New South Wales Consolidated Acts

WORKERS COMPENSATION ACT 1987

- As at 22 August 2008
- Act 70 of 1987

TABLE OF PROVISIONS

           Long Title

   PART 1 - PRELIMINARY

   1.      Name of Act
   2.      Commencement
   2A.     Relationship to Workplace Injury Management and Workers Compensation Act 1998
   3.      Definitions
   4.      Definition of “injury”
   4A.     Directors of uninsured employer not entitled to compensation
   5.      (Repealed)
   6.      Act binds Crown
   7.      Certain Acts not affected
   7A.     Application of Act in respect of coal industry
   8.      (Repealed)

   PART 2 - COMPENSATION-LIABILITY

   9.      Liability of employers for injuries received by workers-general
   9AA.    Liability for compensation
   9AB.    Recognition of determination of State of connection in another State
   9AC.    Person not to be compensated twice
   9A.     No compensation payable unless employment substantial contributing factor to injury
   10.     Journey claims
   11.     Recess claims
   11A.    No compensation for psychological injury caused by reasonable actions of employer
   12.     Claims by trade union representatives
   13.     (Repealed)
   14.     Conduct of worker etc
   15.     Diseases of gradual process-employer liable, date of injury etc
   16.     Aggravation etc of diseases-employer liable, date of injury etc
   17.     Loss of hearing-special provisions
   18.     Special insurance provisions relating to occupational diseases
   19.     Diseases deemed work related
   20.     Principal liable to pay compensation to workers employed by contractors in certain cases
   21.     (Repealed)
   22.     Compensation to be apportioned where more than one injury
   22A.    Further provisions concerning apportionment of liability under section 22
   22B.    Determination as to which injury gave rise to compensation liability
   22C.    Certain injuries not to be dealt with under sections 15 and 16
   23.     Age or residence not relevant to liability
   24.     Illegal employment

   PART 3 - COMPENSATION-BENEFITS

           Division 1 - Compensation payable on death

   25.     Death of worker leaving dependants
   26.     Death of worker leaving partial dependants
   27.     Death of worker leaving no dependants-funeral expenses
   27A.    Death of worker leaving dependants or partial dependants-funeral expenses
   28.     Expenses of transporting body
   29.     Apportionment of payments between dependants
   30.     Review of apportionment among dependants
   31.     Payment in respect of dependent children
   32.     Payment where no dependants

           Division 2 - Weekly compensation by way of income support

   33.     Weekly compensation during total or partial incapacity for work
   34.     Definition of first 26 weeks of incapacity
   35.     Maximum weekly payment
   36.     Weekly payment during total incapacity-first 26 weeks
   37.     Weekly payment during total incapacity-after first 26 weeks
   38.     Partially incapacitated workers not suitably employed-special initial payments while seeking employment
   38A.    Determination of whether worker seeking suitable employment
   39.     Incapacity treated as total-“odd-lot” rule
   40.     Weekly payments during partial incapacity-general
   40A.    Assessment of incapacitated worker’s ability to earn
   41.     Incapacity for period less than 1 week
   42.     Current weekly wage rate
   43.     Computation of average weekly earnings
   43A.    Suitable employment
   44.     Incapacitated worker reaching 21 years of age-special provision
   45.     Reduction of weekly payments to qualify for other benefits
   46.     Reduction of weekly payments to prevent dual benefits
   47.     Incapacity deemed to exist in certain cases
   48.     Compensation payable despite existing incapacity
   49.     Weekly compensation payable despite holiday pay etc
   50.     Weekly compensation and sick leave
   51.     (Repealed)
   52.     Termination of weekly payments on retiring age
   52A.    Discontinuation of weekly payments for partial incapacity after 2 years
   52B.    (Repealed)
   53.     Weekly payments-residence outside the Commonwealth
   54.     Notice required before termination or reduction of payment of weekly compensation
   55.     Review of weekly payments
   55A.    Award of compensation may be for fixed period
   56.     Award of compensation may be subject to supply of medical certificates etc
   57.     Worker to notify return to work etc with other employer
   58.     Refund of weekly payments paid after return to work etc

           Division 3 - Compensation for medical, hospital and rehabilitation expenses etc

   59.     Definitions
   60.     Compensation for cost of medical or hospital treatment and rehabilitation etc
   60AA.   Compensation for domestic assistance
   60A.    Worker not liable for medical, hospital and rehabilitation charges above applicable rates
   61.     Rates applicable for medical or related treatment
   62.     Rates applicable for hospital treatment
   63.     Rates applicable for ambulance service
   63A.    Rates applicable for occupational rehabilitation services
   64.     Rates applicable for car travel associated with treatment
   64A.    Compensation for cost of interpreter services

