Victorian Consolidated Legislation

Accident Compensation Act 1985 - SECT 5

Definitions

5. Definitions



(1) In this Act unless inconsistent with the context or subject-matter-



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accounting records includes invoices, receipts, orders for the payment of
money, bills of exchange, cheques, promissory notes, vouchers and other
documents of prime entry and also includes such working papers and other
documents as are necessary to explain the methods and calculations by which
accounts are made up;

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ambulance service means the conveying of the worker by any reasonable means-

   (a)  for the purpose of receiving medical or hospital services; or

   (b)  to the worker's place of residence after receiving medical or hospital
        services;

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appointed day means four o'clock in the afternoon of the day before the
proclaimed day;

apprentice except in section 16 means an apprentice within the meaning of the
Education and Training Reform Act 2006;









Authority means the Victorian WorkCover Authority established under this Act;



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authorised agent means a person appointed as an authorised agent under section
23;



authorised deposit-taking institution has the same meaning as in the
Banking Act 1959 of the Commonwealth;



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Board means the Board of Management of the Authority;



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books includes any register or other record of information and any accounts or
accounting records, however compiled, recorded or stored, and also includes
any document;

company, for the purposes of the definition of remuneration, includes all
bodies and associations (corporate and unincorporate) and partnerships;
corresponding Authority means a Government department or a statutory authority
of the Commonwealth Government, or of the Government of another State or of a
Territory, that is responsible for administering a law corresponding to this
Act, the Accident Compensation (WorkCover Insurance) Act 1993, the
Occupational Health and Safety Act 2004, the Dangerous Goods Act 1985 or the
Equipment (Public Safety) Act 1994;

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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 his or
her pre-injury employment but is able to return to work in suitable
employment;

dependant means a person who-

   (a)  at the time of the death of a worker was wholly, mainly or partly
        dependent on the earnings of the worker; or

   (b)  would but for the incapacity of a worker due to the injury have been
        wholly, mainly or partly dependent on the earnings of the worker;

disease includes-

   (a)  any physical or mental ailment, disorder, defect or morbid condition
        whether of sudden or gradual development; and

   (b)  the aggravation, acceleration, exacerbation or recurrence of any
        pre-existing disease; domestic partner of a person means-

   (a)  a person who is in a registered relationship with the person; or

   (b)  a person to whom the person is not married but with whom the person is
        living as a couple on a genuine domestic basis (irrespective of
        gender);

employer includes-

   (a)  the legal personal representative of a deceased employer;

   (b)  the Crown in right of the State;

   (c)  any person deemed to be an employer by this Act;

   (d)  any public, local or municipal body or authority; and

   (e)  where the services of a worker are temporarily lent or let on hire to
        another person by the person with whom the worker has entered into a
        contract of service or apprenticeship or otherwise, that
        last-mentioned person while the worker is working for that other
        person; employer superannuation contribution means any contribution
        made by an employer in respect of a worker to any scheme or fund for
        the payment of superannuation, retirement or death benefits including
        a contribution made by an employer on behalf of the worker under a
        salary sacrifice agreement or arrangement but excluding-

   (a)  any contribution in respect of a worker which is not made for the
        purposes of avoiding a liability on an employer under the
        Superannuation Guarantee (Administration) Act 1992 of the
        Commonwealth; or

   (b)  any contribution in respect of a worker which is not made for the
        purposes of discharging an obligation on an employer under-

   (i)  any industrial award, enterprise bargaining agreement, registered
        industrial agreement, approved workplace agreement or other similar
        agreement; or

   (ii) any public sector superannuation scheme, agreement or arrangement; or

   (iii) any other Commonwealth or State law relating to superannuation; or

   (c)  any contribution, made by an employer in respect of a worker under a
        salary sacrifice agreement or arrangement, of a kind or class
        specified by the Minister by an Order published in the Government
        Gazette;

financial year, except in Part VII, means the period commencing on the
appointed day and ending on 30 June 1986 and each year thereafter commencing
on 1 July;

fringe benefit has the same meaning as in the
Fringe Benefits Tax Assessment Act 1986 of the Commonwealth but does not
include anything that is prescribed by the regulations not to be a fringe
benefit for the purposes of this definition;

full-time worker means a worker who is employed for at least the normal number
of hours fixed in any industrial award applicable to the worker or if there is
no applicable award the prescribed number of hours; heart attack injury means
an injury to the heart, or any blood vessel supplying or associated with the
heart, that consists of, is caused by, results in or is associated with-

