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New South Wales
Workers Compensation Legislation
Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Workers Compensation Act 1987 No 70 3
Schedule 2 Amendment of Workplace Injury Management and Workers
Compensation Act 1998 No 86 9
b2009-109-20.d14
New South Wales
Workers Compensation Legislation
Amendment Bill 2010
No , 2010
A Bill for
An Act to amend workers compensation legislation to make further provision for
determination of compensation and work injury damages, workplace rehabilitation,
medical assessment, appeals and other matters.
Clause 1 Workers Compensation Legislation Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Workers Compensation Legislation Amendment 3
Act 2010. 4
2 Commencement 5
(1) This Act commences on a day or days to be appointed by proclamation. 6
(2) A proclamation under this section may appoint a particular time on a 7
day as the time for commencement on that day. 8
Page 2
Workers Compensation Legislation Amendment Bill 2010
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
Schedule 1 Amendment of Workers Compensation 1
Act 1987 No 70 2
[1] Section 9A No compensation payable unless employment substantial 3
contributing factor to injury 4
Omit "occupational rehabilitation service" from section 9A (3) (b). 5
Insert instead "workplace rehabilitation service". 6
[2] Section 38A Determination of whether worker seeking suitable 7
employment 8
Omit "occupational rehabilitation services" from the definition of 9
rehabilitation training in section 38A (7). 10
Insert instead "workplace rehabilitation services". 11
[3] Section 40 Weekly payments during partial incapacity--general 12
Insert at the end of section 40 (1): 13
Note. Section 35 limits the maximum weekly payment of compensation 14
under this section. 15
[4] Section 40 (2) 16
Omit "(but not exceeding $1,000)" wherever occurring. 17
[5] Section 40 (2) and (2A) 18
Insert at the end of each subsection: 19
Note. The difference between (a) and (b) is the maximum amount of 20
compensation payable to the worker. It is not a limit on the combined 21
total of compensation and earnings. 22
[6] Section 40 (7) 23
Omit "subsection (2)". Insert instead "subsection (2A)". 24
[7] Section 59 Definitions 25
Omit "occupational rehabilitation service" from the definition of medical or 26
related treatment. 27
Insert instead "workplace rehabilitation service". 28
[8] Section 59, definition of "occupational rehabilitation service" 29
Omit the definition. 30
Page 3
Workers Compensation Legislation Amendment Bill 2010
Schedule 1 Amendment of Workers Compensation Act 1987 No 70
[9] Section 59, definition of "workplace rehabilitation service" 1
Insert in alphabetical order: 2
workplace rehabilitation service means any service provided as 3
a workplace rehabilitation service by or on behalf of a provider 4
of rehabilitation services approved under section 52 of the 1998 5
Act. 6
[10] Section 60 Compensation for cost of medical or hospital treatment and 7
rehabilitation etc 8
Omit "occupational" from section 60 (1) (d). Insert instead "workplace". 9
[11] Section 60 (5) 10
Insert after section 60 (4): 11
(5) The jurisdiction of the Commission with respect to a dispute 12
about compensation payable under this section extends to a 13
dispute concerning any proposed treatment or service and the 14
compensation that will be payable under this section in respect of 15
any such proposed treatment or service. Any such dispute must 16
be referred by the Registrar for assessment under Part 7 (Medical 17
assessment) of Chapter 7 of the 1998 Act, unless the regulations 18
otherwise provide. 19
[12] Section 60A Worker not liable for medical, hospital and rehabilitation 20
charges above applicable rates 21
Omit "an occupational" wherever occurring. Insert instead "a workplace". 22
[13] Section 63A Rates applicable for workplace rehabilitation services 23
Omit "occupational" wherever occurring in section 63A (1), (2), (5) and (6). 24
Insert instead "workplace". 25
[14] Section 63A (3) and (4) 26
Omit the subsections. 27
[15] Section 73 Reimbursement for costs of medical certificate and 28
examination 29
Insert after section 73 (2): 30
(3) The following provisions apply to compensation to which a 31
worker is entitled in respect of the obtaining of a permanent 32
