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PARLIAMENT OF VICTORIA
Accident Compensation (Miscellaneous
Amendment) Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985 3
3. Definition of "medical question" 3
4. Definition of "remuneration" 4
5. Amendments relating to superannuation benefits 5
5D. Superannuation benefits relating to services performed
before 1 January 1998 7
5E. Superannuation benefits not readily related to particular
workers or their periods of service 8
6. Definition of "worker" 9
7. Repeal of section 17 9
8. Sporting contestants 10
9. Functions of the Authority 11
10. Powers of the Authority 11
11. Amendments relating to jurisdiction 12
249C. Administrative Appeals Tribunal 14
12. Evidence 17
13. Certain proceedings referred for conciliation 17
14. Costs 17
15. Amendment of section 53 18
16. Procedures before Conciliation Officers 18
17. Disputes relating to weekly payments 18
18. Section 59 to apply to section 99 compensation 19
19. Certain evidence inadmissible in proceedings 20
20. Procedures and powers 20
21. Opinions on medical questions 20
22. Amendment of section 82 22
23. Entitlement to compensation 22
24. Amendment of section 89 24
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Clause Page
25. Assessment of impairment 24
26. Amendment of section 92 27
27. New sections 92A, 92B and 92C inserted 27
92A. Revised compensation for death of worker 27
92B. Weekly pensions for dependants of worker who dies 31
92C. Payment of weekly pensions 36
28. Section 93C substituted--Grandfather provision 38
93C. Sections 93A and 93B--Grandfather provision 38
29. Weekly payments 43
93CA. First entitlement period 43
93CB. After the first entitlement period and until the expiry of
the second entitlement period 45
93CC. After the expiry of the second entitlement period 48
93CD. Application to continue to receive weekly payments after
expiry of the second entitlement period 49
30. Weekly payments--consequential amendments 51
31. Injury near or after retirement 56
32. Provisions relating to the payment of compensation 56
33. Compensation for maims 57
34. Compensation for pain and suffering 57
35. Sections 98 and 98A claims--transitional 57
36. Non-economic loss compensation 59
98C. Compensation for non-economic loss 59
98D. Payment of Compensation 63
98E. No Disadvantage--Compensation Table 63
37. Consequentials relating to section 36--Non-economic loss 67
38. Section 98D substituted 68
98D. Payment of compensation 68
39. Compensation for medical and like services 71
40. Indexation 72
41. Amendment of section 100 74
42. Notice of injury 74
102. Notice of injury 74
43. Claims process for non-economic loss 75
104B. Claims for compensation under section 98C 75
44. Settlements 79
45. New section 134A inserted 79
134A. Actions for damages only in accordance with this Act 79
46. Amendment of section 135 80
47. Amendment of section 135A 80
48. New sections 135AB and 135AC inserted 89
135AB. Directions 89
135AC. Limitation of Actions Act 1958 90
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Clause Page
49. New section 135C inserted 90
135C. Damages under Part III of Wrongs Act 1958 91
50. Indemnity by third party 92
51. New section 138A inserted 93
138A. Substantive law 93
52. Contents of return to work plan 93
53. Amendment of section 179--definitions-protected claim 93
54. Warrants to enter and search 94
55. Offences 95
56. False information 95
57. Refunding money to the Authority 96
58. Institution of prosecutions 96
59. Prosecution guidelines 97
60. New section 252C inserted 97
252C. Supreme Court-limitation of jurisdiction 98
61. Spent Schedule 98
62. Supreme Court-limitation of jurisdiction-amendment of Accident
Compensation (WorkCover) Act 1992 98
63. Supreme Court-limitation of jurisdiction-amendment of
Constitution Act 1975 98
PART 3--AMENDMENT OF OTHER ACTS 100
64. Compulsory WorkCover Insurance 100
65. Rateable remuneration 100
66. Rateable remuneration--transitional 101
19. Rateable remuneration--transitional 101
67. Certificate of rateable remuneration 101
68. Warrants to enter and search 102
69. Dangerous Goods Act 1985--Guidelines 103
70. Equipment (Public Safety) Act 1994--penalties 103
71. Equipment (Public Safety) Act 1994--Guidelines 103
72. Occupational Health and Safety Act 1985--employee 103
73. Occupational Health and Safety Act 1985--penalties 104
74. Occupational Health and Safety Act 1985--Guidelines 104
75. Magistrates' Court Act 1989--penalties 104
76. Workers Compensation Act 1958 104
77. Consequential amendment 105
NOTES 106
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Clause Page
THIS PAGE IS TO BE MASKED
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PARLIAMENT OF VICTORIA
A BILL
to amend the Accident Compensation Act 1985, the Accident
Compensation (WorkCover Insurance) Act 1993, the Dangerous
Goods Act 1985, the Equipment (Public Safety) Act 1994, the
Magistrates' Court Act 1989, the Occupational Health and Safety
Act 1985 and the Workers Compensation Act 1958 and for other
purposes.
Accident Compensation (Miscellaneous
Amendment) Act 1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is--
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s. 2
Act No.
(a) to amend the Accident Compensation Act
1985 for the purpose of changing the scheme
for compensation;
(b) to abolish certain rights of action at common
5 law;
(c) to make related amendments to certain other
Acts.
2. Commencement
(1) This Part and sections 4, 7, 8, 9, 10, 12, 14, 16(2),
10 19, 20, 21, 31, 32, 39(2), 60, 61, 62, 63, 67, 70,
73, 75, 76 and 77 come into operation on the day
on which this Act receives the Royal Assent.
(2) Sections 3, 15, 22, 24, 26, 27, 28, 29, 30, 33, 34,
35, 36, 37, 43, 45, 46, 47, 48, 49, 50 and 51 are
15 deemed to have come into operation on
12 November 1997.
(3) Sections 5, 65 and 66 come into operation on
1 January 1998.
(4) Sections 6, 38 and 72 come into operation on a
20 day or days to be proclaimed.
(5) Section 25 comes into operation on a day to be
proclaimed, being a day not later than 1
September 1998.
(6) Subject to sub-section (7), the remaining
25 provisions of this Act come into operation on a
day or days to be proclaimed.
(7) If a provision referred to in sub-section (6) does
not come into operation before 1 July 1998, it
comes into operation on that day.
30 _______________
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Act No.
PART 2--AMENDMENT OF ACCIDENT COMPENSATION
ACT 1985
3. Definition of "medical question"
(1) In section 5(1) of the Accident Compensation
5 Act 1985 in the definition of "medical
question"--
(a) after paragraph (ab) insert--
"(aba) a question as to whether a worker has a
current work capacity or has no current
10 work capacity and what employment
would or would not constitute suitable
employment; or
(abb) a question as to whether a worker has
no current work capacity and is likely
15 to continue indefinitely to have no
current work capacity; or
(abc) a question as to whether a worker has a
current work capacity and because of
the injury, is, and is likely to continue
20 indefinitely to be, physically and
mentally incapable of undertaking
further or additional employment; or".
(b) in paragraph (ac) after "provided" insert ",
or to be provided,";
25 (c) for paragraphs (b) and (ba) substitute--
"(b) a question whether a worker's
employment was in fact, or could
possibly have been, a significant
contributing factor to an injury or
30 alleged injury, or to a similar injury; or
(ba) if paragraph (b) does not apply, a
question whether a worker's
employment was in fact, or could
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possibly have been, a contributing
factor to an injury or alleged injury, or
to a similar injury; or";
(d) for paragraphs (c), (d) and (e) substitute--
5 "(c) a question as to the extent to which any
physical or mental condition, including
any impairment, resulted from or was
materially contributed to by the injury;
or
10 (d) a question as to the level of impairment
of a worker including a question of the
degree of impairment of a worker
assessed in accordance with section 91
and a question as to whether or not that
15 impairment is permanent; or
(e) a question as to whether a worker has
an injury which is a total loss
mentioned in the Table to section
98E(1); or ".
20 (2) After section 5(1B) of the Accident
Compensation Act 1985 insert--
'(1C) The definition of "medical question" as
amended by section 3(1) of the Accident
Compensation (Miscellaneous
25 Amendment) Act 1997 applies in respect of
any referral lodged on or after the
commencement of that section.'.
4. Definition of "remuneration"
In section 5(1) of the Accident Compensation
30 Act 1985--
(a) after the definition of "books" insert--
' "company", for the purposes of the
definition of "remuneration", includes
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all bodies and associations (corporate
and unincorporate) and partnerships;';
(b) in the definition of "remuneration" in
paragraph (d) omit "within the meaning of
5 section 179".
5. Amendments relating to superannuation benefits
(1) In section 5(1) of the Accident Compensation
Act 1985--
(a) in the definition of "remuneration"--
10 (i) omit "or" after paragraph (m);
(ii) paragraph (n) is repealed;
(b) after the definition of "suitable employment"
insert--
' "superannuation benefit" means money
15 paid or payable by an employer in
respect of a worker--
(a) to or as a superannuation fund
within the meaning of the
Superannuation Industry
20 (Supervision) Act 1993 of the
Commonwealth; or
(b) as a superannuation guarantee
charge within the meaning of the
Superannuation Guarantee
25 (Administration) Act 1992 of the
Commonwealth; or
(c) to or as any other form of
superannuation, provident or
retirement fund or scheme
30 including--
(i) a Superannuation Holding
Accounts Reserve within the
meaning of the Small
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Superannuation Accounts
Act 1995 of the
Commonwealth; and
(ii) a retirement savings account
5 within the meaning of the
Retirement Savings
Accounts Act 1997 of the
Commonwealth; and
(iii) a wholly or partly unfunded
10 fund or scheme;';
(2) In section 5(9) of the Accident Compensation
Act 1985 after "Commonwealth" insert "(other
than deposits to a Superannuation Holding
Accounts Reserve within the meaning of the
15 Small Superannuation Accounts Act 1995 of the
Commonwealth)".
(3) After section 5(14) of the Accident
Compensation Act 1985 insert--
'(15) A reference in the definition of
20 "superannuation benefit" in sub-section (1)
to a worker includes a reference to any
person to whom, by virtue of a paragraph of
the definition of "remuneration" in sub-
section (1), an amount paid or payable in the
25 circumstances referred to in that paragraph
constitutes remuneration.
(16) For the purposes of this Act, a reference to
remuneration includes a reference to
superannuation benefits, other than those
30 paid or payable in respect of services
performed or rendered by a worker before
1 January 1998.
(17) For the purposes of this Act, a
superannuation, provident or retirement fund
35 or scheme is unfunded to the extent that
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money paid or payable by an employer in
respect of a worker covered by the fund or
scheme is not paid or payable during the
worker's period of service with the
5 employer.'.
(4) After section 5C of the Accident Compensation
Act 1985 insert--
"5D. Superannuation benefits relating to services
performed before 1 January 1998
10 (1) Money paid by an employer on or after
1 January 1998 as a superannuation benefit
that is alleged by the employer to be paid in
respect of services performed or rendered by
a worker before that day, must be evidenced
15 to the satisfaction of the Authority or
authorised insurer in the employer's records
for the calculation of premiums under the
Accident Compensation (WorkCover
Insurance) Act 1993.
20 (2) In particular, the employer's records must
show the manner of calculation of the benefit
and any actuarial basis for it.
(3) For the purposes of sub-section (2) and of
any calculation of premiums to which that
25 sub-section is material, the certificate of a
fellow or accredited member of the Institute
of Actuaries of Australia to the effect that the
actuarial basis on which an amount is
calculated is justified is evidence and, in the
30 absence of evidence to the contrary, proof of
that fact.
(4) If records are not kept as required by this
section, the Authority or authorised insurer is
entitled to assume for the purposes of the
35 calculation of premiums, that a payment of
money by an employer as a superannuation
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benefit on or after 1 January 1998 is an
amount payable in respect of services
performed or rendered by a worker on or
after that day.
5 5E. Superannuation benefits not readily related
to particular workers or their periods of
service
For the purposes of any calculation of
premiums, the Authority or authorised
10 insurer may determine--
(a) whether, and the extent to which, any
money paid or payable by an employer
to a superannuation, provident or
retirement fund or scheme that is not
15 identified by the employer as paid or
payable in respect of a particular
worker (and whether or not purporting
to be so paid or payable on any
actuarial basis) is to be regarded as a
20 superannuation benefit paid or payable
in respect of a particular worker; and
(b) subject to section 5D, the portion of
any money paid on or after 1 January
1998 by an employer as a
25 superannuation benefit to a wholly or
partly unfunded fund or scheme, being
money paid in respect of a worker (or
that is to be regarded under paragraph
(a) to have been so paid) who
30 performed or rendered services to the
employer on or after, as well as before,
1 January 1998, that is to be regarded
as having been paid in respect of
services performed or rendered before
35 that date.".
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(5) In section 6(1) of the Accident Compensation
Act 1985 after "remuneration" insert "and shall
be deemed to include any payment that would be a
superannuation benefit if made in relation to a
5 person in the capacity of an employee".
(6) In section 8(1) of the Accident Compensation
Act 1985 after "remuneration" insert "and shall
be deemed to include any payment that would be a
superannuation benefit if made in relation to a
10 person in the capacity of an employee".
(7) After section 9(2)(d) of the Accident
Compensation Act 1985 insert--
"; and
(e) an amount paid or payable for or in relation
15 to the performance of work under a relevant
contract is deemed to include any payment
made by a person who is deemed to be an
employer under a relevant contract in
relation to a person who is deemed to be a
20 worker under the relevant contract that
would be a superannuation benefit if made in
relation to a person in the capacity of an
employee.".
6. Definition of "worker"
25 In section 5(1) of the Accident Compensation
Act 1985, in the definition of "worker", at the end
of the definition insert--
"--
but does not include a person participating in an
30 approved program of work for unemployment
payment under the Commonwealth Social
Security Act 1991.".
7. Repeal of section 17
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s. 8
Act No.
Section 17 of the Accident Compensation Act
1985 is repealed.
8. Sporting contestants
(1) In section 16 of the Accident Compensation Act
5 1985--
(a) "and" after sub-section (1)(a) is repealed;
(b) sub-section (1)(b) is repealed;
(c) sub-section (2) is repealed.
(2) In section 5(1) of the Accident Compensation
10 Act 1985, in the definition of "remuneration"
before paragraph (i) insert--
"(h) remuneration paid or payable to a person
within the meaning of section 16(1) engaged
by an employer to participate as a contestant
15 in a sporting or athletic activity in respect of
the services provided by the person while the
person is--
(i) participating as a contestant in a
sporting or athletic activity; or
20 (ii) engaged in training or preparation with
a view to so participating; or
(iii) travelling between a place of residence
and the place at which the person is so
participating or so engaged;".
