New South Wales Consolidated Acts

WORKERS' COMPENSATION (DUST DISEASES) ACT 1942 - SECT 8

8 Certificate of medical authority and rates of compensation

(1) Subject to this Act:

(a) where the medical authority certifies that a person is totally or partially disabled for work from a dust disease and that the person’s disablement was reasonably attributable to the person’s exposure to the inhalation of dust in an occupation to the nature of which the disease was due, such person shall, if the board finds:

(i) that such person was a worker during the whole of the time the person was engaged in such occupation, or

(ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the medical authority, further finds that the person’s disablement was reasonably attributable to the person’s exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation,

be entitled to an award from the board, and to receive compensation at the prescribed rates from the Fund,

(b) where the medical authority certifies that a person died from a dust disease and that the person’s death was reasonably attributable to the person’s exposure to the inhalation of dust in an occupation to the nature of which the disease was due, the dependants of such person shall, if the board finds:

(i) that such person was a worker during the whole of the time the person was engaged in such occupation, or

(ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the medical authority, further finds that the person’s death was reasonably attributable to the person’s exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation,

be entitled to an award from the board, and to receive compensation at the prescribed rates from the Fund,

(c) where a person dies and:

(i) immediately before the person’s death the person was receiving, or was entitled under an award of the board or of the Silicosis Committee to receive, continuing payments of compensation at the prescribed rates from the Fund in respect of the person’s disablement for work from a dust disease, or

(ii)

(a) the person had before the person’s death applied to the board or to the Silicosis Committee for compensation under the provisions of this Act or to be examined by the medical authority and:

(i) the medical authority had before the person’s death examined such person and certified either before or after the person’s death pursuant to the last examination of such person made by the medical authority before the person’s death that such person was at the time of that examination totally or partially disabled for work from a dust disease and that the person’s disablement was reasonably attributable to the person’s exposure to the inhalation of dust in an occupation to the nature of which the disease was due, or

(ii) the medical authority had not before the person’s death examined such person pursuant to such application but after the person’s death certifies that such person was immediately before the person’s death totally or partially disabled for work from a dust disease and that the person’s disablement was reasonably attributable to the person’s exposure to the inhalation of dust in an occupation to the nature of which the disease was due, and

(b) the board finds:

(i) that such person was a worker during the whole of the time the person was engaged in such occupation, or

(ii) that such person was a worker during only part of the time the person was engaged in such occupation, and the medical authority further certifies that the person’s disablement was reasonably attributable to the person’s exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation,

the dependants of such person shall, if they are not entitled under paragraph (b) of this subsection to an award from the board and to receive compensation at the prescribed rates from the Fund, be entitled under this paragraph to an award from the board and to receive compensation at the prescribed rates from the Fund:
Provided that the board may refuse to make an award in favour of and to pay to the dependants of a person referred to in subparagraph (i) of paragraph (a) of subparagraph (ii) of this paragraph the whole or any part of the compensation to which such dependants would, but for this proviso, be entitled under the provisions of this Act if that person before the person’s death refused, neglected or failed, without reasonable cause, to submit for examination by the medical authority in accordance with a request of the board or the Silicosis Committee made to the person after the last examination of the person made by the medical authority before the person’s death.

(2) The prescribed rates of compensation payable under an award of the board made pursuant to subsection (1), not being an award to which subsection (2B) applies, shall, subject to this section, be:

(a) where the award is made pursuant to paragraph (a) of that subsection-the weekly compensation payments prescribed by Division 2 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers employed in or about a mine,

(b) where the award is made pursuant to paragraph (b) of that subsection-the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award,

(c) where the award is made pursuant to paragraph (c) of that subsection and the disablement for work from the dust disease was:

(i) total-the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award,

(ii) partial-such percentage of the compensation payments that would have been payable under subparagraph (i) had the disablement been total as is equal to the percentage of the person’s disablement for work from the dust disease as certified by the medical authority, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (i) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), at the last examination of the person made by the medical authority before the person’s death or, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (ii) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), in the certificate issued by the medical authority pursuant to subparagraph (ii) of the said paragraph (a),

(d) where medical or related treatment or hospital treatment or occupational rehabilitation service or ambulance service becomes reasonably necessary as a result of the dust disease-the benefits prescribed by Division 3 of Part 3 of the Principal Act.

All compensation payments authorised to be made under this Act shall be made from the Fund established by section 6.

(2A) The board is to pay from the Fund the reasonable expenses of a deceased person’s funeral not exceeding the sum prescribed by or under section 27 of the Principal Act, but only if:

(a) the person had dependants and those dependants are entitled to an award under subsection (1), or

(b) the person had no dependants, but any dependants of the person (had they existed) would have been entitled to an award under subsection (1).