   (a)  any heart attack; or

   (b)  any myocardial infarction; or

   (c)  any myocardial ischaemia; or

   (d)  any angina, whether unstable or otherwise; or

   (e)  any fibrillation, whether atrial or ventricular or otherwise; or

   (f)  any arrhythmia of the heart; or

   (g)  any tachycardia, whether ventricular, supra ventricular or otherwise;
        or

   (h)  any harm or damage to such a blood vessel or to any associated plaque;
        or

   (i)  any impairment, disturbance or alteration of blood, or blood
        circulation, within such a blood vessel; or

   (j)  any occlusion of such a blood vessel, whether the occlusion is total
        or partial; or

   (k)  any rupture of such a blood vessel, including any rupture of an
        aneurism of such a blood vessel; or

   (l)  any haemorrhage from such a blood vessel; or

   (m)  any aortic dissection; or

   (n)  any consequential physical harm or damage, including harm or damage to
        the brain;

   (o)  any consequential mental harm or damage;

hospital means-

   (a)  a public hospital, denominational hospital, private hospital or day
        procedure centre within the meaning of the Health Services Act 1988 or
        a private hospital within the meaning of section 178 of the
        Health Act 1958; or

   (b)  an approved mental health service within the meaning of the
        Mental Health Act 1986; or

   (c)  a hospital within the meaning of a law of another State or of a
        Territory; or

   (d)  a hospital outside Australia approved by the Authority; or

   (e)  a place within Australia declared by Order of the Governor in Council
        to be a hospital for the purposes of this Act;

hospital service includes-

   (a)  maintenance, attendance and treatment in any hospital within the
        meaning of the Health Services Act 1988; and

   (b)  the provision by any hospital of-

   (i)  medical attendance and treatment; and

   (ii) nursing attendance; and

   (iii) medicines, medical, surgical and other curative materials, appliances
        or apparatus; and

   (iv) any other usual or necessary services provided by a hospital with
        respect to the treatment of the injury or disease of the worker;

industrial deafness means any condition of deafness caused by-

   (a)  exposure;

   (b)  continued exposure; or

   (c)  periods of continued exposure- to industrial noise;

incapacity includes-

   (a)  in relation to industrial deafness, inability to engage in the
        worker's own or other suitable employment because of an immediate and
        substantial risk of increasing the industrial deafness to a level of
        material disability;

   (b)  a disfigurement that is sufficient to affect the earning capacity of a
        worker or a worker's opportunities for employment; injury means any
        physical or mental injury and, without limiting the generality of that
        definition, includes-

   (a)  industrial deafness;

   (b)  a disease contracted by a worker in the course of the worker's
        employment (whether at, or away from, the place of employment);

   (c)  a recurrence, aggravation, acceleration, exacerbation or deterioration
        of any pre-existing injury or disease; Note This definition only
        applies to injuries that occur on or after the date of commencement of
        section 3 of the Accident Compensation and Transport Accident Acts
        (Amendment) Act 2003-see section 259.

interest at the prescribed rate means interest at the rate fixed for the time
being under section 2 of the Penalty Interest Rates Act 1983;

legal practitioner means an Australian legal practitioner within the meaning
of the Legal Profession Act 2004;



Medical Panel means a Medical Panel under this Act;

medical practitioner means-

   (a)  a medical practitioner registered under the
        Health Professions Registration Act 2005; and

   (b)  in relation to anything done for the purposes of this Act-

   (i)  in a place within Australia but outside Victoria, a medical
        practitioner who is lawfully qualified in that place to do that thing;
        and

   (ii) in a place outside Australia, a medical practitioner who is lawfully
        qualified in that place to do that thing and who is approved for the
        purposes of this Act by the Authority or self-insurer;

medical question means-

   (a)  a question as to the nature of a worker's medical condition relevant
        to an injury or alleged injury; or

   (ab) a question as to the existence, extent or permanency of any incapacity
        of a worker for work or suitable employment and the question whether a
        worker is partially or totally incapacitated; or

   (aba) a question as to whether a worker has a current work capacity or has
        no current 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 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 indefinitely to
        be, incapable of undertaking further or additional employment or work,
        and if not so incapable, what further or additional employment or work
        the worker is capable of undertaking; or