25 (3) After section 5A(10) of the Accident
Compensation Act 1985 insert--
"(11) For the purposes of sub-section (1), if at the
time of the relevant injury the worker is a
person within the meaning of section 16(1)
30 engaged by an employer to participate as a
contestant in a sporting or athletic activity
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s. 9
Act No.
and the relevant injury is not received while
the person is--
(a) participating as a contestant in a
sporting or athletic activity; or
5 (b) engaged in training or preparation with
a view to so participating; or
(c) travelling between a place of residence
and the place at which the person is so
participating or so engaged--
10 any remuneration paid or payable for those
activities is to be disregarded in calculating
the worker's average weekly earnings.".
9. Functions of the Authority
After section 20(1)(d) of the Accident
15 Compensation Act 1985 insert--
"(da) establish and fund a WorkCover Advisory
Service;".
10. Powers of the Authority
(1) After section 20B(c) of the Accident
20 Compensation Act 1985 insert--
"; and
(d) the power to enter into agreements or
contracts with a corresponding Authority for
or with respect to--
25 (i) the Authority performing the functions
or exercising the powers of the
corresponding Authority as its agent;
(ii) the Authority performing any works or
providing services for the
30 corresponding Authority;
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(iii) the Authority providing the
corresponding Authority with the use of
its facilities or the services of its staff;
(iv) the corresponding Authority
5 performing the functions or exercising
the powers of the Authority as its agent;
(v) the corresponding Authority
performing any works or providing
services for the Authority;
10 (vi) the corresponding Authority providing
the Authority with the use of its
facilities or the services of its staff;
(e) in addition to, and not limited by, any other
power under this section, the power to
15 provide related and ancillary services.".
(2) For the purposes of sub-section (1)(d),
"corresponding Authority" means a
Government department or a statutory authority of
the Commonwealth Government or of the
20 Government of another State or of a Territory
which is responsible for administering a law
corresponding to the Acts specified in section
19(b).
(3) An agreement or contract entered into or a service
25 provided before the commencement of section 10
of the Accident Compensation (Miscellaneous
Amendment) Act 1997 is to be deemed to be as
validly entered into or provided as it would have
been if this Act as amended by that section had
30 been in force at the time the agreement or contract
was entered into or the service was provided.
11. Amendments relating to jurisdiction
(1) For section 39(2) of the Accident Compensation
Act 1985 substitute--
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s. 11
Act No.
"(2) Sub-section (1) does not apply to any
question or matter arising under--
(a) Division 6 or 6A of Part IV; or
(b) Part V; or
5 (c) Part VII.
(3) This section as amended by section 11 of the
Accident Compensation (Miscellaneous
Amendment) Act 1997 applies in respect of
any proceedings commenced on or after the
10 commencement of that section.
(4) Any proceedings commenced before the
commencement of section 11 of the
Accident Compensation (Miscellaneous
Amendment) Act 1997 may be continued as
15 if that section had not been enacted.".
(2) Sections 40(2) and 41 of the Accident
Compensation Act 1985 are repealed.
(3) Sections 99AA, 99AB, 99AC and 99AD of the
Accident Compensation Act 1985 are repealed.
20 (4) After section 129G(16) of the Accident
Compensation Act 1985 insert--
"(17) The service of a notice of intention to appeal,
and the lodging of an appeal to the Supreme
Court under section 52 of the
25 Administrative Appeals Tribunal Act
1984 against a decision of the Tribunal under
this Division by a person other than the
Authority or a self-insurer do not operate as
a stay of a determination of the Tribunal or
30 of the liability of a contributor to make such
payment as is, or payments as are,
determined to be payable.".
(5) After section 249B of the Accident
Compensation Act 1985 insert--
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s. 11
Act No.
'249C. Administrative Appeals Tribunal
(1) A person who is aggrieved by a decision of
the Authority under section 249B may,
within 12 months after becoming aware of
5 the decision, apply to the Administrative
Appeals Tribunal for a review of the
decision.
(2) An application under this section must be in
the prescribed form and give reasons for the
10 application.
(3) The Registrar of the Tribunal must cause a
copy of an application to be served on the
Authority forthwith.
(4) The Tribunal may fix a date for the hearing
15 of an application but must not commence
any proceedings in relation to the application
until the expiration of 28 days after a copy of
the application has been served on the
Authority.
20 (5) The Authority must, within 28 days after
receiving a copy of an application under this
section for review of its decision, reconsider
the decision.
(6) For the purposes of reconsidering a decision,
25 the Authority may by notice given to the
applicant, require the applicant to give
further and better particulars about the
reasons for the application to the Tribunal
and such further information relating to the
30 application as the Authority requires.
(7) If an applicant fails, without reasonable
excuse, to give the further and better
particulars or further information requested
by the Authority or fails to give those
35 particulars or that information within a
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s. 11
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reasonable time, the Tribunal may take the
failure into account when making an order
for costs in respect of the proceedings.
(8) The Tribunal may make an order requiring a
5 representative of a party who appeared
before the Tribunal to pay costs.
(9) If, after re-considering its decision, the
Authority determines that the decision
should be varied or revoked, it may vary or
10 revoke the decision accordingly.
(10) The Authority must give notice in writing to
the applicant of a determination to vary or
revoke its decision.
(11) Unless the applicant has withdrawn the
15 application, the Tribunal may proceed to
hear it after the expiration of the period of 28
days after a copy of the application was
served on the Authority.
(12) Where the Tribunal exercises jurisdiction
20 under this section--
(a) the Tribunal may refer a medical
question to a Medical Panel for an
opinion; and
(b) if a party to the proceedings so
25 requests, the Tribunal must refer a
medical question to a Medical Panel for
an opinion; and
(c) the opinion of the Panel on that
question shall, subject to this section,
30 be adopted by the Tribunal as the
answer to that question.
(13) If the Tribunal refers a medical question to
the Panel, the Tribunal must give the Panel,
and each party to the proceedings, copies of
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all documents in the possession of the
Tribunal relating to the medical question.
(14) If the Tribunal refers a medical question to a
Medical Panel, the Tribunal must give a
5 copy of the Panel's opinion to each party to
the proceedings.
(15) Where the Tribunal exercises jurisdiction
under this Part, section 35 of the
Administrative Appeals Tribunal Act
10 1984 applies as if--
(a) in sub-section (2), for "at or in
connexion with the hearing of a
proceeding" there were substituted "in
connection with, or at the hearing of a
15 proceeding";
(b) in sub-section (3) and (4) "the hearing
of" (wherever occurring) was omitted.
(16) If a provision of the Administrative
Appeals Tribunal Act 1984 is inconsistent
20 with this section, this section prevails.
(17) The service of a notice of intention to appeal,
and the lodging of an appeal to the Supreme
Court under section 52 of the
Administrative Appeals Tribunal Act
25 1984 against a decision of the Tribunal under
this section by a person other than the
Authority, do not operate as a stay of a
determination of the Tribunal.'.
(6) In the Accident Compensation Act 1985--
30 (a) in section 57(2) omit "or Administrative
Appeals Tribunal";
(b) in section 112(2)(b)(ii) for ", Magistrates'
Court or Administrative Appeals Tribunal"
substitute "or Magistrates' Court";
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(c) sections 249B(5) and 249B(6) are repealed.
12. Evidence
In section 44(3) of the Accident Compensation
Act 1985, for paragraphs (b) and (c) substitute--
5 "(b) for an offence against the Crimes Act 1958
which arises in connection with a claim for
compensation under this Act.".
13. Certain proceedings referred for conciliation
(1) For section 49(b) of the Accident Compensation
10 Act 1985 substitute--
"(b) until the Conciliation Officer has issued a
certificate, which the Conciliation Officer
must issue if the Conciliation Officer is
satisfied that all reasonable steps have been
15 taken by the claimant to settle the dispute.".
(2) At the end of section 49 of the Accident
Compensation Act 1985 insert--
"(2) This section as amended by section 13 of the
Accident Compensation (Miscellaneous
20 Amendment) Act 1997 applies in respect of
any referral lodged on or after the
commencement of that section.".
14. Costs
In section 50(1) of the Accident Compensation
25 Act 1985--
(a) before "In" insert "Subject to this Act,";
(b) for paragraph (a) substitute--
"(a) must award costs against the party
against whom a judgement or decision
30 is made; and".
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15. Amendment of section 53
In section 53 of the Accident Compensation Act
1985, in the definition of "dispute" after paragraph
(d) insert--
5 "(e) the Authority, in the case of section
93CD(2)(a).".
16. Procedures before Conciliation Officers
(1) Section 55(4) of the Accident Compensation Act
1985 is repealed.
10 (2) In section 56(5) of the Accident Compensation
Act 1985 for ", 99A or 99B" substitute "or 99A".
(3) For section 56(9) of the Accident Compensation
Act 1985 substitute--
"(9) The Conciliation Officer may request a party
15 who participates in a conciliation to produce
a document or a class of documents
specified, or provide information or
information of a kind specified, that the
Conciliation Officer considers may be
20 relevant to the resolution of the dispute.
(9A) If a party refuses or fails to produce any
document or provide any information
requested under sub-section (9), the
document or information cannot be tendered
25 as evidence by that party in any proceedings
under this Act which relate to the dispute.".
17. Disputes relating to weekly payments
In section 59(7) of the Accident Compensation
Act 1985--
30 (a) before "A" insert "In addition to the power
conferred by sub-section (5),";
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(b) for "10 weeks" substitute "24 weeks".
18. Section 59 to apply to section 99 compensation
(1) After section 59(2)(b) of the Accident
Compensation Act 1985 insert--
5 "; or
(c) a claim for the payment of compensation
under section 99--".
(2) After section 59(7) of the Accident
Compensation Act 1985 insert--
10 "(8) If a Conciliation Officer gives a direction or
further direction to pay or continue to pay
weekly payments, the Conciliation Officer
may also give a general direction to the
Authority, authorised insurer, employer or
15 self-insurer, to pay subject to and in
accordance with section 99 the reasonable
costs of services specified in that section that
were or are to be provided during the period
specified in the direction under sub-section
20 (5) or (7) as the case may be.
(9) If the dispute is, or includes, a dispute as to
the liability for the payment of compensation
under section 99 in respect of an injury and
the Conciliation Officer is satisfied that there
25 is no genuine dispute with respect to such
liability, the Conciliation Officer, unless sub-
section (8) applies, may give a general
direction to the Authority, authorised insurer,
employer or self-insurer, to pay subject to
30 and in accordance with section 99 the
reasonable costs of services specified in that
section up to a total of $2000 in respect of
the relevant injury.
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(10) For the purposes of this section a
Conciliation Officer is to be taken to be
satisfied that--
(a) there is a genuine dispute if the
5 Conciliation Officer is satisfied that
there is an arguable case in support of
the denial of liability;
(b) there is no genuine dispute if the
Conciliation Officer is satisfied that
10 there is no arguable case in support of
the denial of liability.".
(3) In section 128(1) of the Accident Compensation
Act 1985 after "weekly payments" insert "or
compensation under section 99".
15 19. Certain evidence inadmissible in proceedings
In section 61A of the Accident Compensation
Act 1985, for paragraph (e) substitute--
"(e) an offence against the Crimes Act 1958
which arises in connection with a claim for
20 compensation under this Act.".
20. Procedures and powers
In section 65(3) of the Accident Compensation
Act 1985, for paragraphs (c) and (d) substitute--
"(c) for an offence against the Crimes Act 1958
25 which arises in connection with a claim for
compensation under this Act.".
21. Opinions on medical questions
(1) After section 67(1) of the Accident
Compensation Act 1985 insert--
30 "(1A) A Medical Panel must give its opinion on a
medical question in accordance with this
Division.
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(1B) This Division as amended by section 21 of
the Accident Compensation
(Miscellaneous Amendment) Act 1997
applies to and in respect of the opinion of a
5 Medical Panel given on a medical question
referred to a Medical Panel on or after the
commencement of that section.".
(2) After section 67(4) of the Accident
Compensation Act 1985 insert--
10 "(4A) A person referring a medical question to a
Medical Panel must provide copies of all
documents relating to the medical question
in the possession of that person to the
Medical Panel.".
15 (3) In section 68(1) of the Accident Compensation
Act 1985 for "21 days" substitute "60 days".
(4) After section 68(3) of the Accident
Compensation Act 1985 insert--
"(4) For the purposes of determining any question
20 or matter, the opinion of a Medical Panel on
a medical question referred to the Medical
Panel--
(a) is to be adopted by a court as the
answer to that medical question; and
25 (b) must be accepted as final and
conclusive--
irrespective of who referred the medical
question to the Medical Panel.".
(5) For section 45(1) of the Accident Compensation
30 Act 1985 substitute--
"(1) Where the County Court exercises
jurisdiction under this Part, the County
Court--
(a) may refer a medical question; or
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(b) if a party to the proceedings requests
that a medical question or medical
questions be so referred, must refer that
medical question or those medical
5 questions--
to a Medical Panel for an opinion under this
Division.".
(6) In section 45(2) of the Accident Compensation
Act 1985 omit "the Panel, and".
10 (7) Section 45(3) of the Accident Compensation Act
1985 is repealed.
(8) For sections 56(6) and 56(7) of the Accident
Compensation Act 1985 substitute--
"(6) A Conciliation Officer may refer a medical
15 question to a Medical Panel for an opinion
under this Division.".
22. Amendment of section 82
In section 82(2) of the Accident Compensation
Act 1985, after "entitled" insert ", subject to this
20 Act,".
23. Entitlement to compensation
After section 82(6) of the Accident
Compensation Act 1985 insert--
"(7) If it is proved that before commencing
25 employment with the employer--
(a) a worker had a pre-existing injury or
disease of which the worker was aware;
and
(b) the employer in writing--
30 (i) advised the worker as to the
nature of the proposed
employment; and
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(ii) requested the worker to disclose
all pre-existing injuries and
diseases suffered by the worker of
which the worker was aware
5 which might be affected by the
nature of the proposed
employment; and
(iii) advised the worker that sub-
section (8) will apply to a failure
10 to make such a disclosure or the
making of a false or misleading
disclosure; and
(iv) advised the worker as to the effect
of sub-section (8) on the worker's
15 entitlement to compensation; and
(c) the worker failed to make such a
disclosure or made a false or
misleading disclosure--
sub-section (8) applies.
20 (8) If this sub-section applies, any recurrence,
aggravation, acceleration, exacerbation or
deterioration of the pre-existing injury or
disease arising out of or in the course of or
due to the nature of employment with the
25 employer does not entitle the worker to
compensation under this Act.
