ACCIDENT COMPENSATION ACT 1985 - SECT 104B Claims for compensation under section 98C
ACCIDENT COMPENSATION ACT 1985 - SECT 104B
Claims for compensation under section 98CS. 104B(1) amended by No. 67/2013 s. 635(1) (as amended by No. 44/2014 s. 24(30)).
(1) In addition to the requirements under section 103, this section, and section 6(1) and Divisions 1 and 2 of Part 2 of the Workplace Injury Rehabilitation and Compensation Act 2013 apply to a claim for compensation under section 98C.
S. 104B(1A) inserted by No.
26/2000
s. 16(1).
(1A) Subject to subsection (1B), a claim for compensation under section 98C or 98E, not being a claim for compensation for industrial deafness, can not be made before the expiry of the period of 12 months after the date of the relevant injury.
S. 104B(1B) inserted by No.
26/2000
s. 16(1).
(1B) Despite subsection (1A), the Authority or a self‑insurer may receive a claim for compensation under section 98C or 98E before the expiry of the period of 12 months after the date of the relevant injury if the relevant injury has stabilised.
S. 104B(1BA) inserted by No. 102/2004 s. 4.
(1BA) If a worker has commenced an application under section 134AB(4)(b), the worker can not make a claim for compensation under section 98C until the proceedings under section 134AB in respect of that application have been finally determined.
S. 104B(1C) inserted by No.
26/2000
s. 16(1), amended by No. 41/2006 s. 19(1).
(1C) If liability has been accepted or determined in respect of a prior claim for compensation for an injury, the Authority or a self-insurer may after the expiry of the period of 18 months after the date of the relevant injury and without a claim having been made under section 98C or 98E, request the worker to attend an independent examination under subsection (4).
S. 104B(1CA) inserted by No. 41/2006 s. 19(2).
(1CA) For the purposes of this section, a request under subsection (1C) has the effect of initiating a claim for compensation under section 98C or 98E in respect of the worker by the Authority or self‑insurer.
S. 104B(1D) inserted by No. 102/2004 s. 5(1), amended by No. 41/2006 s. 19(3)(a)(b).
(1D) The Authority or self-insurer may within 90 days of receiving a claim made by the worker by notice in writing to the worker suspend the claim made by the worker if—
(a) the Authority or self-insurer has insufficient medical information to determine the matters specified in subsection (2); or
(b) the Authority or self-insurer can not make a determination under subsection (2) because the condition of the injury of the worker is not stable.
S. 104B(1E) inserted by No. 102/2004 s. 5(1).
(1E) The Authority or self-insurer must within 14 days—
(a) if subsection (1D)(a) applies, of having sufficient medical information to determine the matters specified in subsection (2); or
(b) if subsection (1D)(b) applies, of being able to make a determination under subsection (2) because the condition of the injury of the worker has stabilised—
by notice in writing to the worker remove the suspension under subsection (1D).
S. 104B(2) amended by No. 81/1998 s. 23(a), substituted by No. 102/2004 s. 5(2), amended by No. 41/2006 s. 19(4)(a).
(2) The Authority or self-insurer must within 120 days of receiving a claim made by the worker or in the case of a claim initiated by the Authority or self-insurer, within 120 days of the relevant date—
S. 104B(2)(a) amended by No. 41/2006 s. 19(4)(b).
(a) if the claim is a claim made by the worker, accept or reject liability for each injury included in the claim;
(b) obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;
(c) after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i) section 98C;
(ii) section 134AB;
(iii) Subdivision 1 of Division 3A;
S. 104B(2)(d) amended by No. 80/2010 s. 62(b).
(d) determine whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B;
(e) calculate any entitlement to compensation under section 98C or 98E;
(f) advise the worker as to—
S. 104B(2)(f)(i) amended by No. 41/2006 s. 19(4)(c).
(i) if the claim is a claim made by the worker, the decision to accept or reject liability for each injury included in the claim;
S. 104B(2)(f)(ii) amended by No. 80/2010 s. 62(b).
(ii) each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B resulting from the injury or injuries in respect of which liability is accepted;
(iii) the calculation of any entitlement to compensation under section 98C or 98E;
S. 104B (2)(f)(iv) repealed by No. 41/2006 s. 18(1).
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(g) provide to the worker a copy of—
(i) any medical reports, correspondence and other documents provided to; and
(ii) any medical reports, correspondence and other documents obtained from—
any medical practitioner referred to in section 91(1)(b) conducting an independent examination.