   (ac) a question as to the medical service provided, or to be provided, to a
        worker for an injury, including a question as to the adequacy,
        appropriateness or frequency of that service; or

   (b)  a question whether a worker's employment was in fact, or could
        possibly have been, a significant contributing factor to an injury or
        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 possibly have been, a contributing
        factor to an injury or alleged injury, or to a similar injury; or

   (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

   (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
        impairment is permanent; or

   (da) a question as to the amount of the total percentage referred to in
        section 89(3)(b); 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

   (f)  a question whether a worker's incapacity for work resulted from or was
        materially contributed to by an injury or alleged injury;

   (g)  a question whether a proposal under section 99AAA for a co-ordinated
        care program, or an alteration of such a program should be approved or
        such a program should be cancelled; or

   (h)  a question prescribed to be a medical question in respect of an
        application for leave under section 134AB(16)(b); or

   (i)  a question determined to be a medical question by a court hearing an
        application for leave under section 134AB(16)(b).

medical service includes1-

   (a)  attendance, examination or treatment of any kind by a medical
        practitioner, registered dentist, registered optometrist, registered
        physiotherapist, registered chiropractor, registered osteopath or
        registered podiatrist; and

   (b)  the provision and as may be necessary from time to time (including at
        the time of the injury) the repair, adjustment or replacement of
        crutches, artificial members, eyes or teeth or spectacle glasses; and

   (ba) the provision and as may be necessary from time to time (including at
        the time of the injury) the repair, adjustment or replacement of
        hearing aids of a type approved by the Authority by a person or a
        class of persons approved by the Authority; and

   (c)  the provision by a registered pharmacist on the request of a medical
        practitioner or registered dentist of medicines or curative apparatus,
        appliances or materials; and

   (d)  the provision, on the request of a medical practitioner, by a person
        approved by the Authority of any health service approved by the
        Authority; and

   (e)  the provision by a medical practitioner, registered dentist,
        registered optometrist, registered physiotherapist, registered
        chiropractor and osteopath or registered podiatrist of any certificate
        required by the worker, the worker's dependants, an employer, the
        Authority or a self-insurer for any purpose relating to the operation
        of this Act or any report authorised by the Authority or a
        self-insurer; and

   (f)  the provision, at the request of a medical practitioner, hospital or
        provider of a hospital service, of special food or a special food
        formula; and

   (g)  the provision, at the request of a medical practitioner, of room
        temperature control equipment for a person who is unable to adequately
        regulate his or her own body temperature; and

   (h)  the provision, at the request of a medical practitioner, of equipment
        intended to treat or stabilize any injury; Examples Examples of
        equipment referred to in paragraph (h) include life support equipment,
        ventilators and special lighting.

   (i)  the provision of anything needed to operate, run, maintain or repair
        any equipment referred to in paragraph (g) or (h); Examples Examples
        of things referred to in paragraph (i) include electricity, water,
        lubricating oil and replacement filters and batteries. Note Paragraphs
        (f) to (i) only apply to services provided on or after the date of
        commencement of section 4 of the Accident Compensation and Transport
        Accident Acts (Amendment) Act 2003-see section 260.

member of a family means the partner, father, mother, grandfather,
grandmother, step-father, step-mother, son, daughter, grandson,
grand-daughter, step-son, step-daughter, brother, sister, half-brother,
half-sister and any person who stands in the place of a parent in relation to
another person or that other person;

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 employment or in suitable employment;

notional earnings in relation to a worker means-

   (a)  the current weekly earnings of the worker as a worker or current
        weekly earnings as a self-employed person; or

   (b)  the weekly earnings that the Authority or self-insurer determines that
        the worker could earn from time to time (including, but not limited
        to, the amount of any current weekly earnings) in employment, whether
        the worker's employment previous to the injury or in suitable
        employment, that the Authority or self-insurer determines the worker
        is capable of performing despite the injury- whichever is the greater
        but does not include an amount paid to the worker by the Authority in
        respect of an employment programme provided or arranged by the
        Authority for the purposes of this Act;

nursing service means a nursing service rendered by a registered nurse,
otherwise than at a hospital or as a member of the nursing staff of a
hospital;

occupational rehabilitation program means an occupational rehabilitation
program under Part VI;





occupational rehabilitation service means any of the following services
provided by a person who is approved by the Authority as a provider of an
occupational rehabilitation service2-