           Division 4 - Compensation for non-economic loss

   65.     Determination of degree of permanent impairment
   65A.    Special provisions for psychological and psychiatric injury
   66.     Entitlement to compensation for permanent impairment
   66A.    Agreements for compensation
   66B.    No proceedings to enter up award on agreement for compensation
   67.     Compensation for pain and suffering
   67A.    Special provisions for HIV/AIDS
           68, 68A. (Repealed)
   68B.    Deductions for previous injuries and pre-existing conditions-operation of sections 15, 16, 17 and 22
   69.     (Repealed)
   69A.    No compensation for less than 6% hearing loss
   69B.    Employer’s responsibility to pay for hearing loss tests
           70-72A. (Repealed)
   73.     Reimbursement for costs of medical certificate and examination

           Division 5 - Compensation for property damage

   74.     Damage to artificial limbs etc
   75.     Damage to clothing
   76.     Maximum rate for damage to artificial limbs, spectacles
   77.     Maximum rate for damage to clothing
   78.     Miscellaneous provisions

           Division 6 - Indexation of amounts of benefits

   79.     Definitions
   80.     Adjustment of amounts of benefits according to award rate of pay index
   81.     Rounding off
   82.     Publication of adjusted amounts

           Division 7 - Payment of benefits

   83.     Manner of payment of compensation
   84.     Times for payment of weekly compensation
   85.     Payments to Public Trustee for benefit of beneficiary
   85A.    Payment of benefits to beneficiaries
   86.     Public Trustee’s powers of investment
   87.     Unclaimed money

           Division 8 - Reduction of benefits where additional or alternative compensation payable

   87A.    Additional or alternative compensation to which Division applies
   87B.    Reduction of compensation under this Act
   87C.    Employer etc to notify claim or payment of additional or alternative compensation

           Division 9 - Commutation of compensation

   87D.    Definition
   87E.    Compensation that may be commuted
   87EA.   Preconditions to commutation
   87F.    Commutation by agreement
   87G.    Commutation when worker legally incapacitated
   87H.    Registration of commutation agreements
   87I.    Payment
   87J.    Other commutation agreements invalid
   87K.    Commutation payment taken to be payment of compensation

   PART 4 - UNINSURED LIABILITIES
   Note
   Divisions 1A-5 - (Repealed)
   None

           Division 6 - Uninsured liabilities

   138.    Definitions
   139.    (Repealed)
   140.    Persons eligible to make claims
   141.    Making of claims
   141A.   (Repealed)
   142.    Publication of claims etc
   142A.   Nominal Insurer becomes insurer for claims
   142B.   Proceedings before Commission on claim for compensation
           143-144A. (Repealed)
   145.    Employer or insurer to reimburse Insurance Fund
   145A.   Recovery from directors of corporations liable to reimburse Insurance Fund
   146.    Commutation of weekly payments
   147.    Miscellaneous provisions
   148.    Application of other provisions of Act
   148A.   Nominal Insurer’s right of subrogation

           Division 7 - (Repealed)
           None

   PART 5 - COMMON LAW REMEDIES

           Division 1 - Preliminary

   149.    Definitions
   150.    Reference to worker’s employer includes fellow workers etc

           Division 1A - Choice of law

   150A.   The applicable substantive law for work injury claims
   150B.   Claims to which Division applies
   150C.   What constitutes injury and employment and who is employer
   150D.   Claim in respect of death included
   150E.   Meaning of “substantive law”
   150F.   Availability of action in another State not relevant

           Division 2 - Common law and other remedies generally

   151.    Common law and other liability preserved
   151A.   Effect of recovery of damages on compensation
   151B.   (Repealed)
   151C.   6-months delay before commencement of court proceedings against employer for damages
   151D.   Time limit for commencement of court proceedings against employer for damages
   151DA.  Time not to run for commencement of proceedings in certain cases

           Division 3 - Modified common law damages

   151E.   Application-modified common law damages
   151F.   General regulation of court awards
   151G.   Only damages for past and future loss of earnings may be awarded
   151H.   No damages unless permanent impairment of at least 15%
   151I.   Calculation of past and future loss of earnings
   151IA.  Retirement age
   151J.   Damages for future economic loss-discount rate
           151K, 151KA. (Repealed)
   151L.   Mitigation of damages
   151M.   Payment of interest
   151N.   Contributory negligence-generally
   151O.   Defence of voluntary assumption of risk
   151P.   Damages for psychological or psychiatric injury
   151Q.   Structured settlements
   151R.   Exemplary or punitive damages
   151S.   Court to apportion damages etc
   151T.   Costs