(9) If this section operates to prevent a worker or
the worker's dependants recovering
compensation in respect of an injury, the
30 worker or the worker's dependants cannot
rely on this section to claim to be entitled to
take any other action or proceedings in
respect of the injury whether under this Act
or otherwise."
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24. Amendment of section 89
After section 89(4) of the Accident
Compensation Act 1985 insert--
"(5) This section does not apply to a further
5 injury suffered on or after 12 November
1997.".
25. Assessment of impairment
(1) In section 91(1)(a)(i) of the Accident
Compensation Act 1985 for "American Medical
10 Association's Guides to the Evaluation of
Permanent Impairment (Second Edition)"
substitute "A.M.A Guides".
(2) After section 91(2) of the Accident
Compensation Act 1985 insert--
15 '(3) For the purposes of assessing the degree of
impairment of the whole person resulting
from binaural hearing impairment, the
percentage of the diminution of hearing
determined in accordance with sub-section
20 (4) is to be converted as follows--
(a) if the binaural loss of hearing is less
than 10 per cent NAL, the degree of
impairment is zero;
(b) if the binaural loss of hearing is 10 per
25 cent NAL, the degree of impairment is
10 per cent;
(c) if the binaural loss of hearing is more
than 10 per cent NAL, the degree of
impairment is the percentage equivalent
30 of the number (rounded up to the next
whole number) given by the formula--
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10 + [0.278 (NAL - 10)]--
where NAL is the percentage of diminution
of hearing determined in accordance with
sub-section (4).
5 (4) For the purposes of this section, the
percentage of diminution of hearing--
(a) shall be determined--
(i) by a person or class of persons
approved; and
10 (ii) in the manner approved--
by the Minister; and
(b) shall be determined in accordance with
the Improved Procedure for
Determination of Percentage Loss of
15 Hearing (1988 Edition or a later
prescribed edition) published by the
National Acoustic Laboratory.
(5) An approval by the Minister for the purposes
of sub-section (4)(a)(i) continues in force for
20 the period not exceeding 12 months as is
specified by the Minister in the approval
unless revoked by the Minister.
(6) For the purposes of assessing the degree of
psychiatric impairment, the A.M.A Guides
25 apply as if for Chapter 14 there were
substituted the Clinical Guidelines to the
Rating of Psychiatric Impairment prepared
by the Medical Panel (Psychiatry)
Melbourne, Victoria October 1997 and
30 published in the Government Gazette.
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(7) For the purposes of section 98C--
(a) impairments other than psychiatric
impairments resulting from injuries
which arose out of the same incident or
5 occurred on the same date are to be
assessed together using the
combination tables in the A.M.A
Guides;
(b) if a worker presents for assessment in
10 relation to injuries which occurred on
different dates, the impairments are to
be assessed chronologically by date of
injury;
(c) impairments from unrelated injuries or
15 causes are to be disregarded in making
an assessment.
(8) In this section "A.M.A Guides" means the
American Medical Association's Guides to
the Evaluation of Permanent Impairment
20 (Fourth Edition) (other than Chapter 15) as
modified by this Act.
(9) This section as amended by section 25 of the
Accident Compensation (Miscellaneous
Amendment) Act 1997 applies--
25 (a) to claims for compensation under
section 98 which are made on or after
the commencement of that section;
(b) to applications for determinations under
section 135A(3) which are made on or
30 after the commencement of that
section;
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(c) to all claims for compensation under
section 98C, irrespective of when the
injury occurred or the claim is made.'.
26. Amendment of section 92
5 In section 92 of the Accident Compensation Act
1985, before sub-section (1) insert--
"(1A) This section does not apply in respect of a
death occurring on or after 12 November
1997.".
10 27. New sections 92A, 92B and 92C inserted
(1) After section 92 of the Accident Compensation
Act 1985 insert--
'92A. Revised compensation for death of worker
(1) In this section--
15 "child" means a person who--
(a) is under the age of 16 years; or
(b) is 16 years or more but under the
age of 21 years and is a full-time
student;
20 "dependent child" means a child, including
an orphan child, wholly, mainly or
partly dependent on the worker's
earnings;
"dependent spouse" means a spouse wholly
25 or mainly dependent on the worker's
earnings;
"orphan child" means a child--
(a) who is a child of the worker and
whose other parent--
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(i) was dead before the death of
the worker; or
(ii) was not, at the time of the
death of the worker, a
5 dependent spouse of the
worker and did not at that
time wholly, mainly or in
part provide economic
support for the child; or
10 (b) who is not a child of the worker
and--
(i) whose parents were both
dead before the worker died;
or
15 (ii) neither of whose parents, at
the time of the death of the
worker, wholly, mainly or in
part provided economic
support for the child and
20 neither of whom was at that
time a dependent spouse of
the worker.
(2) In determining, for the purposes of this
section, whether a spouse was wholly or
25 mainly dependent on the worker's earnings at
the time of the death of the worker or other
relevant time, no regard shall be had to any
money which the spouse had earned or was
earning by his or her own personal exertion
30 or to any savings arising from any such
earnings.
(3) If a worker's death results from or is
materially contributed to by an injury which
entitles the worker's dependants to
35 compensation, compensation under this
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section is as determined by the County Court
in accordance with this section.
(4) If the worker leaves a dependent spouse, or
dependent spouses, and no dependent child,
5 the amount of compensation is $175 000
payable to the dependent spouse or, if there
is more than one, in equal shares to the
dependent spouses.
(5) If the worker leaves no dependent spouse
10 and no dependent children other than an
orphan child or orphan children, the amount
of compensation is $175 000 payable to that
orphan child or, if there are 2 or more, in
equal shares for those children.
15 (6) If the worker leaves a dependent spouse, or
dependent spouses, and one, and only one,
dependent child, the amount of
compensation is--
(a) $157 500 payable to the dependent
20 spouse or, if more than one, in equal
shares to the dependent spouses; and
(b) $17 500 payable to the dependent child.
(7) If the worker leaves a dependent spouse, or
dependent spouses, and more than one and
25 not more than 5 dependent children, the
amount of compensation is $175 000 payable
in the following shares--
(a) $8750 to each dependent child; and
(b) the balance to the dependent spouse or,
30 if more than one, in equal shares to the
dependent spouses.
(8) If the worker leaves a dependent spouse, or
dependent spouses, and more than 5
dependent children, the amount of
29
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compensation is $175 000 payable in the
following shares--
(a) $131 250 to the dependent spouse or, if
more than one, in equal shares to the
5 dependent spouses; and
(b) $43 750 to the dependent children in
equal shares.
(9) If the worker does not leave any dependent
spouse or dependent child but leaves any
10 other person who is to any extent dependent
on the worker's earnings, the amount of
compensation is a sum not exceeding
$175 000 which the County Court considers
is reasonable and appropriate to the injury to
15 that person or, if more than one, to those
persons in such shares as the Court
determines.
(10) If the worker, being under the age of 21
years at the time of the injury, leaves no
20 dependent spouse or dependent child but,
immediately before the injury, was
contributing to the maintenance of the home
of the members of his or her family, the
members of his or her family are deemed to
25 be dependants of the worker partly
dependent on the worker's earnings.
(11) If, under this section, compensation is
payable to a child, the compensation must be
paid to a trustee for the child appointed by
30 the County Court to be invested, applied or
otherwise dealt with for the benefit of the
child as the trustee thinks fit.
(12) A claimant is entitled to interest at the
prescribed rate on an amount of
35 compensation determined by the County
Court in accordance with this section in
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respect of the period beginning on the date
the claim for compensation was lodged in
accordance with section 103 and ending on
the date of the determination.
5 92B. Weekly pensions for dependants of worker
who dies
(1) Words and expressions defined in section
92A have the same meaning in this section
as in that section.
10 (2) In addition to compensation under section
92A, compensation in the form of weekly
payments of pension is payable subject to
and in accordance with this section.
(3) If the worker leaves one, and only one,
15 dependent spouse, the spouse is entitled to a
weekly pension at the rate of--
(a) during the first 13 weeks after death--
(i) 95 per cent of the worker's pre-
injury average weekly earnings; or
20 (ii) $850--
whichever is the lesser; and
(b) from the end of the first 13 weeks after
the death until the end of 3 years after
the death--
25 (i) unless sub-paragraph (ii) or (iii)
applies, 50 per cent of the
worker's pre-injury average
weekly earnings or $850,
whichever is the lesser; or
30 (ii) if the worker leaves not more than
5 dependent children who are
entitled to a pension under this
section and sub-section (11)
applies, an amount calculated in
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accordance with the formula--
50
$850 ×
50 + 5N
where--
N is the number of dependent
5 children so entitled; or
(iii) if the worker leaves more than 5
dependent children who are
entitled to a pension under this
section and sub-section (11)
10 applies, $567.
(4) If the worker leaves 2 or more dependent
spouses, each spouse is entitled to a weekly
pension at the rate of an equal of share of--
(a) during the first 13 weeks after death--
15 (i) 95 per cent of the worker's pre-
injury average weekly earnings; or
(ii) $850--
whichever is the lesser; and
(b) from the end of the first 13 weeks after
20 the death until the end of 3 years after
the death--
(i) unless sub-paragraph (ii) or (iii)
applies, 50 per cent of the
worker's pre-injury average
25 weekly earnings or $850,
whichever is the lesser; or
(ii) if the worker leaves not more than
5 dependent children who are
entitled to a pension under this
30 section and sub-section (11)
applies, an amount calculated in
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accordance with the formula--
50
$850 ×
50 + 5N
where--
N is the number of dependent
5 children so entitled; or
(iii) if the worker leaves more than 5
dependent children who are
entitled to a pension under this
section and sub-section (11)
10 applies, $567.
(5) If the worker leaves no dependent child other
than one, and only one, orphan child, the
orphan child is entitled, subject to this
section, to a weekly pension at the rate of--
15 (a) during the first 13 weeks after the death
or until the orphan child ceases to be
eligible, whichever first occurs--
(i) 95 per cent of the worker's pre-
injury average weekly earnings; or
20 (ii) $850--
whichever is the lesser; and
(b) if still eligible, from the end of the first
13 weeks after the death until the
orphan child ceases to be eligible--
25 (i) 50 per cent of the worker's pre-
injury average weekly earnings; or
(ii) $850--
whichever is the lesser.
(6) If the worker leaves no dependent children
30 other than 2 or more orphan children, each
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such child is entitled, subject to this section,
to a weekly pension at the rate of an equal
share of--
(a) during the first 13 weeks after the death
5 or until the orphan child ceases to be
eligible, whichever first occurs--
(i) 95 per cent of the worker's pre-
injury average weekly earnings; or
(ii) $850--
10 whichever is the lesser; and
(b) if still eligible, from the end of the first
13 weeks after the death until the
orphan child ceases to be eligible--
(i) 50 per cent of the worker's pre-
15 injury average weekly earnings; or
(ii) $850--
whichever is the lesser.
(7) If the worker leaves not more than 5
dependent children, each such child is
20 entitled, from the end of the first 13 weeks
after the death until the child ceases to be
eligible, to a weekly pension at the rate of--
(a) unless sub-section (11) applies, 5 per
cent of the worker's pre-injury average
25 weekly earnings; or
(b) if sub-section (11) applies, an amount
calculated in accordance with the
formula--
5
$850 ×
50 + 5N
30 where--
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N is the number of dependent children
so entitled.
(8) If a worker leaves more than 5 dependent
children, each such child is entitled, from the
5 end of the first 13 weeks after the death until
the child ceases to be eligible, to a weekly
pension at the rate of an equal share of--
(a) unless sub-section (11) applies, 25 per
cent of the worker's pre-injury average
10 weekly earnings; or
(b) if sub-section (11) applies, $283.
(9) A child ceases to be eligible under this
section--
(a) on attaining the age of 16 years; or
15 (b) if the child is a full-time student on
attaining 16 years--
(i) on ceasing to be a full-time
student; or
(ii) at the end of the calendar year in
20 which he or she attains the age of
21 years--
whichever first occurs.
(10) If the worker's death occurred more than one
year after the date of the injury, the pre-
25 injury average weekly earnings of the worker
shall be varied in accordance with section
100 as at the first anniversary of the injury as
well as in respect of each subsequent
anniversary.
30 (11) This sub-section applies if the total amount
of weekly pensions payable to the dependent
spouse, dependent spouses, and the
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dependent child, or dependent children, of a
worker under--
(a) sub-sections (3)(b) and (7) or (8); or
(b) sub-sections (4)(b) and (7) or (8)--
5 would, but for the application of this sub-
section, exceed $850.
92C. Payment of weekly pensions
(1) A weekly pension under section 92B must be
paid by fortnightly, monthly, quarterly or
10 annual instalments in accordance with this
section, as the Authority, employer,
authorised insurer or self-insurer determines.
(2) The first payment of amounts due as weekly
pension must be made within 14 days after
15 the amount is determined and subsequent
amounts are payable--
(a) on the 1st and 15th days of each month;
or
(b) on the 1st day of each month; or
20 (c) on 1 January, 1 April, 1 July and
1 September in each year; or
(d) on 1 July in each year--
as the case requires, and must be paid within
7 days.
25 (3) A weekly pension to which a child under the
age of 18 is entitled is payable to the parent
of the child who has custody of the child or,
if there is no such parent, to the guardian of
the child.
30 (4) A payment of a weekly pension may be
made by post by properly addressing,
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prepaying and posting to the person entitled
to the weekly pension a letter containing a
cheque for the amount.
(5) A payment of a weekly pension in
5 accordance with sub-section (4) is deemed to
have been made when the letter was posted.
(6) The liability to the person entitled to a
weekly pension is not satisfied until the
person receives the amount.
10 (7) If the Authority, employer, authorised
insurer or self-insurer fails to make a
payment before the end of the period within
which it is required by this section to be
paid, the Authority, employer, authorised
15 insurer or self-insurer must make the
payment together with interest calculated at
the prescribed rate in respect of the period
beginning when the payment was first
payable and ending on the day before the
20 payment was made.'.
(2) In the Accident Compensation Act 1985--
(a) in section 103(1)(b) after "92," insert "92A,
92B,";
(b) in section 103(7)(b) after "92," insert "92A
25 or 92B,";
(c) in section 108(1)(a) after "92" insert ", 92A
or 92B";
(d) in section 128(1) after "92," insert "92A,
92B,";
30 (e) in section 128(3)(a) after "92," insert
"92A,";
(f) after section 128(3)(b) insert--
"(c) in the case of weekly pensions under
section 92B--one-tenth of the total
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amount of the weekly pensions accrued
due at the date of the assessment of
compensation.".
