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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Workers Compensation Legislation
Amendment Bill 2001
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendments 2
Schedules
1 Amendments relating to commutation procedures 3
2 Amendments relating to assistance for injured workers 11
3 Amendments relating to lump sum compensation 14
4 Amendments relating to new claims procedures 26
5 Miscellaneous amendments 107
6 Consequential amendments 112
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Workers Compensation Legislation
Amendment Bill 2001
Act No , 2001
An Act to amend the Workers Compensation Act 1987 and the Workplace Injury
Management and Workers Compensation Act 1998 to make further provision for
claims procedures, dispute resolution, commutation, lump sum compensation and
other matters; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Workers Compensation Legislation Amendment Bill 2001
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Workers Compensation Legislation Amendment
Act 2001.
2 Commencement
(1) This Act commences on a day or days to be appointed by
proclamation.
(2) A proclamation under this section may appoint a particular time on a
day as the time for commencement on that day.
(3) An amendment made by Schedule 3 (Amendments relating to lump
sum compensation) cannot be commenced until guidelines have been
made under section 376 of the Workplace Injury Management and
Workers Compensation Act 1998 (as inserted by this Act) with respect
to the assessment of the degree of permanent impairment of an injured
worker as a result of an injury.
3 Amendments
Each Act specified in Schedules 16 is amended as set out in those
Schedules.
Page 2
Workers Compensation Legislation Amendment Bill 2001
Amendments relating to commutation procedures Schedule 1
Schedule 1 Amendments relating to commutation
procedures
(Section 3)
Workers Compensation Act 1987 No 70
[1] Section 35 Maximum weekly payment
Omit "under section 51" from section 35 (3).
[2] Section 37 Weekly payment during total incapacity--after first 26 weeks
Omit "under section 51" from section 37 (6B).
[3] Section 40 Weekly payments during partial incapacity--general
Omit "under section 51" from section 40 (7).
[4] Section 45 Reduction of weekly payments to qualify for other benefits
Omit "under section 51" from section 45 (3).
Insert instead "under this Act".
[5] Section 51 Exit payments by commutation of weekly payments
Omit the section.
[6] Part 3, Division 9
Insert after Division 8 of Part 3:
Division 9 Commutation of compensation
87D Definition
In this Division:
commutation agreement means an agreement to commute a
liability to a lump sum, as provided by section 87F.
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Workers Compensation Legislation Amendment Bill 2001
Schedule 1 Amendments relating to commutation procedures
87E Compensation that may be commuted
(1) A liability in respect of any of the following kinds of
compensation under this Act or the former Act may be
commuted to a lump sum as provided by this Division (and not
otherwise):
(a) weekly payments of compensation,
(b) compensation under Division 3 (Compensation for
medical, hospital and rehabilitation expenses etc) of
Part 3 of this Act or section 10 of the former Act.
(2) Such a liability cannot be commuted to a lump sum by an order
or award of the Commission (but this subsection does not
affect the operation of section 87G).
87F Commutation by agreement
(1) A liability may be commuted to a lump sum with the
agreement of the worker.
(2) A commutation agreement must not be entered into unless
(before the agreement is entered into):
(a) a legal practitioner instructed independently of the
insurer and the employer has certified in writing that the
legal practitioner has advised the worker on the full
legal implications of the agreement, including
implications with respect to any entitlement of the
worker to compensation under this Act or to benefits
under any other law (including a law of the
Commonwealth), and
(b) the worker has confirmed in writing that the worker has
been given and understands the advice referred to in
paragraph (a).
(3) A commutation agreement (including an agreement purporting
to be a commutation agreement) is not subject to review or
challenge in proceedings before the Commission or a court.
(4) The worker has 14 days after entering into a commutation
agreement in which to withdraw from the agreement by giving
notice in writing to the insurer. Withdrawal from the agreement
by the worker makes the agreement a nullity.
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to commutation procedures Schedule 1
(5) A liability cannot be commuted under this section if the worker
is legally incapacitated because of the worker's age or mental
capacity.
Note. Section 87G provides for the commutation of a liability when the
worker is legally incapacitated.
(6) A commutation agreement is of no effect unless and until it is
registered as provided by this Part. Registration of the
agreement removes the liability to which the agreement relates.
(7) The amount payable under an agreement is payable within 7
days after the agreement is registered or within such longer
period as the agreement may provide. Interest calculated at the
rate prescribed by the regulations is payable on any amount due
and unpaid. The amount payable under a commutation
agreement and any interest payable on that amount is
recoverable as a debt in a court of competent jurisdiction.
(8) As part of a commutation agreement, a worker may agree that
payment of a lump sum removes any liability to make a
payment under Division 4 of Part 3 (or section 16 of the former
Act) in respect of the injury concerned. This Division applies
to the agreement for payment of that lump sum as if it were an
agreement to commute the liability to pay that compensation to
a lump sum. Payment of the lump sum removes any liability to
which the agreement of the worker relates.
87G Commutation when worker legally incapacitated
(1) If a worker is legally incapacitated because of the worker's age
or mental capacity, a liability in respect of compensation may
be commuted to a lump sum by determination by the
Commission made having regard to:
(a) any dispute as to liability to pay compensation under
this Act, and
(b) the injury, the age of the worker, the general health of
the worker, and the occupation of the worker at the time
of the occurrence of the injury, and
(c) the worker's diminished ability to compete in an open
labour market, and
(d) other benefits that the worker may be entitled to from
any other source.
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Workers Compensation Legislation Amendment Bill 2001
Schedule 1 Amendments relating to commutation procedures
(2) The Commission is not to determine a lump sum for the
purposes of this section unless satisfied that the termination of
liability concerned is in the best interests of the worker.
(3) Payment of the lump sum to which a liability has been
commuted under this section removes the liability.
(4) A determination under this section may include a determination
as to the payment of a lump sum to remove any liability to
make a payment under Division 4 of Part 3 in respect of the
injury concerned. Payment of that lump sum removes any
liability to which the determination relates.
87H Registration of commutation agreements
(1) A party to a commutation agreement may apply to the Registrar
for registration of the agreement by the Registrar.
Note. Section 87F (6) provides that a commutation agreement is of no
effect unless and until it is registered.
(2) The Registrar must refuse to register a commutation agreement
unless satisfied that the requirements of section 87F (2) have
been complied with in respect of the agreement.
(3) Before registering a commutation agreement, the Registrar may
(on the application of a party to the agreement or of the
Registrar's own motion) refer the agreement for review by the
Commission. The Registrar is not to register the agreement if
the Commission recommends that the agreement not be
registered.
(4) The Commission reviewing a commutation agreement may
recommend to the Registrar that the agreement not be
registered if the Commission considers that the agreement is
inaccurate or that the lump sum to which a liability has been
commuted by the agreement is inadequate.
(5) In reviewing a commutation agreement, the Commission may
have regard to the following matters:
(a) any dispute as to liability to pay compensation under the
Workers Compensation Acts,
(b) the injury, the age of the worker, the general health of
the worker, and the occupation of the worker at the time
of the occurrence of the injury,
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to commutation procedures Schedule 1
(c) the worker's diminished ability to compete in an open
labour market,
(d) other benefits that the worker may be entitled to from
any other source.
(6) The registration of a commutation agreement may not be
cancelled except within such period after the agreement is
registered, and in such manner, as may be authorised by the
regulations.
(7) This section has effect despite section 234 of the 1998 Act
(No contracting out).
(8) This section does not prevent a commutation agreement
containing provision as to the payment of costs.
87I Payment
(1) If a liability in respect of compensation is only partially
commuted under this Division, the balance of the compensation
continues to be payable under and subject to this Act.
(2) A lump sum may be paid to the Public Guardian for the benefit
of the worker if:
(a) the worker agrees, in the case of a lump sum agreed to
by the worker, or
(b) the Commission so orders, in the case of a lump sum
determined by the Commission.
(3) The annual report of the Authority is to include a statement as
to trends in the commutation of liabilities under this Act.
87J Other commutation agreements invalid
(1) Neither agreement as to the commutation of a payment to a
lump sum nor payment of the sum payable under the agreement
exempts the person by whom the payment is payable from any
liability under this Act, except as provided by this Division.
(2) This section does not affect the operation of section 51 in
respect of a liability commuted under that section before the
commencement of this section.
(3) This section does not affect the operation of section 66A
(Registration of agreements for compensation).
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Workers Compensation Legislation Amendment Bill 2001
Schedule 1 Amendments relating to commutation procedures
87K Commutation payment taken to be payment of compensation
Payment of a lump sum to which liability in respect of any
weekly payment of compensation has been wholly or partially
commuted under this Division or section 51, or redeemed
under section 15 of the former Act (as applied by Schedule 6
to this Act), is taken for the purposes of this Act, the 1998 Act
and the former Act (as applied by this Act) to be payment of
the compensation concerned in pursuance of the liability to pay
the compensation concerned.
[7] Section 146
Omit the section. Insert instead:
146 Commutation of weekly payments from Scheme
(1) Division 9 of Part 3 applies to the commutation of a liability
under the Scheme.
(2) A liability under the Scheme may not be commuted to a lump
sum with the agreement of the worker unless the Authority:
(a) has given the employer notice of the proposed
agreement and has given the employer a reasonable
opportunity to make submissions to the Authority with
respect to the matter, and
(b) has taken into account any submissions so made to the
Authority.
(3) Subsection (2) does not apply if the worker has been unable,
after due search and inquiry, to identify the relevant employer.
(4) In the case of commutation by determination of the
Commission under section 87G (Commutation when worker
legally incapacitated), the Commission may on the application
of the employer, if the Commission thinks fit, refuse to make
such a determination in respect of a liability under the Scheme.
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to commutation procedures Schedule 1
(5) The making of such an application by the employer in no way
fetters the discretion of the Commission to make the
determination, and a commutation made in consequence of the
determination is binding on the employer whether or not the
employer has made such an application.
(6) The Authority may apply for registration of a commutation
agreement under section 87H as a party to the agreement.
[8] Section 151N Contributory negligence--generally
Omit "under section 51 if the person concerned were eligible to be paid a
lump sum under that section" from section 151N (2).
Insert instead "under Division 9 of Part 3 if the person concerned were
eligible to be paid a lump sum under that Division".
[9] Section 221 Payments from Contribution Fund
Omit "under section 51" from section 221 (12).
Insert instead "under Division 9 of Part 3".
[10] Schedule 6 Savings, transitional and other provisions
Insert after Part 2 of Schedule 6:
Part 2A Provisions relating to compensation
generally
1 Commutation--Workers Compensation Legislation Amendment
Act 2001
(1) This clause applies on and from the repeal of section 51 by the
Workers Compensation Legislation Amendment Act 2001.
(2) Division 9 (Commutation of compensation) of Part 3 applies to
the commutation of a liability arising in respect of an injury
received before or after the commencement of that Division.
(3) This clause extends to apply to a case in which proceedings for
a determination under section 51 are pending when that section
is repealed.
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Workers Compensation Legislation Amendment Bill 2001
Schedule 1 Amendments relating to commutation procedures
(4) A liability may be commuted under Division 9 of Part 3 even
if the Compensation Court refused, before the repeal of
section 51, to make a determination under that section or under
section 14 of the 1926 Act.
(5) Section 87F (Commutation by agreement) extends to an
agreement made before the commencement of that section.
Page 10
Workers Compensation Legislation Amendment Bill 2001
Amendments relating to assistance for injured workers Schedule 2
Schedule 2 Amendments relating to assistance for
injured workers
(Section 3)
2.1 Workers Compensation Act 1987 No 70
[1] Section 192A Claims administration manual
Insert after section 192A (3):
(3A) The WorkCover Guidelines under the 1998 Act can make
provision in connection with any matter in connection with
which the claims manual can make provision.
[2] Section 192A (4)
Insert "the WorkCover Guidelines," after "claims manual,".
[3] Section 192A (4A)
Insert after section 192A (4):
(4A) An insurer who fails to comply with a direction under
subsection (4) is guilty of an offence.
Maximum penalty: 50 penalty units.
2.2 Workplace Injury Management and Workers Compensation
Act 1998 No 86
[1] Section 42B
Insert after section 42A:
42B Claims assistance
(1) The Authority may provide assistance (claims assistance) to
injured workers and employers in connection with claims for
compensation and work injury damages.
Page 11
Workers Compensation Legislation Amendment Bill 2001
Schedule 2 Amendments relating to assistance for injured workers
(2) In particular the Authority may establish an advisory service to
provide claims assistance.
(3) The Authority may provide funds to fund the provision of
claims assistance by organisations representing employers or
employees, including by means of the establishment of an
advisory service to provide claims assistance.
(4) Funds may only be provided within a period of 1 year after the
commencement of this section (the initial period). However,
funds may be provided for a period of 2 years following the
expiry of the initial period (the additional period) if, before the
expiry of the initial period, both Houses of Parliament pass a
resolution approving the provision of funds during the
additional period.
(5) Before the Authority first provides any funds under this section,
the Authority is to:
(a) advertise in a newspaper circulating in New South
Wales for expressions of interest from organisations to
provide claims assistance, and
(b) publish in the Gazette the name of each organisation to
which the Authority intends to provide funds, the
amount of funding to be provided and a description of
the claims assistance that the organisation is to provide.
(6) Within 1 month after the expiry of the initial period, a
statement is to be laid before each House of Parliament setting
out:
(a) the name of each organisation to which funds have been
provided under this section, and
(b) the amount paid to each organisation, and
(c) a description of the claims assistance provided by the
organisation.
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to assistance for injured workers Schedule 2
[2] Section 45A
Insert after section 45:
45A Injury management consultants
(1) The Authority may by instrument in writing approve a person
as an injury management consultant for the purposes of the
Workers Compensation Acts.
(2) Such an approval may be for a fixed or indefinite period and
may be made subject to conditions.
(3) The Authority may by instrument in writing revoke the
approval of an injury management consultant for any breach of
the conditions of the approval or for such other reason as the
Authority thinks appropriate.
(4) WorkCover Guidelines may provide for the functions of
approved injury management consultants.
(5) A person approved as an injury management consultant under
this section is, in any legal proceedings, competent but not
compellable to give evidence or produce documents in respect
of any matter in which he or she was involved in the course of
the exercise of his or her functions as an approved injury
management consultant.
(6) An injury management consultant who is aggrieved by a
decision of the Authority to revoke the consultant's approval
may apply to the Administrative Decisions Tribunal for a
review of the decision.
[3] Section 59 Regulations
Omit section 59 (c) and (d).
Page 13
Workers Compensation Legislation Amendment Bill 2001
Schedule 3 Amendments relating to lump sum compensation
Schedule 3 Amendments relating to lump sum
compensation
(Section 3)
3.1 Workers Compensation Act 1987 No 70
[1] Sections 65 and 66
Omit sections 65 and 66. Insert instead:
65 Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent
impairment that results from an injury is to be assessed as
provided by this section and Part 7 (Medical assessment) of
Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the
same incident, those injuries are together to be treated as one
injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate
injuries. Section 322 of the 1998 Act requires the impairments that result
from those injuries to be assessed together. Physical injuries and
psychological/psychiatric injuries are not assessed together. See section
65A.
(3) If there is a dispute about the degree of permanent impairment
of an injured worker, the Commission may not award
permanent impairment compensation or pain and suffering
compensation unless the degree of permanent impairment has
been assessed by an approved medical specialist.
(4) The Commission may, at any stage in proceedings on a claim
for permanent impairment compensation or pain and suffering
compensation, refer the matter for assessment of the degree of
permanent impairment by an approved medical specialist.
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to lump sum compensation Schedule 3
65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of
permanent impairment that results from a secondary
psychological injury.
Note. This does not prevent a secondary psychological injury from being
compensated under section 67 as pain and suffering resulting from
permanent impairment (but only if that permanent impairment results from
a physical injury or a primary psychological injury).
(2) In assessing the degree of permanent impairment that results
from a physical injury or primary psychological injury, no
regard is to be had to any impairment or symptoms resulting
from a secondary psychological injury.
(3) Compensation payable under this Division in respect of
permanent impairment that results from a primary
psychological injury is not payable unless the degree of
permanent impairment resulting from the primary psychological
injury is greater than the degree of permanent impairment
prescribed by the regulations for the purposes of this section.
Note. If more than one psychological injury arises out of the same
incident, section 322 of the 1998 Act requires the injuries to be assessed
together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a
physical injury, arising out of the same incident, the worker is
only entitled to receive compensation under this Division in
respect of impairment resulting from one of those injuries, and
for that purpose the following provisions apply:
(a) the degree of permanent impairment that results from
the primary psychological injury is to be assessed
separately from the degree of permanent impairment
that results from the physical injury (despite section
65 (2)),
(b) the worker is entitled to receive compensation under this
Division for impairment resulting from whichever injury
results in the greater amount of compensation being
payable to the worker under this Division (and is not
entitled to receive compensation under this Division for
impairment resulting from the other injury),
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Workers Compensation Legislation Amendment Bill 2001
Schedule 3 Amendments relating to lump sum compensation
(c) the question of which injury results in the greater
amount of compensation is, in default of agreement, to
be determined by the Commission.
Note. If there is more than one physical injury those injuries will still be
assessed together as one injury under section 322 of the 1998 Act, but
separately from any psychological injury. Similarly, if there is more than
one psychological injury those psychological injures will be assessed
together as one injury, but separately from any physical injury.
(5) In this section:
primary psychological injury means a psychological injury
that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury
to the extent that it arises as a consequence of, or secondary to,
a physical injury.
66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in permanent
impairment is entitled to receive from the worker's employer
compensation for that permanent impairment as provided by
this section. Permanent impairment compensation is in addition
to any other compensation under this Act.
(2) The amount of the permanent impairment compensation that is
payable is to be calculated as prescribed by the regulations, on
the basis of the degree of permanent impairment that results
from the injury.
[2] Section 66A Registration of agreements for compensation
Omit section 66A (1). Insert instead:
(1) An agreement by a worker to receive an amount of permanent
impairment compensation or pain and suffering compensation
in respect of impairment may be registered by the Registrar.
Once the agreement is registered the worker is not entitled to
receive any additional compensation in respect of the
impairment under an award of the Commission.
[3] Section 66A (2)
Omit "the Compensation Court". Insert instead "the Commission".
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to lump sum compensation Schedule 3
[4] Section 66A (3)(4A)
Omit the subsections. Insert instead:
(3) Any party to an agreement may apply to the Registrar for
registration of the agreement.
(4) The Registrar may refuse to register an agreement if the
Registrar considers that the agreement is inaccurate or that the
agreed amount of compensation is inadequate.
(4A) The Registrar must refuse to register an agreement unless
satisfied that the worker received independent legal advice
about the agreement before the worker entered into the
agreement.
[5] Section 66A (7)
Omit the subsection. Insert instead:
(7) This section does not limit an award of additional
compensation in accordance with this Part in respect of an
increase in the degree of permanent impairment that occurs
after the impairment to which an agreement relates.
[6] Section 66A (8)
Omit the subsection.
[7] Section 66B
Omit the section. Insert instead:
66B No proceedings to enter up award on agreement for
compensation
(1) When a worker agrees to receive an amount of permanent
impairment compensation or pain and suffering compensation,
the Commission is not to entertain proceedings for entry of an
award to give effect to the agreement unless the proceedings
also relate to some dispute in connection with the worker's
claim for compensation under this Act.
(2) The regulations may prescribe exceptions to this section.
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Workers Compensation Legislation Amendment Bill 2001
Schedule 3 Amendments relating to lump sum compensation
(3) The regulations may make provision for or with respect to:
(a) requiring an application referring a matter to the
Commission to be accompanied by evidence (in the
form of a certificate or other information provided for
by the regulations) that the proceedings are not
prevented by this section from being entertained by the
Commission, and
(b) preventing the acceptance for lodgment of an
application not accompanied by any evidence required
by the regulations to accompany it.
[8] Section 67 Compensation for pain and suffering
Omit section 67 (1), (1A) and (2). Insert instead:
(1) A worker who receives an injury that results in a degree of
permanent impairment greater than that prescribed by the
regulations for the purposes of this section is entitled to receive
from the worker's employer as compensation for pain and
suffering resulting from the permanent impairment an amount
not exceeding $50,000. Pain and suffering compensation is in
addition to any other compensation under this Act.
Note. Section 65A provides that pain and suffering compensation for
permanent impairment arising from psychological injury is not payable
unless the injury is a primary psychological injury (as defined in that
section) and the degree of permanent impairment arising from the injury
is greater than the degree of permanent impairment prescribed by the
regulations for the purposes of that section.