impairment medical certificate and any examination required for 33
the certificate: 34
Page 4
Workers Compensation Legislation Amendment Bill 2010
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
(a) the compensation is not payable until the claim for the 1
permanent impairment compensation to which the 2
certificate or examination relates is determined, 3
(b) a claim for the compensation is to be treated as part of the 4
claim for the permanent impairment compensation to 5
which the certificate or examination relates (and so is 6
subject to the requirements of section 281 of the 1998 Act 7
as to when the claim must be determined), 8
(c) section 279 (Liability to be accepted within 21 days) of the 9
1998 Act does not apply to the compensation. 10
[16] Part 3, Division 6, heading 11
Omit the heading. Insert instead: 12
Division 6 Indexation of certain amounts 13
[17] Section 79 Definitions 14
Insert at the end of the definition of adjustable amount: 15
, and 16
(c) the amount of $7,500 specified in sections 297 (2) and 17
352 (3) of the 1998 Act. 18
[18] Section 79, definition of "base index number" 19
Renumber paragraph (c) as paragraph (d) and insert as paragraph (c): 20
(c) in respect of the adjustable amount of $7,500 specified in 21
sections 297 (2) and 352 (3) of the 1998 Act--the latest 22
index number for the adjustment date of 1 October 2010, 23
and 24
[19] Section 145 Employer or insurer to reimburse Insurance Fund 25
Insert after section 145 (4): 26
(4A) The Commission is not authorised to make a determination that 27
waives the liability of an employer under subsection (1) to 28
reimburse the Insurance Fund or that limits or otherwise affects 29
any function of the Nominal Insurer to decide whether or not any 30
such liability should be waived. 31
[20] Section 151IA Retirement age 32
Omit "age 65". 33
Insert instead "pension age (as defined in the Social Security Act 1991 of the 34
Commonwealth for persons other than veterans)". 35
Page 5
Workers Compensation Legislation Amendment Bill 2010
Schedule 1 Amendment of Workers Compensation Act 1987 No 70
[21] Section 172A Security deposit or guarantee for payment of premium-- 1
optional alternative premium calculation method 2
Omit section 172A (6). Insert instead: 3
(6) Sections 214215B apply to and in respect of an amount of 4
money deposited or required to be deposited with the Nominal 5
Insurer under this section as if: 6
(a) the amount deposited or required were deposited or 7
required pursuant to an obligation imposed under 8
Division 5 (Self-insurers), and 9
(b) the employer were a self-insurer while the employer holds 10
a policy of insurance in respect of which the amount is held 11
or required to be held on deposit, and 12
(c) a reference in those provisions to the Authority were a 13
reference to the Nominal Insurer. 14
[22] Section 177A Special provisions for specialised insurers 15
Omit section 177A (3) (c). Insert instead: 16
(c) that the applicant is authorised under section 12 of the 17
Insurance Act 1973 of the Commonwealth to carry on 18
insurance business in Australia (or does not require such 19
an authorisation to lawfully carry on the insurance 20
business to be carried on pursuant to the licence), and 21
[23] Section 182 Matters that may be regulated by conditions of licences 22
Omit section 182 (1) (c). Insert instead: 23
(c) requiring a charge or other security to be taken by the 24
Authority in respect of the assets of an insurer, or 25
otherwise requiring the insurer to provide security, for the 26
purpose of securing the payment of the insurer's liabilities 27
(including contingent liabilities) for the payment of 28
compensation under this Act. 29
[24] Section 215B 30
Insert after section 215A: 31
215B Bond as alternative to deposit 32
It is sufficient compliance with a requirement of this Division to 33
deposit an amount of money with the Authority if a bond is 34
provided, on terms acceptable to the Authority, as security for the 35
amount required to be deposited. 36
Page 6
Workers Compensation Legislation Amendment Bill 2010
Amendment of Workers Compensation Act 1987 No 70 Schedule 1
[25] Schedule 6 Savings, transitional and other provisions 1
Insert as Part 19G: 2
Part 19G Provisions consequent on enactment of 3
Workers Compensation Legislation 4
Amendment Act 2010 5
1 Definition 6
In this Part: 7