28. Section 93C substituted--Grandfather provision
5 For section 93C of the Accident Compensation
Act 1985 substitute--
"93C. Sections 93A and 93B--Grandfather
provision
(1) On and after 12 November 1997, subject to
10 this section, sections 93A and 93B apply
only to a worker who--
(a) has before 12 November 1997 given,
served or lodged a claim for weekly
payments in respect of an injury; and
15 (b) was as at 12 November 1997 entitled,
or is on or after 12 November 1997
determined to have been entitled as at
12 November 1997, to weekly
payments in accordance with section
20 93A or 93B.
(2) Sections 93CA to 93CD only apply in
respect of a claim for weekly payments
specified in sub-section (1) to the extent
necessary to give effect to this section.
25 (3) If in accordance with sub-section (1), section
93A(2)(a) applies to a worker, the worker is
deemed to have no current work capacity
until the Authority, authorised insurer or
self-insurer has reviewed the worker's
30 classification in accordance with this Act as
in force on 12 November 1997.
(4) If in accordance with sub-section (1), section
93A(2)(b) applies to a worker, the worker is
deemed to have a current work capacity until
35 the Authority, authorised insurer or self-
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insurer has reviewed the worker's
classification in accordance with this Act as
in force on 12 November 1997.
(5) A worker specified in sub-section (3) or (4)
5 is entitled to weekly payments at whichever
of the following rates apply--
(a) until the expiry of the first 26 weeks of
incapacity within the meaning of
section 93A--
10 (i) if the worker has no current work
capacity, the rate specified in
section 93A(2)(a);
(ii) if the worker has a current work
capacity, the rate specified in
15 section 93A(2)(b);
(b) until the expiry of the entitlement
period within the meaning of section
93B--
(i) if the worker has a serious injury,
20 the rate specified in section
93B(1)(a);
(ii) if the worker does not have a
serious injury and has no current
work capacity, the rate specified
25 in section 93B(1)(b);
(iii) if the worker does not have a
serious injury and has a current
work capacity, the rate specified
in section 93B(1)(c);
30 (c) after the expiry of the entitlement
period within the meaning of section
93B--
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(i) if the worker has a serious injury,
the rate specified in section
93B(1)(a);
(ii) if the worker does not have a
5 serious injury and has no current
work capacity and is likely to
continue indefinitely to have no
current work capacity, the rate
specified in section 93B(1)(b);
10 (iii) if the worker does not have a
serious injury and has a current
work capacity and has returned to
work (whether in self-employment
or other employment) for a period
15 of not less than 15 hours per week
and is in receipt of current weekly
earnings of at least $100 and is
determined to be working to their
full capacity, the rate specified in
20 section 93B(1)(c).
(6) If after the expiry of the entitlement period
within the meaning of section 93B, a worker
specified in sub-section (3) or (4) does not
satisfy the requirements specified in sub-
25 section (5)(c), the worker ceases to be
entitled to weekly payments.
(7) If in accordance with sub-section (1), section
93B(1)(a) applies to a worker, the worker is
deemed to remain entitled to weekly
30 payments under that section until the
Authority, authorised insurer or self-insurer
has reviewed the worker's classification in
accordance with this Act as in force on
12 November 1997.
35 (8) If, in accordance with sub-section (1),
section 93B(1)(b) applies to a worker on the
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basis that the worker is totally and
permanently incapacitated, the worker is
deemed to have no current work capacity
and to be likely to continue indefinitely to
5 have no current work capacity until the
Authority, authorised insurer or self-insurer
has reviewed the worker's classification in
accordance with this Act as in force on 12
November 1997.
10 (9) If in accordance with sub-section (1), section
93B(1)(b) applies to a worker on the basis
that the worker is totally incapacitated, the
worker is deemed to have no current work
capacity until the Authority, authorised
15 insurer or self-insurer has reviewed the
worker's classification in accordance with
this Act as in force on 12 November 1997.
(10) If in accordance with sub-section (1), section
93B(1)(c) applies to a worker, the worker is
20 deemed to have a current work capacity until
the Authority, authorised insurer or self-
insurer has reviewed the worker's
classification in accordance with this Act as
in force on 12 November 1997.
25 (11) A worker specified in sub-section (7), (8),
(9) or (10) is entitled to weekly payments at
whichever of the following rates apply--
(a) until the expiry of the entitlement
period within the meaning of section
30 93B--
(i) if the worker has a serious injury,
the rate specified in section
93B(1)(a);
(ii) if the worker does not have a
35 serious injury and has no current
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work capacity, the rate specified
in section 93B(1)(b);
(iii) if the worker does not have a
serious injury and has a current
5 work capacity, the rate specified
in section 93B(1)(c);
(b) after the expiry of the entitlement
period within the meaning of section
93B--
10 (i) if the worker has a serious injury,
the rate specified in section
93B(1)(a);
(ii) if the worker does not have a
serious injury and has no current
15 work capacity and is likely to
continue indefinitely to have no
current work capacity, the rate
specified in section 93B(1)(b);
(iii) if the worker does not have a
20 serious injury and has a current
work capacity and has returned to
work (whether in self-employment
or other employment) for a period
of not less than 15 hours per week
25 and is in receipt of current weekly
earnings of at least $100 and is
determined to be working to their
full capacity, the rate specified in
section 93B(1)(c).
30 (12) If after the expiry of the entitlement period
within the meaning of section 93B, a worker
specified in sub-section (7), (8), (9) or (10)
does not satisfy the requirements specified in
sub-section (11)(b), the worker ceases to be
35 entitled to weekly payments.
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(13) A worker to whom section 93B(3) applies is
entitled to apply for a settlement under, and
in accordance with, section 115.
(14) Where it is necessary to do so to give effect
5 to this section, this Act applies as if it had
not been amended by section 30 of the
Accident Compensation (Miscellaneous
Amendment) Act 1997.".
29. Weekly payments
10 After 93C of the Accident Compensation Act
1985 insert--
'93CA. First entitlement period
(1) In this section "the first entitlement
period" means an aggregate period not
15 exceeding 13 weeks (whether consecutive or
not) in respect of which a weekly payment
has been paid or is payable to the worker.
(2) A worker is entitled, subject to and in
accordance with this Part, to weekly
20 payments while incapacitated for work
during the first entitlement period at
whichever of the following rates apply--
(a) if the worker has no current work
capacity, the rate of--
25 (i) 95 per cent of the worker's pre-
injury average weekly earning; or
(ii) $850--
whichever is the lesser;
(b) if the worker has a current work
30 capacity, the rate of--
(i) the difference between 95 per cent
of the worker's pre-injury average
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weekly earnings and the worker's
notional earnings; or
(ii) the difference between $850 and
the worker's notional earnings--
5 whichever is the lesser.
(3) A worker is entitled to receive weekly
payments under this section only if--
(a) where sub-section (2)(a) applies, the
worker--
10 (i) makes every reasonable effort to
participate in an occupational
rehabilitation service or a return to
work plan; and
(ii) makes every reasonable effort to
15 return to work in suitable
employment; and
(iii) participates in assessments of the
worker's capacity, rehabilitation
progress and future employment
20 prospects when requested to do so
from time to time by the employer
or self-insurer or the Authority or
authorised insurer;
(b) where sub-section (2)(b) applies, the
25 worker--
(i) participates in an occupational
rehabilitation service or a return to
work plan; and
(ii) makes every reasonable effort to
30 return to work in suitable
employment at the worker's place
of employment in co-operation
with the employer and the
Authority or authorised insurer or
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with the self-insurer (as the case
may be); and
(iii) where the worker's employer
cannot provide suitable
5 employment, makes every effort
to return to work in suitable
employment at another place of
employment; and
(iv) participates in assessments of the
10 worker's capacity, rehabilitation
progress and future employment
prospects when required by the
employer or self-insurer or the
Authority or authorised insurer.
15 (4) Where a worker does not make reasonable
efforts to return to work and in particular
does not comply with the requirements of
sub-section (3) that are applicable in his or
her case, the worker's entitlements to further
20 weekly payments in respect of the injury
shall cease and determine.
93CB. After the first entitlement period and until
the expiry of the second entitlement period
(1) In this section "second entitlement period"
25 means an aggregate period of 104 weeks
(whether consecutive or not and including
the first entitlement period within the
meaning of section 93CA(1)) in respect of
which a weekly payment has been paid or is
30 payable to the worker.
(2) A worker is entitled, subject to and in
accordance with this Part, to weekly
payments while incapacitated for work (not
being a period during the first entitlement
35 period within the meaning of section
93CA(1)) until the expiry of the second
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entitlement period at whichever of the
following rates apply--
(a) if the worker has no current work
capacity, the rate of--
5 (i) 75 per cent of the worker's pre-
injury average weekly earnings; or
(ii) $850--
whichever is the lesser;
(b) if the worker has a current work
10 capacity, the rate of--
(i) the difference between 60 per cent
of the worker's pre-injury average
weekly earnings and 60 per cent
of the worker's notional earnings;
15 or
(ii) the difference between $510 and
60 per cent of the worker's
notional earnings--
whichever is the lesser.
20 (3) A worker is entitled to receive weekly
payments under this section only if--
(a) where sub-section (2)(a) applies, the
worker--
(i) makes every reasonable effort to
25 participate in an occupational
rehabilitation service or a return to
work plan; and
(ii) makes every reasonable effort to
return to work in suitable
30 employment; and
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(iii) participates in assessments of the
worker's capacity, rehabilitation
progress and future employment
prospects when requested to do so
5 from time to time by the employer
or the Authority or authorised
insurer or self-insurer;
(b) where sub-section (2)(b) applies, the
worker--
10 (i) participates in an occupational
rehabilitation service or a return to
work plan; and
(ii) makes every reasonable effort to
return to work in suitable
15 employment at the worker's place
of employment in co-operation
with the employer and the
Authority or authorised insurer or
with the self-insurer (as the case
20 may be);
(iii) where the worker's employer
cannot provide suitable
employment, makes every effort
to return to work in suitable
25 employment at another place of
employment; and
(iv) participates in assessments of the
worker's capacity, rehabilitation
progress and future employment
30 prospects when required by the
Authority or authorised insurer or
self-insurer.
(4) Where a worker does not make reasonable
efforts to return to work and in particular
35 does not comply with the requirements of
sub-section (3) that are applicable in his or
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her case, the worker's entitlement to further
weekly payments in respect of the injury
shall thereupon cease and determine.
93CC. After the expiry of the second entitlement
5 period
(1) Subject to section 93CD, a worker's
entitlement to weekly payments under this
Part ceases after the expiry of the second
entitlement period within the meaning of
10 section 93CB(1) unless the worker is
assessed by the Authority, authorised insurer
or self-insurer as--
(a) having no current work capacity; and
(b) likely to continue indefinitely to have
15 no current work capacity.
(2) Subject to and in accordance with this Part, a
worker to whom this section applies is
entitled to weekly payments at the rate of--
(a) 75 per cent of the worker's pre-injury
20 average weekly earnings; or
(b) $850--
whichever is the lesser.
(3) A worker is entitled to receive weekly
payments under this section only if the
25 worker--
(a) makes every reasonable effort to
participate in an occupational
rehabilitation service or a return to
work plan; and
30 (b) makes every reasonable effort to return
to work in suitable employment; and
(c) participates in assessments of the
worker's capacity, rehabilitation
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progress and future employment
prospects when requested to do so from
time to time by the employer or the
Authority or authorised insurer or self-
5 insurer.
(4) A review of the assessment of a worker
under this section may be conducted by the
Authority, authorised insurer or self-insurer
at any time and must be conducted as often
10 as may be reasonably necessary being at
least once every 2 years.
(5) Where a worker does not make reasonable
efforts to return to work and in particular
does not comply with the requirements of
15 sub-section (3) that are applicable in his or
her case, the worker's entitlement to further
weekly payments in respect of the injury
shall thereupon cease and determine.
93CD. Application to continue to receive weekly
20 payments after expiry of the second
entitlement period
(1) A worker who has a current work capacity
may apply to the Authority or a self-insurer
in accordance with this section for a
25 determination that the worker's entitlement
to weekly payments under this Part does not
cease after the expiry of the second
entitlement period within the meaning of
section 93CB(1).
30 (2) An application must be made--
(a) if liability to pay the weekly payments
lies with the employer (not being a self-
insurer or a subsidiary of a self-
insurer), an authorised insurer or the
35 Authority--to the Authority; or
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(b) if liability to pay the weekly payments
lies with a self-insurer--to the self-
insurer.
(3) The Authority or self-insurer may determine
5 that the worker's entitlement to weekly
payments under this Part does not cease after
the expiry of the second entitlement period
within the meaning of section 93CB(1), if
the Authority or self-insurer is satisfied
10 that--
(a) the worker has returned to work
(whether in self-employment or other
employment) for a period of not less
than 15 hours per week and is in receipt
15 of current weekly earnings of at least
$100; and
(b) because of the injury, the worker is, and
is likely to continue indefinitely to be,
physically and mentally incapable of
20 undertaking further or additional
employment or work which would
increase the worker's current weekly
earnings.
(4) The Authority or self-insurer must not refuse
25 to make a determination under sub-section
(3) on the ground that the Authority or self-
insurer is not satisfied that sub-section (3)(b)
applies, unless--
(a) the Authority or self-insurer has
30 referred the question whether because
of the injury, the worker is, and is
likely to continue indefinitely to be,
physically and mentally incapable of
undertaking further or additional
35 employment or work which would
increase the worker's current weekly
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earnings for the opinion of a Medical
Panel under Division 3 of Part III; and
(b) the opinion of Medical Panel is that the
worker is not so incapable.
5 (5) If the Authority or self-insurer makes a
determination under sub-section (3), subject
to and in accordance with this Part, the
worker is entitled to weekly payments at the
rate of--
10 (a) the difference between 60 per cent of
the worker's pre-injury average weekly
earnings and 60 per cent of the worker's
current weekly earnings; or
(b) the difference between $510 and 60 per
15 cent of the worker's current weekly
earnings--
whichever is the lesser.
(6) The entitlement to weekly payments under
sub-section (5) continues until--
20 (a) the Authority or self-insurer ceases to
be satisfied as to the matters specified
is sub-section (3); or
(b) the worker otherwise ceases to be
entitled to weekly payments.'.