(2) Because there is a distinction between injury and impairment
resulting from an injury (and compensation is payable under
this section only for pain and suffering resulting from
impairment), the pain and suffering for which compensation is
payable does not include pain and suffering that results from
the injury but not from the impairment.
[9] Section 67 (3)
Omit "loss or losses". Insert instead "permanent impairment".
[10] Section 67 (4)
Omit "the Compensation Court". Insert instead "the Commission".
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to lump sum compensation Schedule 3
[11] Section 67 (7)
Omit "loss". Insert instead "permanent impairment".
[12] Section 67A Special provisions for HIV/AIDS
Omit section 67A (1). Insert instead:
(1) For the purposes of the determination of the amount of pain
and suffering compensation payable, HIV infection and AIDS
are each considered to be a most extreme case, so that the
maximum amount of pain and suffering compensation is
payable.
(1A) For the purposes of the determination of the amount of
permanent impairment compensation payable, HIV infection
and AIDS are each considered to result in a degree of
permanent impairment of 100%.
[13] Section 67A (4)
Omit the subsection. Insert instead:
(4) Permanent impairment compensation and pain and suffering
compensation are not payable in respect of permanent
impairment that is HIV infection or AIDS if the impairment
resulted from voluntary sexual activity or illicit drug use. This
subsection does not limit the operation of section 14 (Conduct
of worker etc).
[14] Section 68 Proportionate loss of use
Omit the section.
[15] Section 68A Deduction for previous injury or pre-existing condition or
abnormality
Omit the section.
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Workers Compensation Legislation Amendment Bill 2001
Schedule 3 Amendments relating to lump sum compensation
[16] Section 68B
Omit the section. Insert instead:
68B Deductions for previous injuries and pre-existing
conditions--operation of sections 15, 16, 17 and 22
(1) When determining the compensation payable in respect of
permanent impairment for the purposes of the apportionment
of liability under section 22, there is to be no deduction under
section 323 of the 1998 Act for any proportion of the
impairment that is due to an injury in respect of which liability
is to be apportioned (but without affecting any deduction under
that section for any proportion of the impairment that is due to
any other injury or that is due to any pre-existing condition or
abnormality).
(2) When determining the compensation payable by an employer
in a case in which section 15 applies (disease of such a nature
as to be contracted by a gradual process), section 323 of the
1998 Act applies to that compensation subject to the
following:
(a) there is to be no deduction under section 323 of the
1998 Act for any proportion of the permanent
impairment that is due to the worker's employment in
previous relevant employment (as defined in paragraph
(b)) except any such proportion for which compensation
under this Division (as in force at any time) or
section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant
employment is employment to the nature of which the
disease was due by a previous employer who is liable
under section 15 to contribute in respect of the
compensation being determined (or who would be so
liable if the requirement to contribute were not limited
to employers who employed the worker during a
particular period),
(c) in the case of permanent impairment of the back, neck
or pelvis, a reference in this subsection to previous
relevant employment is limited to employment after the
commencement of this Act.
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Workers Compensation Legislation Amendment Bill 2001
Amendments relating to lump sum compensation Schedule 3
(3) When determining the compensation payable by an employer
in a case in which section 16 applies (an injury that consists in
the aggravation, acceleration, exacerbation or deterioration of
a disease), section 323 of the 1998 Act applies to that
compensation subject to the following:
(a) there is to be no deduction under section 323 of the
1998 Act for any proportion of the impairment that is
due to the worker's employment in previous relevant
employment (as defined in paragraph (b)) except any
such proportion for which compensation under this
Division (as in force at any time) or section 16 of the
former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant
employment is employment that was a substantial
contributing factor to the aggravation, acceleration,
exacerbation or deterioration by a previous employer
who is liable under section 16 to contribute in respect of
the compensation being determined (or who would be
so liable if the requirement to contribute were not
limited to employers who employed the worker during
a particular period),
(c) in the case of permanent impairment of the back, neck
or pelvis, a reference in this subsection to previous
relevant employment is limited to employment after the
commencement of this Act.
(4) When determining the compensation payable by an employer
in a case in which section 17 applies (loss or further loss of
hearing), section 323 of the 1998 Act applies to that
compensation subject to the following:
(a) there is to be no deduction under section 323 of the
1998 Act for any proportion of the impairment that is
due to the worker's employment in previous relevant
employment (as defined in paragraph (b)) except any
such proportion for which compensation under this
Division (as in force at any time) or section 16 of the
former Act has been paid or is payable,
(b) for the purposes of paragraph (a), previous relevant
employment is employment to the nature of which the
disease was due by a previous employer who is liable
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Workers Compensation Legislation Amendment Bill 2001
Schedule 3 Amendments relating to lump sum compensation
under section 17 to contribute in respect of the
compensation being determined (or who would be so
liable if the requirement to contribute were not limited
to employers who employed the worker during a
particular period).
[17] Section 69 Addition to Table of further compensable injuries
Omit the section.
[18] Section 69A No compensation for less than 6% hearing loss
Omit section 69A (1)(4). Insert instead:
(1) In assessing, for the purpose of the determination of permanent
impairment compensation, the degree of permanent impairment
resulting from loss of hearing (the present loss) due to
boilermakers deafness regard must not be had to any hearing
loss due to boilermakers deafness unless the worker's total
hearing loss due to boilermakers deafness is at least 6%.
(2) The worker's total hearing loss is the aggregate of the present
loss and all previous losses of hearing due to boilermakers
deafness.
(3) The fact that compensation is not payable in respect of a loss
of hearing because of this section does not prevent notice of
injury being given or a claim being made in respect of that loss,
and does not affect the operation of section 17 in respect of that
loss (if and when the worker's total hearing loss reaches 6%).
(4) An example of the operation of this section is as follows
(assume that all hearing losses mentioned are due to
boilermakers deafness and that no other injury is involved):
(a) A worker suffers a hearing loss of 4% (the first hearing
loss that the worker has suffered). No permanent
impairment compensation is payable in respect of the
loss because it is less than 6% and cannot be taken into
account to assess the degree of permanent impairment,
though notice of injury can be given or a claim can be
made for the hearing loss.
(b) The worker suffers a further hearing loss of 4%,
bringing the total loss to 8%. The total loss has now
passed the 6% threshold and compensation is payable
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on the basis of the full 8%. Compensation in respect of
the initial 4% hearing loss will be payable by the earlier
employer if the worker made a claim or gave notice of
injury for that initial hearing loss.
(c) The worker suffers a further hearing loss of 5%. The
worker is entitled in the usual way to compensation in
respect of the 5% further loss because the 6% threshold
has already been passed (the total loss is now 13%).
[19] Section 69A (7)
Omit "no compensation is payable under section 66".
Insert instead "no permanent impairment compensation is payable".
[20] Section 69B Employer's responsibility to pay for hearing loss tests
Omit "pay compensation under section 66 for a loss of hearing" from
section 69B (1).
Insert instead "pay permanent impairment compensation in respect of a loss
of hearing".
[21] Section 72 Reference of matters to medical panel
Omit the section.
[22] Section 73
Omit the section. Insert instead:
73 Reimbursement for costs of medical certificate and examination
(1) The obtaining of a permanent impairment medical certificate
and any examination required for the certificate are taken to be
a medical or related treatment for the purposes of Division 3 if:
(a) the medical practitioner has completed such training as
the Authority may require in respect of the assessment
of the degree of permanent impairment as provided by
this Act, and
(b) the worker has given the employer a copy of the
certificate.
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(2) In this section:
permanent impairment medical certificate means a report or
certificate of a medical practitioner that certifies:
(a) that a worker has received an injury resulting in
permanent impairment, and
(b) the degree of permanent impairment (assessed as
provided by this Act) resulting from the injury.
[23] Part 3, Division 4, Table
Omit the Table to Division 4 of Part 3.
3.2 Workplace Injury Management and Workers Compensation
Act 1998 No 86
[1] Section 111 Interest on agreed payment of lump sum compensation
Omit "compensation under section 66 or 67 of the 1987 Act" from
section 111 (1).
Insert instead "permanent impairment compensation or pain and suffering
compensation".
[2] Section 131 Definitions
Insert in alphabetical order in section 131 (1):
hearing loss claim means:
(a) a claim under section 66 of the 1987 Act (as in force at
any time before the commencement of this definition)
for loss of hearing, or
(b) a claim for permanent impairment compensation in
respect of loss of hearing.
[3] Section 131 (1)
Omit paragraph (a) of the definition of protected claim. Insert instead:
(a) a hearing loss claim, and
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[4] Section 134 Consequences of prohibited conduct for recovery of fees
by agents
Omit "claim under section 66 of the 1987 Act for loss of hearing" from
section 134 (3).
Insert instead "hearing loss claim".
[5] Section 134 (3)
Omit "subsequent claim for further loss of hearing".
Insert instead "subsequent hearing loss claim in respect of further loss of
hearing".
[6] Section 135 Consequences of prohibited conduct for lawyers
Omit "claim under section 66 of the 1987 Act for loss of hearing" from
section 135 (4).
Insert instead "hearing loss claim".
[7] Section 135 (4)
Omit "subsequent claim for further loss of hearing".
Insert instead "subsequent hearing loss claim in respect of further loss of
hearing".
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Schedule 4 Amendments relating to new claims
procedures
(Section 3)
4.1 Workers Compensation Act 1987 No 70
[1] Section 151D Time limit for commencement of court proceedings
against employer for damages
Insert as section 151D (1):
(1) In the case of proceedings for damages in respect of an injury
received on or after the commencement of this subsection (as
inserted by the Workers Compensation Legislation Amendment
Act 2001), time does not run for the purposes of this section
from the time that a claim has been referred to the Commission
for assessment and until 2 months after a certificate as to the
assessment or exemption from assessment is issued.
[2] Schedule 6 Savings, transitional and other provisions, Part 18 Special
provision relating to coal miners
Insert at the end of Part 18:
3 2001 amendments not applicable to coal miners
(1) Subject to this clause, the amendments made by the 2001
amending Act do not apply to or in respect of coal miners and
this Act and the 1998 Act (and the regulations under those
Acts) apply to and in respect of coal miners as if the 2001
amending Act had not been enacted.
(2) Subclause (1) does not apply in respect of the amendments
made by Schedule 2.2 [2] and [3] to the 2001 amending Act.
(3) The regulations may make provision for or with respect to the
following matters in connection with a claim for compensation
in respect of an injury received by a coal miner:
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(a) requiring or providing for the conciliation, mediation or
other review of a claim, or any dispute in connection
with a claim, before the commencement of court
proceedings in connection with the claim or dispute,
(b) any matter for or in respect of which provision is made
by Divisions 35 of Part 2 of Chapter 4 of the 1998 Act
(whether or not provision so made is inconsistent with
any provision of those Divisions),
(c) disapplying or modifying the application of any
provision or provisions of Divisions 35 of Part 2 of
Chapter 4 of the 1998 Act.
(4) In this clause:
coal miners means workers employed in or about a mine to
which the Coal Mines Regulation Act 1982 applies.
the 2001 amending Act means the Workers Compensation
Legislation Amendment Act 2001.
[3] Schedule 6 Part 18C
Insert after Part 18B of Schedule 6:
Part 18C Provisions consequent on enactment
of Workers Compensation Legislation
Amendment Act 2001
1 Definitions
In this Part:
existing claim and new claim have the same meaning as in
Chapter 7 of the 1998 Act.
the 2001 amending Act means the Workers Compensation
Legislation Amendment Act 2001.
2 Operation of amendments generally
(1) The Workers Compensation Acts apply to and in respect of an
existing claim as if Schedules 26 to the 2001 amending Act
had not been enacted.
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(2) This clause is subject to this Part and to any regulations under
this Schedule.
3 Amendments to lump sum compensation provisions
(1) The amendments made by Schedule 3 to the 2001 amending
Act do not apply in respect of an injury received before the
commencement of the amendments (even if the injury is the
subject of a claim made after the commencement of the
amendments) except for the amendments to section 66A
(subject to such modifications to that section as may be
prescribed by the regulations, for the purposes of the
application of those amendments in respect of such an injury).
(2) There is to be a reduction in the compensation payable under
Division 4 of Part 3 (as amended by the 2001 amending Act)
for any proportion of the permanent impairment concerned that
is a previously non-compensable impairment. This subclause
does not limit the operation of section 323 of the 1998 Act or
section 68B of the 1987 Act.
(3) A previously non-compensable impairment is loss or
impairment that is due to something that occurred before the
commencement of the amendments to Division 4 of Part 3
made by the 2001 amending Act, being loss or impairment that
is of a kind for which no compensation was payable under that
Division before that commencement.
(4) No contribution or payment of apportioned share in respect of
compensation under Division 4 of Part 3 (as amended by the
2001 amending Act) is required under section 15, 16, 17 or 22
to the extent that the employment or injury in respect of which
contribution or payment would otherwise be required relates to
a previously non-compensable impairment.
4 Transitional provision for disputes concerning lump sum
compensation claims
(1) In the case of a new claim in respect of an injury received
before the commencement of the amendments made by
Schedule 3 to the 2001 amending Act, compensation under
Division 4 of Part 3 (as in force before the commencement of
this clause) may not be awarded by the Commission if there is
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an impairment dispute unless the dispute has been assessed by
an approved medical specialist under Part 7 of Chapter 7 of the
1998 Act.
(2) An opinion certified in a medical assessment certificate
pursuant to the medical assessment of an impairment dispute is
conclusively presumed to be correct as to the matters in dispute
in any proceedings in respect of the claim for compensation
concerned.
(3) For the purposes of this clause, Part 7 of Chapter 7 of the 1998
Act extends (with such modifications as may be prescribed by
the regulations) to the assessment of an impairment dispute as
if it were a medical dispute under that Part.
(4) In this clause, impairment dispute means a dispute about
whether a loss or impairment exists and, if so, the nature and
extent of the loss or impairment.
5 Regulations to transfer existing claims to new procedures
(1) The regulations may make provision for or with respect to
requiring a class or classes of existing claims to be treated as
new claims for the purposes of the Workers Compensation
Acts.
(2) Those claims (transferred claims) then cease to be existing
claims and become new claims for the purposes of the Workers
Compensation Acts, subject to this Part and the regulations.
(3) Regulations under this clause may include provisions of a
savings or transitional nature consequent on the operation of
any such regulations.
(4) The power to make regulations under subclause (3) extends to
authorise the making of regulations whereby provisions of the
Workers Compensation Acts are taken to be amended in the
manner set forth in the regulations.
6 Special provisions for transferred claims
The provisions of the Workers Compensation Acts apply to and
in respect of a transferred claim as a new claim subject to the
following modifications:
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(a) an order or award of the Compensation Court in respect
of the claim is taken to be an order or award of the
Commission,
(b) such other modifications as may be prescribed by the
regulations.
7 False claims and recovery of overpayments
Sections 67 and 68 of the 1998 Act continue to apply as in
force before their repeal to and in respect of a statement made
by a person before their repeal.
8 New procedures for making a claim
Sections 259264 of the 1998 Act extend to the making of a
claim after the commencement of those sections even if the
claim is an existing claim.
9 Seniority of Compensation Court judges appointed to District
Court
A judge of the Compensation Court who is appointed as a
judge of the District Court is to have seniority, rank and
precedence as a judge of the District Court as if the date of his
or her commission as a judge of the District Court were the
date of his or her commission as a judge of the Compensation
Court.
[4] Schedule 6, Part 20 Savings and transitional regulations
Insert at the end of clause 1 (1):
Workers Compensation Legislation Amendment Act 2001
4.2 Workplace Injury Management and Workers Compensation
Act 1998 No 86
[1] Section 4 Definitions
Omit the definition of compensation from section 4 (1).
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[2] Section 4 (1)
Insert in alphabetical order:
approved medical specialist has the meaning given by
section 319.
Arbitrator means an Arbitrator of the Commission appointed
under this Act.
claim means a claim for compensation or work injury damages.
claimant means a person who makes or is entitled to make a
claim.
Commission means the Workers Compensation Commission
of New South Wales established by this Act.
compensation means compensation under the Workers
Compensation Acts, and includes any monetary benefit under
those Acts.
death benefit compensation means compensation under
Division 1 (Compensation payable on death) of Part 3 of the
1987 Act.
Deputy President means a Deputy President of the
Commission.
doctor means a medical practitioner.
existing claim has the same meaning as in Chapter 7 (New
claims procedures).
lump sum compensation means compensation under
Division 4 (Compensation for non-economic loss) of Part 3 of
the 1987 Act.
medical assessment means assessment of a medical dispute by
an approved medical specialist under Part 7 of Chapter 7.
medical certificate means a certificate given by a medical
practitioner.
medical dispute has the meaning given by section 319.
medical expenses compensation means compensation under
Division 3 (Compensation for medical, hospital and
rehabilitation expenses etc) of Part 3 of the 1987 Act.
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motor accident damages means damages to which Part 6 of
the Motor Accidents Act 1988 or Chapter 5 of the Motor
Accidents Compensation Act 1999 applies.
new claim has the same meaning as in Chapter 7 (New claims
procedures).
pain and suffering compensation means compensation for
pain and suffering under section 67 of the 1987 Act.
permanent impairment compensation means compensation
for permanent impairment under section 66 of the 1987 Act.
President means the President of the Commission.
Presidential member means the President or a Deputy
President.
Registrar means the Registrar of the Commission appointed
under this Act.
Rules means the Rules of the Commission made by the
Minister under this Act.
work injury means an injury in respect of which compensation
is payable.
work injury damages has the same meaning as in Chapter 7
(New claims procedures).
WorkCover Guidelines means guidelines issued under
section 376 (Issue of guidelines).
Workers Compensation Acts means this Act and the 1987 Act.
[3] Section 30 Functions of Council
Insert after section 30 (1) (d):
(d1) to provide advice to the Minister on proposals for
WorkCover Guidelines and regulations under the
workers compensation legislation,
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[4] Section 30 (1A)
Insert after section 30 (1):
(1A) Before a WorkCover Guideline, or a regulation (whether made
under this Act or the 1987 Act) is published in the Gazette, a
copy of the Guideline or the regulation must be provided to the
Council.
[5] Section 35 Payments into and from Fund
Insert after section 35 (2) (e):
(e1) the costs of operation of the Commission including the
remuneration (and allowances) of the members and of
the staff of the Commission, and the remuneration of
approved medical specialists,
[6] Section 60A
Insert before section 61:
60A Application of Division
(1) Sections 6164 apply only in respect of an injury received
before the commencement of this section (as inserted by the
Workers Compensation Legislation Amendment Act 2001).
(2) Sections 65 and 66 apply only in respect of the making of a
claim before the commencement of this section (as inserted by
the Workers Compensation Legislation Amendment Act 2001).
Note. Chapter 7 (New claims procedures) provides for notice of injury and
making of claims in all other cases.
[7] Sections 67 (False claims) and 68 (Order for refund of overpayments of
compensation)
Omit the sections.
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[8] Section 75A
Insert before section 76:
75A Division applies only to existing claims
This Division applies only in respect of existing claims.
Note. Conciliation is not applicable to new claims. See Chapter 7 (New
claims procedures).
[9] Section 91A
Insert before section 92:
91A Division applies only to existing claims
This Division applies only in respect of existing claims.
Note. Chapter 7 (New claims procedures) provides for weekly payments
in the case of new claims.
[10] Section 100A
Insert before section 101:
100A Division applies only to existing claims
This Division applies only in respect of existing claims.
Note. Chapter 7 (New claims procedure) provides for restrictions on
commencing court proceedings in the case of new claims.
[11] Chapter 4, Part 2, Division 6, heading
Omit the heading to Division 6 of Part 2 of Chapter 4. Insert instead:
Division 6 Proceedings before Commission or the
Compensation Court
[12] Section 105
Omit the section. Insert instead:
105 Jurisdiction of Commission and Compensation Court
(1) Subject to this Act, the Commission has exclusive jurisdiction
to examine, hear and determine all matters arising under this
Act in respect of any new claim.
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(2) The Commission does not have that jurisdiction in respect of
matters arising under Part 5 (Common law remedies) of the
1987 Act except for the purposes of and in connection with the
assessment of a work injury damages claim under Part 6 of
Chapter 7.
(3) Subject to this Act and the Compensation Court Act 1984, the
Compensation Court has exclusive jurisdiction to examine,
hear and determine all matters arising under this Act (except
Part 5 of the 1987 Act) in respect of any existing claim.
(4) References in this Act to the Commission are, for the purposes
of giving effect to subsection (3), to be read as references to the
Compensation Court to the extent that the reference is in
respect of an existing claim.