(2AA) If a person dies with dependants, being a child or children of the person, to whom no award may be made under subsection (2B) but who are entitled to an award made under subsection (1), the prescribed rate of compensation payable under any such award is as specified in subsection (2).

(2B)

(a) This subsection applies to every award of the board made, after the commencement of Part 2 of the Workers’ Compensation (Dust Diseases) Amendment Act 1967 , pursuant to subsection (1) (b) or (c) in respect of the death before or after that commencement of a person (in this subsection and in subsections (2C) and (2D) referred to as "the worker") upon whom there was dependent for support, immediately before the worker’s death, the following and no other person or persons:

(i) a prescribed relative of the worker, or

(ii) a surviving spouse and a child or children of the worker.

(b) Where the dependent person referred to in paragraph (a) (i) was wholly dependent for support on the worker and an award to which this subsection applies is made by the board under subsection (1) (b), the prescribed rates of compensation payable shall be:

(i) the sum of $141,250,

(ii) in the case of a surviving spouse-a weekly payment of $137.30 per week, to continue until the marriage or death, whichever event first occurs, of that person, and

(iii) in the case of a surviving spouse and subject to paragraph (ba)-a weekly payment of $69.40 per week in respect of each child who was wholly or partly dependent on the worker for support, to continue until the death of that child.

Note: For notices pursuant to sec 8 (2B) (b), see the Historical notes at the end of this Act.

(ba) The payment referred to in paragraph (b) (iii) shall not be made in respect of a child who has attained, or attains, the age of 16 years unless the child is under the age of 21 years and is receiving full-time education at a school, college or university.

(bb) The payment referred to in paragraph (b) (ii) is not to be made to a person during any period when the person lives with another person on a permanent and bona fide domestic basis, although not legally married to that other person.

(c) Where the dependent person referred to in paragraph (a) (i) was wholly dependent for support on the worker and an award to which this subsection applies is made pursuant to subsection (1) (c), the prescribed rates of compensation payable shall be:

(i) where the disablement for work from the disease was total, the compensation payments prescribed by paragraph (b), or

(ii) where the disablement for work from the disease was partial, a percentage of the compensation payments prescribed by paragraph (b), such percentage being calculated in accordance with the provisions, mutatis mutandis, of subsection (2) (c) (ii).

(d) Where the dependent person referred to in paragraph (a) (i) was partially dependent on the worker for support the prescribed rate of compensation payable shall be such payments, not exceeding in any case the amount that would have been payable as compensation under the award had that person been wholly dependent on the worker for support, as may be determined by the board to be reasonable and proportionate to the injury to that person.

(e) In subsections (2B), (2C) and (2D), a reference to a child of a worker includes a reference to a stepchild of the worker and a child to whom the worker stood in loco parentis.

(2C)

(a) The board may, of its own motion, and shall, on the application of a person who is, or at any time was, entitled under any award made pursuant to this Act before the commencement of Part 2 of the Workers’ Compensation (Dust Diseases) Amendment Act 1967 , or pursuant to any scheme made under the Workers’ Compensation (Silicosis) Act 1920 , to compensation in respect of the death of another person, order that compensation in respect of such death shall be payable under that award in accordance with the provisions of this subsection.

(b) Where the board makes an order under paragraph (a) in respect of an award referred to in that paragraph, there shall be payable under that award in addition to any other amounts paid or payable thereunder, such compensation as would have been payable by virtue of subsection (2B) if:

(i) the award had been made after the commencement of Part 2 of the Workers’ Compensation (Dust Diseases) Amendment Act 1967 , and

(ii) that subsection had been amended by the omission therefrom of subparagraphs (i) and (iii) of paragraph (b) and the word “and” in subparagraph (ii) of that paragraph.

(c) Compensation payable under an award pursuant to paragraph (b) shall be payable as from such date, not earlier than the commencement of Part 2 of the Workers’ Compensation (Dust Diseases) Amendment Act 1967 , as the board, in its discretion, may specify in its order made under this subsection or subsequently determine.

(2D)

(a) The provisions of section 85 of the Principal Act shall not apply to or in respect of compensation payable under subsection (2B) or (2C).

(b) All weekly compensation prescribed by subsection (2B) or (2C) as payable in respect of a child of a worker shall:

(i) where the worker left a surviving spouse, be paid to such surviving spouse unless the board otherwise orders,

(ii) where the worker did not leave a surviving spouse or where the board otherwise orders under subparagraph (i), be paid to such person or institution as the board may direct.

Where the board makes an order under this paragraph the compensation shall be paid in accordance with the terms of such order.

(c) All weekly compensation payable under subsection (2B) or (2C), other than compensation referred to in paragraph (b), shall be paid to the person entitled (otherwise than as a child of the worker) to compensation under the award.