   (a)  initial rehabilitation assessment;

   (b)  functional assessment;

   (c)  workplace assessment;

   (d)  job analysis;

   (e)  advice concerning job modification;

   (f)  occupational rehabilitation counselling;

   (g)  vocational assessment;

   (h)  advice or assistance concerning job-seeking;

   (i)  vocational re-education;

   (j)  advice or assistance in arranging vocational re-education;

   (k)  preparation of a return to work plan;

   (l)  the provision of aids, appliances, apparatus or other material likely
        to facilitate the return to work of a worker after an injury;

   (m)  modification to a work station or equipment used by a worker that is
        likely to facilitate the return to work of the worker after an injury;

   (n)  any other service authorised by the Authority- but does not include a
        hospital service;

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partner of a worker means-

   (a)  in relation to a worker who died before the commencement of section 4
        of the Statute Law Amendment (Relationships) Act 2001-

   (i)  the worker's spouse at the time of the worker's death; or

   (ii) a person of the opposite sex who, though not married to the worker,
        lived with the worker at the time of the worker's death on a permanent
        and bona fide domestic basis;

   (b)  in relation to a worker who dies on or after that commencement-the
        worker's spouse or domestic partner at the time of the worker's death;

personal and household service means the provision of any one or more of the
following of a kind or type, and by a person, approved by the Authority-

   (a)  attendant care;

   (b)  counselling;

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   (d)  household help;

   (e)  transportation costs;

   (f)  at the request of a medical practitioner, an aid, assistance,
        appliance, apparatus or service, other than a medical service,
        hospital service or nursing service- and includes a rehabilitation
        service provided under this Act as in force before the commencement of
        section 80 of the
        Accident Compensation (WorkCover Insurance) Act 1993;

prescribed means prescribed by the regulations;

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proclaimed day means the day fixed under section 2(2); registered chiropractor
means a chiropractor registered under the
Health Professions Registration Act 2005;



registered dentist means a dentist registered under the
Health Professions Registration Act 2005;



registered osteopath means an osteopath registered under the
Health Professions Registration Act 2005;



registered physiotherapist means a physiotherapist registered under the
Health Professions Registration Act 2005;





registered podiatrist means a podiatrist registered under the
Health Professions Registration Act 2005;



registered psychologist means a psychologist registered under the
Health Professions Registration Act 2005;





Registrar means Registrar or a deputy registrar of the County Court;





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remuneration has the same meaning as it has in section 3(1) of the
Accident Compensation (WorkCover Insurance) Act 1993;





















retirement age, in relation to a worker, means-

   (a)  if there is a normal retiring age for workers in the occupation in
        which the worker was employed at the time of the injury-that age; or

   (b)  the age of 65 years- whichever is the earlier, and, for the purposes
        of determining whether there is a normal retiring age for workers in
        an occupation, regard may be had to any retiring age in any industry
        or establishment where that occupation is carried on;

return to work plan means a return to work plan under Part VI;



risk management program means a risk management program under Part VI;



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self-insurer means a body corporate or partnership approved as a self-insurer
under Part V;

spouse of a person means a person to whom that person is married;

stroke injury means an injury to the brain, or any of the blood vessels
supplying or associated with the brain, that consists of, is caused by,
results in or is associated with-

   (a)  any stroke; or

   (b)  any cerebral infarction; or

   (c)  any cerebral ischaemia; or

   (d)  any rupture of such a blood vessel, including any rupture of an
        aneurism of such a blood vessel; or

   (e)  any subarachnoid haemorrhage; or

   (f)  any haemorrhage from such a blood vessel; or

   (g)  any harm or damage to such a blood vessel or to any associated plaque;
        or

   (h)  any impairment, disturbance or alteration of blood, or blood
        circulation, within such a blood vessel; or

   (i)  any occlusion of such a blood vessel, whether the occlusion is total
        or partial; or

   (j)  any consequential physical harm or damage, including neurological harm
        or damage; or

   (k)  any consequential mental harm or damage;

student worker means a worker within the meaning of paragraph (d) or (e) of
the definition of worker;



suitable employment, in relation to a worker, means employment in work for
which the worker is currently suited (whether or not that work is available),
having regard to the following-

   (a)  the nature of the worker's incapacity and pre-injury employment;

   (b)  the worker's age, education, skills and work experience;

   (c)  the worker's place of residence;