Note. Provision is made in the 1987 Act for regulations to require existing
claims to be treated as new claims (transferred claims). The
Compensation Court ceases to have jurisdiction in respect of transferred
claims and the Commission acquires exclusive jurisdiction in respect of
transferred claims.
[13] Section 111A
Insert before section 112:
111A Costs provisions apply only to existing claims
Sections 112116 apply only in respect of existing claims.
Note. Chapter 7 (New claims procedures) provides for costs in respect of
new claims.
[14] Section 118A
Insert before section 119:
118A Application of certain provisions of Division only to existing
claims
Sections 121124 and 128130 apply only in respect of
existing claims.
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[15] Sections 235C and 235D
Insert after section 235B:
235C False claims
(1) A person must not make a statement knowing that it is false or
misleading in a material particular:
(a) in a claim made by the person, or
(b) in a medical certificate or other document that relates to
a claim, or
(c) when furnishing information to any person concerning
a claim or likely claim (whether the information is
furnished by the person who makes or is entitled to
make the claim or not).
Maximum penalty: 500 penalty units or imprisonment for
2 years, or both.
(2) This section does not apply to statements:
(a) made in documents filed, or information furnished, in
proceedings before a court, or
(b) made in the course of giving evidence on oath before
the Commission, or
(c) made in any document or information in any case in
which the person who made the statement did not know
that the document or information was to be given,
served or furnished in connection with a claim.
(3) This section applies to a statement even though it has been
verified by statutory declaration.
235D Order for refund of overpayments of compensation
(1) This section applies to a payment to a person, purportedly made
pursuant to an obligation arising under this Act, to which the
person is not entitled under this Act. Such a payment is referred
to in this section as an overpayment.
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(2) If the Authority is satisfied that a person has received an
overpayment as a result or partly as a result of an act that
constitutes a contravention of section 235A or 235C (whether
or not the person has been proceeded against or convicted for
an offence in respect of the contravention), the Authority may
order the person to refund the amount of the overpayment to
the person who made the payment.
(3) Any such refund may, in accordance with the terms of the
Authority's order, be deducted from future payments of
compensation, but not if it is payable under an award of the
Commission.
(4) An order under this section is enforceable as a civil debt and
may be recovered as such in any court of competent
jurisdiction by the person to whom the order requires payment
to be made.
(5) This section does not limit any other right of recovery that a
person may have against another person in respect of any
overpayment to that other person.
(6) A person against whom an order is made under this section
may apply for a review of the order by the Commission.
[16] Section 248A
Insert after section 248:
248A Review of Act
(1) The Independent Pricing and Regulatory Tribunal is to conduct
a review of the amendments made by the Workers
Compensation Legislation Amendment Act 2001 to determine
whether the policy objectives of those amendments remain
valid and whether the terms of the Workers Compensation Acts
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the
period of 12 months from the date of assent to the Workers
Compensation Legislation Amendment Act 2001, and the
Independent Pricing and Regulatory Tribunal is to use its best
endeavours to ensure that it is completed by 31 December
2002.
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(3) Within 1 month of the completion of the review, the
Independent Pricing and Regulatory Tribunal is to:
(a) cause a statement setting out the results of the review to
be provided to the Minister to be laid before each House
of Parliament, and
(b) give a copy of the review to the Council.
(4) The Council is to cause a statement setting out its views, if any,
on the review to be provided to the Minister to be laid before
each House of Parliament within 1 month after the Council
receives the copy of the review.
(5) If a House of Parliament is not sitting when a statement is
sought to be laid before the House, the statement is to be
presented to the Clerk of the House concerned.
(6) The statement:
(a) on presentation and for all purposes is taken to have
been laid before the House, and
(b) may be printed by authority of the Clerk of the House,
and
(c) if printed by authority of the Clerk, is for all purposes
taken to be a statement published by or under the
authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council--in the
Minutes of the Proceedings of the Legislative
Council, and
(ii) in the case of the Legislative Assembly--in the
Votes and Proceedings of the Legislative
Assembly,
on the first sitting day on the House after receipt of the
statement by the Clerk.
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[17] Chapter 7
Insert as Chapter 7:
Chapter 7 New claims procedures
Part 1 Preliminary
250 Interpretation
(1) In this Chapter:
damages has the same meaning as in Part 5 (Common law
remedies) of the 1987 Act.
existing claim means:
(a) a claim for compensation made before the
commencement of this section or a claim that is related
to such a claim (whether or not the related claim is
made before the commencement of this section), or
(b) a claim for work injury damages made in respect of an
injury received before the commencement of this
section or in respect of the death of a worker resulting
from or caused by such an injury.
Note. Part 18C of Schedule 6 to the 1987 Act provides for the transfer of
existing claims, so that the claims transferred will be treated as new
claims.
insurer means a licensed insurer, specialised insurer or self-
insurer, under this Act or the 1987 Act, or a former licensed
insurer.
new claim means any claim that is not an existing claim.
related claims are claims or further claims for compensation in
respect of the same injury, whether or not the claims are in
respect of the same kind of compensation.
work injury damages means damages recoverable from a
worker's employer in respect of:
(a) an injury to the worker caused by the negligence or
other tort of the employer, or
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(b) the death of the worker resulting from or caused by an
injury caused by the negligence or other tort of the
employer,
whether the damages are recoverable in an action for tort or
breach of contract or in any other action, but does not include
motor accident damages.
(2) In the definition of work injury damages in subsection (1), a
reference to a worker's employer includes a reference to:
(a) a person who is vicariously liable for the acts of the
employer, and
(b) a person for whose acts the employer is vicariously
liable.
(3) A claim served on an insurer in accordance with the
WorkCover Guidelines or forwarded to an insurer by the
employer is taken to have been made on the insurer (and to
have been so made when it was made on the employer).
251 Application of Chapter
Except as otherwise specifically provided in this Chapter, this
Chapter applies to and in respect of new claims only.
Note. Part 18C of Schedule 6 to the 1987 Act provides for the transfer of
existing claims, so that the claims transferred will be treated as new
claims.
Part 2 Giving notice of injury and making a claim
Division 1 Notice of injury
252 Application of Division
This Division applies only in respect of injuries received after
the commencement of this section.
253 Interpretation
Words and expressions used in this Part have the same
meaning as in Part 5 (Common law remedies) of the 1987 Act.
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254 Notice of injury must be given to employer
(1) Neither compensation nor work injury damages are recoverable
by an injured worker unless notice of the injury is given to the
employer as soon as possible after the injury happened and
before the worker has voluntarily left the employment in which
the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section
(or any defect or inaccuracy in a notice of injury) is not a bar to
the recovery of compensation or work injury damages if in
proceedings to recover the compensation or damages it is found
that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has
not been prejudiced in respect of the proceedings by the
failure to give notice of injury or by the defect or
inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or
inaccuracy in the notice, was occasioned by ignorance,
mistake, absence from the State or other reasonable
cause,
(c) the person against whom the proceedings are taken had
knowledge of the injury from any source at or about the
time when the injury happened,
(d) the injury has been reported by the employer to the
Authority in accordance with this Act.
(4) In addition, if the employer is the owner of a mine or quarry, or
the occupier of a factory, workshop, office or shop, each of the
following constitutes special circumstances:
(a) the summary referred to in section 231 has not been
posted up in accordance with that section or the
employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the
employer to an inspector of mines or an inspector under
the Occupational Health and Safety Act 2000,
(c) the injury has been treated in a first aid room at the
mine, quarry, factory, workshop, office or shop.
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255 How notice of injury is given
(1) A notice of injury must state:
(a) the name and address of the person injured, and
(b) the cause of the injury (in ordinary language), and
(c) the date on which the injury happened.
(2) A notice of injury may be given orally or in writing.
(3) If there is more than one employer, a notice of injury may be
given to any one of those employers.
(4) A notice of injury is taken to have been given to an employer:
(a) if it is given to any person designated for the purpose by
the employer, or
(b) if it is given to any person under whose supervision the
worker is employed.
(5) A written notice of injury may be served by delivering it to, or
by sending it by post to, the residence or any place of business
of the person on whom it is to be served.
(6) If the regulations so require (and despite anything to the
contrary in this section), a notice of injury must be given in the
manner, and contain the particulars, prescribed by the
regulations.
256 Register of injuries
(1) A register of injuries must be kept in some readily accessible
place at every mine, quarry, construction site, factory,
workshop, office or shop.
(2) A worker employed at any such mine, quarry, construction site,
factory, workshop, office or shop, or any person acting on the
worker's behalf, may enter in the register of injuries particulars
of any injury received by the worker.
(3) The regulations may prescribe the form of a register of injuries
and the particulars to be entered in the register.
(4) If particulars of an injury are duly entered in a register of
injuries as soon as possible after an injury happened, the entry
is sufficient notice of the injury for the purposes of this Act.
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(5) If subsection (1) is contravened, the manager of the mine or
quarry, or the occupier of the construction site, factory,
workshop, office or shop, is guilty of an offence.
Maximum penalty: 50 penalty units.
257 Notice of incapacity, medical etc treatment and damage to
property
(1) The provisions of this Part apply with respect to:
(a) the giving of notice of incapacity resulting from injury
that happens after the worker leaves the employment in
which the worker was at the time of the injury, and
(b) the giving of notice of any medical or related treatment,
hospital treatment, occupational rehabilitation service or
ambulance service to which Division 3 of Part 3 of the
1987 Act applies, and
(c) the giving of notice of any damage to property to which
Division 5 of Part 3 of the 1987 Act applies,
in the same way as those provisions apply to notice of injury.
(2) The particulars required to be given in any such notice are
(subject to the regulations) reasonable particulars of the
incapacity, of the treatment or service or of the damage to
property.
258 Offence
A person must not make a statement in a notice given by the
person under this Division knowing that the statement is false
or misleading in a material particular.
Maximum penalty: 100 penalty units or imprisonment for
2 years, or both.
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Division 2 Making a claim for compensation or
damages
259 Application of Division
(1) This Division applies to the making of a claim after the
commencement of this section (even if the injury concerned
was received before the commencement of this section).
(2) However, this Division does not apply to the making of a claim
for work injury damages if court proceedings to recover the
work injury damages concerned were commenced before the
commencement of this section.
260 How a claim is made
(1) A claim must be made in accordance with the applicable
requirements of the WorkCover Guidelines.
(2) The WorkCover Guidelines may make provision for or with
respect to the following matters in connection with the making
of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to
accompany or form part of a claim,
(f) such other matters as may be prescribed by the
regulations.
(3) Without limiting this section, the WorkCover Guidelines can
require that a claim be accompanied by a form of authority
signed by the claimant and authorising a provider of medical or
related treatment, hospital treatment or occupational
rehabilitation services to the claimant in connection with the
injury to which the claim relates to give the insurer concerned
information regarding the treatment or service provided or the
worker's medical condition or treatment relevant to the claim.
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(4) The WorkCover Guidelines can also provide for any of the
following matters in connection with the making of a claim:
(a) waiving the requirement for the making of a claim in
specified cases (such as cases in which notice of injury
has been given or provisional weekly payments of
compensation have commenced),
(b) providing for the time at which a claim is taken to have
been made in any case in which the requirement for the
making of a claim has been waived,
(c) providing for the time when a claim is taken to have
been made in a case in which requirements of the
Guidelines with respect to the making of the claim have
been complied with at different times.
(5) The failure to make a claim as required by this section is not a
bar to the recovery of compensation or work injury damages if
it is found that the failure was occasioned by ignorance,
mistake or other reasonable cause or because of a minor defect
in form or style.
(6) Except to the extent that the WorkCover Guidelines otherwise
provide, an insurer can waive a requirement of those
Guidelines with respect to the making of a claim on the insurer.
(7) The WorkCover Guidelines can require an insurer to notify a
worker of any failure by the worker to comply with a
requirement of those Guidelines with respect to the making of
a claim, and can provide for the waiver of any such failure by
the worker if the insurer fails to give the required notification.
261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the
compensation has been made within 6 months after the injury
or accident happened or, in the case of death, within 6 months
after the date of death.
(2) If a claim for compensation was made by an injured worker
within the period required by this section, this section does not
apply to a claim for compensation in respect of the death of the
worker resulting from the injury to which the worker's claim
related.
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(3) For the purposes of this section, a person is considered to have
made a claim for compensation when the person makes any
claim for compensation in respect of the injury or death
concerned, even if the person's claim did not relate to the
particular compensation in question.
(4) The failure to make a claim within the period required by this
section is not a bar to the recovery of compensation if it is
found that the failure was occasioned by ignorance, mistake,
absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or
accident happened or, in the case of death, within 3
years after the date of death, or
(b) the claim is not made within that 3 years but the claim
is in respect of an injury resulting in the death or serious
and permanent disablement of a worker.
(5) The failure to make a claim within the period required by this
section is not a bar to the recovery of compensation if the
insurer concerned determines to accept the claim outside that
period. An insurer cannot determine to accept a claim made
more than 3 years after the injury or accident happened or after
the date of death (as appropriate) except with the approval of
the Authority.
(6) If an injured worker first becomes aware that he or she has
received an injury after the injury was received, the injury is for
the purposes of this section taken to have been received when
the worker first became so aware.
(7) If death results from an injury and a person who is entitled to
claim compensation in respect of the death first becomes aware
after the death that the death resulted or is likely to have
resulted from the injury, the date of death is, for the purposes
of the application of this section to a claim by that person,
taken to be the date that the person became so aware.
(8) In a case where 2 or more persons are liable or partly liable in
respect of compensation (whether or not that liability arises
from the same or from different injuries), a claim is for the
purposes of this section taken to have been made when a claim
is made on any one of those persons.
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(9) When particulars of any injury received by a worker are entered
in a register of injuries kept by the employer under this Act, the
making of that entry suffices for the purposes of this section as
the making of a claim for compensation in respect of the injury.
262 Time within which claim for work injury damages must be made
Court proceedings for the recovery of work injury damages
cannot be commenced until a claim for the damages has been
made.
263 Lump sum compensation claims to be made at same time
(1) All claims for permanent impairment compensation or pain and
suffering compensation in respect of an injury must, as far as
practicable, be made at the same time.
(2) A legal practitioner or agent who acts for a worker when such
a claim is made is not entitled to recover any costs from the
worker or the employer in relation to any such claim made later
(including such a claim made by later amendment of
proceedings) unless there is a good reason for the claim being
made later.
264 Action by employer in respect of claims, injuries and
compensation
(1) An employer (not being a self-insurer) who receives a claim or
any other documentation in respect of a claim must, within 7
days after receiving the claim or documentation, forward it to
the employer's insurer.
Maximum penalty: 50 penalty units.
(2) An employer who receives a request from the employer's
insurer for specified information in respect of a claim or
notified injury, or documentation in respect of a claim or
notified injury, must, within 7 days after receipt of the request,
furnish the insurer with such of the specified information or
documentation as is in the employer's possession or reasonably
obtainable by the employer.
Maximum penalty: 50 penalty units.
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(3) An employer who has received compensation money under this
Act from an insurer must, as soon as practicable, pay the
money to the person entitled to the compensation.
Maximum penalty: 50 penalty units.
(4) A person is not guilty of an offence for a failure to comply with
a provision of this section if there was a reasonable excuse for
that failure.
(5) In this section:
employer's insurer means the insurer who the employer
believes is liable to indemnify the employer in respect of the
claim or injury concerned.
notified injury means an injury to a worker notified to an
insurer.
Part 3 Dealing with claims
Division 1 Special provisions for commencement of
weekly payments after initial notification of
injury
265 Application of Division
This Division applies in respect of the initial notification of an
injury after the commencement of this section (even if the
injury concerned was received before the commencement of
this section).
266 Meaning of initial notification of injury
In this Part, initial notification to an insurer of an injury to a
worker means the first notification of the injury that is given to
the insurer, in the manner and form required by the
WorkCover Guidelines, by the worker or the employer or by
some other person (for example, a medical practitioner) acting
for or on behalf of the worker or the employer.
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267 Duty to commence weekly payments following initial notification
of injury
(1) Provisional weekly payments of compensation by an insurer are
to commence within 7 days after initial notification to the
insurer of an injury to a worker, unless the insurer has a
reasonable excuse for not commencing those weekly payments.
(2) A person does not have a reasonable excuse for not
commencing those weekly payments unless the person has an
excuse that the WorkCover Guidelines provide is a reasonable
excuse.
(3) The payment of provisional weekly payments of compensation
under this section is on the basis of the provisional acceptance
of liability by the insurer for a period of up to 12 weeks
determined by the insurer having regard to the nature of the
injury and the period of incapacity.
(4) The acceptance of liability on a provisional basis does not
constitute an admission of liability by the employer or insurer
under this Act or independently of this Act.
(5) An insurer who fails to commence weekly payments of
compensation as required by this section is guilty of an offence.
Maximum penalty: 50 penalty units.
268 Insurer must notify worker of reasonable excuse for not
commencing weekly payments
If an insurer does not commence weekly payments of
compensation because the insurer has a reasonable excuse for
not doing so, the insurer must within 7 days after receiving the
early notification of injury give the worker notice in writing
that the insurer has a reasonable excuse for not commencing
weekly payments of compensation and include in that notice:
(a) details of that reasonable excuse, and
(b) a statement that the worker is entitled to make a claim
for compensation and that the claim will be determined
within 21 days, and
(c) details of how that claim can be made.
Maximum penalty: 50 penalty units.
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269 Notice to be given of commencement of weekly payments
As soon as practicable after an insurer commences weekly
payments of compensation under this Division, the insurer must
give the worker a notice in writing notifying the worker that:
(a) weekly payments of compensation to the worker have
commenced on the basis of provisional acceptance of
liability by the insurer, and
(b) the payment of weekly payments of compensation to the
worker will continue for a period (up to a maximum of
12 weeks) determined by the insurer having regard to
the nature of the injury and the period of incapacity, and
(c) the insurer will develop an injury management plan for
the worker (if required to do so by Chapter 3), and
(d) the worker is entitled to make a claim for compensation
(and include details of how that claim can be made).
270 Obligations of worker to provide authorisations and medical
evidence
(1) An insurer who commences weekly payments of compensation
under this Division may require the worker to provide the
insurer with:
(a) a medical certificate certifying as to the worker's
incapacity for work, and
(b) a form of authority signed by the worker authorising a
provider of medical or related treatment, hospital
treatment or occupational rehabilitation services to the
worker in connection with the injury to give the insurer
information regarding the treatment or service provided
or the worker's medical condition or treatment relevant
to the injury.
(2) The insurer may discontinue weekly payments of compensation
under this Division if the worker fails to comply with a
requirement under this section within 7 days after it is
communicated to the worker by the insurer.
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271 Liability to make weekly payments not affected by making of
claim
(1) An obligation of an insurer to make weekly payments of
compensation pursuant to the provisional acceptance of liability
under this Division ceases if the insurer disputes liability to
make those payments.
Note. Section 74 requires notice of a dispute to be given.
(2) Otherwise, a liability to make weekly payments of
compensation pursuant to the acceptance of liability on a
provisional basis under this Division is not affected by the
making of a claim for compensation.
272 Recovery by insurer
(1) If an insurer pays any compensation under this Division and
another insurer or another employer accepts liability to pay
compensation to the worker in respect of the injury concerned,
the insurer is entitled to recover the compensation so paid as a
debt from that other insurer or other employer.
(2) Any amount so recoverable is taken to have been payable by
the other insurer or other employer as compensation to the
injured worker.
273 Provision for recovery of excess for provisional payments
Section 160 (Recovery of excess from employer) of the 1987
Act and section 152 of this Act apply to and in respect of the
payment of provisional weekly payments of compensation
under this Division as if the payment were payable under a
weekly compensation claim as referred to in those sections.
Division 2 Claims for weekly payments
274 Liability to be accepted and weekly payments commenced
within 21 days
(1) Within 21 days after a claim for weekly payments is made the
person on whom the claim is made must determine the claim
by:
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(a) accepting liability and commencing weekly payments,
or
(b) disputing liability.
Note. Section 283 makes failure to comply with this section an offence.
Section 74 requires notice of a dispute to be given.
(2) An insurer can accept liability for weekly payments on a
provisional basis for a period of up to 12 weeks determined by
the insurer having regard to the nature of the injury and the
period of incapacity.
(3) The acceptance of liability on a provisional basis operates to
extend the period within which the claim must be determined
until the end of the period for which liability has been accepted
on a provisional basis.
Note. This allows the insurer more time to determine liability while
providing for the commencement of weekly payments on the basis of the
provisional acceptance of liability.