S. 104B(2AA) inserted by No. 41/2006 s. 19(5).
(2AA) For the purposes of this section—
"claim made by the worker" means—
(a) a claim by a worker for compensation under section 98C or 98E; or
(b) a claim by a worker for compensation under section 98C or 98E in accordance with subsection (5D)(a);
"relevant date" means—
(a) if the worker makes a claim for compensation under section 98C or 98E in accordance with subsection (5D)(a), the day on which the claim is received by the Authority or self-insurer; or
(b) if the worker advises the Authority or self-insurer that he or she disputes the written statement under subsection (5C), the day on which the dispute is resolved; or
(c) if the worker does not make a claim or dispute the statement within the period specified under subsection (5D), the day on which that period expires; or
(d) if the worker accepts the written statement of the injury or injuries under subsection (5C), the day on which the Authority or self-insurer receives the advice of the worker that he or she accepts the written statement of the injury or injuries.
S. 104B(2A) inserted by No. 102/2004 s. 5(2).
(2A) The Authority or self-insurer is not bound by the assessment or assessments obtained under subsection (2)(b) in determining the degree of permanent impairment (if any) under subsection (2)(c).
S. 104B(3) amended by Nos 81/1998 s. 23(a), 102/2004 s. 5(3), 41/2006 s. 19(6).
(3) If the Authority or self-insurer rejects liability in relation to the injuries included in the claim made by the worker and the worker disputes the decision as to liability, the worker must not commence proceedings in relation to the claim made by the worker unless the worker first refers the dispute for conciliation by a Conciliation Officer in accordance with Division 2 of Part III and until the Conciliation Officer has issued a certificate under section 49.
S. 104B(4) amended by Nos
107/1997
s. 25(3), 81/1998 s. 23(a), substituted by No. 102/2004
s. 5(4).
(4) The worker must at the request of the Authority or self-insurer attend an independent examination to be conducted by a medical practitioner referred to in section 91(1)(b) for the purposes this section.
S. 104B(5) amended by Nos 26/2000 s. 16(2), 82/2001 s. 6(a), substituted by No. 102/2004 s. 5(5).
(5) The Authority or self-insurer must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of—
(a) determining any entitlement of the worker to compensation under section 98C;
(b) determining the whole person impairment under sections 134AB(3) and 134AB(15);
(c) Subdivision 1 of Division 3A.
S. 104B(5A) inserted by No.
26/2000
s. 16(3), substituted by No. 102/2004 s. 5(6).
(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.
S. 104B(5AA) inserted by No. 102/2004 s. 5(6).
(5AA) A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.
S. 104B(5AB) inserted by No. 41/2006 s. 19(7).
(5AB) Subject to subsection (5D)(a), if a claim for compensation under section 98C or 98E has been initiated in respect of a worker by the Authority or self-insurer, the worker cannot make a claim for compensation under section 98C or 98E in respect of injuries arising out of the same event or circumstance.
S. 104B(5B) inserted by No.
26/2000
s. 16(3), substituted by No. 102/2004 s. 5(6).
(5B) A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.
S. 104B(5C) inserted by No.
26/2000
s. 16(3), amended by No. 41/2006 s. 19(8).
(5C) If the independent examination has been requested by the Authority or a self-insurer under subsection (1C), the Authority or self-insurer must give the worker a written statement of the injury or injuries to be included in the assessments and a statement of rights in a form approved by the Authority for the purposes of this section.
S. 104B(5D) inserted by No.
26/2000
s. 16(3), amended by No. 41/2006 s. 19(9)(a).
(5D) A worker must within 60 days of receiving a written statement under subsection (5C)—
(a) make a claim for compensation under section 98C or 98E in respect of any additional injuries that the worker believes have arisen out of the same event or circumstance; or
S. 104B(5D)(b) amended by No. 41/2006 s. 19(9)(b).
(b) advise the Authority or self-insurer that he or she disputes the statement; or
S. 104B(5D)(c) inserted by No. 41/2006 s. 19(9)(c).
(c) advise the Authority or self-insurer that he or she accepts the written statement of the injury or injuries.
S. 104B(5DA) inserted by No. 41/2006 s. 19(10).
(5DA) If after receiving a written statement under subsection (5C) the worker makes a claim for compensation under section 98C or 98E in respect of any additional injuries that the worker believes have arisen out of the same event or circumstance—
(a) the claim by the worker and the claim initiated by the Authority or self-insurer are to be considered as one consolidated claim; and
(b) the consolidated claim is to be dealt with in accordance with subsection (2).