(d) All compensation payable under subsection (2B) or (2C), other than weekly compensation, shall:

(i) where the board, being of opinion that by reason of the age or health of the person entitled to such compensation or any disability to which that person may be subject or for any other reason it would be in that person’s best interests that the compensation be paid in accordance with this subparagraph, so orders, be invested, applied or otherwise dealt with by the board in such manner as the board thinks fit for the benefit of that person,

(ii) where the board does not make an order under subparagraph (i), be paid to the person entitled to such compensation, in one or more lump sums determined by the board.

(2E)

(a) At the request of a dependent person referred to in subsection (2B) (a) (i), the board may, if it considers it to be in the best interests of that person so to do, redeem a liability to make weekly payments of compensation to that person by an award of a lump sum as compensation.

(b) The board shall not, under paragraph (a), redeem a liability by awarding a lump sum of an amount that, when added to the total amount payable to the dependent person in pursuance of this Act by way of:

(i) weekly payments in respect of the period commencing on the date of death of the worker upon whom that person was dependent and ending on the date of the redemption, or

(ii) any other lump sum,

or both, would exceed the amount of the lump sum that would have been payable to a surviving spouse of the worker under Division 1 of Part 3 of the Principal Act at the time of the death of the worker.

(c) Subsection (2D) (d) applies to and in respect of a lump sum awarded under this subsection in the same way as it applies to and in respect of compensation referred to in that paragraph.

(2F) The amendments made to this section by Schedule 10 to the Workers Compensation (Benefits) Amendment Act 1989 apply:

(a) in the case of the amendments made to subsections (2B) (b) (i) and (3) (d), only in respect of the death of a person occurring on or after 1 July 1989, or

(b) in any other case, in respect of compensation that becomes payable on or after 1 July 1989 (whether the claim concerned arose before or after that date).

(2G) The amendments made to this section by the Workers Compensation Legislation (Amendment) Act 1992 apply:

(a) in the case of amendments made to subsections (2B) (b) (i) and (3) (d)-only in respect of the death of a person occurring on or after 1 July 1992, or

(b) in any other case-in respect of compensation that becomes payable on or after 1 July 1992 (whether the claim concerned arose before or after that date).

On and from 1 July 1992 (and until the next adjustment of the amounts under subsection (3) (d)), the amount specified in subsections (2B) (b) (i) and (3) (d) is taken to be $145,500, the amount specified in subsection (2B) (b) (ii) is taken to be $141.40 and the amount specified in subsection (2B) (b) (iii) is taken to be $71.50.

(3) Except as otherwise provided under this Act, the following provisions of the Principal Act (with such modifications as may be necessary or as may be prescribed by the regulations) apply to awards referred to in subsection (2) or (2B):

(a) Division 1 of Part 3, as applied under Schedule 6 to that Act in the case of deaths occurring before the commencement of that Division,

(b) Division 2 of Part 3 (except sections 51, 52, 52A and 52B), as applied under Schedule 6 to that Act in the case of weekly payments to coal miners (in the application of section 55 the review of weekly payments shall be made by the board and may be made on its own motion in addition to being made on request, but despite clause 4 of Part 4 of Schedule 6, sections 35 and 37 apply without modification),

(c) Division 3 of Part 3,

(d) Division 6 of Part 3 (in the application of that Division the amounts referred to in subsection (2B) (b) shall be adjustable amounts and the amount of $141,250 shall be deemed to be included in section 81 (1)),

Note: For notices pursuant to sec 8 (3) (d), see the Historical notes at the end of this Act.

(e) any other provision prescribed by the regulations.

(3A) In the application to any award of the provisions of the Principal Act and the 1998 Act, the injury to the person who is or whose dependants are entitled to the award shall be deemed to have happened at the time when that person was last employed as a worker in an occupation to the nature of which the disease contracted by him was due:
Provided that if the board, on the report of the medical authority, is satisfied that such person’s employment in such occupation did not materially contribute to the person’s disablement or death it may, for the purposes of this subsection, disregard that employment and have regard to the last previous employment of such person which the board, on the report of the medical authority, is satisfied did materially contribute to such person’s disablement or death.

(3B) Where the board is satisfied that a person who pursuant to this Act is receiving or entitled to receive weekly payments of compensation under an award in respect of the person’s partial disablement for work from a dust disease has taken all reasonable steps to obtain, and has failed to obtain employment of a kind suited to a person so partially disabled, and that the person’s failure to obtain such employment is a consequence, wholly or mainly, of such disablement the board may order that the person’s disablement shall be treated as total disablement and the board may at any time rescind any such order.
While such an order remains in force the compensation payable under the award shall be that which would have been payable thereunder had the disablement from the disease been total.

(4) The requirements of the Principal Act and the 1998 Act as to the giving of notice of or relating to injury and as to the making of claims for compensation apply (subject to the regulations) to the giving of any such notice and the making of any such claims under this Act, except that notices are to be given to, and claims made on, the board instead of to or on the employer.