2010 amending Act means the Workers Compensation 8
Legislation Amendment Act 2010. 9
2 Weekly payments during partial incapacity 10
An amendment made by the 2010 amending Act to section 40 of 11
the 1987 Act applies only to compensation payable pursuant to a 12
claim for compensation made after the commencement of the 13
amendment (and so applies even if the injury concerned was 14
received before that commencement). 15
3 Retirement age 16
The amendment made by the 2010 amending Act to 17
section 151IA of the 1987 Act does not apply to an award of 18
damages in proceedings commenced before the commencement 19
of the amendment. 20
4 Rates applicable for occupational rehabilitation services 21
The repeal by the 2010 amending Act of section 63A (3) and (4) 22
of the 1987 Act does not affect a claim for an amount payable 23
under that section made before the commencement of the repeal 24
and that section and regulations under that section continue to 25
apply in respect of such a claim as if the provisions had not been 26
repealed. 27
5 Reimbursement for costs of medical certificate and examination 28
Section 73 (3) of the 1987 Act extends to compensation payable 29
in respect of the obtaining of a permanent impairment medical 30
certificate and any examination required for the certificate before 31
the commencement of that subsection. 32
6 Lump sum compensation to be paid before damages recovered 33
Section 280B of the 1998 Act extends to a claim for damages that 34
is pending immediately before the commencement of that section 35
Page 7
Workers Compensation Legislation Amendment Bill 2010
Schedule 1 Amendment of Workers Compensation Act 1987 No 70
(but does not apply to a claim finally determined or settled before 1
that commencement). 2
7 Appeal against medical assessment 3
An amendment made by the 2010 amending Act to section 327 4
or 328 of the 1998 Act extends to a medical assessment made 5
before the commencement of the amendment (including an 6
appeal made before that commencement) but not so as to affect 7
any decision of a court, the Registrar or an Appeal Panel made 8
before the commencement of the amendment. 9
8 Appeal against decision of Commission constituted by Arbitrator 10
(1) An amendment made by the 2010 amending Act to section 352 11
of the 1998 Act does not apply to an appeal when the decision 12
appealed against is a decision made before the commencement of 13
the amendment, except as provided by subclause (2). 14
(2) Section 352 (5A) of the 1998 Act is for the removal of doubt and 15
extends to appeals pending on the commencement of that 16
provision. 17
9 Adjustment of maximum interim medical expenses payment and 18
appeal threshold 19
For the purposes of the operation of Division 6 (Indexation of 20
certain amounts) of Part 3 of the 1987 Act in relation to an 21
adjustable amount in section 297 (2) or 352 (3) of the 1998 Act, 22
1 October 2010 is not an adjustment date and the first adjustment 23
date is 1 April 2011. Accordingly, the first adjustment under that 24
Division of those adjustable amounts is to be the adjustment 25
provided for under that Division on and from 1 April 2011. 26
10 Coal miners 27
(1) The amendments made by the 2010 amending Act do not apply 28
to or in respect of coal miners, and this Act and the 1998 Act (and 29
the regulations under those Acts) apply to and in respect of coal 30
miners as if those amendments had not been enacted. 31
(2) In this clause, coal miner means a worker employed in or about 32
a mine. 33
[26] Schedule 6, Part 20 34
Insert at the end of clause 1 (1): 35
Workers Compensation Legislation Amendment Act 2010 36
Page 8
Workers Compensation Legislation Amendment Bill 2010
Amendment of Workplace Injury Management and Workers Compensation Schedule 2
Act 1998 No 86
Schedule 2 Amendment of Workplace Injury 1
Management and Workers 2
Compensation Act 1998 No 86 3
[1] Section 23 Specific functions 4
Omit "accredited rehabilitation providers" from section 23 (1) (e). 5
Insert instead "approved rehabilitation providers". 6
[2] Section 52 Workplace rehabilitation 7
Omit section 52 (4) (c). Insert instead: 8
(c) may provide for the approval of providers of rehabilitation 9
services for the purposes of return-to-work programs and 10
may require employers to use the services of approved 11
providers in connection with the program, and 12