(4) Liability cannot be accepted on a provisional basis under this
section if the insurer is already making weekly payments on the
basis of the provisional acceptance of liability under Division 1
when the claim for weekly payments is made.
(5) The acceptance of liability on a provisional basis does not
constitute an admission of liability by the employer or insurer
under this Act or independently of this Act.
(6) An employer is not required to determine a claim as provided
by this section if:
(a) the employer has duly forwarded the claim to an insurer
who the employer believes is liable to indemnify the
employer in respect of the claim, and
(b) the employer has complied with all reasonable requests
of the insurer with respect to the claim.
Note. A claim forwarded to the insurer is taken to have been made on the
insurer.
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275 Duty to commence provisional weekly payments if claim is first
notification of injury
(1) If the claim for weekly payments is the first notification that an
insurer has received of the injury to the worker, section 267
(Duty to commence weekly payments following initial
notification of injury) applies to require the commencement of
provisional weekly payments of compensation within 7 days
after the claim is made.
(2) The provisional acceptance of liability pursuant to the
commencement of provisional weekly payments of
compensation under that section operates to extend the period
within which the claim must be determined for the purposes of
this Division until the end of the period for which liability has
been provisionally accepted.
Note. This allows the insurer more time to determine liability while
providing for the commencement of weekly payments on the basis of the
provisional acceptance of liability.
276 Continuation of provisional payments started before claim made
(1) If an insurer is already making provisional weekly payments
when the claim for weekly payments is made (on the basis of
the provisional acceptance of liability before the claim was
made), the period within which liability for weekly payments
must be determined is extended to the end of the period for
which liability has been provisionally accepted.
(2) If the period for which liability has been provisionally accepted
ends before the end of the period within which liability for
weekly payments must be determined, the insurer may continue
to make weekly payments on the basis of the provisional
acceptance of liability until the end of that period.
277 Provision for recovery of excess for provisional payments
Section 160 (Recovery of excess from employer) of the 1987
Act and section 152 of this Act apply to and in respect of the
payment of provisional weekly payments of compensation
under this Division as if the payment were payable under a
weekly compensation claim as referred to in those sections.
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278 Early acceptance of liability not prevented
This Division does not prevent the acceptance of liability and
the commencement of weekly payments before the end of the
provisional liability period.
Division 3 Claims for medical expenses
279 Liability to be accepted within 21 days
(1) Within 21 days after a claim for medical expenses
compensation is made the person on whom the claim is made
must determine the claim by accepting or disputing liability.
Note. Section 283 makes failure to comply with this section an offence.
Section 74 requires notice of a dispute to be given.
(2) An employer is not required to determine a claim as provided
by this section if:
(a) the employer has duly forwarded the claim to an insurer
who the employer believes is liable to indemnify the
employer in respect of the claim, and
(b) the employer has complied with all reasonable requests
of the insurer with respect to the claim.
Note. A claim forwarded to the insurer is taken to have been made on the
insurer.
280 Provisional acceptance of liability
(1) An insurer can accept liability for medical expenses
compensation on the basis of the provisional acceptance of
liability for an amount of up to $5,000 or such other amount as
may be specified by the WorkCover Guidelines.
(2) The acceptance of liability on a provisional basis does not
constitute an admission of liability by the employer or insurer
under this Act or independently of this Act.
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Division 4 Claims for lump sum compensation and
work injury damages
281 Liability to be accepted and settlement offer made
(1) The person on whom a claim for lump sum compensation or
work injury damages is made must, within the time required by
this section, determine the claim by:
(a) accepting liability and making a reasonable offer of
settlement to the claimant, or
(b) disputing liability.
(2) A claim must be so determined:
(a) within 1 month after the degree of permanent
impairment first becomes fully ascertainable, as agreed
by the parties or as determined by an approved medical
specialist, or
(b) within 2 months after the claimant has provided to the
insurer all relevant particulars about the claim,
whichever is the later.
Note. Section 283 makes failure to comply with this section an offence.
Section 74 requires notice of a dispute to be given. If an offer of
settlement is not made as required by this section, the claim can be
referred for assessment as soon as the time for making the offer has
expired.
(3) An offer of settlement is to specify an amount of compensation
or damages or a manner of determining an amount of
compensation or damages.
(4) If an offer of settlement is made on the basis that the insurer
accepts only partial liability for the claim, the offer is to include
details sufficient to ascertain the extent to which liability is
accepted.
(5) An employer is not required to determine a claim as provided
by this section if:
(a) the employer has duly forwarded the claim to an insurer
who the employer believes is liable to indemnify the
employer in respect of the claim, and
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(b) the employer has complied with all reasonable requests
of the insurer with respect to the claim.
Note. A claim forwarded to the insurer is taken to have been made on the
insurer.
(6) This section does not apply to a claim for work injury damages
in respect of the death of a person.
282 Relevant particulars about a claim
(1) The relevant particulars about a claim are full details of the
following, sufficient to enable the insurer, as far as practicable,
to make a proper assessment of the claimant's full entitlement
on the claim:
(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or
abnormality, to which any proportion of an impairment
is or may be due (whether or not it is an injury for
which compensation has been paid or is payable under
Division 4 of Part 3 of the 1987 Act),
(d) in the case of a claim for work injury damages, any
economic losses and other losses that are being claimed
as damages,
(e) information relevant to a determination as to whether or
not the degree of permanent impairment resulting from
the injury will change,
(f) in addition, in the case of a claim for lump sum
compensation, details of all previous employment to the
nature of which the injury is or may be due,
(g) such other matters as the WorkCover Guidelines may
require.
(2) If the employer requires the claimant to submit himself or
herself for examination by a medical practitioner provided and
paid for by the employer, the claimant is not considered to have
provided all relevant particulars about the claim until the
worker has complied with that requirement.
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(3) The insurer is not entitled to delay the determination of a claim
under this Division on the ground that any particulars about the
claim are insufficient unless the insurer requested further
relevant particulars within 2 weeks after the claimant provided
particulars.
(4) In this section, injury is not limited by the meaning given by
section 4.
Division 5 Enforcement of claims obligations
283 Offence of failing to determine a claim for compensation
(1) A person who fails to determine a claim as and when required
by this Part is guilty of an offence unless the person has a
reasonable excuse for the failure.
Maximum penalty: 50 penalty units.
(2) A person does not have a reasonable excuse for a failure for the
purposes of this section unless the person has an excuse that
the WorkCover Guidelines provide is a reasonable excuse.
(3) A person who has or anticipates having a reasonable excuse for
the purposes of this section must notify the claimant in writing
as soon as practicable.
284 Insurer liable to pay fee if claim goes to assessment
(1) If it appears to the Registrar that an insurer has:
(a) failed without reasonable excuse to determine a claim as
and when required by this Part, or
(b) referred a matter that the insurer knows is not a genuine
dispute for the purpose of delaying, without good cause,
the determination of a claim,
and the claim concerned is referred to the Commission for
determination of a dispute or for assessment, the Registrar is to
direct the insurer to pay the administration fee provided for by
this section.
(2) The administration fee is a fee of $250 or such other amount as
may be prescribed by the regulations and is payable to the
Authority for payment into the WorkCover Authority Fund.
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(3) The administration fee is not to be paid out of the statutory
fund of the insurer.
(4) An administration fee payable under this section is recoverable
as a debt due to the Authority.
(5) A person does not have a reasonable excuse for a failure to
determine a claim as and when required by this Part unless the
person has an excuse that the WorkCover Guidelines provide
is a reasonable excuse.
(6) The Registrar is to notify the Authority of a direction under this
section.
285 Offence of referring non-genuine disputes
A person on whom a claim is made must not refer a matter that
the person knows is not a genuine dispute for the purpose of
delaying, without good cause, the determination of the claim.
Maximum penalty: 50 penalty units.
286 Partial acceptance of liability
(1) Liability for compensation can be partially accepted and
partially disputed and references in this Part to accepting
liability and disputing liability are to be interpreted accordingly.
(2) A person who accepts liability for compensation on the basis
of the partial acceptance of liability (including acceptance on a
provisional basis) must, when notifying the claimant of the
partial acceptance of liability, include details sufficient to
ascertain the extent to which liability is accepted.
Part 4 Compensation dispute determination
287 Disputes to which Part applies
This Part applies to a dispute in connection with a claim for
compensation between:
(a) the person who makes the claim and a person on whom
the claim is made, or
(b) the employer on whom the claim is made and the
insurer on whom the claim is made.
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288 Referral of disputes to Commission
Any party to a dispute about a claim may refer the dispute to
the Registrar for determination by the Commission. However,
if the dispute is about lump sum compensation, only the
claimant can refer the dispute.
Note. A medical dispute concerning the claim can also be referred for
assessment under Part 7 (Medical assessment).
289 Restrictions as to when a dispute can be referred to the
Commission
(1) A dispute about a claim for weekly payments cannot be
referred for determination by the Commission unless the
person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by
this Act.
Note. The determination of a claim requires the commencement of
weekly payments of compensation. The failure to commence weekly
payments without having disputed liability constitutes a failure to determine
the claim.
(2) A dispute about a claim for medical expenses compensation
cannot be referred for determination by the Commission unless
the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by
this Act.
(3) A dispute about a claim for lump sum compensation cannot be
referred for determination by the Commission unless the person
on whom the claim is made:
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to
the determination of the claim as and when required by
this Act and 1 month has elapsed since the offer was
made, or
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(c) fails to determine the claim as and when required by
this Act.
Note. The determination of a claim requires the making of a reasonable
offer of settlement (if liability is wholly or partly accepted). Failure to make
a reasonable offer of settlement constitutes a failure to determine the
claim.
(4) A dispute about a claim for compensation under Division 5
(Compensation for property damage) of Part 3 of the 1987 Act
cannot be referred for determination by the Commission until:
(a) 28 days after the claim for compensation is made, or
(b) the person on whom the claim is made disputes liability
for the claim (wholly or in part),
whichever happens first.
290 Information exchange between parties
(1) When a dispute is referred for determination by the
Commission, each party to the dispute must provide to the
other party and to the Registrar, as and when required to do so
by the Rules, such information and documents as the Rules
require.
(2) A party to a dispute who fails without reasonable excuse to
comply with a requirement of this section is guilty of an
offence.
Maximum penalty: 50 penalty units.
(3) Any document that a party to a dispute has failed to provide in
contravention of this section is not admissible on behalf of the
party in proceedings on the dispute before the Commission.
(4) Subsections (2) and (3) do not apply if the party is a worker
unless it is established that the worker was represented by a
legal practitioner or agent (as defined in section 131) at the
relevant time.
(5) The regulations may provide for exceptions to subsection (3).
In particular, the regulations may authorise the Commission to
permit the admission in proceedings before the Commission in
specified circumstances of a document that would otherwise be
not admissible under that subsection.
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(6) If the Registrar is satisfied that an applicant has failed without
reasonable excuse to comply with a requirement of this
section, the Registrar may do any one or more of the
following:
(a) refer the matter to the Authority,
(b) note the matter in a certificate issued by the Registrar in
respect of the dispute (together with details of the
documents to which the failure relates),
(c) order that a specified amount or proportion of the costs
that would otherwise be recoverable by the party in
connection with the referral of the matter to the
Commission are not recoverable.
291 Duties of insurer when dispute referred to Commission
When the worker refers a dispute with an insurer for
determination by the Commission, the insurer must review the
claim to which the dispute relates as required by the
Guidelines.
292 Expedited assessment
When a dispute is referred for determination by the
Commission, the Registrar may deal with the dispute under
Part 5 (Expedited assessment) if the dispute is one to which
that Part applies, and may defer determination of the dispute by
the Commission while the dispute is being dealt with under that
Part.
293 Medical assessment
(1) When a dispute referred for determination by the Commission
concerns a medical dispute within the meaning of Part 7, the
Registrar may refer the medical dispute for medical assessment
under Part 7, and defer determination of the dispute by the
Commission pending the outcome of that medical assessment.
(2) If the dispute concerns the degree of permanent impairment of
an injured worker, the Registrar must refer that aspect of the
dispute for assessment under Part 7 and defer determination of
the dispute by the Commission pending the outcome of that
medical assessment.
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294 Certificate of Commission's determination
(1) If a dispute is determined by the Commission, the Commission
must as soon as practicable after the determination of the
dispute issue the parties to the dispute with a certificate as to
the determination.
(2) A brief statement is to be attached to the certificate setting out
the Commission's reasons for the determination.
(3) If the Registrar is satisfied that a certificate as to a
determination or a statement attached to the certificate contains
an obvious error, the Registrar may issue, or approve of an
Arbitrator issuing, a replacement certificate or statement to
correct the error.
Part 5 Expedited assessment
Division 1 Preliminary
295 Disputes to which Part applies
This Part applies to a dispute referred to the Commission that
concerns:
(a) weekly payments of compensation or medical expenses
compensation, or
(b) failure by an insurer, employer or worker to comply
with a requirement imposed by or under Chapter 3
(Workplace injury management).
296 Exercise of functions of Registrar
(1) The Registrar may exercise functions under this Part with
respect to a dispute on the basis of the documents and
information provided to the Registrar when the dispute was
referred for determination by the Commission.
(2) Except as provided by this section, the exercise of any function
of the Registrar under this Part is not subject to appeal or
review.
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Division 2 Disputes concerning weekly payments or
medical expenses
297 Directions for interim payment of weekly payments or medical
expenses compensation
(1) When a dispute to which this Part applies concerns weekly
payments of compensation or medical expenses compensation,
the Registrar can direct the person on whom the claim is made
to pay the compensation concerned. Such a direction is
referred to in this Part as an interim payment direction.
(2) An interim payment direction for payment of medical expenses
compensation cannot be for an amount of more than $5,000 or
such other amount as may be prescribed by the regulations.
(3) The Registrar is to presume that an interim payment direction
for weekly payments of compensation is warranted unless it
appears to the Registrar that:
(a) the claim concerned has minimal prospects of success,
or
(b) the worker has returned to work, or
(c) the injury was not reported by the worker as required by
section 44 (Early notification of workplace injury), or
(d) insufficient medical evidence is available concerning the
period of incapacity of the worker, or
(e) circumstances exist that are prescribed by the
regulations as circumstances in which it is not to be
presumed that such a direction is warranted.
(4) If an injury management plan for the worker is in place or the
insurer has accepted that the worker has received an injury (as
defined in this Act), the Registrar is to presume that an interim
payment direction for medical expenses compensation is
warranted if satisfied that the treatment or service to which the
compensation relates is reasonably necessary:
(a) to prevent deterioration of the worker's condition, or
(b) to promote an early return to work, or
(c) to relieve significant pain or discomfort, or
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(d) for such other reason as may be prescribed by the
regulations.
(5) Subsections (3) and (4) do not limit the circumstances in which
an interim payment direction can be given.
(6) An interim payment direction can be given subject to
conditions.
(7) A further interim payment direction or directions can be given
after the expiry of any earlier direction.
298 Period for which interim payment of weekly payments can be
directed
(1) An interim payment direction (or further interim payment
direction) can direct the person on whom the claim is made to
pay weekly payments of compensation for a period that does
not exceed 12 weeks.
Note. The 12-week limit applies to each direction or further direction.
(2) An interim payment direction can direct payment of weekly
payments during a period that is before the direction is given,
but that period must not exceed 10 weeks.
299 Revocation of interim payment direction
(1) The Registrar can revoke an interim payment direction at any
time.
(2) When an interim payment direction is revoked, the obligation
to make payments under the direction ceases.
(3) The revocation of an interim payment direction does not affect
the requirement to make payments before the revocation.
300 Offence of failure to comply with interim payment direction
A person who fails to comply with an interim payment
direction is guilty of an offence.
Maximum penalty: 50 penalty units.
301 Effect of payment under interim payment direction
(1) The payment of compensation in accordance with an interim
payment direction is not an admission of liability by the insurer
or employer.
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(2) An insurer can continue to pay compensation on the basis of
the provisional acceptance of liability after the period for which
payment is required by an interim payment order. The
acceptance of liability on a provisional basis is not an
admission of liability.
302 Rules relating to interim payment directions
The giving of interim payment directions by the Registrar is
subject to relevant provisions of the Rules relating to those
directions.
303 Commission can give interim payment direction
The Commission has and may exercise any function of the
Registrar under this Division, in connection with a dispute
referred to the Commission for determination.
304 Recovery of payments
If the Commission subsequently determines that a person is not
liable to make the weekly payments of compensation that have
been paid in accordance with an interim payment direction, the
following provisions apply:
(a) the worker or other person who received those
payments is not required to refund those payments
unless the Commission otherwise orders under
paragraph (b),
(b) if the Commission is satisfied that the claim for
compensation was wholly or partly fraudulent or made
without proper justification, the Commission may order
the worker or other person concerned to refund the
whole or a specified part of those payments,
(c) the Commission may (instead of making an order for a
refund) order any other person whom it determines was
liable for the whole or any part of those payments to
reimburse the person who made those payments,
(d) those payments are to be excluded from any
determination of the claims experience of the employer
for the purposes of calculating the premium payable by
the employer for a policy of insurance.
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Division 3 Disputes about non-compliance with
Chapter 3
305 Disputes to which Division applies
This Division applies in respect of a dispute that concerns a
failure by a party to the dispute to comply with an obligation
imposed by or under Chapter 3.
306 Ways in which dispute can be dealt with
The Registrar may deal with the dispute:
(a) by conciliating in connection with the dispute (to bring
the parties to agreement having proper regard to relevant
entitlements and obligations under the Workers
Compensation Acts), or
(b) by directing that an injury management consultant or
other suitably qualified person (paid for by the
employer) conduct a workplace assessment in
connection with the dispute, or
(c) by referring the dispute to the Authority, or
(d) by making a recommendation as provided for by this
Division.
Note. The Registrar can refer the dispute to the Commission for
determination if action under this Division is not successful.
307 Registrar can recommend certain action
(1) The Registrar can deal with the dispute by recommending that
a party to the dispute take specified action, being action that the
Registrar considers necessary or desirable to remedy the failure
with which the dispute is concerned.
(2) If the dispute concerns failure to comply with an obligation
imposed by an injury management plan, the Registrar can
recommend compliance with the injury management plan
subject to such modifications as the Registrar considers
appropriate.
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(3) If the dispute concerns the provision of suitable employment
for the worker, the Registrar is to have regard to the
requirements of section 49 in making a recommendation with
respect to the provision of suitable employment.
308 Compliance with recommendations of Registrar
(1) A party to the dispute to whom a recommendation is made by
the Registrar must, within 14 days (or such longer period as the
Registrar may allow in a particular case):
(a) comply with the recommendation, or
(b) request the Registrar to refer the dispute to the
Commission for determination.
Maximum penalty: 50 penalty units.
(2) If a worker's failure to comply with the Registrar's
recommendation constitutes a failure to comply with this
section, the worker has no entitlement to weekly payments of
compensation during any period that the failure to comply with
the recommendation continues.
(3) If an employer's failure to comply with the Registrar's
recommendation constitutes a failure to comply with this
section, the employer's insurer is entitled to recover from the
employer (despite the terms of the relevant policy of insurance)
the amount of weekly payments of compensation paid by the
insurer in respect of any period that failure to comply with the
recommendation continues.
309 Employers--representation and admissions
(1) At any conference or hearing before the Registrar for the
purposes of this Division:
(a) an employer is entitled to separate representation if the
employer requests separate representation, and
(b) an employer is not prevented by the terms of any
relevant policy of insurance from making any admission
of liability in respect of the injury or claim concerned.
(2) Evidence of an admission made by the employer at any
conference or hearing before the Registrar for the purposes of
this Division is not admissible in other proceedings before the
Commission.
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310 Referral of dispute to Commission
If the dispute is referred to the Commission for determination,
the Commission may make orders with respect to any matter
that can be the subject of a recommendation by the Registrar
under this Division.
Part 6 Special provisions for claims for work injury
damages
311 Interpretation
(1) In this Part:
claimant means a claimant for work injury damages.
party to an assessment under this Part means the claimant,
employer or insurer in respect of the claim referred for
assessment.
specify an amount of damages includes specify a manner of
determining the amount of damages.
(2) A reference in this Part to an assessment of a claim includes a
reference to the result of the assessment.
312 Application of Part
This Part applies to a claim for work injury damages whether
or not the person on whom the claim is made admits or denies
liability.
313 Part does not prevent settlement of claim
Nothing in this Part prevents a claim from being settled at any
time.
314 Referral of claim for assessment
(1) A claim for work injury damages may be referred by the
claimant to the Commission for assessment under this Part.