(5A) The regulations under the Principal Act or the 1998 Act may require a policy of insurance under that Act to contain provisions in respect of the employer’s liability independently of that Act for an injury (being a dust disease) to a worker under this Act.

(6)

(a) Any person claiming or receiving, in respect of the person’s disablement for work from a dust disease, or the death from a dust disease of any other person, compensation under this Act shall not be entitled to claim or receive, in respect of that part of the person’s disablement for work from the disease in respect of which the person is claiming or receiving compensation under this Act, or in respect of the death from the disease of such other person, as the case may be, compensation under the Principal Act or under any other Act (in this subsection referred to as "compensation Act") in force in New South Wales for the time being relating to compensation to workmen or workers in respect of injuries received, disablement or industrial diseases.

(b) Where, but for this paragraph, compensation would be payable under this Act as well as under the Principal Act or any compensation Act in respect of the death of any person and the compensation payable under the Principal Act or under the said compensation Act, as the case may be, in respect of such death:

(i) would be of the same or of a lesser amount than the compensation payable under this Act in respect of such death, no compensation shall be payable under the Principal Act or under the said compensation Act, as the case may be, in respect of such death, or

(ii) would exceed the compensation payable under this Act in respect of such death, the compensation payable under the Principal Act or under the said compensation Act, as the case may be, in respect of such death shall be reduced by the amount of compensation payable under this Act in respect of such death.

For the purposes of this paragraph the amount of any weekly payments prescribed by this Act as compensation payable in respect of the death of a person (not being payments in respect of a child or stepchild of such person or a child to whom the person stood in loco parentis) shall be deemed to be a capital sum the amount of which shall be assessed by the board as the equivalent of such weekly payments. The board shall make such an assessment on the application of a person required to pay compensation under the Principal Act or a compensation Act in respect of that death and, for that purpose, may act upon or take into account such actuarial or other advice or information as it may think fit.

(c) Where the sum of:

(i) the amount per week payable to any person under this Act in respect of the person’s disablement for work from a dust disease, and

(ii) the amount per week payable to such person under the Principal Act or under any compensation Act, in respect of injuries received by him, the person’s disablement or industrial diseases contracted by him,

would, but for this paragraph, exceed:

(iii) the amount of the weekly payments that would be payable to such person if the person were receiving weekly payments under this Act in respect of the person’s total disablement for work from the disease, or

(iv) the amount of the weekly payments that would be payable to such person if the person were receiving weekly payments under the Principal Act or under the said compensation Act, as the case may be in respect of the person’s total incapacity for work from injury, disablement or industrial diseases,

whichever is the greater, then the weekly payments of compensation that would, but for this paragraph, be payable to such person under the Principal Act or under the said compensation Act shall be reduced by an amount equal to the difference between:

(v) the sum of the amounts referred to in subparagraphs (i) and (ii), and

(vi) the amount of the weekly payments referred to in subparagraph (iii) or (iv), whichever is the greater.

(6A) Where the board makes an award under this section in respect of the total or partial disablement for work of a person from a dust disease, or the death of a person from a dust disease, or the death of a person totally or partially disabled for work from a dust disease, and the board:

(a) has found that such person was a worker during only part of the time the person was engaged in an occupation to the nature of which the disease was due, and

(b) is of the opinion, on the report of the medical authority, that the disablement of that person from the disease (if the award was not made in respect of the person’s death from the disease) or the person’s death from the disease (if the award was so made) was to a substantial extent attributable to the person’s having been exposed to the inhalation of dust during such time as the person was engaged in that occupation otherwise than as a worker,

the board shall by the terms of that award fix the rate of compensation to be paid thereunder at such rate, being a lesser rate than would otherwise have been payable under the award in accordance with the terms of this section, as the board considers to be appropriate having regard to the extent or likely extent to which the person’s disablement or death was attributable to the person’s having been so exposed to the inhalation of dust, and the prescribed rate of compensation payable under the award shall in such case be the rate of compensation as so fixed by the board.

(7) Weekly compensation payments under an award made pursuant to subsection (1) (a) shall be payable as from the date when the application for compensation is received by the board or, if the board, subject to subsection (8), determines that those payments should be payable as from an earlier date, as from that earlier date.

(8) The board shall not, under subsection (7), determine a date earlier than 29th February 1968, or earlier than the date of disablement of the worker in respect of whom the application for compensation is made.

(9) In this section:
"prescribed relative" of a person means:

(a) where the person died before the commencement of Schedule 6 [12] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 -a surviving spouse of the person, or

(b) where the person dies after that commencement:

(i) a surviving spouse of the person, or

(ii) if there is no surviving spouse of the person-a father, mother, grandfather, grandmother, step-father, step-mother, grandson, granddaughter, brother, sister, half-brother or half-sister of the person.