S. 104B(5DB) inserted by No. 41/2006 s. 19(10).
(5DB) If the worker advises the Authority or self-insurer that he or she disputes the written statement under subsection (5C), 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 and until the Conciliation Officer has issued a certificate under section 49.
S. 104B(5E) inserted by No.
26/2000
s. 16(3), amended by Nos 102/2004 s. 5(7)(a), 41/2006
s. 19(11).
(5E) If the worker does not make a claim or dispute the statement within the period specified under subsection (5D), the injury or injuries specified in the written statement are deemed to be the only injury or injuries arising from the same event or circumstance which are to be included in the determination of impairment to be dealt with in accordance with subsection (2).
S. 104B(5F) inserted by No.
26/2000
s. 16(3), amended by No. 102/2004 s. 5(7)(b)(i)(ii).
(5F) If the worker was not 18 years of age at the time of the event or circumstance, the determination of impairment resulting from the injury can not be made until the worker attains the age of 18 years.
S. 104B(6) amended by Nos 81/1998 s. 23(a), 26/2000 ss 16(4)(a), s. 17(1), 82/2001 s. 20(1), substituted by No. 102/2004 s. 5(8), amended by No. 41/2006 s. 19(12).
(6) The worker must within 60 days of being advised under subsection (2) in respect of a claim made by the worker advise the Authority or self-insurer in writing whether the worker accepts or disputes the decision as to liability in respect of each of the injuries claimed.
S. 104B(6A) inserted by No. 102/2004 s. 5(8).
(6A) If under subsection (6) a worker disputes any part of the decision as to liability, the worker does not have to respond to any other part of the advice under subsection (2).
S. 104B(6B) inserted by No. 102/2004 s. 5(8) , amended by No. 41/2006 s. 19(13).
(6B) Subject to subsection (6), the worker must within 60 days of being advised under subsection (2) advise the Authority or self-insurer in writing—
(a) whether the worker accepts or disputes the determinations of impairment and total loss;
S. 104B(6B)(b) amended by No. 41/2006 s. 18(2)(a).
(b) if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any.
S. 104B(6B)(c) repealed by No. 41/2006 s. 18(2)(b).
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S. 104B(7) amended by Nos 81/1998 s. 23(a), 26/2000 ss 16(4)(b), s. 17(2), 82/2001 s. 20(1), substituted by No. 102/2004 s. 5(8).
(7) If the decision made under subsection (2)(a) to reject liability for an injury is varied as the result of a decision of a court or an agreement between the worker and the Authority or self-insurer, the Authority or self-insurer must within 90 days of the variation—
(a) obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted or determined;
(b) after taking into account the assessment or assessments obtained under paragraph (a), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i) section 98C;
(ii) section 134AB;
(iii) Subdivision 1 of Division 3A;
S. 104B(7)(c) amended by No. 80/2010 s. 62(b).
(c) determine whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B;
(d) calculate any entitlement to compensation under section 98C or 98E;
(e) advise the worker as to—
(i) the decision or determination of liability for each injury included in the claim;
S. 104B(7)
(e)(ii) amended by No. 80/2010 s. 62(b).
(ii) each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table in Schedule 3B resulting from the injury or injuries in respect of which liability is accepted;
(iii) the calculation of any entitlement to compensation under section 98C or 98E;
S. 104B (7)(e)(iv) repealed by No. 41/2006 s. 18(1).
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(f) provide to the worker a copy of—
(i) any medical reports, correspondence and other documents provided to; and
(ii) any medical reports, correspondence and other documents obtained from—
any medical practitioner referred to in section 91(1)(b) conducting an independent examination.
S. 104B(7A) inserted by No. 102/2004 s. 5(8).
(7A) The Authority or self-insurer is not bound by the assessment or assessments obtained under subsection (7)(a) in determining the degree of permanent impairment (if any) under subsection (7)(b).
S. 104B(7B) inserted by No. 102/2004 s. 5(8).
(7B) The worker must within 60 days of being advised under subsection (7) advise the Authority or self-insurer in writing—
(a) whether the worker accepts or disputes the determinations of impairment and total loss;
S. 104B(7B)(b) amended by No. 41/2006 s. 18(3)(a).
(b) if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any.