25 30. Weekly payments--consequential amendments
(1) In section 5(1) of the Accident Compensation
Act 1985--
(a) before the definition of "dependant" insert--
' "current work capacity", in relation to a
30 worker, means a present inability
arising from an injury such that the
worker is not able to return to his or her
pre-injury employment but is able to
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return to work in suitable
employment;';
(b) after the definition of "member of a family"
insert--
5 ' "no current work capacity", in relation to
a worker, means a present inability
arising from an injury such that the
worker is not able to return to work,
either in the worker's pre-injury
10 employment or in suitable
employment;';
(c) the definition of "partial incapacity" is
repealed;
(d) in the definition of "suitable employment"
15 after "worker is" insert "currently";
(e) the definition of "total incapacity" is
repealed;
(f) in the definition of "weekly payment" after
"93C" insert "or under section 93CA, 93CB,
20 93CC or 93CD".
(2) In section 5A(8) of the Accident Compensation
Act 1985 for "$650" substitute "$850".
(3) For section 5A(9)(b) of the Accident
Compensation Act 1985 substitute--
25 "(b) as from the time that the worker would have
completed the course of studies in which the
worker was a full-time student shall be
calculated as if the worker's pre-injury
average weekly earnings were $850.".
30 (4) For section 5A(10) of the Accident
Compensation Act 1985 substitute--
'(10) For the purposes of sub-section (9), "full-
time student" means a person who--
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(a) is undertaking a course of studies in
respect of which a participant can
qualify for Austudy; and
(b) is a full-time student within the
5 meaning of the Commonwealth Student
Youth Assistance Act 1973.
(11) Where a worker at the time of the injury was
a full-time student at a primary or secondary
school, the worker's pre-injury average
10 weekly earnings under Division 2 of Part
IV--
(a) until the time that the worker would
have completed secondary school shall
be calculated in accordance with sub-
15 section (1); and
(b) as from the time that the worker would
have completed secondary school shall
be calculated as if the worker's pre-
injury average weekly earnings were
20 $680.'.
(5) In the Accident Compensation Act 1985--
(a) in section 57(1)(b) for "with respect to
weekly payments" substitute "to which
section 59 applies";
25 (b) in sections 60(2) and 60(3) for "weekly
payments" substitute "payments of
compensation".
(6) In sections 93D(3) and 93DA(1) of the Accident
Compensation Act 1985 for "93A or 93B"
30 substitute "93CA, 93CB or 93CC".
(7) In section 93DA of the Accident Compensation
Act 1985--
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(a) in sub-section (1) for "partially incapacitated
worker" substitute "worker who has a
current work capacity";
(b) in sub-section (1)(a) for "entitlement period
5 within the meaning of section 93B(3A)"
substitute "second entitlement period within
the meaning of section 93CB(1)";
(c) in sub-section (2)(a) for "93B" substitute
"93CA, 93CB or 93CC".
10 (8) In sections 97(2), 97(2AA) and 97(3) of the
Accident Compensation Act 1985 for "a serious
injury or is totally and permanently incapacitated
or both" substitute "no current work capacity and
is likely to continue indefinitely to have no current
15 work capacity".
(9) In section 105(1)(c) of the Accident
Compensation Act 1985 after "incapacity" insert
"and whether the worker has a current work
capacity or has no current work capacity".
20 (10) In section 111(2)(b) of the Accident
Compensation Act 1985 after "incapacity for
work" insert "and whether the worker has a
current work capacity or has no current work
capacity".
25 (11) In the Accident Compensation Act 1985--
(a) in section 114(7) for "93A(4) or 93B(4)"
substitute "section 93CA(4), 93CB(4) or
93CC(5)";
(b) in section 114(8) for "26 weeks of
30 incapacity" substitute "the first entitlement
period within the meaning of section
93CA(1)";
(c) in section 114(9) for "entitlement period
within the meaning of section 93B(3A)"
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substitute "second entitlement period within
the meaning of section 93CB(1)";
(d) in section 114A for "26 weeks of incapacity"
(wherever occurring) substitute "the first
5 entitlement period within the meaning of
section 93CA(1)";
(e) in section 114A(1)(a) for "section 93B"
substitute "section 93CB";
(f) in section 114A(3) for "26 weeks" substitute
10 "13 weeks";
(g) in sections 114A(3) and 114A(6) for "section
93B(1)" substitute "section 93CB(2)";
(h) in section 114A(3) for "section 93B(1)(b)"
substitute "section 93CB(2)(b)";
15 (i) section 114A(4) is repealed;
(j) in section 114A(5) for ", (3) and (4)"
substitute "and (3)";
(k) section 114A(5)(a) is repealed;
(l) in section 114A(6) omit "sub-section (5)(a)
20 applies and weekly payments are re-
commenced or";
(m) in section 114B for "entitlement period
within the meaning of section 93B(3A)"
(wherever occurring) substitute "second
25 entitlement period within the meaning of
section 93CB(1)";
(n) in section 114B(3) for "section 93B(3)"
substitute "section 93CC(1)";
(o) in section 114B(3) for "section 93B"
30 substitute "section 93CB";
(p) in section 114B(5) for "section 93B(3)"
substitute "section 93CC(1)";
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(q) for section 115(1)(a)(ii) substitute--
"(ii) has no current work capacity and is
likely to continue indefinitely to have
no current work capacity;";
5 (r) in section 122(1)(b) for "partial incapacity
for work" substitute "current work
capacity";
(s) in section 123(1)(a) for "total incapacity"
substitute "no current work capacity";
10 (t) in section 123(1)(b) for "partial incapacity"
substitute "current work capacity";
(u) in section 123(3) for "incapacity" substitute
"no current work capacity";
(v) in sections 125(1)(a)(i), 125(1)(a)(ii),
15 125A(3)(a) and 125A(3)(b) for "the total or
partial incapacity of a worker" substitute "a
worker who has no current work capacity or
has a current work capacity";
(w) in section 156(2) for "been totally
20 incapacitated for work" substitute "no
current work capacity";
(x) in section 156(2) for "total incapacity"
(where twice occurring) substitute "no
current work capacity".
25 31. Injury near or after retirement
In section 93E of the Accident Compensation
Act 1985, after "injured" insert "within the period
of 52 weeks before attaining retirement age or".
32. Provisions relating to the payment of compensation
30 After section 97(4A) of the Accident
Compensation Act 1985 insert--
"(4B) Despite sub-section (4), the Authority,
authorised insurer or self-insurer is entitled
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to set off against any weekly payments to
which a worker is entitled the amount
awarded to the Authority, authorised insurer
or self-insurer by an order made by a court
5 under this Act or section 86 of the
Sentencing Act 1991 after the worker is
convicted, or found guilty, of an offence
under this Act or of an offence under the
Crimes Act 1958 in connection with a claim
10 for compensation under this Act.".
33. Compensation for maims
After section 98(5) of the Accident
Compensation Act 1985 insert--
"(6) Compensation under this section is payable
15 only in respect of an injury that arose before
12 November 1997.".
34. Compensation for pain and suffering
After section 98A(5) of the Accident
Compensation Act 1985 insert--
20 "(6) Compensation under this section is payable
only in respect of an injury that arose before
12 November 1997."
35. Sections 98 and 98A claims--transitional
(1) In section 104(2) of the Accident Compensation
25 Act 1985 for "60 days" substitute "90 days".
(2) In sections 104(9), 104(10) and 104(11) of the
Accident Compensation Act 1985 for "final
offer" substitute "statutory offer".
(3) After section 104(11) of the Accident
30 Compensation Act 1985 insert--
"(11A) The claimant must within 21 days after the
making by the Authority, authorised insurer
or self-insurer of a statutory offer--
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(a) accept the statutory offer in writing; or
(b) make a counter statutory offer in
writing which is to remain open for 21
days.
5 (11B) If at the expiry of the first period specified in
sub-section (11A), the claimant--
(a) has not accepted the statutory offer; and
(b) has not made a counter statutory
offer--
10 the claimant is deemed to have made a
counter statutory offer of an amount equal to
the total of the maximum amounts that can
be claimed for the relevant injury or injuries
under section 98 and, where applicable,
15 under section 98A.".
(4) In section 104A(4) of the Accident
Compensation Act 1985 for "dispute" substitute
"claim".
(5) After section 104A(5) of the Accident
20 Compensation Act 1985 insert--
"(6) The directions--
(a) may require that each of the parties to a
claim or their legal representatives
provide information by affidavit to the
25 other parties or their legal
representatives and, if applicable, to a
Conciliation Officer; and
(b) may require that the parties to a claim
and their legal representatives must
30 attend at a conference or conferences in
respect of the claim.".
(6) For section 50(2A) of the Accident
Compensation Act 1985 substitute--
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"(2A) In proceedings before the County Court
under this Act which relate to a claim under
section 98 or 98A, if a judgment or order is
made by the County Court for the payment
5 of an amount of compensation to the
claimant--
(a) which is equal to or greater than the
claimant's counter statutory offer--the
Authority, authorised insurer, employer
10 or self-insurer must pay the claimant's
party and party costs and must bear
their own costs; or
(b) which is equal to or less than the
statutory offer made by the Authority,
15 authorised insurer, employer or self-
insurer--the claimant must pay the
party and party costs of the Authority,
authorised insurer, employer or self-
insurer and bear his or her own costs;
20 or
(c) which is greater than the statutory offer
made by the Authority, authorised
insurer, employer or self-insurer but
less than the counter statutory offer
25 made by the claimant--each party must
bear their own costs--
and the County Court must not otherwise
make an award of costs.".
36. Non-economic loss compensation
30 Before section 99 of the Accident Compensation
Act 1985 insert--
'98C. Compensation for non-economic loss
(1) A worker who suffers an injury which
entitled the worker to compensation is, in
35 respect of an injury resulting in permanent
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impairment as assessed in accordance with
section 91, entitled to compensation for non-
economic loss calculated in accordance with
this section.
5 (2) The amount of the non-economic loss in
respect of permanent impairment other than
psychiatric impairment is to be calculated as
at the date of the relevant injury as follows--
(a) if the worker's degree of impairment is
10 less than 10 per cent--the amount of
the non-economic loss is zero;
(b) if the worker's degree of impairment is
not less than 10 per cent and not more
than 30 per cent--the amount of the
15 non-economic loss is to be determined
in accordance with the formula--
$5000 + [(D - 10) × $2000];
(c) if the worker's degree of impairment is
more than 30 per cent and not more
20 than 70 per cent--the amount of the
non-economic loss is to be determined
in accordance with the formula--
$45 000 + [(D - 30) × $3250];
(d) if the worker's degree of impairment is
25 more than 70 per cent and not more
than 80 per cent--the amount of the
non-economic loss is to be determined
in accordance with the formula--
$175 000 + [(D - 70) × $12 500];
30 (e) if the worker's degree of impairment is
more than 80 per cent--the amount of
the non-economic loss is $300 000--
where D is the worker's degree of
impairment expressed as a number.
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(3) The amount of the non-economic loss in
respect of permanent psychiatric impairment
is to be calculated as at the date of the
relevant injury as follows--
5 (a) if the worker's degree of impairment is
less than 30 per cent--the amount of
the non-economic loss is zero;
(b) if the worker's degree of impairment is
not less than 30 per cent and not more
10 than 50 per cent--the amount of the
non-economic loss is to be determined
in accordance with the formula--
$10 000 + [(D - 30) × $3250];
(c) if the worker's degree of impairment is
15 not less than 50 per cent and not more
than 70 per cent--the amount of the
non-economic loss is to be determined
in accordance with the formula--
$75 000 + [(D - 50) × $5000];
20 (d) if the worker's degree of impairment is
not less than 70 per cent and not more
than 80 per cent--the amount of the
non-economic loss is to be determined
in accordance with the formula--
$175 000 + [(D - 70) × $12 500];
25
(e) if the worker's degree of impairment is
more than 80 per cent--the amount of
the non-economic loss is $300 000--
where D is the worker's degree of
30 impairment expressed as a number.
(4) The amount of the non-economic loss in
respect of an injury resulting in the loss of a
foetus or of the loss of more than one foetus
is $45 000.
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(5) For the purposes of sub-section (4), "foetus"
means the conceptus beyond the sixteenth
week of development.
(6) If the compensation payable under this
5 section is for industrial deafness, the amount
of compensation is to be calculated--
(a) if the date of injury is deemed under
section 88 to be the last day of the
worker's employment out of which or in
10 the course of which the injury arose--
as at that day; or
(b) if the date of injury is deemed under
section 88 to be the date of the claim--
as at the day on which the
15 compensation is determined.
(7) If a worker suffers on the same occasion
more than one injury which entitles the
worker to compensation under sub-section
(1), the worker is not entitled to receive as
20 compensation for non-economic loss more
than $300 000.
(8) If a worker suffers an injury which entitles
the worker to compensation for non-
economic loss of more than one kind as
25 specified in sub-section (2), (3) or (4), the
total amount of compensation for non-
economic loss under this section that the
worker is entitled to receive cannot exceed
$300 000.
30 (9) Where compensation has been paid under
this section for an impairment resulting from
an injury or under section 98 or 98A in
respect of an injury, that compensation must
be deducted from any compensation payable
35 under this section in respect of any
impairment resulting from an injury
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consisting of any recurrence, aggravation,
acceleration, exacerbation or deterioration of
the injury in respect of which compensation
has previously been paid under this section
5 or section 98 or 98A.
(10) Compensation under this section is not
payable after the death of the worker
concerned.
98D. Payment of Compensation
10 Compensation for non-economic loss
calculated under section 98C or 98E is to be
paid as a lump sum.
98E. No Disadvantage--Compensation Table
(1) If a worker suffers an injury which entitled
15 the worker to compensation and the injury is
a total loss mentioned in the Table to this
sub-section and the amount of compensation
calculated under section 98C is less than the
amount payable for total loss specified in the
20 Table in respect of that injury, the worker is
entitled to compensation equal to the amount
specified in the Table.