Note. A medical dispute concerning the claim can also be referred for
assessment under Part 7 (Medical assessment).
(2) A claim cannot be referred for assessment under this Part if the
claim is of a kind that under WorkCover Guidelines or the
regulations is exempt from assessment under this Part.
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(3) The Registrar is responsible for making arrangements as to the
Arbitrator who is to assess any particular claim or class of
claims.
315 Restrictions as to when claim can be referred for assessment
A dispute about a claim for work injury damages cannot be
referred for assessment by the Commission unless:
(a) the person on whom the claim is made wholly disputes
liability for the claim, or
(b) the person on whom the claim is made has made an
offer of settlement to the claimant pursuant to the
determination of the claim as and when required by this
Act and 2 months have elapsed since the offer was
made, or
(c) the person on whom the claim is made fails to
determine the claim as and when required by this Act.
Note. The determination of a claim requires the making of a reasonable
offer of settlement (if liability is wholly or partly accepted). Failure to make
a reasonable offer of settlement constitutes a failure to determine the
claim.
316 Assessment of claims
(1) The Commission is, in respect of a claim referred to the
Commission for assessment, to make an assessment of:
(a) the issue of liability for the claim (unless the insurer has
accepted liability), and
(b) the amount of damages for that liability.
(2) The assessment is to specify an amount of damages.
(3) The Commission must as soon as practicable after an
assessment issue the claimant and the person on whom the
claim is made with a certificate as to the assessment.
(4) The Commission is to attach a brief statement to the certificate,
setting out the Commission's reasons for the assessment.
(5) If the Registrar is satisfied that a certificate as to an assessment
or a statement attached to the certificate contains an obvious
error, the Registrar may issue, or approve of an Arbitrator
issuing, a replacement certificate or statement to correct the
error.
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317 Status of assessments
(1) An assessment under this Part of the issue of liability for a
claim is not binding on any party to the assessment.
(2) An assessment under this Part of the amount of damages for
liability under a claim is binding on the person on whom the
claim is made, and the person must pay to the claimant the
amount of damages specified in the certificate as to the
assessment if:
(a) the person accepts that liability under the claim, and
(b) the claimant accepts that amount of damages in
settlement of the claim within 21 days after the
certificate of assessment is issued.
318 Forum for court proceedings
Proceedings in respect of a claim for work injury damages may
be taken in any court of competent jurisdiction.
Part 7 Medical assessment
319 Definitions
In this Act:
approved medical specialist means a medical practitioner
appointed under this Part as an approved medical specialist.
medical dispute means a dispute between a claimant and the
person on whom a claim is made as to:
(a) the worker's condition (including the worker's
prognosis, the aetiology of the condition, and treatment
proposed or provided), or
(b) the worker's fitness for employment.
320 Appointment of approved medical specialists
(1) The President is, in accordance with criteria developed by the
Minister in consultation with the Council, to appoint medical
practitioners to be approved medical specialists for the
purposes of this Part.
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(2) The terms of any such appointment may restrict an approved
medical specialist to medical disputes of a specified kind.
(3) The President is to ensure that, as far as reasonably practicable,
arrangements are in place to facilitate the taking place of
assessments under this Part in the regional areas of the State.
(4) The Authority may arrange for the provision of training and
information to approved medical specialists to promote
accurate and consistent assessments under this Part.
321 Referral of medical dispute for assessment
(1) A medical dispute may be referred for assessment under this
Part by a court, the Commission or the Registrar, either of their
own motion or at the request of a party to the dispute. The
Registrar is to give the parties notice of the referral.
(2) The parties to the dispute may agree on the approved medical
specialist who is to assess the dispute but if the parties have not
agreed within 7 days after the dispute is referred, the Registrar
is to choose the approved medical specialist who is to assess
the dispute.
322 Assessment of impairment
(1) The assessment of the degree of permanent impairment of an
injured worker for the purposes of the Workers Compensation
Acts is to be made in accordance with WorkCover Guidelines
issued for that purpose.
(2) Impairments that result from the same injury are to be assessed
together to assess the degree of permanent impairment of the
injured worker.
(3) Impairments that result from more than one injury arising out
of the same incident are to be assessed together to assess the
degree of permanent impairment of the injured worker.
Note. Section 65A of the 1987 Act provides for impairment arising from
psychological/psychiatric injuries to be assessed separately from
impairment arising from physical injury.
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(4) An approved medical specialist may decline to make an
assessment of the degree of permanent impairment of an
injured worker until the approved medical specialist is satisfied
that the impairment is permanent. Proceedings before the
Commission may be adjourned until the assessment is made.
323 Deduction for previous injury or pre-existing condition or
abnormality
(1) In assessing the degree of permanent impairment resulting from
an injury, there is to be a deduction for any proportion of the
impairment that is due to any previous injury (whether or not
it is an injury for which compensation has been paid or is
payable under Division 4 of Part 3 of the 1987 Act) or that is
due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it)
will be difficult or costly to determine (because, for example,
of the absence of medical evidence), it is to be assumed (for the
purpose of avoiding disputation) that the deduction (or the
relevant part of it) is 10% of the impairment, unless this
assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and
subsection (2) operates to require a 10% reduction in that impairment to
be assumed, the degree of permanent impairment is reduced from 30%
to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a
reference to medical evidence accepted or preferred by the
approved medical specialist in connection with the medical
assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with
respect to the determination of the deduction required by this
section.
(5) Section 70 (Loss of hearing due to age) of the 1987 Act applies
for the purpose of determining the extent (if any) that a
worker's loss of hearing is due to presbycusis.
Note. Section 68B of the 1987 Act makes provision for how this section
applies for the purpose of calculating workers compensation lump sum
benefits for permanent impairment and associated pain and suffering in
cases to which section 15, 16, 17 or 22 of the 1987 Act applies.
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324 Powers of approved medical specialist on assessment
(1) The approved medical specialist assessing a medical dispute
may:
(a) consult with any medical practitioner or other health
care professional who is treating or has treated the
worker, and
(b) call for the production of such medical records
(including X-rays and the results of other tests) and
other information as the approved medical specialist
considers necessary or desirable for the purposes of
assessing a medical dispute referred to him or her, and
(c) require the worker to submit himself or herself for
examination by the approved medical specialist.
(2) If a worker refuses to submit himself or herself for examination
by the approved medical specialist if required to do so, or in
any way obstructs the examination:
(a) the worker's right to recover compensation with respect
to the injury, or
(b) the worker's right to weekly payments,
is suspended until the examination has taken place.
(3) This section extends to the assessment of a medical dispute in
the course of an appeal or further assessment under this Part.
An approved medical specialist who is a member of the Appeal
Panel hearing the appeal or who is assessing the matter by way
of further assessment has all the powers of an approved
medical specialist under this section on an assessment of a
medical dispute.
325 Medical assessment certificate
(1) The approved medical specialist to whom a medical dispute is
referred is to give a certificate (a medical assessment
certificate) as to the matters referred for assessment.
(2) A medical assessment certificate is to be in a form approved by
the Registrar and is to:
(a) set out details of the matters referred for assessment, and
(b) certify as to the approved medical specialist's opinion
with respect to those matters, and
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(c) set out the approved medical specialist's reasons for that
opinion, and
(d) set out the facts on which that opinion is based.
(3) If the Registrar is satisfied that a medical assessment certificate
contains an obvious error, the Registrar may issue, or approve
of the approved medical specialist issuing, a replacement
medical assessment certificate to correct the error.
326 Status of medical assessments
(1) An opinion certified in a medical assessment certificate
pursuant to a medical assessment under this Part is conclusively
presumed to be correct as to the following matters in any
proceedings before the Commission with which the certificate
is concerned:
(a) the degree of permanent impairment of the worker as a
result of an injury,
(b) whether any proportion of permanent impairment is due
to any previous injury or pre-existing condition or
abnormality,
(c) the nature and extent of loss of hearing suffered by a
worker,
(d) whether impairment is permanent.
(2) As to any other matter, the opinion certified is evidence (but
not conclusive evidence) in any such proceedings.
327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical
assessment under this Part, but only in respect of a matter that
is appealable under this section and only on the grounds for
appeal under this section.
(2) A matter is appealable under this section if it is a matter as to
which the opinion of an approved medical specialist certified
in a medical assessment certificate under this Part is
conclusively presumed to be correct in proceedings before the
Commission.
(3) The grounds for appeal under this section are any of the
following grounds:
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(a) deterioration of the worker's condition that results in an
increase in the degree of permanent impairment,
(b) availability of additional relevant information (being
evidence that was not available to the appellant before
the medical assessment appealed against or that could
not reasonably have been obtained by the appellant
before that medical assessment),
(c) the assessment was made on the basis of incorrect
criteria,
(d) the medical assessment certificate contains a
demonstrable error.
(4) An appeal is to be made by application to the Registrar. The
appeal is not to proceed unless it appears to the Registrar that
at least one of the grounds for appeal specified in
subsection (3) exists.
(5) If the appeal is on a ground referred to in subsection (3) (c) or
(d), the appeal must be made within 28 days after the medical
assessment appealed against, unless the Registrar is satisfied
that special circumstances justify an increase in the period for
an appeal.
(6) If the appeal is on a ground referred to in subsection (3) (a) or
(b), the Registrar may refer the medical assessment for further
assessment under section 329 as an alternative to an appeal
against the assessment.
(7) There is to be no appeal against a medical assessment once the
dispute concerned has been the subject of determination by the
Commission or agreement registered under section 66A of the
1987 Act.
328 Procedure on appeal
(1) An appeal against a medical assessment is to be heard by an
Appeal Panel constituted by 2 approved medical specialists and
1 Arbitrator, chosen by the Registrar.
(2) The appeal is to be by way of review of the original medical
assessment. The WorkCover Guidelines may provide for the
procedure on an appeal.
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(3) Evidence that is fresh evidence or evidence in addition to or in
substitution for the evidence received in relation to the medical
assessment appealed against may not be given on an appeal
unless the evidence was not available to the appellant before
that medical assessment or could not reasonably have been
obtained by the appellant before that medical assessment.
(4) When attending an Appeal Panel for the purposes of an
assessment, an injured worker is entitled to be accompanied by
a person (whether or not a legal adviser or agent) to act as the
injured worker's advocate and assist him or her to present his
or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment
given in connection with the medical assessment appealed
against, or may revoke that certificate and issue a new
certificate as to the matters concerned. Section 326 applies to
any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel
is the decision of the Appeal Panel.
329 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be
referred again on one or more further occasions for assessment
in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the
assessment as provided by section 327, or
(b) the Commission.
(2) A certificate as to a matter referred again for further assessment
prevails over any previous certificate as to the matter to the
extent of any inconsistency.
330 Costs of medical assessment
(1) The costs of medical assessments under this Part (including the
remuneration of approved medical specialists) are payable by
the employer or insurer, except as otherwise provided by the
regulations. The Authority may, for the purposes of meeting
those costs, impose fees for the carrying out of medical
assessments or make other arrangements for meeting those
costs.
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(2) If a worker is required to submit himself or herself for
examination pursuant to this Part, the worker is entitled to
recover from the worker's employer, in addition to any
compensation otherwise provided:
(a) the amount of any wages lost by the worker by reason
of so submitting himself or herself for examination, and
(b) the cost to the worker of any fares, travelling expenses
and maintenance necessarily and reasonably incurred in
so submitting himself or herself.
(3) If it is necessary for a worker to travel in order to submit
himself or herself for examination but the worker is not
reasonably able to travel unescorted, the fares, travelling
expenses and maintenance referred to in this section include
fares, travelling expenses and maintenance necessarily and
reasonably incurred by an escort for the worker provided to
enable the worker to submit himself or herself for examination.
(4) If the cost of fares, travelling expenses and maintenance
referred to in this section includes the cost of travel by private
motor vehicle, that cost is to be calculated at such rate as is
fixed for the purposes of section 64 of the 1987 Act.
(5) A reference in this section to a medical assessment includes a
reference to a further medical assessment and an appeal against
a medical assessment.
331 Guidelines
Medical assessments, appeals and further assessments under
this Part are subject to relevant provisions of the WorkCover
Guidelines relating to the procedures for the referral of matters
for assessment or appeal, the procedure on appeals and the
procedure for assessments.
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Part 8 Costs
Division 1 Preliminary
332 Definitions
(1) In this Part:
agent means a person who acts as agent for a person in
connection with a claim.
agent service means any service performed by a person in the
person's capacity as an agent.
costs includes:
(a) costs actually incurred or to be incurred by a person
claiming compensation or work injury damages, and
(b) if liability for a claim is admitted without recourse to the
Commission or court--the reasonable expenses incurred
by a person in pursuing the person's claim, and
(c) costs incurred in relation to any proceedings in respect
of a claim, and
(d) costs incidental to an application for referral of a
medical dispute for medical assessment, and
(e) costs incidental to an application for registration of an
agreement under section 66A of the 1987 Act or an
agreement to commute liability to a lump sum, and
(f) such other costs as may be prescribed by the
regulations.
court includes a court arbitrator or arbitrators.
medical report includes medical certificate and medical
opinion.
(2) Expressions used in this Division have the same meaning as in
Part 11 (Legal fees and other costs) of the Legal Profession
Act 1987, except as provided by this section.
Note. Under the Legal Profession Act 1987, costs includes barristers'
and solicitors' fees as well as other items that may be charged by
barristers and solicitors (such as expenses and disbursements).
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333 Costs to which Part applies
This Part applies to and in respect of costs payable on a party
and party basis, on a practitioner and client basis or on any
other basis, unless this Part or the regulations otherwise
provides.
334 Legal Profession Act
This Part and any regulations under this Part prevail to the
extent of any inconsistency with the Legal Profession Act 1987
(in particular section 196 of that Act) and the regulations under
that Act.
335 Assessment of costs
An assessment of any costs is to be made so as to give effect to
the provisions of this Part (whether or not the assessment is
made under Division 6 of Part 11 of the Legal Profession
Act 1987).
336 Exclusion of matters from this Part
The regulations may make provision for or with respect to
excluding any class of matters from any or all of the provisions
of this Part.
Division 2 Fixing of maximum costs and fees
337 Maximum lawyer and agent costs
(1) The regulations may make provision for or with respect to the
following:
(a) fixing maximum costs for legal services or agent
services provided to a claimant, an employer or an
insurer in or in connection with any workers
compensation matter or work injury damages matter,
(b) fixing maximum costs for matters that are not legal
services or agent services but are related to a claim for
compensation or work injury damages (for example,
expenses for witnesses or medical reports).
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(2) Regulations under this section can fix costs and amounts by
reference to costs and amounts fixed by regulations under the
Legal Profession Act 1987.
(3) A legal practitioner is not entitled to be paid or recover for a
legal service or other matter an amount that exceeds any
maximum costs fixed for the service or matter by the
regulations under this section.
(4) An agent is not entitled to be paid or recover for an agent
service or other matter an amount that exceeds any maximum
costs fixed for the service or matter by the regulations under
this section.
(5) This section does not entitle a legal practitioner to recover costs
for a legal service or matter that a court or costs assessor
determines were unreasonably incurred.
338 Costs of obtaining medical and other reports
To the extent that the regulations so provide, a legal practitioner
or agent is not entitled to be paid or recover the cost of
obtaining a medical report or other report obtained for use in
connection with a workers compensation matter or work injury
damages assessment.
339 Maximum fees payable to health service providers
(1) The Authority may, by order published in the Gazette, fix
maximum fees for the provision by health service providers of
the following services:
(a) provision of any report for use in connection with a
claim for compensation or work injury damages,
(b) appearance as a witness in proceedings before the
Commission or a court in connection with a claim for
compensation or work injury damages.
(2) An order under this section can fix costs and amounts by
reference to costs and amounts fixed by regulations under the
Legal Profession Act 1987.
(3) A health service provider is not entitled to be paid or recover
any fee for providing a service that exceeds any maximum fee
fixed under this section for the provision of the service.
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(4) In this section:
health service provider means a person who provides a health
service as defined in the Health Care Complaints Act 1993.
Division 3 Special provisions for costs in
compensation and damages assessment
matters
340 Application of Division
This Division applies to costs payable by a party in or in
relation to:
(a) a claim for compensation, or
(b) the assessment by the Commission of a claim for work
injury damages.
341 Costs to be determined by Commission
(1) Costs to which this Division applies are in the discretion of the
Commission.
(2) The Commission has full power to determine by whom, to
whom and to what extent costs are to be paid.
(3) The Commission may order costs to be assessed on the basis
set out in Division 6 of Part 11 of the Legal Profession
Act 1987 (or in relevant regulations under Division 4 of this
Part) or on an indemnity basis.
(4) The Commission may not order the payment of costs by a
claimant unless the Commission is satisfied that the claim was
frivolous or vexatious, fraudulent or made without proper
justification.
Note. A claimant can be ordered to pay the costs of an unsuccessful
appeal. See section 345.
(5) If the Commission is satisfied that a part only of a claim was
frivolous or vexatious, fraudulent or made without proper
justification, the Commission may order the claimant to pay the
costs relating to that part of the claim.
(6) Any party to a claim may apply to the Commission for an
award of costs.
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342 Costs unreasonably incurred
(1) If the Commission is satisfied that any costs on a claim were
unreasonably incurred, the Commission is to order that those
costs are to be treated as unreasonably incurred for the
purposes of this section and the Commission is not to make an
order for payment of those costs by any other party to the
claim.
(2) Costs incurred by a party to a claim are considered to have
been unreasonably incurred for the purposes of this section
only if they were incurred by the party:
(a) after a reasonable offer of settlement of the claim was
made to the party, or
(b) after the party has failed without reasonable excuse to
comply with a written request from another party to the
claim to provide that other party with particulars
(including any necessary medical report) sufficient to
enable that other party to properly consider the claim for
the purpose of making an offer of settlement, or
(c) after the party has unreasonably failed to participate in
conciliation of a dispute with which the claim is
concerned and the Commission is of the opinion that
the failure has resulted in unnecessary litigation, or
(d) in connection with an unsuccessful application by the
party to admit further evidence in respect of matters of
which a medical assessment certificate of an approved
medical specialist that has been admitted in evidence in
proceedings is evidence (whether or not conclusive
evidence) and the Commission is of the opinion that the
application was frivolous or vexatious.
(3) A legal practitioner representing a party to proceedings before
the Commission is not entitled to recover from the party any
costs that the Commission has ordered are to be treated as
unreasonably incurred.
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(4) The Commission may by order exempt any costs or a
proportion of any costs from the operation of this section if of
the opinion that it would be unjust not to do so because the
legal practitioner concerned made all reasonable efforts to
avoid unnecessary litigation in the proceedings or for any other
reason should not be held responsible for the incurring of the
costs concerned.
343 Restrictions on recovery of practitioner/client costs
(1) The legal representative or agent of a person in respect of a
claim made or to be made by the person:
(a) is not entitled to recover from the person any costs in
respect of the claim unless those costs are awarded by
the Commission, and
(b) is not entitled to claim a lien in respect of those costs
on, or deduct those costs from, the sum awarded,
ordered or agreed as compensation unless those costs
are awarded by the Commission.
(2) Any such award of costs may be made on the application either
of the person or of the legal representative or agent concerned.
(3) This section prevails to the extent of any inconsistency with
Part 11 of the Legal Profession Act 1987.
(4) A person must not:
(a) claim a lien that the person is not entitled to claim
because of this section, or
(b) deduct costs from a sum awarded, ordered or agreed as
compensation that the person is not entitled to deduct
because of this section.
Maximum penalty: 50 penalty units.
(5) A person who has paid an amount in respect of costs to another
person that the other person was not entitled to recover because
of this section is entitled to recover the amount paid as a debt
in a court of competent jurisdiction.
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344 Liability of legal practitioner for client's costs in certain cases
(1) The Commission may, at any stage of a matter, make one or
more of the following orders in respect of a legal practitioner
whose serious neglect, serious incompetence or serious
misconduct delays, or contributes to delaying, the matter:
(a) an order disallowing the whole or any part of the costs
between the legal practitioner and his or her client,
(b) an order directing the legal practitioner to repay to his or
her client the whole or any part of the costs that the
client has been ordered to pay to any other party,
(c) an order directing the legal practitioner to indemnify any
party other than his or her client against the whole or
any part of the costs payable by the party indemnified.
(2) The Commission may refer a matter to a costs assessor for
inquiry and report before making such an order.
(3) The Commission may order that notice of such an order against
a legal practitioner is to be given to the legal practitioner's
client in a specified manner.
(4) A legal practitioner is not entitled to demand, recover or accept
from his or her client any part of the amount for which the legal
practitioner is directed by the Commission to indemnify a party
pursuant to such an order.