S. 104B(7B)(c) repealed by No. 41/2006 s. 18(3)(b).
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S. 104B(8) amended by Nos 81/1998 s. 23(a), 26/2000 s. 16(4)(c), substituted by No. 26/2000 s. 17(3), amended by No. 102/2004 s. 5(9)(a)(b), substituted by No. 41/2006 s. 18(4).
(8) Subject to section 134AB(36), the Authority or self-insurer must, within 14 days of being advised by the worker either under subsection (6B) or (7B) or at a later date that the worker accepts the determinations of impairment and total loss and the entitlement to compensation—
(a) if the entitlement is under section 98C, make payments in accordance with section 98D; or
(b) if the entitlement is under section 98E, pay the amount specified for the total loss under section 98E.
S. 104B(9) amended by Nos 81/1998 s. 23(a), 26/2000 s. 16(4)(d)(i)(ii), 82/2001 s. 6(b), substituted by No. 102/2004 s. 5(10).
(9) The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to—
(a) the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and
S. 104B(9)(b) amended by No. 80/2010 s. 62(b).
(b) whether the worker has an injury or injuries claimed for which liability is accepted or established which is a total loss mentioned in the Table in Schedule 3B—
to a Medical Panel for its opinion under section 67.
S. 104B(9A) inserted by No. 102/2004 s. 5(10).
(9A) For the purposes of subsection (9), if a worker has suffered an injury arising out of the same event or circumstance resulting in both psychiatric impairment and impairment other than psychiatric impairment—
(a) the worker may—
(i) accept or dispute the determinations of impairment of both psychiatric impairment and impairment other than psychiatric impairment; or
(ii) accept or dispute either the determination of psychiatric impairment or the determination of impairment other than psychiatric impairment but can not accept only part of the determination of impairment other than psychiatric impairment; and
(b) the Authority or self-insurer must refer under that subsection the medical questions relating to the determination or determinations disputed in accordance with subsection (9).
S. 104B(10) amended by No. 81/1998 s. 23(a), substituted by No. 26/2000 s. 17(4), amended by No. 82/2001 s. 20(1), substituted by No. 41/2006 s. 18(5).
(10) The Authority or self-insurer must, within 60 days of obtaining the opinion of the Medical Panel under section 67, advise the worker of the opinion and the entitlement, if any, under section 98C or 98E.
S. 104B(10A) inserted by No. 26/2000 s. 17(4), substituted by No. 41/2006 s. 18(5).
(10A) The worker must, within 60 days of being advised by the Authority or self-insurer of the entitlement of the worker to compensation in accordance with subsection (10), advise the Authority or self‑insurer whether the worker accepts or disputes the entitlement to compensation.
S. 104B(10B) inserted by No. 26/2000 s. 17(4), substituted by No. 41/2006 s. 18(5).
(10B) Subject to section 134AB(36), the Authority or self-insurer must, within 14 days of being advised by the worker either under subsection (10A) or at a later date that the worker accepts the entitlement to compensation—
(a) if the entitlement is under section 98C, make payments in accordance with section 98D; or
(b) if the entitlement is under section 98E, pay the amount specified for the total loss under section 98E.
S. 104B(11) amended by No. 80/2010 s. 62(b).
(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 has an injury which is a total loss mentioned in the Table in Schedule 3B.
S. 104B(11A) inserted by No. 26/2000 s. 17(5) , repealed by No. 41/2006 s. 18(6).
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S. 104B(12) amended by No. 102/2004 s. 5(11).
(12) No appeal lies to any court or Tribunal from a determination or opinion—
(a) as to the degree of permanent impairment of a worker resulting from an injury; or
S. 104B(12)(b) amended by No. 80/2010 s. 62(b).
(b) as to whether a worker has an injury which is a total loss mentioned in the Table in Schedule 3B.
S. 104B(13) amended by No. 80/2010 s. 122(3).
(13) For the purposes of this section, the Minister may issue directions for or with respect to procedures for the determination of claims for compensation under section 98C, including directions requiring that information in classes of claims specified in the directions must be provided by affidavit.
S. 104B(14) inserted by No. 26/2000 s. 16(5).
(14) This section as amended by section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 applies in respect of—
(a) all claims for compensation under section 98C given, served or lodged on or after the commencement of section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 ;
(b) an assessment for the purposes of sections 134AB(3) and 134AB(15) in respect of an injury to a worker on or after 20 October 1999 whose claim for compensation under section 98C was given, served or lodged before the commencement of section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 ;
(c) a claim specified in subsection (15).