           Division 4 - Retrospective restoration of modified common law

   151U.   Modified common law to apply from 30 June 1987
   151V.   Election provisions not to apply
   151W.   Time limit for commencement of court proceedings extended
   151X.   Insurance policies to cover retrospective claims
   151Y.   Funding of self-insurers, government employers etc for retrospective claims

           Division 5 - Miscellaneous provisions

   151Z.   Recovery against both employer and stranger
   151AA.  Abolition of doctrine of common employment
   151AAA. Special provision for common law liabilities under pre-1995 policies
   151AB.  Special insurance provisions relating to occupational diseases
   151AC.  Further special insurance provisions relating to dust diseases

   PART 6 - (Repealed)
   None

   PART 7 - INSURANCE

           Division 1A - Provisions relating to Nominal Insurer, Insurance Fund and scheme agents

              Subdivision 1 - Nominal Insurer

   154A.   Establishment of Nominal Insurer
   154B.   Functions of Nominal Insurer
   154C.   Authority to act for Nominal Insurer

              Subdivision 2 - Insurance Fund

   154D.   Establishment and operation of Insurance Fund
   154E.   Assets of Insurance Fund
   154F.   Auditing of Insurance Fund

              Subdivision 3 - Scheme agents

   154G.   Agents of Nominal Insurer
   154H.   Authority’s functions not limited by agency arrangement
   154I.   Authority’s functions extended to scheme agents
   154J.   Refusal of insurance by scheme agents
   154K.   Ownership of records
   154L.   Remuneration of scheme agents
   154M.   Certain provisions extended to scheme agents
   154N.   Regulations

           Division 1 - Insurance policies

   155.    Compulsory insurance for employers
   155AA.  Exempt employers not required to obtain policy of insurance
   155A.   Policies to be for 12 month periods
   156.    Recovery of double premiums for contravention of insurance requirements
   156A.   Misleading conduct by insurers and insurance intermediaries
   156B.   Recovery from directors of corporation-insurance requirements
   157.    Insurers not to refuse insurance
   158.    (Repealed)
   159.    Provisions of policies of insurance
   160.    Recovery of excess from employer
   161.    Inspection of policies
   162.    Death of employer
   163.    Register to be kept by insurers
   163A.   Certificate of currency
   163B.   Issue of stop work order to uninsured employer
   164.    Employer-offences relating to policies of insurance

           Division 2 - Insurance premiums

           165-167. (Repealed)
   168.    Insurance premiums orders
   169.    Premiums to be calculated in accordance with insurance premiums order
   170.    Action by employer where premium not in accordance with insurance premiums order
   171.    Payment of premiums by instalments
   172.    Recovery of unpaid premiums
   173.    Furnishing information for calculation of premiums
   173A.   Giving false information for premium calculation
   173B.   Redetermination of premium and payment of interest
   174.    Records relating to wages, contracts etc to be kept and supplied
   174AA.  Inclusion of trust distributions as wages
   174A.   Recovery of inspection costs of Authority or insurer
   175.    Employers evading payment of correct premiums
   175A.   Recovery from directors of corporation evading payment of correct premium
   175B.   Liability of principal contractor for unpaid premiums payable by subcontractor
   175C.   Authority may make private rulings regarding workers at the request of employers

           Division 2A - Grouping of employers for insurance purposes

   175D.   Grouping of employers
   175E.   Exclusion of employers from groups
   175F.   Grounds for excluding employers from group
   175G.   Members of group to have policies with same scheme agent and common renewal date
   175H.   Joint and several liability of group members
   175I.   Registration
   175J.   Inspection of records of employers

           Division 2B - Constitution of employer groups

   175K.   Definitions
   175L.   Membership of groups
   175M.   Primary groups of corporations
   175N.   Primary groups arising from the use of common employees
   175O.   Primary groups of commonly controlled businesses
   175P.   Primary groups arising from tracing of interests in corporations
   175Q.   Grouping of government departments
   175R.   Smaller primary groups subsumed by larger groups
   175S.   Grouping provisions to operate independently