TABLE
Injury Total Losses--
Minimum
Compensation
Payable for Total
Loss
$
Total loss of the sight of both eyes 161 390
Total loss of the sight of an only eye 161 390
Loss of both hands 161 390
Loss of both feet 161 390
Loss of a hand and a foot 161 390
Total loss of the right arm or of the
greater part of the right arm 129 112
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Total loss of the left arm or of the
greater part of the left arm 121 043
Total loss of the right hand or of five
fingers of the right hand, or of the
lower part of the right arm 112 973
Injury Total Losses--
Minimum
Compensation
Payable for Total
Loss
$
Total loss of the left hand or of five
fingers of the left hand, or of the
lower part of the left arm 104 904
Total loss of a leg 121 043
Total loss of a foot 104 904
Total loss of the lower part of the leg 112 973
Total loss of the sight of one eye,
together with the serious diminution
of the sight of the other eye 121 043
Total loss of hearing 104 904
Total loss of the sight of one eye 64 556
Loss of binocular vision 64 556
Loss of eyeball (in addition to
compensation for loss of sight of an
eye) 35 506
Total loss of power of speech 96 834
Total loss of sense of taste or smell 27 436
Total loss of senses of both taste and
smell 54 873
Total loss of male sexual organs 75 853
Total loss of penis 75 853
Total loss of one testicle 16 139
Total loss of two testicles or an only
testicle 75 853
Total loss of female sexual organs 75 853
Total loss of both breasts 75 853
Total loss of one breast 48 417
Total loss of the thumb of the right
hand 48 417
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Total loss of the thumb of the left
hand 41 961
Total loss of the forefinger of the
right hand 33 892
Injury Total Losses--
Minimum
Compensation
Payable for Total
Loss
$
Total loss of the forefinger of the left
hand 29 050
Total loss of two joints of the
forefinger of the right hand 25 822
Total loss of two joints of the
forefinger of the left hand 19 367
Total loss of a joint of the thumb 25 822
Total loss of the first joint of the
forefinger of the right hand 16 139
Total loss of the first joint of the
forefinger of the left hand 14 525
Total loss of the first joint of the
middle or little or ring finger of either
hand 9 683
Total loss of the middle finger of
either hand 19 367
Total loss of the little or ring finger
of either hand 17 753
Total loss of two joints of the middle
finger of either hand 16 139
Total loss of two joints of the little or
ring finger of either hand 14 525
Total loss of the great toe of either
foot 35 506
Total loss of a joint of the great toe of
either foot 16 139
Total loss of any other toe 9 683
Total loss of a joint of any other toe 3 228
Quadriplegia 161 390
Paraplegia 161 390
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Total impairment of the spine 161 390
(2) For the purposes of this Table--
(a) the total loss of a limb, hand, foot, finger,
thumb, toe or joint or any part thereof shall
be deemed to include the permanent total
5 loss of the use of such limb, hand, foot,
finger, thumb, toe, joint or part;
(b) where a worker habitually uses the left hand
and arm to perform work usually performed
by a worker with the right hand and the arm,
10 the compensation payable for the loss of
such left arm or the greater part of the arm or
for the total loss of the left hand or of five
fingers thereof or of the lower part of that
arm or of a finger or part of a finger of the
15 left hand shall be such amount as would have
been payable for a similar loss in respect of
the right arm or the part or parts thereof, but
in any such case the compensation for the
loss of the right arm or the greater part of
20 that arm or for the total loss of the right hand
or of five fingers thereof or of the lower part
of that arm or of a finger or part of a finger
of the right hand shall be such amount as
would have been payable for a similar loss in
25 respect of the left arm or the part or parts
thereof if the worker did not habitually use
the left hand and arm to perform work
usually performed by a worker with the right
hand and arm.
30 (3) For the purposes of this section, total loss of
hearing--
(a) shall be determined--
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(i) by a person or class of persons
approved; and
(ii) in the manner approved--
by the Minister; and
5 (b) shall be determined in accordance with the
Improved Procedure for Determination of
Percentage Loss of Hearing (1988 Edition or
a later prescribed edition) published by the
National Acoustic Laboratory.
10 (4) An approval by the Minister for the purposes of
sub-section (3)(a)(i) continues in force for the
period not exceeding 12 months as is specified by
the Minister in the approval unless revoked by the
Minister.
15 (5) If a worker suffers on the same occasion more
than one of the injuries mentioned in the Table the
worker is not in any case entitled to receive as
compensation under sub-section (1) more than
$161 390.
20 (6) Compensation under this section is not payable
after the death of the worker concerned.'.
37. Consequentials relating to section 36--Non-economic
loss
(1) In section 90(3) of the Accident Compensation
25 Act 1985--
(a) after "section 98" insert ", 98C or 98E";
(b) for "that section" substitute "section 98, 98C
or 98E".
(2) In section 128 of the Accident Compensation
30 Act 1985--
(a) in sub-section (1) for "or 98A" substitute
", 98A, 98C or 98E";
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(b) at the end of sub-section (3) insert--
"(d) in the case of compensation under
section 98C or 98E--one-tenth of the
lump sum calculated in accordance
5 with section 98D.".
38. Section 98D substituted
For section 98D of the Accident Compensation
Act 1985 substitute--
"98D. Payment of compensation
10 (1) Compensation for non-economic loss
calculated under section 98C or 98E is to be
paid--
(a) if the amount of the non-economic loss
is not more than $10 000--as a lump
15 sum equal to that amount;
(b) if the amount of the non-economic loss
is greater than $10 000 but not more
than $30 000--as a lump sum of
$10 000 and the balance by monthly
20 payments of $600 in accordance with
sub-section (2);
(c) if the amount of the non-economic loss
is greater than $30 000--as a lump sum
equivalent to one-third of that amount
25 (rounded up to the nearest $100) and
the balance by monthly payments of
$600 in accordance with sub-section (3)
or monthly payments of an amount
determined in accordance with sub-
30 section (4).
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(2) The number of monthly payments for the
purposes of sub-section (1)(b) is to be
determined in accordance with the
formula--
B - 10 000
N=
5
600
where--
N is the number of payments;
B is the amount of the non-economic loss.
(3) Subject to sub-section (4), the number of
10 monthly payments for the purposes of sub-
section (1)(c) is to be determined in
accordance with the formula--
C - D
N=
600
where--
15 N is the number of payments;
C is the amount of the non-economic loss;
D is the amount to be paid as a lump sum.
(4) If the number of payments calculated under
sub-section (3) exceeds 120, the balance is to
20 be paid in 120 monthly payments calculated
in accordance with the formula--
C - D
M=
120
where--
M is the amount of each monthly payment;
25 C is the amount of the non-economic loss;
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D is the amount to be paid as a lump sum.
(5) For the purposes of sub-sections (2) and
(3)--
(a) if N consists of or includes a fraction of
5 a whole number, N is to be rounded up
to the next whole number;
(b) if N is equal to, or less than, 3, the total
amount of these payments is to be paid
with the lump sum.
10 (6) If a worker who is receiving monthly
payments in accordance with this section
becomes entitled to monthly payments in
respect of a subsequent injury, the monthly
payments in respect of the subsequent injury
15 are not payable until the completion of the
payment of monthly payments in respect of
the previous injury.
(7) The payment of the first instalment of an
amount payable by instalments in
20 accordance with this section must be made
within 14 days after the amount is
determined and each subsequent instalment
is payable on the first day of each following
month and must be paid within 7 days.
25 (8) A payment of an instalment may be made by
post by properly addressing, prepaying and
posting to the worker a letter containing a
cheque for the amount of the instalment.
(9) A payment of an instalment made in
30 accordance with sub-section (8) is deemed to
have been made when the letter was posted.
(10) The liability to a worker is not satisfied until
the worker receives the instalment.
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(11) If the Authority, employer, authorised
insurer or self-insurer fails to make a
payment of an instalment before the end of
the period within which it is required by this
5 section to be made, the Authority, employer,
authorised insurer or self-insurer must pay
the instalment together with interest
calculated at the prescribed rate in respect of
the period beginning when the instalment
10 was first payable and ending on the day
before the payment was made.
(12) If a worker dies before all instalments
payable to the worker in accordance with
this section have been paid, an amount equal
15 to the sum of the outstanding instalments is
payable on application by the personal
representative of the worker.".
39. Compensation for medical and like services
(1) After section 99(2A) of the Accident
20 Compensation Act 1985 insert--
"(2B) Notwithstanding anything to the contrary in
this section, unless sub-section (2D) or (2E)
applies, the Authority, employer, authorised
insurer or self-insurer is not liable to pay as
25 compensation the costs of any service or of
burial or cremation specified in sub-section
(1) which is provided or carried out outside
Australia, unless the worker or claimant
obtained the approval of the Authority,
30 employer, authorised insurer or self-insurer
before the service or burial or cremation
specified in sub-section (1) was provided or
carried out.
(2C) In determining whether to approve the
35 provision or carrying out of a service
or burial or cremation specified in sub-
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section (1) for the purposes of sub-section
(2B), the Authority, employer, authorised
insurer or self-insurer must have regard to
the matters specified in sub-section (2)(c)
5 and to sub-sections (12), (13) and (14).
(2D) Sub-section (2B) does not apply if the
worker or claimant satisfies the Authority,
employer, authorised insurer or self-insurer
that because of an emergency situation--
10 (a) it was necessary to immediately
provide or carry out a service or burial
or cremation specified in sub-section
(1); and
(b) it was not reasonably practicable to first
15 obtain approval.
(2E) In the case of a worker who resides outside
Australia, the Authority, employer,
authorised insurer or self-insurer may for the
purposes of sub-section (2B) give a general
20 approval specifying a class or classes of
services, burials or cremations.
(2F) The requirement imposed by sub-section
(2B) is in addition to any other relevant
requirements under this section.".
25 (2) In section 99(14)(c) of the Accident
Compensation Act 1985 for "lifestyle" substitute
"ability to undertake the necessary activities of
daily living".
40. Indexation
30 (1) In section 100(1) of the Accident Compensation
Act 1985 for "15 June" (wherever occurring)
substitute "30 May".
(2) After section 100(2) of the Accident
Compensation Act 1985 insert--
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"(2A) An amount specified in sub-section (2B)
shall be varied, in respect of the financial
year beginning on 1 July 1998 and each
subsequent financial year, in accordance
5 with the formula--
E
D×
F
where--
D is the amount specified in sub-section
(2B);
10 E is the all groups consumer price index
for Melbourne as at 15 June in the
preceding financial year last published
by the Australian Statistician in respect
of the December quarter of that
15 financial year;
F is the all groups consumer price index
for Melbourne as at 15 June in the year
preceding the preceding financial year
published by the Australian Statistician
20 in respect of the December quarter
preceding that 15 June.
(2B) The specified amounts are any amount of
dollars referred to in the following
sections--
25 (a) section 92A;
(b) section 98C;
(c) section 98D;
(d) section 99;
(e) section 125(1)(a)(iii);
30 (f) section 125A(3)(c);
(g) section 135A(7)(b).".
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(3) In section 100(3A) of the Accident
Compensation Act 1985 after "Part applies"
insert "or which is specified in sub-section (2B)".
(4) In section 100(6)(b) of the Accident
5 Compensation Act 1985 after "(2)" insert
", (2A), (2B)".
41. Amendment of section 100
In section 100(6) of the Accident Compensation
Act 1985--
10 (a) after "section 135A(7)" insert "or 135C(2)";
(b) after paragraph (b) insert--
"; or
(ba) an amount referred to in section 92A;
or".
15 42. Notice of injury
For section 102 of the Accident Compensation
Act 1985 substitute--
"102. Notice of injury
(1) Notice of an injury that may entitle a person
20 to compensation under this Act must be
given by the person to the employer within
30 days after the person becomes aware of
the injury.
(2) Notice of an injury must--
25 (a) be given in a manner and form
approved by the Authority; and
(b) include such particulars as are required
by the Authority.
(3) Notice of an injury is deemed to have been
30 given to an employer if the particulars of the
injury as required under section 101(3) are
entered in the register of injuries.
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(4) The employer must acknowledge in writing
the giving of notice of an injury.
(5) Subject to sub-section (6), a person is not
entitled to recover compensation under this
5 Act unless notice of the injury has been
given to the employer within the time
specified in sub-section (1).
(6) The Authority, authorised insurer or self-
insurer may waive or extend the time limit
10 specified in sub-section (1), if the Authority,
authorised insurer or self-insurer is satisfied
that--
(a) it was not reasonably practicable for the
person, or another person on his or her
15 behalf, to have given notice in
accordance with sub-section (1); or
(b) the failure to give notice of the injury in
accordance with the time limit specified
in sub-section (1) did not unfairly
20 prejudice the employer; or
(c) to rely on sub-section (5) would result
in a serious injustice to the person.".
43. Claims process for non-economic loss
(1) In section 103(1)(b) of the Accident
25 Compensation Act 1985 after "98A" insert
", 98C".
(2) After section 104A of the Accident
Compensation Act 1985 insert--
"104B. Claims for compensation under section 98C
30 (1) In addition to the requirements under section
103, this section applies to a claim for
compensation under section 98C.
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(2) The Authority, authorised insurer or self-
insurer must within 90 days of receiving the
claim--
(a) accept or reject liability in relation to
5 the claim; and
(b) advise the worker of the decision.
(3) If the Authority, authorised insurer or self-
insurer rejects liability in relation to the
claim and the worker disputes the decision as
10 to liability, the worker must not commence
proceedings in relation to the claim unless
the worker first refers the dispute for
conciliation by a Conciliation Officer in
accordance with Division 2 of Part III.
15 (4) If--
(a) the Authority, authorised insurer or
self-insurer accepts liability in relation
to the claim; or
(b) the Magistrates' Court or the County
20 Court determines in the proceedings
relating to the claim that the Authority,
authorised insurer or self-insurer has
liability in relation to the claim--
the Authority, authorised insurer or self-
25 insurer may request the worker to attend an
independent examination by a medical
practitioner referred to in section 91(1)(b).
(5) The purpose of the independent examination
is to obtain--
30 (a) an assessment in accordance with
section 91 as to the degree of
permanent impairment, if any, of the
worker resulting from the injury to the
worker; and
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(b) a determination as to whether the
worker has an injury which is a total
loss mentioned in the Table to section
98E(1).
5 (6) The Authority, authorised insurer or self-
insurer must within 14 days of obtaining the
assessment and determination advise the
worker of the assessment and the entitlement
to compensation, if any, under section 98C
10 or 98E.
(7) The worker must within 14 days of being
advised under sub-section (6) advise the
Authority, authorised insurer or self-insurer
as to whether the worker accepts or disputes
15 the assessment and the entitlement to
compensation.
(8) The Authority, authorised insurer or self-
insurer must within 14 days of being advised
by the worker that the worker accepts the
20 assessment and the entitlement to
compensation--
(a) if the entitlement is under section 98C,
make payments in accordance with
section 98D; or
25 (b) if the entitlement is under section 98E,
pay the amount specified for the total
loss under section 98E.
(9) The Authority, authorised insurer or self-
insurer must within 14 days of being advised
30 by the worker that the worker disputes the
assessment and the entitlement to
compensation refer the questions as to the
degree of permanent impairment resulting
from the injury to the worker and whether
35 the worker has an injury which is a total loss
mentioned in the Table to section 98E(1) to a
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Medical Panel for its opinion under section
67.