S. 104B(15) inserted by No. 26/2000 s. 16(5).
(15) If a worker has given, served or lodged a claim for compensation under section 98C before the commencement of section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 and on or after that commencement claims compensation under section 98C for any other injury which arose from the same event or circumstance in respect of which the injury the subject of the previous claim arose, this section as amended by section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 applies in respect of the subsequent claim.
S. 104B(16) inserted by No. 26/2000 s. 16(5).
(16) Subject to subsection (14), this section as in force before the commencement of section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 continues to apply in respect of all claims for compensation under section 98C given, served or lodged before the commencement of section 16 of the Accident Compensation (Common Law and Benefits) Act 2000 .
S. 104B(17) inserted by No. 26/2000 s. 17(6).
(17) This section as amended by section 17 of the Accident Compensation (Common Law and Benefits) Act 2000 applies in respect of—
(a) all claims for compensation under section 98C given, served or lodged on or after the commencement of section 17 of the Accident Compensation (Common Law and Benefits) Act 2000 ;
(b) a request made under subsection (1C) on or after that commencement;
(c) an assessment on or after that commencement for the purposes of sections 134AB(3) and 134AB(15) in respect of an injury to a worker on or after 20 October 1999.
S. 104B(18) inserted by No. 82/2001 s. 20(2).
(18) This section as amended by section 20 of the Accident Compensation (Amendment) Act 2001 only applies—
(a) in the case of subsection (6), to any case in which the Authority or self-insurer obtained the assessments and determination on or after the date of commencement of section 20 of that Act;
(b) in the case of subsection (7), to any case in which the worker was advised under subsection (6) on or after the date of commencement of section 20 of that Act;
(c) in the case of subsection (10), to any case in which the Authority or self-insurer obtained the opinion of the Medical Panel under section 67 on or after the date of commencement of section 20 of that Act.
S. 104B(19) inserted by No. 102/2004 s. 5(12).
(19) If as at the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 a worker has attended at least 1 impairment examination, the assessment of impairment and the final determination of the claim of the worker must be completed in accordance with this section as in force before that commencement.
S. 104B(20) inserted by No. 102/2004 s. 5(12).
(20) If as at the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 a worker has lodged an impairment claim but has not attended any impairment examinations, the worker may before attending an impairment examination elect by notice in writing to the Authority or self-insurer—
(a) to continue to have the claim determined in accordance with this section as in force before that commencement; or
(b) to withdraw the claim.
S. 104B(21) inserted by No. 102/2004 s. 5(12).
(21) If a worker withdraws a claim under subsection (20)(b), the worker may submit a new claim as if it were the first claim of that type that the worker was submitting in respect of that injury.
S. 104B(22) inserted by No. 41/2006 s. 18(7).
(22) This section as in force before the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 applies to a worker to whom subsection (19) or (20)(a) applies with the following modifications—
(a) as if in subsection (6) as then in force "and of the consequences as specified in subsection (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled" were omitted;
(b) as if in subsection (7) as then in force "and if the worker accepts the entitlement to compensation, whether or not he or she wishes to receive the compensation to which he or she is entitled" were omitted;
(c) as if in subsection (8) as then in force, for "wishes to receive the compensation to which he or she is entitled" there were substituted "accepts the entitlement";
(d) as if in subsection (10) as then in force "and of the consequences as specified in subsection (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled" were omitted;
(e) as if in subsection (10A) as then in force, for "wishes to receive the compensation to which he or she is entitled" there were substituted "accepts or disputes the entitlement to compensation";
(f) as if in subsection (10B) as then in force, for "wishes to receive the compensation to which he or she is entitled" there were substituted "accepts the entitlement to compensation";
(g) as if subsection (11A) as then in force were repealed.
S. 104B(23) inserted by No. 41/2006 s. 18(7).
(23) Subject to subsection (22), this section as amended by section 18 of the Accident Compensation and Other Legislation (Amendment) Act 2006 applies to an impairment claim whether lodged before, on or after 18 November 2004 unless the worker has before 1 June 2006—
(a) made an application under section 134AB(4); or
(b) advised the Authority or self-insurer under subsection (7B) or (10A) that he or she wishes to receive the compensation to which he or she is entitled.
S. 105 substituted by No.
50/1994
s. 50, amended by Nos
107/1997
s. 30(9), 81/1998 s. 23(a), 9/2010 s. 20, repealed by
No. 67/2013 s. 635(2).
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S. 106 substituted by No.
50/1994
s. 50.