[3] Section 64 Notice of incapacity, medical etc treatment and damage to 13
property 14
Omit "occupational" from section 64 (1) (b). Insert instead "workplace". 15
[4] Section 65 Making a claim for compensation 16
Omit "occupational" from section 65 (20). Insert instead "workplace". 17
[5] Section 257 Notice of incapacity, medical etc treatment and damage to 18
property 19
Omit "occupational" from section 257 (1) (b). Insert instead "workplace". 20
[6] Section 260 How a claim is made 21
Omit "occupational" from section 260 (3). Insert instead "workplace". 22
[7] Section 270 Obligations of worker to provide authorisations and medical 23
evidence 24
Omit "occupational" from section 270 (1) (b). Insert instead "workplace". 25
[8] Section 280B 26
Insert after section 280A: 27
280B Lump sum compensation to be paid before damages recovered 28
(1) An injured worker cannot recover damages in respect of an injury 29
from the employer liable to pay compensation under this Act in 30
respect of the injury unless and until any permanent impairment 31
Page 9
Workers Compensation Legislation Amendment Bill 2010
Schedule 2 Amendment of Workplace Injury Management and Workers Compensation
Act 1998 No 86
compensation and pain and suffering compensation to which the 1
worker is entitled in respect of the injury has been paid. 2
(2) This section does not prevent a claim for damages from being 3
made before any permanent impairment compensation and pain 4
and suffering compensation to which the worker is entitled in 5
respect of the injury has been paid. 6
Note. This section ensures that an injured worker receives the 7
compensation to which the worker is entitled before damages are 8
recovered (because section 151A of the 1987 Act would prevent the 9
payment of compensation after damages are recovered). 10
[9] Section 289 Restrictions as to when dispute can be referred to 11
Commission 12
Insert after section 289 (2): 13
(2A) Subsection (2) does not prevent the referral to the Commission of 14
a dispute about whether any proposed treatment or service is 15
reasonably necessary as a result of an injury. 16
Note. Section 60 of the 1987 Act provides for such a dispute to be 17
referred to the Commission. 18
[10] Section 297 Directions for interim payment of weekly payments or 19
medical expenses compensation 20
Insert after section 297 (2): 21
Note. The amount of $7,500 is subject to adjustment under Division 6 of 22
Part 3 of the 1987 Act. 23
[11] Section 320 Appointment of approved medical specialists 24
Insert after section 320 (2): 25
(2A) One or more approved medical specialists may be appointed as a 26
senior approved medical specialist, either by the instrument of 27
appointment of the approved medical specialist or by a later 28
instrument executed by the President. 29
[12] Section 327 Appeal against medical assessment 30
Omit section 327 (3) (b). Insert instead: 31
(b) availability of additional relevant information (but only if 32
the additional information was not available to, and could 33
not reasonably have been obtained by, the appellant before 34
the medical assessment appealed against), 35
Page 10
Workers Compensation Legislation Amendment Bill 2010
Amendment of Workplace Injury Management and Workers Compensation Schedule 2
Act 1998 No 86
[13] Section 327 (6) 1
Omit the subsection. Insert instead: 2
(6) The Registrar may refer a medical assessment for further 3
assessment under section 329 as an alternative to an appeal 4
against the assessment (but only if the matter could otherwise 5
have proceeded on appeal under this section). 6
Note. Section 329 also allows the Registrar to refer a medical 7
assessment back to the approved medical specialist for reconsideration 8
(whether or not the medical assessment could be appealed under this 9
section). 10
[14] Section 328 Procedure on appeal 11
Omit section 328 (2) and (3). Insert instead: 12
(2) The appeal is to be by way of review of the original medical 13
assessment but the review is limited to the grounds of appeal on 14
which the appeal is made. The WorkCover Guidelines can 15
provide for the procedure on an appeal. 16
(3) Evidence that is fresh evidence or evidence in addition to or in 17
substitution for the evidence received in relation to the medical 18
assessment appealed against may not be given on an appeal 19