(10) The Authority, authorised insurer or self-
insurer must within 14 days of obtaining the
5 opinion of the Medical Panel under section
67--
(a) advise the worker of the opinion and
the entitlement of the worker, if any,
under section 98C or section 98E; and
10 (b) if the entitlement is under section 98C,
make payments in accordance with
section 98D; and
(c) if the entitlement is under section 98E,
pay the amount specified for the total
15 loss under section 98E.
(11) For the purposes of this section, liability in
relation to a claim does not include a
question as to the degree of permanent
impairment of a worker or whether a worker
20 has an injury which is a total loss mentioned
in the Table to section 98E(1).
(12) No appeal lies to any court or Tribunal from
an assessment or opinion--
(a) as to the degree of permanent
25 impairment of a worker resulting from
an injury; or
(b) as to whether a worker has an injury
which is a total loss mentioned in the
Table to section 98E(1).
30 (13) For the purposes of this section, the Minister
may issue directions to be published in the
Government Gazette for or with respect to
procedures for the determination of claims
for compensation under section 98C,
35 including directions requiring that
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information in classes of claims specified in
the directions must be provided by
affidavit.".
(3) In section 108(1)(b) of the Accident
5 Compensation Act 1985 for "or 98A" substitute
", 98A or 98C".
44. Settlements
(1) In sections 115(1) and 115(4)(a) of the Accident
Compensation Act 1985 after "under this Act"
10 (wherever occurring) insert "(other than section
99)".
(2) After section 115(6) of the Accident
Compensation Act 1985 insert--
"(7) This section as amended by section 44 of the
15 Accident Compensation (Miscellaneous
Amendment) Act 1997 applies in respect of
any application under this section made on
or after the commencement of that section.".
45. New section 134A inserted
20 In Division 9 of Part IV of the Accident
Compensation Act 1985, before section 135
insert--
"134A. Actions for damages only in accordance
with this Act
25 (1) A worker who is, or the dependants of a
worker who are or may be, entitled to
compensation in respect of an injury arising
out of or in the course of, or due to the nature
of, employment on or after 12 November
30 1997 shall not, in proceedings commenced in
respect of the injury or otherwise, recover
any damages of any kind.
(2) Sub-section (1) does not prevent the
recovery of damages in proceedings under
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Part III of the Wrongs Act 1958, subject to
and in accordance with the Transport
Accident Act 1986, in respect of the death
of a worker--
5 (a) arising out of a transport accident
within the meaning of the Transport
Accident Act 1986; and
(b) arising out of, or in the course of, or
due to the nature of, any employment
10 that was a significant contributing
factor resulting in or materially
contributing to the death.".
46. Amendment of section 135
(1) In section 135 of the Accident Compensation
15 Act 1985, sub-section (1) is repealed.
(2) In section 135(2) of the Accident Compensation
Act 1985, after "sub-section (1)" insert "(as in
force at any time) or section 134A(2)".
(3) After section 135(2) of the Accident
20 Compensation Act 1985 insert--
"(3) Sub-section (1), as in force immediately
before 12 November 1997, continues to
apply, subject to section 135AC, in respect
of an injury arising out of, or in the course
25 of, or due to the nature of, employment
before that commencement.".
47. Amendment of section 135A
(1) In section 135A(1) of the Accident
Compensation Act 1985, after "employment"
30 insert "before 12 November 1997".
(2) In section 135A(2B) of the Accident
Compensation Act 1985 for "60" substitute
"120".
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(3) After section 135A(2B) of the Accident
Compensation Act 1985 insert--
"(2BA) An application under sub-section (2B)--
(a) must be in a form approved by the
5 Authority; and
(b) must be accompanied by--
(i) a copy of all medical reports; and
(ii) affidavits attesting to such other
material--
10 existing when the application is made
and of which the worker or his or her
legal representative is aware and on
which the worker intends to rely, or the
substance of which the worker intends
15 to adduce in evidence, in proceedings
in accordance with this section or in
any related proceedings.
(2BB) If the worker unreasonably refuses to comply
with a request by the Authority, authorised
20 insurer or self-insurer that the worker submit
to a medical examination, to be paid for by
the Authority, authorised insurer or self-
insurer, or in any way hinders such an
examination, the period between the date on
25 which the worker so refused to comply, or
hindered the examination, and the date of the
examination must be disregarded in
calculating the period of 120 days referred to
in sub-sections (2B) and (2D).".
30 (4) In section 135A of the Accident Compensation
Act 1985, for sub-section (2D) substitute--
"(2D) The Authority, authorised insurer or self-
insurer must, within 120 days of receiving
the application, advise the worker in
35 writing--
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(a) of the determination; or
(b) of the refusal to make a determination
under sub-section (2C).".
(5) After section 135A(2D) of the Accident
5 Compensation Act 1985 insert--
"(2DA) The advice referred to in sub-section (2D)
must be accompanied by--
(a) a copy of all medical reports; and
(b) affidavits attesting to such other
10 material--
existing when the advice is given and of
which the employer, Authority, authorised
insurer or self-insurer or the legal
representative of any of them is aware and
15 on which they intend to rely or the substance
of which they intend to adduce in evidence
in proceedings brought by the worker in
accordance with this section or in any related
proceedings.
20 (2DB) If the Authority, authorised insurer or self-
insurer fails to advise the worker in writing
within 120 days of receiving the
application--
(a) of the determination; or
25 (b) of the refusal to make a determination
under sub-section (2C)--
the worker is deemed to have suffered a
serious injury.
(2DC) The worker, within 28 days after receiving
30 the advice referred to in sub-sections (2D)
and (2DA), may give to the Authority,
authorised insurer or self-insurer an affidavit
attesting to such further material (whether or
not existing before the worker made the
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application under sub-section (2B)) in
rebuttal of the material (other than medical
reports) attested to in affidavits
accompanying the advice.
5 (2DD) In proceedings in accordance with this
section, a medical report or other material is
inadmissible in evidence--
(a) on behalf of the Authority, authorised
insurer or self-insurer if--
10 (i) it was in existence, and the
employer, Authority, authorised
insurer or self-insurer, or the legal
representative or any of them, was
aware of it, before the date by
15 which the advice of the Authority,
authorised insurer or self-insurer
is required to be given under sub-
sections (2D) and (2DA); and
(ii) it had not been disclosed to the
20 worker in accordance with sub-
sections (2D) and (2DA); or
(b) on behalf of the worker if--
(i) it was in existence, and the worker
or the worker's legal
25 representative was aware of it,
before the expiration of 28 days
after receiving the advice under
sub-sections (2D) and (2DA); and
(ii) it had not been disclosed to the
30 other party in accordance with
sub-section (2BA) or (2DC).
(2DE) The worker must not commence proceedings
in accordance with this section, other than an
application under sub-section (4)(b),
35 unless--
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(a) the worker and the Authority,
authorised insurer or self-insurer hold a
conference within 21 days after the
response date; and
5 (b) the Authority, authorised insurer or
self-insurer makes a statutory offer in
writing in settlement or compromise of
the claim at that conference, or after the
conference but no later than 60 days
10 after the response date; and
(c) if the worker does not accept that offer
at the conference or within 21 days
after the offer is made, the worker,
before the expiration of that period,
15 makes a statutory counter offer in
writing in settlement or compromise of
the claim; and
(d) the Authority, authorised insurer or
self-insurer does not accept that counter
20 offer within 21 days after it is made;
and
(e) the proceedings are commenced within
30 days after the last day for accepting
the counter offer.
25 (2DF) If the Authority, authorised insurer or self-
insurer does not make a statutory offer under
section (2DE), the employer is deemed, for
the purposes of that sub-section, to have
made, on the 60th day after the response
30 date, a statutory offer of nothing.
(2DG) If the Authority, authorised insurer or self-
insurer makes a statutory offer under sub-
section (2DE) and the worker does not make
a statutory counter offer under that sub-
35 section, the worker is deemed, for the
purposes of that sub-section, to have made,
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on the 21st day after the statutory offer was
made, a statutory counter offer of the
maximum amount that may be awarded as
damages under sub-section (7)(a) and (b).".
5 (6) In section 135A(4)(b) of the Accident
Compensation Act 1985, after "worker" insert
"made within 30 days after the determination was
made".
(7) After section 135A(4) of the Accident
10 Compensation Act 1985 insert--
"(4A) If a worker makes an application for a
determination under sub-section (3) of the
degree of impairment of the worker, the
worker must not make a further application
15 for such a determination unless it is the first
application made after the Authority,
authorised insurer or self-insurer has refused
to make a determination in accordance with
sub-section (2C).".
20 (8) In section 135A(13)(b) of the Accident
Compensation Act 1985--
(a) after "(b)" insert "unless sub-section (13A)
applies";
(b) in sub-paragraph (iii), for "defendant"
25 substitute "Authority, authorised insurer or
self-insurer".
(9) After section 135A(13) of the Accident
Compensation Act 1985 insert--
"(13A) In proceedings for the recovery of damages
30 commenced in accordance with this section
after a statutory offer was made, or deemed
to have been made, under sub-section
(2DE)--
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(a) if no liability to pay damages is
established, the worker must pay the
party and party costs of the employer,
Authority, authorised insurer or self-
5 insurer and the worker's own costs;
(b) if judgment is obtained or a settlement
or compromise is made in an amount
not less than the worker's statutory
counter offer under sub-section (2DE),
10 the Authority, authorised insurer or
self-insurer must pay the worker's party
and party costs and its own costs;
(c) if judgment is obtained or a settlement
or compromise is made in an amount
15 not more than the statutory offer of the
Authority, authorised insurer or self-
insurer under sub-section (2DE), the
worker must pay the party and party
costs of the Authority, authorised
20 insurer or self-insurer and the worker's
own costs;
(d) if judgment is obtained or a settlement
or compromise is made in an amount
that is more than the statutory offer of
25 the Authority, authorised insurer or
self-insurer under sub-section (2DE)
but less than the worker's statutory
counter offer under that sub-section,
each party bears its own costs--
30 and the court must not make an order as to
costs.
(13B) For the purpose of the taxing of costs in
proceedings to which this section applies,
any applicable scale of costs has effect as if
35 amounts in the scale were reduced by 10 per
cent.
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(13C) A person who represents or acts on behalf of
a worker is not entitled--
(a) to recover any costs from that worker in
respect of any proceedings under this
5 section; or
(b) to claim a lien in respect of those costs;
or
(c) to deduct those costs from any sum
awarded as damages--
10 unless an award of costs has been made by
the court in respect of those costs or those
costs are payable in accordance with this
section by the worker.
(13D) The court, on the application of--
15 (a) the worker; or
(b) the person representing or acting on
behalf of the worker--
may determine the amount of costs to be
awarded to the person representing or acting
20 on behalf of the worker.".
(10) After section 135A(18) of the Accident
Compensation Act 1985 insert--
"(18A) If--
(a) a written application for a
25 determination under sub-section (3)
was made before 12 November 1997 by
a worker to the Authority, an authorised
insurer or self-insurer; and
(b) the advice of the Authority, authorised
30 insurer or self-insurer was not given
before that date; and
(c) the period of 60 days after the
application was received by the
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Authority, authorised insurer or self-
insurer expires on or after that date--
the Authority, authorised insurer or self-
insurer must advise the worker in accordance
5 with sub-sections (2D) and (2DA) within
120 days after receiving from the worker--
(d) a copy of all medical reports; and
(e) affidavits attesting to such other
material--
10 existing when the worker gives copies of any
such reports and affidavits to the Authority
and of which the worker or his or her legal
representative is aware and on which the
worker intends to rely, or the substance of
15 which the the worker intends to adduce in
evidence, in proceedings in accordance with
this section or in any related proceedings.
(18B) If sub-section (18A) applies to an
application, this section, as amended by
20 section 47 of the Accident Compensation
(Miscellaneous Amendment) Act 1997,
applies, subject to sub-section (18A), as if
the application had been made under this
section as so amended.".
25 (11) In section 135A(19) of the Accident
Compensation Act 1985 insert--
' "determination date", in relation to an injury,
means the date on which--
(a) the injury is determined, or deemed, in
30 accordance with this section, or
declared by a court, to be a serious
injury; or
(b) a certificate is issued under sub-section
(4)(a) in relation to the injury;
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"medical report" means--
(a) a statement in writing on medical
matters concerning the worker, made
by a medical practitioner; and
5 (b) includes any document which the
medical practitioner intends should be
read with the statement, whether the
document was in existence at the time
the statement was made or was a
10 document which he or she obtained or
caused to be brought into existence
subsequently;
"response date" means the date on which the
period of 28 days after the determination
15 date expires.'.
48. New sections 135AB and 135AC inserted
After section 135A of the Accident
Compensation Act 1985 insert--
"135AB. Directions
20 (1) For the purposes of section 135A, the
Minister may issue directions for or with
respect to procedures under that section.
(2) The directions must be published in the
Government Gazette.
25 (3) The directions may include directions about
the provision of information by affidavit and
the attending of conferences.
(4) The parties to a dispute and their legal
representatives and agents must comply with
30 the directions.
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49
Act No.
(5) The directions may specify that a failure to
comply with a particular provision of the
directions has the effect of altering a period
applicable under that section.
5 135AC. Limitation of Actions Act 1958
Despite anything to the contrary in the
Limitation of Actions Act 1958,
proceedings in accordance with section 135
or 135A must not be commenced after--
10 (a) unless paragraph (b) applies--
(i) the expiration of the period within
which, but for this sub-section, the
proceedings could have been
brought in accordance with the
15 Limitation of Actions Act 1958;
or
(ii) 31 December 2000--
whichever first occurs; or
(b) if--
20 (i) the cause of action arose before
12 November 1997; and
(ii) the incapacity arising from the
injury was not known until after
that commencement--
25 after the expiration of 3 years after the
incapacity was known.".
49. New section 135C inserted
After section 135B of the Accident
Compensation Act 1985 insert--
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"135C. Damages under Part III of Wrongs Act
1958
(1) A dependant of a worker may recover
damages under Part III of the Wrongs Act
5 1958 in respect of the death of a worker
arising otherwise than out of a transport
accident within the meaning of the
Transport Accident Act 1986.
(2) A court must not, in proceedings under Part
10 III of the Wrongs Act 1958, award damages
in accordance with sub-section (1) in respect
of the death of a person in excess of
$500 000.
(3) If an award of damages in accordance with
15 sub-section (1) is to include an amount,
assessed as a lump sum, in respect of
damages for future loss which is referable
to--
(a) deprivation or impairment of earning
20 capacity; or
(b) loss of the expectation of financial
support; or
(c) a liability to incur expenditure in the
future; or
25 (d) any loss suffered by a dependant--
the present value of the future loss must be
qualified by adopting a discount rate of 3 per
cent in order to make appropriate allowance
for inflation, the income from investment of
30 the sum awarded and the effect of taxation
on that income.