(5) This section does not limit any other provision of this Part.
345 Costs penalties where appeal unsuccessful
(1) On an appeal from the Commission constituted by an
Arbitrator to the Commission constituted by a Presidential
member:
(a) if the appellant is the claimant and is unsuccessful on
the appeal, the Commission must not make an order for
the payment of the appellant's costs on the appeal by
any other party to the appeal, or
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(b) if the appellant is an insurer (other than a licensed
insurer that maintains a statutory fund under the 1987
Act) and is unsuccessful on the appeal, the Commission
may order the insurer to pay to the Authority for
payment into the WorkCover Authority Fund an
administration fee of $1,000 or such other amount as
may be prescribed by the regulations.
(2) If the appellant in any such appeal is a licensed insurer that
maintains a statutory fund under the 1987 Act and is
unsuccessful on the appeal:
(a) the insurer's costs on the appeal, and
(b) the costs of any other party to the appeal that the insurer
is ordered to pay,
are not to be paid out of the statutory fund.
(3) If an appeal concerns lump sum compensation, weekly
payments of compensation or medical expenses compensation,
the appellant is considered to be unsuccessful on the appeal
unless the decision on appeal results in a change in favour of
the appellant in the amount awarded or ordered to be paid in
the decision appealed against of at least $5,000 (or such other
amount as may be prescribed by the regulations) and at least
20% of the amount awarded or ordered to be paid.
(4) An administration fee that an insurer is ordered to pay is
recoverable as a debt due to the Authority.
(5) The Registrar is to notify the Authority of an order to an insurer
under this section to pay an administration fee.
346 Claims assessment fees
(1) In this section, claims assessment fees means fees payable in
connection with an assessment of a claim for work injury
damages under Part 6.
(2) The regulations may make provision for or with respect to
claims assessment fees.
(3) In particular, the regulations may specify any such fee or the
method by which the fee is to be calculated, and may specify
by whom and in what circumstances the fee is payable.
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(4) Claims assessment fees are payable into the WorkCover
Authority Fund.
Division 4 Costs assessment
347 Regulations for costs assessment
(1) The regulations may make provision for or with respect to:
(a) the assessment or taxation of costs payable to a legal
practitioner or agent in connection with a claim for
compensation or work injury damages, and
(b) matters associated with the assessment or taxation of
those costs.
(2) In particular, the regulations may make provision for or with
respect to any matter for or in connection with which provision
is made by Division 6 (Assessment of costs) of Part 11 of the
Legal Profession Act 1987.
(3) Regulations for the purposes of this Division may adopt, with
or without modification, any of the provisions of Division 6
(Assessment of costs) of Part 11 of the Legal Profession
Act 1987.
(4) Without limiting this section, the regulations may make
provision for or with respect to the assessment of costs by the
Commission.
348 Regulations displace Legal Profession Act provisions
To the extent that regulations under this Division make
provision for the costs payable to a legal practitioner, those
regulations displace the provisions of the Legal Profession
Act 1987.
Part 9 Proceedings before Commission
349 Arrangement of business
The arrangement of the business of the Commission is to be as
determined by the Registrar, subject to the regulations.
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350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the
Commission under the Workers Compensation Acts is final
and binding on the parties and is not subject to appeal or
review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of
form, or
(b) liable to be challenged, appealed against, reviewed,
quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt
with by the Commission and rescind, alter or amend any
decision previously made or given by the Commission.
351 Reference of question of law on compensation claim to
Commission constituted by Presidential member
(1) A question of law arising in proceedings before the
Commission constituted by an Arbitrator may, with the leave
of the President, be referred by the Arbitrator for the opinion of
the Commission constituted by the President.
(2) The reference of a question under this section may be made on
the application of a party to the proceedings or of the
Arbitrator's own motion.
(3) The President is not to grant leave for the referral of a question
of law under this section unless satisfied that the question
involves a novel or complex question of law.
(4) If the President refuses to grant leave for the referral of a
question of law under this section, the President must state his
or her reasons in writing to the parties for the refusal.
(5) Despite the reference of a question under this section, the
Commission constituted by an Arbitrator may make an award
in the matter in which the question arose unless the question is
the question of whether the Commission may exercise
functions under this Act in relation to a matter.
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(6) On the determination of a question referred to the Commission
under this section:
(a) if an award has not been made in the matter in which
the question arose, an award may be made that is not
inconsistent with the opinion of the Commission on the
question, or
(b) if an award has been made in the matter in which the
question arose, the award must be varied in such a way
as will make it consistent with the opinion of the
Commission on the question.
(7) The reference of a question of law under this section may be by
stating a case on a question of law.
352 Appeal against decision of Commission constituted by
Arbitrator
(1) A party to a dispute in connection with a claim for
compensation may, with leave of the Commission constituted
by a Presidential member, appeal to the Commission as so
constituted against a decision in respect of the dispute by the
Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal unless the
amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be
prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision
appealed against.
(3) If the Commission refuses to grant leave to appeal, the
Commission must state reasons for the refusal in writing to the
parties.
(4) An appeal can only be made within 28 days after the making of
the decision appealed against.
(5) An appeal under this section is to be by way of review of the
decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in
substitution for the evidence received in relation to the decision
appealed against may not be given on an appeal to the
Commission except with the leave of the Commission.
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(7) On appeal, the decision may be confirmed or may be revoked
and a new decision made in its place.
(8) In this section, decision includes an award, interim award,
order, determination, ruling and direction.
353 Appeal against decision of Commission constituted by
Presidential member
(1) If a party to any proceedings before the Commission
constituted by a Presidential member is aggrieved by a decision
of the Presidential member in point of law, the party may
appeal to the Court of Appeal.
(2) The Court of Appeal may, on the hearing of any appeal under
this section, remit the matter to the Commission constituted by
a Presidential member for determination by the Commission in
accordance with any decision of the Court and may make such
other order in relation to the appeal as the Court thinks fit.
(3) A decision of the Court of Appeal on an appeal under this
section is binding on the Commission and on all the parties to
the proceedings in respect of which the appeal was made.
(4) The following appeals under this section may be made only
with leave of the Court of Appeal:
(a) an appeal from an interlocutory decision,
(b) an appeal from a decision as to costs only,
(c) an appeal where the amount of compensation in dispute
is less than $20,000 (or such other amount as may be
prescribed by the regulations).
(5) In this section, decision includes an award, interim award,
order, determination, ruling, opinion and direction.
354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be
conducted with as little formality and technicality as the proper
consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may
inform itself on any matter in such manner as the Commission
thinks appropriate and as the proper consideration of the matter
before the Commission permits.
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(3) The Commission is to act according to equity, good conscience
and the substantial merits of the case without regard to
technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may
be conducted by way of a conference between the parties,
including a conference at which the parties (or some of them)
participate by telephone, closed-circuit television or other
means.
(5) Subject to any general directions of the President, the
Commission may hold a conference with all relevant parties in
attendance and with relevant experts in attendance, or a
separate conference in private with any of them.
(6) If the Commission is satisfied that sufficient information has
been supplied to it in connection with proceedings, the
Commission may exercise functions under this Act without
holding any conference or formal hearing.
(7) An assessment or determination is to be made by the
Commission having regard to such information as is
conveniently available to the Commission, even if one or more
of the parties to the assessment or determination proceedings
does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work
injury damages (other than proceedings under section 235A or
235C or under the Crimes Act 1900 with respect to fraud),
evidence of a statement made in proceedings before the
Commission is not admissible unless the person who made the
statement agrees to the evidence being admitted.
355 Arbitrator to attempt conciliation
The Commission constituted by an Arbitrator is not to make an
award or otherwise determine a dispute referred to the
Commission for determination without first using the
Arbitrator's best endeavours to bring the parties to the dispute
to a settlement acceptable to all of them.
356 Representation before Commission
(1) A person who is a party to proceedings before the Commission
is entitled to be represented by a legal practitioner or by an
agent.
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(2) The Commission may refuse to permit a party to be represented
by an agent if of the opinion that the agent does not have
sufficient authority to make binding decisions on behalf of the
party.
(3) In proceedings in respect of a claim, the Commission may
refuse to permit an insurer to be represented by a legal
practitioner if the claimant is not represented by a legal
practitioner.
(4) A party to proceedings before the Commission is entitled to
such representation or assistance (for example, the assistance
of an interpreter) as may be necessary to enable the party to
communicate adequately at any conference or hearing.
(5) The Commission must take into account any written
submission prepared by a legal practitioner acting for a party to
proceedings and submitted by or on behalf of the party
(whether or not the party is represented by a legal practitioner
at any conference or hearing in the proceedings).
(6) In this section, agent means:
(a) an officer of an industrial organisation of employers or
employees registered under the Industrial Relations
Act 1996, or
(b) an officer of an association of employers or employees
registered under the Workplace Relations Act 1996 of
the Commonwealth, or
(c) a person employed by a licensed insurer or former
licensed insurer or by a self-insurer, or
(d) a person employed by a solicitor, solicitor corporation
or incorporated legal practice.
357 Power of Commission to require information
(1) The Commission may give a direction in writing to any person
(whether or not a party to a dispute before the Commission)
requiring the person:
(a) to produce, at a time and place specified in the direction,
specified documents in the possession of the person, or
(b) to furnish specified information within a time specified
in the direction.
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(2) The direction may require the documents to be produced or the
information to be furnished:
(a) to the Commission or to another party to a dispute
before the Commission, in the case of a direction given
to a party to the dispute, or
(b) to the Commission in the case of a direction given to a
person who is not a party to a dispute before the
Commission.
(3) A person who fails without reasonable excuse to comply with
a direction given to the person under this section is guilty of an
offence.
Maximum penalty: 50 penalty units.
(4) If a person fails without reasonable excuse to produce a
document or furnish information in compliance with a direction
given to the person under this section, the person cannot as a
party to proceedings before the Commission or a court have the
document or information admitted in the proceedings.
(5) The Commission may exercise powers under this section at the
request of a party to a dispute before the Commission or of the
Commission's own motion.
(6) The Registrar has and may exercise any power of the
Commission under this section.
(7) The regulations may make provision for or with respect to any
of the following matters:
(a) exempting specified kinds of documents or information
from the operation of this section,
(b) specifying cases and circumstances in which the
Commission is required to exercise the Commission's
powers under this section.
358 Power of Commission to provide documents and information to
a party
(1) When documents or information relevant to proceedings before
the Commission are produced or furnished to the Commission
by a party to the proceedings or another person (whether or not
pursuant to a requirement under this Act), the Commission may
produce or furnish the documents or information to:
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(a) any other party to the proceedings, or
(b) any other party's legal representative, or
(c) a medical practitioner (including an approved medical
specialist).
(2) The Commission may, when furnishing or producing
information or documents to a legal practitioner or medical
practitioner, direct that the person must not cause or permit
disclosure of the information, or the information in the
documents, to another party.
(3) A legal practitioner or medical practitioner must not contravene
the Commission's direction under this section.
Maximum penalty: 50 penalty units.
(4) The regulations may make provision for or with respect to any
of the following matters:
(a) exempting specified kinds of documents or information
from the operation of this section,
(b) specifying cases and circumstances in which the
Commission is required to exercise the Commission's
powers under this section,
(c) specifying circumstances in which documents or
information produced or furnished to the Commission
may not be produced or furnished by the Commission
to another party to the proceedings or to a legal
practitioner or medical practitioner.
359 Summons to appear at conference or hearing
(1) The Registrar may issue a summons requiring the attendance of
a person at any conference or hearing before the Commission
in connection with proceedings before the Commission.
(2) A person must not fail without reasonable excuse to comply
with a summons served on the person under this section.
Maximum penalty: 50 penalty units.
(3) In this section, conference includes a conference at which the
parties (or some of them) participate by telephone, closed-
circuit television or other means.
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360 Powers of Commission to require evidence
(1) The Commission may require any person appearing before the
Commission:
(a) to give evidence on oath or affirmation (and may, for
that purpose, administer an oath or affirmation), and
(b) to answer any relevant question put to the person.
(2) A person must not without reasonable excuse refuse or fail to
comply with a requirement duly made under this section.
Maximum penalty: 50 penalty units.
(3) A person is not obliged to answer a question under this section
if the answer to that question would tend to incriminate the
person of an offence.
361 Protection of legal practitioners, witnesses and others
(1) A practising legal practitioner or other person appearing before
the Commission on behalf of a party has the same protection
and immunity as a practising legal practitioner has in appearing
for a party in proceedings in the District Court.
(2) Subject to this Act, a person summoned to attend or appearing
before the Commission as a witness has the same protection,
and is subject to the same liabilities, as a witness in
proceedings in the Supreme Court.
362 Recovery of amounts ordered to be paid
(1) For the purposes of the recovery of any amount ordered to be
paid by the Commission (including costs, but not including a
civil or other penalty), the amount is to be certified by the
Registrar.
(2) A certificate given under this section must identify the person
liable to pay the certified amount.
(3) A certificate of the Registrar under this section that is filed in
the registry of a court having jurisdiction to give judgment for
a debt of the same amount as the amount stated in the
certificate, operates as such a judgment.
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363 Control and direction of members of Commission
The members of the Commission other than the Arbitrators are,
in the exercise of their functions, subject to the general control
and direction of the President.
364 Rules of the Commission
(1) The Minister may from time to time by order make Rules of the
Commission for or with respect to any aspect of procedures to
be followed in connection with the jurisdiction or functions of
the Commission, including provision for or with respect to:
(a) the manner of referring claims or disputes for
assessment or determination by the Commission, and
(b) the documentation that is to accompany such a reference
of a claim or dispute for assessment or determination,
and
(c) the manner of presenting documents and information to
the Commission by the parties, including time limits for
the presentation of the documents and information, and
(d) the making of assessments and determinations by the
Commission, and
(e) the manner of specifying an amount of damages or
compensation, and
(f) default awards and orders, and
(g) the extension or abridgment of any period referred to in
this Part, and
(h) all matters of practice and procedure in proceedings
before the Commission, and
(i) the issue of a seal for the Commission and the use and
effect of the seal.
(2) Rules of the Commission may be made so as to apply
differently according to such factors as may be specified in the
Rules.
(3) On or before 1 July in each year (commencing 2002) or as soon
as practicable after each such date, the Minister is to cause the
Rules of the Commission, as in force for the time being, to be
laid before both Houses of Parliament.
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(4) Rules of the Commission are not a statutory rule for the
purposes of the Interpretation Act 1987.
365 Publication of decisions and inspection of registers of
agreements
(1) The Commission may cause details of its decisions and
determinations under the Workers Compensation Acts to be
published.
(2) The Commissioner may make the following available for
public inspection by employers, insurers, workers, the
Authority, and their legal representatives, and by such other
persons or classes of persons as may be prescribed by the
regulations:
(a) a summary of the details of commutation agreements
registered under section 87H of the 1987 Act,
(b) a summary of the details of agreements registered under
section 66A of the 1987 Act.
Part 10 Administration
Division 1 Workers Compensation Commission
366 Establishment of Commission
(1) The Workers Compensation Commission of New South Wales
is established by this Act.
(2) The Commission has and may exercise such functions as are
conferred or imposed on it by or under the Workers
Compensation Acts or any other Act.
367 Objectives of Commission
(1) The Commission has the following objectives:
(a) to provide a fair and cost effective system for the
resolution of disputes under the Workers Compensation
Acts,
(b) to reduce administrative costs across the workers
compensation system,
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(c) to provide a timely service ensuring that workers'
entitlements are paid promptly,
(d) to create a registry and dispute resolution service that
meets worker and employer expectations in relation to
accessibility, approachability and professionalism,
(e) to provide an independent dispute resolution service that
is effective in settling matters and leads to durable
agreements between the parties in accordance with the
Workers Compensation Acts,
(f) to establish effective communication and liaison with
interested parties concerning the role of the
Commission.
(2) In exercising their functions, the members of the Commission
must have regard to the Commission's objectives.
368 Members of Commission
(1) The Commission consists of the following members:
(a) a President,
(b) two Deputy Presidents,
(c) a Registrar,
(d) Arbitrators.
(2) The members of the Commission other than the Arbitrators are
to be appointed by the Minister.
(3) The Arbitrators are to be appointed by the President.
(4) The instrument of appointment of a member is to specify
whether a member has been appointed as:
(a) the President, or
(b) a Deputy President, or
(c) the Registrar, or
(d) an Arbitrator.
369 Qualifications for appointment
(1) A person is eligible to be appointed as President only if the
person is a Judge of a court of record.
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(2) A person is eligible to be appointed as Deputy President only
if the person:
(a) is or has been a judicial officer (within the meaning of
the Judicial Officers Act 1986), or
(b) is a legal practitioner of at least 5 years' standing.
(3) A person is eligible to be appointed as the Registrar or as an
Arbitrator only if the person:
(a) is a legal practitioner, or
(b) has such qualifications, skills or experience as may be
determined by the Minister.
(4) The appointment of a person who is not a legal practitioner as
an Arbitrator may be made on terms that limit the person to
dealing with matters of a particular type or types.
370 Functions of members
A member of the Commission has and may exercise the
functions conferred or imposed on the member by or under this
or any other Act.
371 Functions of Registrar
(1) The Registrar has and may exercise all the functions of an
Arbitrator.
(2) The Registrar can delegate to any member or member of staff
of the Commission any of the Registrar's functions under the
Workers Compensation Act, except this power of delegation.
372 Control and direction of Arbitrators
Arbitrators are, in the exercise of their functions, subject to the
general control and direction of the Registrar.
373 Provisions concerning members
Schedule 5 has effect with respect to the members of the
Commission.
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374 Staff and facilities
(1) Such staff as may be necessary for the Commission to exercise
its functions are to be employed under Part 2 of the Public
Sector Management Act 1988 as staff of the Commission.
(2) Those staff are, in the exercise of their functions, subject to the
general control and direction of the Registrar.
(3) This section does not affect the exercise of the functions of the
appropriate Department Head under the Public Sector
Management Act 1988 with respect to those staff.
(4) The Authority or such other Department of the Government as
the regulations may specify is to provide for the Commission:
(a) facilities (including registry facilities), and
(b) any additional staff that may be necessary.
375 Constitution of Commission for particular proceedings
(1) For the purposes of any proceedings, the Commission is to be
constituted by an Arbitrator except as provided by this section.
(2) The Registrar may give directions as to which Arbitrator is to
constitute the Commission for the purposes of any particular
proceedings or class of proceedings.
(3) For the purposes of any proceedings on an appeal against a
decision of the Commission constituted by an Arbitrator, the
Commission is to be constituted by a Presidential member.
Division 2 WorkCover guidelines
376 Issue of guidelines
(1) The Authority may issue guidelines with respect to the
following:
(a) the assessment of the degree of permanent impairment
of an injured worker as a result of an injury,
(b) the giving of interim payment directions by the Registrar
under Part 5,
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(c) such other matters as a provision of the Workers
Compensation Acts provides may be the subject of
WorkCover Guidelines.
(2) The Minister may issue guidelines with respect to the
procedure for assessment under Part 7 (Medical assessment).
(3) The Authority may amend, revoke or replace WorkCover
Guidelines made by the Authority, and the Minister may
amend, revoke or replace WorkCover Guidelines made by the
Minister.
(4) WorkCover Guidelines may adopt the provisions of other
publications, whether with or without modification or addition
and whether in force at a particular time or from time to time.
(5) WorkCover Guidelines (including any amendment, revocation
or replacement) are to be published in the Gazette and take
effect on the day of that publication or, if a later day is
specified in the Guidelines for that purpose, on the day so
specified.
(6) The regulations may make provision for or with respect to any
matter for which the WorkCover Guidelines can provide.
377 Special requirements relating to WorkCover Guidelines relating
to impairment
(1) This section applies to WorkCover Guidelines that relate to the
assessment of the degree of permanent impairment of an
injured worker as a result of an injury.
(2) Those Guidelines must be developed in consultation with
relevant medical colleges, including the Royal Australasian
College of Physicians, the Royal Australasian College of
Surgeons, the Australian Orthopaedic Association and other
relevant colleges and associations.
(3) Sections 40 (Notice of statutory rules to be tabled) and 41
(Disallowance of statutory rules) of the Interpretation Act 1987
apply to those Guidelines in the same way as those sections
apply to statutory rules.
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[18] Schedule 5
Insert after Schedule 4:
Schedule 5 Provisions relating to members of
Commission
(Section 373)
1 Definition
In this Schedule, judicial office means the office of:
(a) Magistrate, or
(b) Judge of the District Court, or
(c) Judicial Member of the Industrial Relations
Commission, or
(d) Judge of the Land and Environment Court, or
(e) Judge of the Supreme Court.