unless the evidence was not available to the appellant before that 20
medical assessment and could not reasonably have been obtained 21
by the appellant before that medical assessment. 22
[15] Section 352 Appeal against decision of Commission constituted by 23
Arbitrator 24
Omit section 352 (1)(3). Insert instead: 25
(1) A party to a dispute in connection with a claim for compensation 26
may appeal to the Commission constituted by a Presidential 27
member against a decision in respect of the dispute by the 28
Commission constituted by an Arbitrator. 29
(2) An appeal is to be made by application to the Registrar. The 30
appeal is not to proceed unless the Registrar is satisfied that the 31
procedural requirements of this section and any applicable Rules 32
and regulations as to the making of an appeal have been complied 33
with. The Registrar is not required to be satisfied as to the 34
substance of the appeal. 35
(3) There is no appeal under this section unless the amount of 36
compensation at issue on the appeal is at least $7,500 (or such 37
other amount as may be prescribed by the regulations). If the 38
amount of $7,500 is adjusted by the operation of Division 6 of 39
Page 11
Workers Compensation Legislation Amendment Bill 2010
Schedule 2 Amendment of Workplace Injury Management and Workers Compensation
Act 1998 No 86
Part 3 of the 1987 Act, the adjustment does not apply to an appeal 1
lodged before the adjustment takes effect. 2
(3A) There is no appeal under this section against an interlocutory 3
decision except with the leave of the Commission. The 4
Commission is not to grant leave unless of the opinion that 5
determining the appeal is necessary or desirable for the proper 6
and effective determination of the dispute. 7
[16] Section 352 (5) and (5A) 8
Omit section 352 (5). Insert instead: 9
(5) An appeal under this section is limited to a determination of 10
whether the decision appealed against was or was not affected by 11
any error of fact, law or discretion, and to the correction of any 12
such error. The appeal is not a review or new hearing. 13
(5A) An appeal under this section stays the operation of the decision 14
appealed against pending the determination of the appeal. 15
However, an appeal does not stay or otherwise affect the 16
operation of a decision as to weekly payments of compensation 17
and weekly payments of compensation remain payable despite 18
any appeal. 19
[17] Section 352 (6) 20
Insert "The Commission is not to grant leave unless satisfied that the evidence 21
concerned was not available to the appellant, and could not reasonably have 22
been obtained by the appellant, before the proceedings concerned or that 23
failure to grant leave would cause substantial injustice in the case." at the end 24
of the subsection. 25
[18] Section 352 (8) 26
Omit ", but does not include any award, order, determination, ruling or 27
direction of an interlocutory nature prescribed by the regulations". 28
[19] Section 378 29
Omit the section. Insert instead: 30
378 Reconsideration of decisions of Registrar or Appeal Panel 31
(1) The Registrar or an Appeal Panel may reconsider any matter that 32
has been dealt with by the Registrar or an Appeal Panel, 33
respectively, and rescind, alter or amend any decision previously 34
made or given. 35
Page 12
Workers Compensation Legislation Amendment Bill 2010
Amendment of Workplace Injury Management and Workers Compensation Schedule 2
Act 1998 No 86
(2) Without limiting subsection (1), if the Registrar is satisfied that 1
there is an obvious error in the text of a decision, the Registrar 2
may alter the text of the decision to correct the error. 3
(3) Without limiting subsection (1), if an Appeal Panel is satisfied 4
that its decision or any medical assessment certificate it has 5
issued contains an obvious error, the Appeal Panel concerned 6
may correct that error and, if necessary, issue a replacement 7
medical assessment certificate (which is to prevail over any 8
previous certificate). 9
(4) The reconsideration of a matter that is in response to an 10
application for reconsideration must be completed within 11
2 months after the application is received. 12
(5) This section does not affect any other power under this Act or the 13
1987 Act to review or amend a decision. 14
Page 13
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