(4) Except as provided in sub-section (3),
nothing in that sub-section affects any other
law relating to the discounting of sums
35 awarded as damages.
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(5) A court must not, in relation to an award of
damages in accordance with this section,
order the payment of interest, and no interest
is payable, on any amount of damages, other
5 than damages referable to loss actually
suffered before the date of the award, in
respect of the period from the date of the
death of the person in respect of whom the
award is made, to the date of the award.
10 (6) Except as provided in sub-section (5),
nothing in that sub-section affects any other
law relating to the payment of interest on any
amount of damages, other than special
damages.
15 (7) If a judgment, order for damages, settlement
or compromise is made or entered in favour
of a dependant of a worker in respect of
proceedings in respect of the death of the
worker--
20 (a) the amount of the judgment, order for
damages, settlement or compromise
must be reduced by the sum of the
compensation (if any) paid under
section 92, 92A or 92B in respect of the
25 death; and
(b) the Authority, an authorised insurer, the
employer or self-insurer is not liable to
pay compensation, or further
compensation, in respect of the death.".
30 50. Indemnity by third party
In section 138(1) of the Accident Compensation
Act 1985, after "damages" insert "or that would,
but for section 134A, create such a liability".
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51. New section 138A inserted
After section 138 of the Accident Compensation
Act 1985 insert--
"138A. Substantive law
5 For the avoidance of doubt, it is hereby
declared that all the provisions of this
Division contain matters that are substantive
law and are not procedural in nature.".
52. Contents of return to work plan
10 (1) After section 160(1)(b) of the Accident
Compensation Act 1985 insert--
"; and
(c) be prepared in accordance with guidelines
issued by the Authority for the purposes of
15 this section.".
(2) In section 160(2) of the Accident Compensation
Act 1985 after "revised" insert "in accordance
with guidelines issued by the Authority for the
purposes of this section".
20 53. Amendment of section 179--definitions-protected
claim
(1) In section 179(1) of the Accident Compensation
Act 1985 for the definition of "protected claim"
substitute--
25 ' "protected claim" means--
(a) a claim under section 98 for loss of
hearing;
(b) a claim under section 99 for the cost of
provision of a hearing aid;
30 (c) a claim under section 11 of the
Workers Compensation Act 1958 for
loss of hearing;
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(d) a claim under section 26 of the
Workers Compensation Act 1958 for
the cost of provision of a hearing aid;
(e) any other claim under this Act or the
5 Workers Compensation Act 1958 that
is declared by the regulations to be a
protected claim for the purposes of this
section.'.
(2) After section 179(1) of the Accident
10 Compensation Act 1985 insert--
"(1A) A reference in this Part to a claim includes a
reference to a prospective claim irrespective
of whether a claim is subsequently made.".
54. Warrants to enter and search
15 After section 240A(3) of the Accident
Compensation Act 1985 insert--
'(3A) If the Authority considers that it may be
necessary to prove the physical properties of
any books or of the contents of any books of
20 which possession has been retained under
sub-section (3)(b) in any criminal
proceedings, the Authority may apply to the
magistrate who issued the warrant under sub-
section (1) for an order authorising the
25 Authority to retain possession of the books
specified in the order until the criminal
proceedings are concluded.
(3B) If the magistrate is satisfied that there is
reasonable ground to believe that the
30 physical properties of the books or of the
contents of the books are material evidence
in the proposed criminal proceedings, the
magistrate may make the order specified in
sub-section (3A).
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(3C) For the purposes of sub-sections (3A) and
(3B), "physical properties" includes, but is
not limited to--
(a) whether or not any of the books or
5 contents of the books have been forged
or tampered with;
(b) whether or not there are finger prints on
the books which establish who had
physical possession of the books before
10 the books were seized under this
section;
(c) whether or not handwriting in any of
the books belongs to a particular
person.'.
15 55. Offences
(1) After section 242(5) of the Accident
Compensation Act 1985 insert--
"(6) An employer must not fail to comply with a
provision of Part VI.
20 Penalty: 120 penalty units.
(7) An employer must not fail to comply with a
direction under section 163(2).
Penalty: 120 penalty units.
(8) A worker must not fail to comply with a
25 requirement under section 162(1).
Penalty: 20 penalty units".
(2) Section 164 of the Accident Compensation Act
1985 is repealed.
56. False information
30 (1) For section 249(1) of the Accident
Compensation Act 1985 substitute--
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"(1) A person must not provide orally or in
writing any false or misleading information
under this Act or the Accident
Compensation (WorkCover Insurance)
5 Act 1993.
Penalty: 20 penalty units or imprisonment
for one month.
(1A) Sub-section (1) is not limited to information
in or in connection with any claim,
10 application, certificate or notice under this
Act or the Accident Compensation
(WorkCover Insurance) Act 1993.".
(2) In section 249(2)(c) of the Accident
Compensation Act 1985 after "accompany"
15 insert "or".
57. Refunding money to the Authority
(1) In section 249A(1) of the Accident
Compensation Act 1985 for "convicted of an
offence under this Act or the Crimes Act 1958"
20 substitute "convicted or found guilty of an
offence against this Act or of an offence against
the Crimes Act 1958 which occurs in connection
with a claim for compensation under this Act".
(2) In section 249A(2) of the Accident
25 Compensation Act 1985 for "convicts a person of
an offence under this Part" substitute "convicts,
or finds guilty, a person, of an offence against this
Act or of an offence against the Crimes Act 1958
which occurs in connection with a claim for
30 compensation under this Act".
(3) In section 249A(3) of the Accident
Compensation Act 1985 after "convicted" insert
"or found guilty".
58. Institution of prosecutions
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For sections 252(1) and 252(1A) of the Accident
Compensation Act 1985 substitute--
"(1) A charge for an offence against this Act
(other than a provision of Division 2 of
5 Part III), or for an offence against the
Accident Compensation (WorkCover
Insurance) Act 1993 or for an offence
against the Crimes Act 1958 which occurs
in connection with a claim for compensation
10 under this Act, may be filed by the Authority
or by any person authorised by the Authority
to file charges on behalf of the Authority.
(1A) A charge for an offence against a provision
of Division 2 of Part III may be filed by the
15 Senior Conciliation Officer.
(1B) An affidavit for use in proceedings relating
to a charge specified in sub-section (1) may
be sworn and taken before a person
authorised by the Authority for this
20 purpose.".
59. Prosecution guidelines
After section 252(4) of the Accident
Compensation Act 1985 insert--
"(5) The Authority must issue general guidelines
25 for or with respect to the prosecution of
offences under this Act.
(6) The Authority must publish guidelines under
sub-section (5) in the Government Gazette.".
60. New section 252C inserted
30 After section 252B of the Accident
Compensation Act 1985 insert--
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"252C. Supreme Court-limitation of jurisdiction
It is the intention of sections 39, 134A, 135,
135A, 135AB, 135AC, 135C and 249C, as
inserted or amended by the Accident
5 Compensation (Miscellaneous
Amendment) Act 1997, to alter or vary
section 85 of the Constitution Act 1975.".
61. Spent Schedule
Schedule One of the Accident Compensation
10 Act 1985 is repealed.
62. Supreme Court-limitation of jurisdiction-amendment
of Accident Compensation (WorkCover) Act 1992
In section 63(1) of the Accident Compensation
(WorkCover) Act 1992--
15 (a) in paragraph (a), after "this Act" insert "and
as amended by section 11 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997";
(b) in paragraph (d)--
20 (i) after "1994" (where first occurring)
insert "and as amended by section 46
of the Accident Compensation
(Miscellaneous Amendment) Act
1997";
25 (ii) after "1996" (where secondly
occurring) insert "and as amended by
section 47 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997".
30 63. Supreme Court-limitation of jurisdiction-amendment
of Constitution Act 1975
(1) In section 85(9) of the Constitution Act 1975,
after "1996" (where secondly occurring) insert
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"and as amended by sections 11, 45, 46, 47 and 48
of the Accident Compensation (Miscellaneous
Amendment) Act 1997".
(2) After section 85(9) of the Constitution Act 1975
5 insert--
"(10) Section 252C of the Accident
Compensation Act 1985 alters or varies this
section and has effect as a direct amendment
of this section.".
10 _______________
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PART 3--AMENDMENT OF OTHER ACTS
64. Compulsory WorkCover Insurance
(1) In sections 7(4A) and 7(4B) of the Accident
Compensation (WorkCover Insurance) Act
5 1993 for "Directorate of School Education"
(whenever occurring) substitute "Department of
Education".
(2) In section 7(4B) of the Accident Compensation
(WorkCover Insurance) Act 1993 after "is
10 payable" insert "as part of the premium payable
for the WorkCover insurance policy held by the
Department of Education".
(3) In section 7(4D) of the Accident Compensation
(WorkCover Insurance) Act 1993 after "is
15 payable" insert "as part of the premium payable
for the WorkCover insurance policy held by the
Transport Accident Commission".
65. Rateable remuneration
After section 8(2A) of the Accident
20 Compensation (WorkCover Insurance) Act
1993 insert--
"(2B) Remuneration that is superannuation benefits
that are not paid in respect of services
performed or rendered by a worker in a
25 particular month is rateable remuneration
under this Act as if it were paid or payable in
respect of services performed or rendered
during the month in which it is paid or
became payable.
30 (2C) Nothing in sub-section (2B) applies to render
remuneration that is superannuation benefits
paid or payable in respect of services
performed or rendered in respect of services
performed or rendered by a worker before
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1 January 1998 to be rateable
remuneration.".
66. Rateable remuneration--transitional
For section 19 of the Accident Compensation
5 (WorkCover Insurance) Act 1993 substitute--
'19. Rateable remuneration--transitional
(1) The WorkCover Insurance Premiums Order
1997/98 is to be construed as if references to
"remuneration", "accessible remuneration"
10 and "rateable remuneration" in respect of
remuneration paid or payable in respect of
services performed or rendered on or after
1 January 1998 were references to
"remuneration" within the meaning of the
15 Accident Compensation Act 1985 as
amended by section 5 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997.
(2) A revised estimate of rateable remuneration
20 is not required under section 20 if the only
reason that the actual rateable remuneration
paid or payable exceeds the amounts referred
to in that section is because of the
amendment of the Accident Compensation
25 Act 1985 by section 5 of the Accident
Compensation (Miscellaneous
Amendment) Act 1997.'.
67. Certificate of rateable remuneration
In section 23(2) of the Accident Compensation
30 (WorkCover Insurance) Act 1993 after "hold"
insert ", or has not held,".
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68. Warrants to enter and search
After section 70(3) of the Accident
Compensation (WorkCover Insurance) Act
1993 insert--
5 '(3A) If the Authority considers that it may be
necessary to prove the physical properties of
any books or of the contents of any books of
which possession has been retained under
sub-section (3)(b) in any criminal
10 proceedings, the Authority may apply to the
magistrate who issued the warrant under sub-
section (1) for an order authorising the
Authority to retain possession of the books
specified in the order until the criminal
15 proceedings are concluded.
(3B) If the magistrate is satisfied that there is
reasonable ground to believe that the
physical properties of the books or of the
contents of the books are material evidence
20 in the proposed criminal proceedings, the
magistrate may make the order specified in
sub-section (3A).
(3C) For the purposes of sub-sections (3A) and
(3B), "physical properties" includes, but is
25 not limited to--
(a) whether or not the books or any of the
contents of the books have been forged
or tampered with;
(b) whether or not there are finger prints on
30 the books which establish who had
physical possession of the books before
the books were seized under this
section;
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(c) whether or not handwriting in any of
the books belongs to a particular
person.'.
69. Dangerous Goods Act 1985--Guidelines
5 For sections 40(2) and 40(3) of the Dangerous
Goods Act 1985 substitute--
"(2) The Authority must issue general guidelines
for or with respect to the prosecution of
offences under this Act.
10 (3) The Authority must publish guidelines under
sub-section (2) in the Government Gazette.".
70. Equipment (Public Safety) Act 1994--penalties
In section 26(2) of the Equipment (Public
Safety) Act 1994--
15 (a) in paragraph (a) for "400 penalty units"
substitute "2500 penalty units";
(b) in paragraph (b) for "100 penalty units"
substitute "500 penalty units".
71. Equipment (Public Safety) Act 1994--Guidelines
20 For sections 28(5) and 28(6) of the Equipment
(Public Safety) Act 1994 substitute--
"(5) The Authority must issue general guidelines
for or with respect to the prosecution of
offences under this Act.
25 (6) The Authority must publish guidelines under
sub-section (5) in the Government Gazette.".
72. Occupational Health and Safety Act 1985--employee
In section 4 of the Occupational Health and
Safety Act 1985, in the definition of "employee",
30 at the end of the definition insert "but does not
include a person participating in an approved
program of work for unemployment payment
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under the Commonwealth Social Security Act
1991".
73. Occupational Health and Safety Act 1985--penalties
In section 47(2) of the Occupational Health and
5 Safety Act 1985--
(a) in paragraph (a) for "400 penalty units"
substitute "2500 penalty units";
(b) in paragraph (b) for "100 penalty units"
substitute "500 penalty units".
10 74. Occupational Health and Safety Act 1985--
Guidelines
For sections 48(5) and 48(6) of the Occupational
Health and Safety Act 1985 substitute--
"(5) The Authority must issue general guidelines
15 for or with respect to the prosecution of
offences under this Act.
(6) The Authority must publish guidelines under
sub-section (5) in the Government Gazette.".
75. Magistrates' Court Act 1989--penalties
20 In the Magistrates' Court Act 1989, in
Schedule 4--
(a) in clauses 52A, 53 and 53A for "400 penalty
units" (wherever occurring) substitute "1000
penalty units";
25 (b) in clauses 52A(b)(ii) and 53(b)(ii) for "100
penalty units" substitute "200 penalty
units".
76. Workers Compensation Act 1958
(1) In section 16(3) of the Workers Compensation
30 Act 1958 after "section" insert "who is not an
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insurer with which the employer was insured at
the relevant time".
(2) In section 25E(4) of the Workers Compensation
Act 1958 after "section" insert "who is not an
5 insurer with which the employer was insured at
the relevant time".
77. Consequential amendment
In section 21 of the Accident Compensation
(Further Amendment) Act 1996--
10 (a) for "section 138" substitute "Division 9 of
Part IV";
(b) in the proposed section 138A to be inserted
in the Accident Compensation Act 1985 for
"138A." substitute "138B.".
15
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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