2 Terms of appointment
(1) Subject to this Act, a member of the Commission holds office
for such period as is specified in the instrument of the
member's appointment.
(2) The term of an appointment must not exceed 7 years in the
case of a Presidential member or 5 years in the case of any
other member.
(3) A member is eligible for reappointment.
3 Protection and immunities of member
A member of the Commission has, in the performance of
functions performed as a member, the same protection and
immunities as a Judge of the District Court.
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4 Remuneration
A member of the Commission is entitled to be paid such
remuneration (including travelling and subsistence allowances)
in respect of work done as a member of the Commission as the
Minister may from time to time determine in respect of the
member.
5 Provisions where judicial officer is holding office as member
(1) The appointment of a person who is the holder of a judicial
office as a member, or service by a person who is the holder of
a judicial office as a member, does not affect:
(a) the person's tenure of that judicial office, or
(b) the person's rank, title, status, remuneration or other
rights or privileges as the holder of that judicial office.
(2) The person's service as a member is, for all purposes, taken to
be service as the holder of that judicial office.
6 Vacancy in office
(1) The office of a member of the Commission becomes vacant if
the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to
the Minister, or
(d) is nominated for election as a member of the Legislative
Council or of the Legislative Assembly or as a member
of a House of Parliament or a legislature of another
State or Territory or of the Commonwealth, or
(e) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit,
or
(f) becomes a mentally incapacitated person, or
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(g) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or
is convicted elsewhere than in New South Wales of an
offence that, if committed in New South Wales, would
be an offence so punishable, or
(h) in the case of the Registrar, ceases to hold any
qualification required for the appointment of the
Registrar, or
(i) is removed from office under this clause.
(2) The Minister may remove a member of the Commission (other
than an Arbitrator) from office for incapacity, incompetence or
misbehaviour.
(3) The President may at any time remove an Arbitrator from
office.
7 Acting President
(1) If the President is absent from duty, the most senior Deputy
President is to be Acting President unless the Minister makes
an appointment under subclause (2).
(2) The Minister may appoint a Deputy President or other member
to be Acting President during the absence of the President from
duty.
(3) The Minister may make any appointment for a particular
absence or for any absence that occurs from time to time.
(4) An Acting President has the functions of the President and
anything done by an Acting President in the exercise of those
functions has effect as if it had been done by the President.
(5) In this clause, absence from duty includes a vacancy in the
office of President.
8 Seniority
(1) The members of the Commission have seniority according to
the following order of precedence:
(a) the President,
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(b) Deputy Presidents according to the days on which their
appointments took effect or, if the appointments of 2 of
them took effect on the same day, according to the
precedence assigned to them by their instruments of
appointment,
(c) Registrar,
(d) other members according to the days on which their
appointments took effect.
(2) If a person is re-appointed under this Act, the person's seniority
is to be determined as if there had been no break in the
person's service.
9 Leave
(1) The entitlement of a member of the Commission to annual and
other leave is to be as stated in the instrument of the member's
appointment.
(2) A member may be granted leave:
(a) in the case of the President--by the Minister, and
(b) in any other case--by the President.
10 Superannuation and leave--preservation of rights
(1) In this clause:
eligible member means a member of the Commission who,
immediately before holding that office, was a public servant or
an officer or employee of a public authority declared by an Act
or proclamation to be an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement
under which any superannuation or retirement benefits are
provided and that is established by or under an Act.
(2) An eligible member:
(a) may continue to contribute to any superannuation
scheme to which he or she was a contributor
immediately before becoming an eligible member, and
(b) is entitled to receive any payment, pension or gratuity
accrued or accruing under the scheme, as if he or she
had continued to be such a contributor during service as
a member of the Commission.
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(3) Service by the eligible member as a member of the
Commission is taken to be service as an officer in his or her
previous employment for the purposes of any law under which
the member continues to contribute to the scheme or by which
an entitlement under the scheme is conferred.
(4) The eligible member is to be regarded as an officer or
employee, and the State is to be regarded as the employer, for
the purposes of the scheme.
(5) This clause ceases to apply to the eligible member if he or she
becomes a contributor to another superannuation scheme, but
the eligible member is not prevented from receiving a
resignation benefit from the first superannuation scheme.
(6) An eligible member retains any rights to annual leave, extended
or long service leave and sick leave accrued or accruing in his
or her previous employment.
(7) An eligible member is not entitled to claim, under both this Act
and any other Act, dual benefits of the same kind for the same
period of service.
11 Effect of other Acts
(1) The Public Sector Management Act 1988 (except Part 8) does
not apply to the appointment of a member of the Commission
and the member is not, as a member of the Commission,
subject to that Act.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified
office to devote the whole of his or her time to the
duties of that office, or
(b) prohibiting the person from engaging in employment
outside the duties of that office,
the provision does not operate to disqualify the person from
holding that office and also the office of a part-time member of
the Commission or from accepting and retaining any
remuneration payable to the person under this Act as a
part-time member of the Commission.
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12 Oaths
The Minister may require oaths to be taken by the President
and any Deputy President of the Commission.
4.3 Compensation Court Act 1984 No 89
Section 18
Omit the section. Insert instead:
18 Costs under other Acts
Section 112 of the Workplace Injury Management and Workers
Compensation Act 1998 extends to any proceedings in the
Court (not just proceedings under that Act) and in its
application to proceedings under any other Act is not limited by
section 111A (Costs provisions apply only to existing claims)
of that Act.
4.4 Defamation Act 1974 No 18
Schedule 2 Proceedings of public concern and official and public
documents and records
Omit "conciliation officer or conciliator" from item 2 (17) and 3 (6)
wherever occurring.
Insert instead "conciliation officer, conciliator or member of the
Commission".
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Schedule 5 Miscellaneous amendments
(Section 3)
5.1 Workers Compensation Act 1987 No 70
[1] Section 52 Termination of weekly payments on retiring age
Omit "occurring after the first anniversary of the date on which the injury
happened" from section 52 (2) (b).
Insert instead "occurring more than 12 months after the first occasion of
incapacity for work resulting from the injury".
[2] Section 61 Rates applicable for medical or related treatment
Omit "(2) or" from section 61 (9).
[3] Section 173B
Insert after section 173A:
173B Redetermination of premium and payment of interest
(1) The regulations may make provision for or with respect to the
following:
(a) the adjustment of the premium (the original premium)
payable for the issue or renewal of a policy of insurance,
on the basis of a change in relevant wage details,
(b) requiring the provision of updated information by
employers for the purpose of effecting any such
adjustment,
(c) requiring the payment of any amount that becomes due
as a result of any such adjustment of premium,
(d) requiring the payment of interest on any such amount
(including providing for interest) to be payable from the
time of payment of the original premium or an
instalment of the original premium.
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Schedule 5 Miscellaneous amendments
(2) In this section, relevant wage details means the information as
to wages payable or paid to workers on the basis of which the
amount of the premium payable for the issue or renewal of a
policy of insurance is determined.
Note. A change in relevant wage details occurs when:
(a) an employer changes the employer's estimate of the wages that
will be payable to workers during a period, or
(b) the wages actually paid to workers during a period is different to
the amount of wages estimated to be payable during that period.
[4] Section 174 Records relating to wages, contracts etc to be kept and
supplied
Insert at the end of section 174 (5):
, or
(c) to make available, at such time and at such place as is
specified in the order, for inspection by a specified
person authorised by the Authority, records of a
specified kind in the possession of the employer that are
relevant to the calculation of premiums payable under
policies of insurance or to the determination of whether
the employer or another employer is required to obtain
a policy of insurance or has paid the correct premium
for a policy of insurance.
[5] Section 174 (5A)
Insert after section 174 (5):
(5A) The Authority may provide information supplied to the
Authority by an employer under subsection (5) (a) to any
insurer for the purpose of assisting the insurer to determine
whether the correct premium has been paid under a policy of
insurance issued by the insurer.
[6] Section 174 (6A)(8)
Omit the subsections. Insert instead:
(6A) The Authority may order that a person make available, at a time
and place specified in the order, for inspection by a person
authorised by the Authority or (at the request of the insurer) by
an insurer, any records in the person's possession relating to
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Miscellaneous amendments Schedule 5
any contract (however described) under which the person has
made payments to any other person (whether or not an
individual) for the performance of work by that other person
during such period (not exceeding 7 years after the work was
performed) as is specified in the order. The order need not
name or otherwise identify the person to whom those payments
have been made.
(6B) An order under subsection (6A) may be made only for the
purpose of establishing whether a person is required to obtain
a policy of insurance under this Act or for the purpose of
determining whether the correct premium has been paid under
a policy of insurance.
(7) A person authorised under subsection (5) (b), (5) (c), (6) or
(6A) may inspect the records in accordance with the terms of
the order and make copies of, or take extracts from, those
records.
(8) A person on whom an order is served under this section:
(a) must comply with the order, and
(b) must not wilfully obstruct or delay an authorised person
when exercising any power under subsection (7).
5.2 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 29 Membership and procedure of Council
Insert after section 29 (1) (i):
(j) 2 other persons appointed by the Minister.
[2] Section 74A
Insert after section 74:
74A Duty of insurer to pay compensation promptly
(1) An insurer who admits liability to pay compensation must pay
that compensation promptly following the admission of
liability.
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Schedule 5 Miscellaneous amendments
(2) If the Authority is satisfied that an insurer has failed to comply
with this section, the Authority may by notice in writing to the
insurer direct the insurer to pay the compensation concerned
within a period specified in the direction.
(3) An insurer must comply with such a direction.
Maximum penalty: 50 penalty units.
[3] Section 230A Premium Discount Schemes
Insert after section 230A (7):
(8) The Authority is to review the effectiveness of the first
Premium Discount Scheme after the Scheme has been in
operation for 12 months. The review is to include consideration
of the introduction of no-claim bonuses.
[4] Section 238AA
Insert after section 238A:
238AA Power to obtain information, documents and evidence
(1) An authorised officer may, by notice in writing served on a
person who is, on reasonable grounds, believed by the
authorised officer to be capable of giving information,
producing documents or giving evidence in relation to a
possible contravention of this Act or the 1987 Act require the
person to do any one or more of the following things:
(a) to give an authorised officer, by writing signed by the
person (or, in the case of a body corporate, by a
competent officer of the body corporate) and within the
time and in the manner specified in the notice, any such
information of which the person has knowledge,
(b) to produce to an authorised officer, in accordance with
the notice, any such documents,
(c) to appear before an authorised officer at a time and
place specified in the notice and give either orally or in
writing any such evidence and produce any such
documents.
(2) A notice under this section must contain a warning that a
failure to comply with the notice is an offence.
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(3) An authorised officer may inspect a document produced in
response to a notice under this section and may make copies of,
or take extracts from, the document.
(4) An authorised officer may take possession and retain
possession for as long as is necessary for the purposes of this
Act, of a document produced in response to a notice under this
section if the person otherwise entitled to possession of the
document is supplied, as soon as practicable, with a copy
certified by an authorised officer to be a true copy.
(5) A certified copy provided under subsection (4) is receivable in
all courts as if it were the original.
(6) Until a certified copy of a document is provided under
subsection (4), the authorised officer who has possession of the
document must, at such times and places as the authorised
officer thinks appropriate, permit the person otherwise entitled
to possession of the document, or a person authorised by that
person, to inspect the document and make copies of, or take
extracts from, the document.
(7) In the section, authorised officer means an officer of the
Authority authorised by the Authority for the purposes of this
section.
[5] Schedule 2 Provisions relating to Council, clause 10 Quorum
Omit "9 members". Insert instead "10 members".
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Schedule 6 Consequential amendments
Schedule 6 Consequential amendments
(Section 3)
6.1 Workers Compensation Act 1987 No 70
[1] Section 11A No compensation for psychological injury caused by
reasonable actions of employer
Omit "court proceedings" from section 11A (8) (b).
Insert instead "proceedings before the Commission".
[2] Section 15 Diseases of gradual process--employer liable, date of
injury etc
Omit "determined by the Compensation Court" from section 15 (2).
Insert instead "determined by the Commission".
[3] Section 15 (2A)
Omit "The Compensation Court is to determine the contributions that a
particular employer is liable to make on the basis of the following formula,
or on such other basis as the Court considers just and equitable".
Insert instead "The Commission is to determine the contributions that a
particular employer is liable to make on the basis of the following formula,
or on such other basis as the Commission considers just and equitable".
[4] Section 15 (4)
Omit "loss or impairment". Insert instead "permanent impairment".
[5] Section 16 Aggravation etc of diseases--employer liable, date of
injury etc
Omit "determined by the Compensation Court" from section 16 (2).
Insert instead "determined by the Commission".
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[6] Section 16 (2A)
Omit "The Compensation Court is to determine the contributions that a
particular employer is liable to make on the basis of the following formula,
or on such other basis as the Court considers just and equitable".
Insert instead "The Commission is to determine the contributions that a
particular employer is liable to make on the basis of the following formula,
or on such other basis as the Commission considers just and equitable".
[7] Section 16 (3)
Omit "loss or impairment". Insert instead "permanent impairment".
[8] Section 17 Loss of hearing--special provisions
Omit section 17 (1) (f). Insert instead:
(f) where the Commission is satisfied that a contribution
required to be made under paragraph (d) cannot be
recovered by an employer referred to in paragraph (c) (i)
or (ii), the Commission may direct the Authority to pay
to that employer out of the Uninsured Liability and
Indemnity Scheme such amount, not exceeding the
amount of the contribution, as the Commission
considers appropriate and the Authority is to pay out
that amount accordingly,
[9] Section 20 Principal liable to pay compensation to workers employed
by contractors in certain cases
Omit "settled by the Compensation Court" from section 20 (4).
Insert instead "determined by the Commission".
[10] Section 22 Compensation to be apportioned where more than one
injury
Omit "the Compensation Court determines" from section 22 (1).
Insert instead "the Commission determines".
[11] Section 22 (1) (b)
Omit "a loss". Insert instead "a permanent impairment".
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Schedule 6 Consequential amendments
[12] Section 22 (3) and (4)
Omit "apportioned by the Compensation Court" wherever occurring.
Insert instead "apportioned by the Commission".
[13] Section 22 (5)
Omit the subsection. Insert instead:
(5) The Commission may, on the application of any insurer or
employer concerned or of the Authority, determine a dispute as
to whether:
(a) liability to pay compensation under this Act should be
apportioned under this section, or
(b) any such liability should be apportioned under this
section in respect of different injuries.
The determination of the Commission has effect despite any
agreement on apportionment if the application for
determination was made by an employer (in the employer's
own right) or the Authority.
[14] Section 22A Further provisions concerning apportionment of liability
under section 22
Omit "the Court considers" from section 22A (1) (a) and (b) wherever
occurring.
Insert instead "the Commission considers".
[15] Section 22A (4)
Omit "the Compensation Court may order".
Insert instead "the Commission may order".
[16] Section 22A (5) (a) and (b)
Omit "the Court considers" wherever occurring.
Insert instead "the Commission considers".
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Consequential amendments Schedule 6
[17] Section 22B Determination as to which injury gave rise to
compensation liability
Omit "The Compensation Court may" from section 22B (1).
Insert instead "The Commission may".
[18] Section 22C Certain injuries not to be dealt with under sections 15
and 16
Omit "unless the Compensation Court otherwise orders" from
section 22C (5).
Insert instead "unless the Commission otherwise orders".
[19] Section 26 Death of worker leaving partial dependants
Omit "approved by the Compensation Court" from section 26 (b).
Insert instead "approved by the Commission".
[20] Section 26 (c)
Omit "approval by the Compensation Court".
Insert instead "approval by the Commission".
[21] Section 26 (c)
Omit "determined by the Compensation Court".
Insert instead "determined by the Commission".
[22] Section 29 Apportionment of payments between dependants
Omit section 29 (1)(5). Insert instead:
(1) The compensation payable under this Division to each
dependant of a deceased worker may be apportioned by the
Commission or by the Public Trustee.
(2) Application for apportionment may be made by or on behalf of
a person entitled to the compensation:
(a) to the Public Trustee, or
(b) to the Commission (whether or not an application has
been made to the Public Trustee or the Public Trustee
has made a decision).
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(3) The Public Trustee may decline to deal with an application for
apportionment and advise the parties to apply to the
Commission.
(4) The Public Trustee is not to deal with an application for
apportionment of compensation if an application for
apportionment of the same compensation is before the
Commission.
(5) A decision by the Public Trustee to apportion compensation
under this Division is subject to any decision made by the
Commission with respect to the matter.
[23] Section 30
Omit the section. Insert instead:
30 Review of apportionment among dependants
(1) The Commission or the Public Trustee may, on account of the
variation of the circumstances of the various dependants or for
any other sufficient cause, vary any previous apportionment
among the dependants of a deceased worker of compensation
under this Division.
(2) Application for a variation may be made by or on behalf of the
person entitled to compensation to the Commission or the
Public Trustee.
(3) The Public Trustee may apply to the Commission for any such
variation of a previous apportionment made by the Public
Trustee or by the Commission.
(4) The Public Trustee is not to deal with an application for
variation of any previous apportionment if an application for
variation of the same previous apportionment is before the
Commission.
(5) The Public Trustee is not to vary an apportionment made by the
Commission.
[24] Section 31 Payment in respect of dependent children
Omit "unless the Compensation Court otherwise orders" from
section 31 (1).
Insert instead "unless the Commission otherwise orders".
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[25] Section 31 (2)
Omit "the Compensation Court makes an order".
Insert instead "the Commission makes an order".
[26] Section 37 Weekly payment during total incapacity--after first 26 weeks
Omit "if the Compensation Court is satisfied" from section 37 (6).
Insert instead "if the Commission is satisfied".
[27] Section 38A Determination of whether worker seeking suitable
employment
Omit "before the Compensation Court" from section 38A (4).
Insert instead "before the Commission".
[28] Section 38A (4) (b)
Omit "determination of the matter by the Compensation Court or a
conciliator".
Insert instead "determination of the matter by the Commission".
[29] Section 38A (6)
Omit "An order of the Compensation Court".
Insert instead "An order of the Commission".
[30] Section 39 Incapacity treated as total--"odd-lot" rule
Omit "satisfaction of the Compensation Court" from section 39 (1) (c).
Insert instead "satisfaction of the Commission".
[31] Section 39 (1) (d)
Omit "the Compensation Court's order".
Insert instead "the Commission's order".
[32] Section 39 (2)
Omit "An order of the Compensation Court".
Insert instead "An order of the Commission".
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Schedule 6 Consequential amendments
[33] Section 39 (3)
Omit "The Compensation Court may".
Insert instead "The Commission may".
[34] Section 39 (6)
Omit the subsection. Insert instead:
(6) The Registrar may make any order that the Commission may
make under this section if the matter must be determined for
the purposes of any interim payment direction by the Registrar.
[35] Section 40 Weekly payments during partial incapacity--general
Omit "The Compensation Court may determine any dispute about the
operation of this subsection and (subject to any order of the Court) a
conciliator dealing with the dispute may give a direction or make a
recommendation about that matter" from section 40 (4).
Insert instead "The Commission may determine any dispute about the
operation of this subsection".
[36] Section 45 Reduction etc of weekly payments to qualify for other
benefits
Omit "The Compensation Court may" from section 45 (1).
Insert instead "The Commission may".
[37] Section 46 Reduction of weekly payments to prevent dual benefits
Omit "The Compensation Court may" from section 46 (1).
Insert instead "The Commission may".
[38] Section 52A Discontinuation of weekly payments for partial incapacity
after 2 years
Omit "proceedings before the Compensation Court" from
section 52A (8) (b).
Insert instead "proceedings before the Commission".
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[39] Section 53 Weekly payments--residence outside the Commonwealth
Omit "unless a medical referee or medical panel certifies, or the
Compensation Court determines" from section 53 (1).
Insert instead "unless an approved medical specialist certifies, or the
Commission determines".
[40] Section 55 Review of weekly payments
Omit "reviewed by the Compensation Court" from section 55 (1).
Insert instead "reviewed by the Commission".
[41] Section 55 (2) (b)
Omit "settled by the Compensation Court".
Insert instead "determined by the Commission".
[42] Section 55 (2A)
Omit "the Compensation Court's order on the review, the Compensation
Court may order".
Insert instead "the Commission's order on the review, the Commission may
order".
[43] Section 55A Award of compensation may be for fixed period
Omit "The Compensation Court may".
Insert instead "The Commission may".