           Division 3 - Licensing of insurers

   176.    Licences to be re-granted only to existing licence holders
   177.    Applications for licences
   177A.   Special provisions for specialised insurers
   178.    Determination of application for licence
   179.    Offence-unlicensed insurers
   180.    Duration of licences
   181.    Conditions of licences
   182.    Matters that may be regulated by conditions of licences
   183.    Cancellation or suspension of licences
   183A.   Imposition of civil penalty on or censure of licensed insurer or self-insurer
   184.    Cancellation of policies following cancellation or suspension of insurer’s licence
   185.    Assignment of policies of former insurers etc
   186.    Records and evidence relating to licences
   187.    Liabilities on Commonwealth insurers-special condition
   188.    Re-insurance-special condition
   189.    Information and records as to business etc to be supplied to Authority by insurers
   190.    Notification to Authority of certain defaults in relation to insurers
   191.    Power of Supreme Court to deal with insurers or former insurers unable to meet liabilities etc
   192.    Exclusion of insurance brokers, agents or intermediaries
   192A.   Claims administration manual

           Division 4 - Regulation of insurers and miscellaneous provisions

   193.    Definitions
   194.    Directions to insurers with respect to claims procedures
           195-200. (Repealed)
   201.    Accounts and returns
   202.    Audit of accounting records of insurers
   202A.   Performance audits by Authority
           203-207. (Repealed)
   208.    Contributions by specialised insurers to Insurance Fund
   208AA.  Contributions by exiting employers
           208A, 208B. (Repealed)
   209.    Offences for contravention of this Division

           Division 5 - Self-insurers

   210.    Applications for licences
   211.    Determination of application for licence
   211A.   Endorsement of subsidiaries on self-insurer’s licence
   211B.   Government employers covered by Government managed fund scheme to be self-insurers
   212.    Provisions relating to licences
   213.    Deposit required for self-insurers and former self-insurers
   214.    Investments of deposits
   215.    Alternative method of giving security
   215A.   Guarantee as alternative to deposit
   216.    Application and refund of deposit

           Division 6 - (Repealed)
           None

           Division 6A - Defaulting insurers etc

   224A.   Definitions
   224B.   Declaration of defaulting insurers
   224C.   Insurance Fund may be applied to meet claims etc of defaulting insurers
           224D-224F. (Repealed)

           Division 7 - Insurers’ Guarantee Fund

   225.    Definitions
   226.    Insolvent insurers
   227.    Insurers’ Guarantee Fund
   228.    Contributions to Guarantee Fund
   229.    Liquidator to notify Authority of claims
   230.    Delivery of documents etc to Authority
   231.    Appointment of Authority as agent and attorney of employer and worker
   232.    Payments to employer or liquidator
   233.    (Repealed)
   234.    Application of Guarantee Fund
   235.    Recovery of amounts under contracts or arrangements for reinsurance
   236.    Payments of workers compensation when insolvent insurer dissolved
   237.    Inspection of documents etc by person authorised by Minister
   238.    Authority may take certain legal proceedings
   239.    Regulations

           Division 8 - Terrorism Re-insurance Fund

   239AA.  Definitions
   239AB.  Meaning of “act of terrorism”
   239AC.  Meaning and application of “threshold amount”
   239AD.  Minister may make declaration as to significant terrorism-related liabilities
   239AE.  Terrorism Re-insurance Fund
   239AF.  Insurers to provide Authority with information
   239AG.  Contributions to Terrorism Re-insurance Fund
   239AH.  Partial reimbursement of insurers from Terrorism Re-insurance Fund
   239AI.  Authority may offset
   239AJ.  Subrogation
   239AK.  Regulations
   239AL.  Review

   PART 7A - (Repealed)
   None

   PART 8 - PROTECTION OF INJURED WORKERS FROM DISMISSAL

   240.    Definitions
   241.    Application to employer for reinstatement of dismissed injured worker
   242.    Application to Industrial Relations Commission for reinstatement order if employer does not reinstate
   243.    Order by Industrial Relations Commission for reinstatement
   244.    Presumption as to reason for dismissal
   245.    Disputes as to fitness-medical assessment
   246.    Continuity of service of reinstated worker
   247.    Duty to inform replacement worker
   248.    Dismissal within 6 months of injury an offence
   249.    Other rights not affected
   250.    Enforcement

   PART 9 - (Repealed)
   None

   PART 10 - MISCELLANEOUS

           269-279. (Repealed)
   280.    Regulations and orders
   281.    Repeals
   282.    Savings, transitional and other provisions
           SCHEDULE 1
           SCHEDULE 2
           Schedule 4 (Repealed)
           SCHEDULE 5
           SCHEDULE 6