(a) where the Medical Assessment Panel 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 Authority 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 Assessment Panel, 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 Authority has found that the person
was a worker in such occupation,
be entitled to an award from the Authority,
and to receive compensation at the prescribed rates from the Fund,
(b) where
the Medical Assessment Panel 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 Authority 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 Assessment Panel, 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 Authority has found that the person
was a worker in such occupation,
be entitled to an award from the Authority,
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 Authority 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
(i) the Medical Assessment Panel 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 Assessment Panel
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 Assessment Panel 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
(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 Assessment Panel 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
Authority 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 Authority and to receive compensation
at the prescribed rates from the Fund, be entitled under this paragraph to an
award from the Authority and to receive compensation at the prescribed rates
from the Fund--
Provided that the Authority 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 Assessment Panel in accordance with a request of
the Authority or the Silicosis Committee made to the person after the last
examination of the person made by the Medical Assessment Panel before the
person's death.
(1A) The Authority is to decide whether to accept or refuse a
claim for compensation within 2 working days after--
(b)
the Authority is provided with the information required by the Authority to
enable the claim to be determined,
whichever is the later.
(1AA) However any
decision by the Authority made after that 2-day period in respect of the claim
is not invalid merely because of when it is made.
(2) The prescribed rates of
compensation payable under an award of the Authority 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,
(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 Assessment Panel, 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 Assessment Panel 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 Assessment Panel
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 Authority is to pay
from the Fund the reasonable expenses of a deceased person's funeral not
exceeding the sum prescribed by or under section 26 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
Authority 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--
(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 Authority under subsection (1)
(b), the prescribed rates of compensation payable shall be--
(B) during the period of 12
months (the
"second 12 months" ) that starts at the end of the first 12 months--the amount
of $291,040, or
(C) after the end of the second 12 months--the amount of
$311,050, and
(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.
Editorial 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 Authority to be
reasonable and proportionate to the injury to that person.
(d1) The
prescribed rate of compensation payable to a dependent person under paragraph
(b) (i) is to be calculated by reference to the prescribed rate in force at
the time of the worker's death.
(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 Authority 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 Authority 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 Authority, 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--
(ii) where the worker did not leave a
surviving spouse or where the Authority otherwise orders under subparagraph
(i), be paid to such person or institution as the Authority may direct.
Where
the Authority 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 Authority, 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
Authority in such manner as the Authority thinks fit for the benefit of that
person,
(ii) where the Authority 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 Authority.
(2E)
(a) At the request of a dependent
person referred to in subsection (2B) (a) (i), the Authority 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 Authority 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 (in the application of section 55 the
review of weekly payments shall be made by the Authority 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 specified in subsection (2B) (b) (i) shall be deemed to
be included in section 81 (1)),
Editorial 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 Authority, on the report of the Medical Assessment Panel,
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 Authority, on the report of
the Medical Assessment Panel, is satisfied did materially contribute to such
person's disablement or death.
(3B) Where the Authority 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 Authority may order
that the person's disablement shall be treated as total disablement and the
Authority 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 Authority
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
Authority as the equivalent of such weekly payments. The Authority 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 Authority 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 Authority--
(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 Assessment Panel, 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 Authority 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 Authority 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 Authority.
(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 Authority or, if the
Authority, subject to subsection (8), determines that those payments should be
payable as from an earlier date, as from that earlier date.
(8) The Authority
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[#93] 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--
(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.