[44] Section 56 Award of compensation may be subject to supply of medical
certificates etc
Omit "The Compensation Court may" from section 56 (1).
Insert instead "The Commission may".
[45] Section 56 (2)
Omit "order of the Compensation Court".
Insert instead "order of the Commission".
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Schedule 6 Consequential amendments
[46] Section 56 (3)
Omit the subsection. Insert instead:
(3) This section applies to an interim payment direction by the
Registrar for weekly payments of compensation in the same
way as it applies to an award by the Commission for any such
payments.
[47] Section 57 Worker to notify return to work etc with other employer
Omit section 57 (3). Insert instead:
(3) This section applies even though the weekly payments of
compensation are payable under an interim payment direction
by the Registrar.
[48] Section 58 Refund of weekly payments paid after return to work etc
Omit "the Compensation Court may order" from section 58 (1).
Insert instead "the Commission may order".
[49] Section 58 (1)
Omit "the Court considers". Insert instead "the Commission considers".
[50] Section 58 (2)
Omit "the Compensation Court's order".
Insert instead "the Commission's order".
[51] Section 58 (3)
Omit the subsection. Insert instead:
(3) This section applies even though the weekly payments of
compensation are payable under an interim payment direction
by the Registrar.
[52] Section 58 (4)
Omit "the Compensation Court may make such orders as it".
Insert instead "the Commission may make such orders as the Commission".
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[53] Section 58 (6)
Omit "any order that it is satisfied the Compensation Court could make".
Insert instead "any order that it is satisfied the Commission could make".
[54] Section 58 (7) (a)
Omit "an award of the Compensation Court".
Insert instead "an award of the Commission".
[55] Section 61 Rates applicable for medical or related treatment
Omit section 61 (4A). Insert instead:
(4A) If proceedings relating to the worker's claim for compensation
are before the Commission and those proceedings relate to, or
include matters relating to, the provision of medical or related
treatment for the worker, such a direction may be given by the
Commission. If no such proceedings are before the
Commission, such a direction may be given by the Authority
on application made in respect of the worker from time to time.
[56] Section 62 Rates applicable for hospital treatment
Omit section 62 (6A). Insert instead:
(6A) If proceedings relating to the worker's claim for compensation
are before the Commission and those proceedings relate to, or
include matters relating to, the provision of hospital treatment
for the worker, such a direction may be given by the
Commission. If no such proceedings are before the
Commission, such a direction may be given by the Authority
on application made in respect of the worker from time to time.
[57] Section 63 Rates applicable for ambulance service
Omit section 63 (2A). Insert instead:
(2A) If proceedings relating to the worker's claim for compensation
are before the Commission and those proceedings relate to, or
include matters relating to, the provision of ambulance services
for the worker, such an allowance may be awarded by the
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Schedule 6 Consequential amendments
Commission. If no such proceedings are before the
Commission, such an allowance may be awarded by the
Authority on application made in respect of the worker from
time to time.
[58] Section 63A Rates applicable for occupational rehabilitation services
Omit "any order of the Compensation Court" from section 63A (4).
Insert instead "any order of the Commission".
[59] Section 76 Maximum rate for damage to artificial limbs, spectacles
Omit section 76 (3). Insert instead:
(3) If proceedings relating to the worker's claim for compensation
are before the Commission and those proceedings relate to, or
include matters relating to, damage to an item referred to in
section 74 (1) (b), such a direction may be given by the
Commission. If no such proceedings are before the
Commission, such a direction may be given by the Authority
on application made in respect of the worker from time to time.
[60] Section 77 Maximum rate for damage to clothing
Omit section 77 (3). Insert instead:
(3) If proceedings relating to the worker's claim for compensation
are before the Commission and those proceedings relate to, or
include matters relating to, damage to the worker's clothing,
such a direction may be given by the Commission. If no such
proceedings are before the Commission, such a direction may
be given by the Authority on application made in respect of the
worker from time to time.
[61] Section 83 Manner of payment of compensation
Omit section 83 (6). Insert instead:
(6) The Commission may authorise the payment of compensation
in a particular case in such other manner as the Commission
thinks fit.
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[62] Section 85 Payments to Public Trustee for benefit of beneficiary
Omit "unless the Compensation Court otherwise orders" from
section 85 (1) (b).
Insert instead "unless the Commission otherwise orders".
[63] Section 85 (1) (c)
Omit "the Compensation Court directs".
Insert instead "the Commission directs".
[64] Section 85 (1) (d)
Omit "the Compensation Court orders".
Insert instead "the Commission orders".
[65] Section 85 (6)
Omit "The Compensation Court may".
Insert instead "The Commission may".
[66] Section 85A
Omit the section. Insert instead:
85A Payment of benefits to beneficiaries
(1) Despite section 85, the Commission may authorise the payment
of compensation referred to in section 85 (1):
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person
entitled to the compensation, as the Commission thinks
fit.
(2) Any such payment is to be made in the manner authorised by
the Commission.
[67] Section 87B Reduction of compensation under this Act
Omit "an award of the Compensation Court" from section 87B (5).
Insert instead "an award of the Commission".
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[68] Section 143 Determination of claim by Authority
Omit section 143 (4).
[69] Section 144 Appeal against Authority's decision on claim
Omit "apply to the Compensation Court" from section 144 (1).
Insert instead "apply to the Commission".
[70] Section 144 (3)
Omit the subsection. Insert instead:
(3) The Commission may hear and determine any such application
and may make such orders in relation to the application as the
Commission thinks fit.
[71] Section 145 Employer or insurer to reimburse Authority
Omit "apply to the Compensation Court" from section 145 (3).
Insert instead "apply to the Commission".
[72] Section 145 (4)
Omit the subsection. Insert instead:
(4) The Commission may hear any such application and may:
(a) make such determination in relation to the application,
and
(b) make such awards or orders as to the payment of
compensation under this Act to or in respect of the
injured worker concerned,
as the Commission thinks fit.
[73] Section 145 (7)
Omit the subsection. Insert instead:
(7) An order by the Commission that the Authority is to be
reimbursed by a person named in the determination concerned
may be enforced under section 362 of the 1998 Act.
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[74] Section 145A Recovery from directors of corporations liable to
reimburse Authority
Omit "an order of the Compensation Court" from section 145A (2).
Insert instead "an order of the Commission".
[75] Section 147 Miscellaneous provisions
Omit "The Compensation Court may adjourn" from section 147 (2).
Insert instead "The Commission may adjourn".
[76] Section 147 (3)
Omit "by order of the Compensation Court".
Insert instead "by order of the Commission".
[77] Section 147 (4)
Omit the subsection. Insert instead:
(4) In any proceedings before the Commission under this Division,
the Authority or its representative (being a barrister, solicitor,
officer of the Authority or other person) may appear before the
Commission and exercise in respect of any matters and
questions arising out of the application the same powers, rights
and authorities as an employer may exercise in respect of a
claim between a worker and an employer under this Act.
[78] Section 151A Election--damages or "Table of Disabilities"
compensation
Insert after section 151A (3) (a):
(a1) by referring a claim for those damages for assessment
under Part 6 of Chapter 7 of the 1998 Act (in which
case the person ceases to be entitled to recover
permanent loss compensation in respect of the injury),
or
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[79] Section 151A (3) (b)
Omit the paragraph. Insert instead:
(b) by commencing proceedings in the Commission to
recover that permanent loss compensation or by
accepting payment of that permanent loss compensation
(in which case the person ceases to be entitled to
recover damages in respect of the injury).
[80] Section 151A (3A)
Omit "Compensation Court" wherever occurring.
Insert instead "Commission".
[81] Section 151Z Recovery against both employer and stranger
Omit "by the Compensation Court" from section 151Z (1) (f).
Insert instead "by the Commission".
[82] Section 162 Death of employer
Omit "The Compensation Court may" from section 162 (1).
Insert instead "The Commission may".
[83] Section 162 (2)
Omit "Where the Compensation Court makes a declaration under
subsection (1), the Compensation Court may make an award".
Insert instead "Where the Commission makes a declaration under
subsection (1), the Commission may make an award".
6.2 Workplace Injury Management and Workers Compensation Act
1998 No 86
[1] Section 4 Definitions
Omit the definitions of conciliation certificate, conciliator, medical referee,
medical panel and Principal Conciliator from section 4 (1).
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[2] Section 71 Duty of claimant to co-operate
Omit "court proceedings" wherever occurring from section 71 (3).
Insert instead "proceedings before the Commission".
[3] Section 73 Insurer to provide copies of reports to worker
Omit "before a conciliator or the Compensation Court" from
section 73 (3) (b).
Insert instead "before the Commission".
[4] Section 74 Insurers to give notice and reasons when liability disputed
Omit "conciliation by a conciliator" wherever occurring from
section 74 (2) (b) and (c).
Insert instead "determination by the Commission".
[5] Section 75 Report about delays and the incurring of unreasonable
costs by insurers
Omit "A Judge or commissioner of the Compensation Court or a conciliator
may make a report" from section 75 (1).
Insert instead "The Registrar or another member of the Commission may
make a report".
[6] Section 75 (1) (d)
Omit "proceedings before the Compensation Court".
Insert instead "proceedings before the Commission".
[7] Section 106 Authority may intervene in proceedings
Omit "proceedings before the Compensation Court" from section 106 (1).
Insert instead "proceedings before the Commission".
[8] Section 107 Applications to be heard together
Omit "applied to the Compensation Court" from section 107 (1).
Insert instead "applied to the Commission".
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Schedule 6 Consequential amendments
[9] Section 107 (2)
Omit "or the rules of the Compensation Court".
[10] Section 108 Interim awards
Omit section 108 (2) and (3). Insert instead:
(2) Where this section applies, the Commission may:
(a) if the Commission is satisfied that compensation is
payable (but is not yet able to finally determine that
compensation is payable, the amount of the
compensation, the appropriate apportionment of liability
for the compensation or the person liable to pay the
compensation), make such interim awards as the
Commission thinks fit:
(i) for compensation by an insurer or self-insurer, or
(ii) for indemnity by an insurer, or
(iii) for payment under the Uninsured Liability and
Indemnity Scheme,
and make such interim orders as the Commission thinks
fit for contribution on the part of an insurer, employer or
principal or other person or under the Uninsured
Liability and Indemnity Scheme, and
(b) make such final awards and orders as the Commission
thinks fit with respect to any of the matters the subject
of an interim award or order under paragraph (a), and
(c) if the Commission makes a final award or order, make
such orders as the Commission thinks fit with respect to
adjustments to be made between persons against whom
orders have been made under paragraphs (a) and (b) or
between any such persons and the Uninsured Liability
and Indemnity Scheme.
(3) If the Commission subsequently determines that a person is not
liable under this Act to make the payments of compensation
that have been paid in accordance with an interim award, the
worker or other person who received those payments is not
required to refund those payments unless the Commission:
(a) is satisfied that the claim for compensation was wholly
or partly fraudulent or made without proper justification,
and
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Consequential amendments Schedule 6
(b) orders the worker or other person to refund those
payments or a specified part of those payments.
[11] Section 109 Interest before order for payment
Omit section 109 (1). Insert instead:
(1) In any proceedings before the Commission, the Commission
may order that there is to be included, in any sum to be paid,
interest at such rate as the Commission thinks fit on the whole
or any part of the sum for the whole or any part of the period
before the sum is payable, subject to the limitations imposed by
this section.
[12] Section 109 (2) (c)
Omit the paragraph. Insert instead:
(c) on any compensation payable under this Act for any
period during which proceedings before the
Commission were adjourned on the application of the
claimant for the compensation or pursuant to
section 102.
[13] Section 110 Interest after order for payment
Omit section 110 (1). Insert instead:
(1) Unless the Commission orders in any particular case that
interest be not payable, interest is payable on so much of the
amount of any sum ordered to be paid by the Commission as
is from time to time unpaid.
[14] Section 110 (2) (a)
Omit "the Court". Insert instead "the Commission".
[15] Section 110 (3) (b)
Omit "the Court". Insert instead "the Commission".
[16] Section 111 Interest on agreed payment of lump sum compensation
Omit "the Compensation Court" from section 111 (1).
Insert instead "the Commission".
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[17] Section 117 Admissibility of statements by injured workers
Omit "proceedings before the Compensation Court" from section 117 (1).
Insert instead "proceedings before the Commission".
[18] Section 117 (2)
Omit the subsection.
[19] Section 119 Medical examination of workers at direction of employer
Omit "proceedings on such a dispute before a conciliator or the
Compensation Court" from section 119 (6) (b).
Insert instead "proceedings on such a dispute before the Commission".
[20] Section 120 Medical examination of worker at direction of Commission
Omit section 120 (1). Insert instead:
(1) The Commission or the Authority may, at any time or from
time to time, require any worker:
(a) who claims compensation under this Act, or
(b) who is in receipt of weekly payments of compensation
under this Act,
to submit himself or herself for examination by an approved
medical specialist on a date and at a place arranged by the
Registrar.
[21] Section 125 Reimbursement of worker for loss of wages and expenses
associated with medical examination
Omit section 125 (2). Insert instead:
(2) A worker required to submit himself or herself for examination
by an approved medical specialist is not entitled to recover any
amount if:
(a) the matter was referred on the application of the worker,
and
(b) the Commission finds that the application was
unreasonable or unnecessary.
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[22] Section 125 (5)
Omit the subsection.
[23] Section 127
Omit the section. Insert instead:
127 Admissibility of medical reports
(1) A medical report is admissible in proceedings before the
Commission.
(2) Subsection (1) is subject to any provision of the regulations
relating to the giving of notice of the admission of the medical
report.
(3) Subsection (1) is also subject to any provision of the
regulations relating to the number of medical reports that may
be admitted in connection with a claim or any aspect of a
claim.
(4) A medical practitioner whose medical report is admissible
under subsection (1) may be required, in accordance with the
regulations, to attend and be cross-examined on the contents of
the report.
(5) In proceedings relating to the making of an interim award, a
medical practitioner whose medical report is admissible in
evidence under subsection (1) may not be required to attend
and be cross-examined on the contents of the report without the
leave of the Commission given in any case where the
Commission is satisfied there is a real issue as to whether the
worker is entitled to receive compensation from any of the
parties.
(6) In this section, medical report means any written report of a
medical practitioner relating to the worker.
[24] Section 134 Consequences of prohibited conduct for recovery of fees
by agents
Omit "or by proceedings in the Compensation Court" from section 134 (4).
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Schedule 6 Consequential amendments
[25] Section 135 Consequences of prohibited conduct for lawyers
Omit "or by proceedings in the Compensation Court" from section 135 (5).
[26] Section 136 Lawyers and agents can be requested to certify as to
prohibited conduct
Insert "or Commission" after "court" wherever occurring in section 136 (3).
[27] Section 137 Power to restrict or ban recovery of costs by agents who
engage in prohibited conduct
Omit "or 116 (5)" from section 137 (2) (a). Insert instead "or 343 (4)".
[28] Section 138 Power to restrict or ban recovery of costs by solicitors
Omit "or 116 (5)" from section 138 (2) (a). Insert instead "or 343 (4)".
[29] Section 139 Power to restrict or ban agents who engage in prohibited
conduct
Omit "or 116 (5)" from section 139 (2) (a). Insert instead "or 343 (4)".
[30] Section 140 Past conduct included in assessing persistent conduct
Omit "or 116 (5)" wherever occurring. Insert instead "or 343 (4)".
[31] Section 141 Duty of claimants to comply with requests for information
about agents and lawyers
Omit "court proceedings" from section 141 (1).
Insert instead "proceedings before the Commission".
[32] Section 154 Death of employer
Omit "The Compensation Court" from section 154 (1).
Insert instead "The Commission".
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[33] Section 154 (2)
Omit "Where the Compensation Court makes a declaration under
subsection (1), the Compensation Court may make an award of
compensation".
Insert instead "Where the Commission makes a declaration under
subsection (1), the Commission may make an award of compensation".
[34] Section 223 Determination of claim by Authority
Omit section 223 (4).
[35] Section 224 Appeal against Authority's decision on claim
Omit "apply to the Compensation Court" from section 224 (1).
Insert instead "apply to the Commission".
[36] Section 224 (3)
Omit the subsection. Insert instead:
(3) The Commission may determine any such application and may
make such orders in relation to the application as the
Commission thinks fit.
[37] Section 225 Employer or insurer to reimburse Authority
Omit "apply to the Compensation Court" from section 225 (3).
Insert instead "apply to the Commission".
[38] Section 225 (4)
Omit the subsection. Insert instead:
(4) The Commission may:
(a) make such determination in relation to the application,
and
(b) make such awards and orders as to the payment of
compensation under this Act to or in respect of the
injured worker concerned,
as the Commission thinks fit.
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Schedule 6 Consequential amendments
[39] Section 225 (7)
Omit the subsection. Insert instead:
(7) An order by the Commission that the Authority is to be
reimbursed by a person named in the determination concerned
may be enforced under section 362.
[40] Section 226 Recovery from directors of corporations liable to reimburse
Authority
Omit "an order of the Compensation Court" from section 226 (2).
Insert instead "an order of the Commission".
[41] Section 227
Omit the section. Insert instead:
227 Commutation of weekly payments from scheme
(1) Division 9 of Part 3 of the 1987 Act applies to the
commutation of a liability under the Scheme.
(2) A liability under the Scheme may not be commuted to a lump
sum with the agreement of the worker unless the Authority:
(a) has given the employer notice of the proposed
agreement and has given the employer a reasonable
opportunity to make submissions to the Authority with
respect to the matter, and
(b) has taken into account any submissions so made to the
Authority.
(3) Subsection (2) does not apply if the worker has been unable,
after due search and inquiry, to identify the relevant employer.
(4) In the case of commutation by determination of the
Commission under section 87G (Commutation where worker
legally incapacitated) of the 1987 Act, the Commission may on
the application of the employer, if the Commission thinks fit,
refuse to make such a determination in respect of a liability
under the Scheme.
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(5) The making of such an application by the employer in no way
fetters the discretion of the Commission to make the
determination, and a commutation made in consequence of the
determination is binding on the employer whether or not the
employer has made such an application.
(6) The Authority may apply for registration of a commutation
agreement under section 87H of the 1987 Act as a party to the
agreement.
[42] Section 228 Miscellaneous provisions
Omit "The Compensation Court may adjourn" from section 228 (2).
Insert instead "The Commission may adjourn".
[43] Section 228 (3)
Omit "by order of the Compensation Court".
Insert instead "by order of the Commission".
[44] Section 228 (4)
Omit "At any hearing of an application to the Compensation Court under
this Part, the Authority or its representative (being a barrister, solicitor,
officer of the Authority or other person) may appear before the
Compensation Court".
Insert instead "Where an application is made to the Commission under this
Part, the Authority or its representative (being a barrister, solicitor, officer
of the Authority or other person) may appear before the Commission".
[45] Section 239 Authority may obtain documents from court registry or
Registrar
Insert "or the Registrar" after "the Compensation Court Registry" in
section 239 (1) (b).
[46] Section 239 (1)
Insert "or kept in the custody or control of the Registrar" after "available at
the Compensation Court Registry".
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Schedule 6 Consequential amendments
[47] Section 239 (2)
Omit "The Registrar of the Compensation Court is".
Insert instead "The Registrar of the Compensation Court and the Registrar
of the Commission are".
[48] Section 239 (3)
Omit the subsection. Insert instead:
(3) The Commission may, in respect of any information obtained
by the Authority from the Registrar under this section, order
that the information is not to be used in any proceedings, or any
specified proceedings, before the Commission.
[49] Section 239 (4)
Insert "or by the Registrar of the Commission" after "the Compensation
Court Registry".
[50] Section 247 Time for instituting proceedings
Omit "the Compensation Court determines the claim" from
section 247 (3) (b).
Insert instead "the Commission determines the claim".
[51] Schedule 1 Deemed employment of workers
Omit "the Compensation Court determines" wherever occurring from
clauses 3 (5), 4 (3), 5 (2) and 15 (4) of Schedule 1.
Insert instead "the Commission determines".
[52] Schedule 1, clauses 9 (3) (b), 13 (2) (b) and 16 (2) (b)
Omit "the Compensation Court considers" wherever occurring.
Insert instead "the Commission considers".
[53] Schedule 6 Provisions relating to appointed conciliators
Omit the Schedule.
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6.3 Workers Compensation Legislation Amendment Act 2000 No 87
Schedule 9 Amendments relating to liability involving multiple
managed fund insurers
Omit "and conciliation" from the definition of proceedings in
section 22D (12) as inserted by Schedule 9 [4].
Page 137
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