) and s.40(4)
Are there any circumstances where the TAC will consider paying LOEC benefits despite the presence of alcohol?
If the driver of the motor vehicle can satisfy the TAC that the presence of the alcohol/illicit drug in his/her blood did not in any way contribute to the transport accident, the TAC will consider paying LOEC benefits to the driver. For example, an intoxicated driver is asleep and parked legally in a parking bay when the driver of another vehicle loses control and collides into the parked motor vehicle.
Transport Accident Act 1986 reference: s.40(3)
Is a fully licensed driver entitled to LOEC benefits if they were sitting beside a learner driver at the date of the transport accident and charges against the fully licensed driver are laid in relation to the transport accident?
A driver in relation to a motor vehicle includes a person who is said to be "in charge of the motor vehicle" by reason of sitting beside a driver who is the holder of a learner permit.
The TAC will not pay LOEC benefits to a fully licensed driver, who at the time of the transport accident was sitting beside the holder of a learner permit and the fully licensed driver is convicted of any of the various offences mentioned above under "Who is not eligible to receive LOEC benefits?".
How are traffic infringement notices in relation to drink driving offences viewed by the TAC?
The TAC considers a traffic infringement notice relating to drink driving to be a conviction for the offence after the expiration of 28 days from the date of issue, unless the notice is challenged in court.