   (d)  the details given in medical information including the medical
        certificate supplied by the worker;

   (e)  the worker's return to work plan, if any;

   (f)  if any occupational rehabilitation services are being provided to or
        for the worker;

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Tribunal means Victorian Civil and Administrative Tribunal established by the
Victorian Civil and Administrative Tribunal Act 1998;





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Uninsured Employers and Indemnity Scheme means the scheme established under
section 55 of the Accident Compensation (WorkCover Insurance) Act 1993;



weekly payment means a weekly payment of compensation under section 93A, 93B
or 93C or under section 93CA, 93CB, 93CC, 93CD, 93E or 93EA;





WorkCover insurance policy has the same meaning as it has in section 3(1) of
the Accident Compensation (WorkCover Insurance) Act 1993;

worker means-

   (a)  a person (including a domestic servant or an outworker) who has
        entered into or works under a contract of service or apprenticeship or
        otherwise with an employer whether by way of manual labour, clerical
        work or otherwise and whether the contract is express or implied, is
        oral or is in writing;

   (b)  a person who under this Act is deemed to be working under a contract
        of service;

   (c)  a person who under this Act is deemed to be a worker;

   (d)  if a student at a school within the meaning of Part 5.4 of the
        Education and Training Reform Act 2006 is employed under an
        arrangement under that Part-that student whilst so employed; or

   (e)  if a student of a TAFE provider is employed under a practical
        placement agreement under Part 5.4 of the
        Education and Training Reform Act 2006-that student whilst so
        employed-

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(1A) For the purposes of the definition of injury, the employment of a worker
shall be taken to include any travelling or other circumstances referred to in
section 83 other than subsection (1)(a).



(1B) In determining for the purposes of this Act whether a worker's employment
was a significant contributing factor to an injury-

   (a)  the duration of the worker's current employment; and

   (b)  the nature of the work performed; and

   (c)  the particular tasks of the employment; and

   (d)  the probable development of the injury occurring if that employment
        had not taken place; and

   (e)  the existence of any hereditary risks; and

   (f)  the life-style of the worker; and

   (g)  the activities of the worker outside the workplace-

must be taken into account.

(1C) The definition of medical question as amended by section 3(1) of the
Accident Compensation (Miscellaneous Amendment) Act 1997 applies in respect of
any referral lodged on or after the commencement of that section.

(2) A reference in this Act to a Commonwealth Act is a reference, if that Act
has been amended, to that Act as amended and in force for the time being.

(3) A reference in this Act to a determination or decision includes a
reference to-

   (a)  making, suspending, varying, revoking or refusing or failing to make
        an order, award, decision or determination;

   (b)  giving, suspending, varying, revoking or refusing or failing to give a
        certificate, direction, approval, consent or permission; and

   (c)  issuing, suspending, varying, revoking or refusing or failing to issue
        a licence, authority or other instrument.

(4) A reference in this Act to a worker who has been injured includes, where
the worker is dead, a reference to the legal personal representative of the
deceased worker.

(4A) A person who is a participant in a declared training program is deemed to
be a worker employed by the person who provides the workplace based training
during any time that the person participates in the declared training program
after the person who is to provide the workplace based training has entered
into an agreement to provide the workplace based training.

(4B) The Governor in Council may by Order in Council published in the
Government Gazette-

   (a)  declare a training program which includes the provision of workplace
        based training to be a declared training program;

   (b)  specify a class of payments which are deemed to be remuneration paid
        or payable in respect of a participant in a declared training program.

(4C) A payment which is deemed to be remuneration paid or payable in respect
of a participant in a declared training program is deemed to be remuneration
for the purposes of the Accident Compensation Act 1985 and the
Accident Compensation (WorkCover Insurance) Act 1993 paid or payable by the
person who provides the workplace based training.

(4D) The Landcare and Environment Action Program and the New Work
Opportunities Program conducted by the Commonwealth of Australia are deemed to
have been declared to be declared training programs.

(4E) The training allowance payable to participants in the Landcare and
Environment Action Program and the New Work Opportunities Program is deemed-

   (a)  to be remuneration paid or payable in respect of a participant in a
        declared training program; and

   (b)  to be remuneration for the purposes of the
        Accident Compensation Act 1985 and the
        Accident Compensation (WorkCover Insurance) Act 1993 paid or payable
        by the person who provides the workplace based training.

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(6) As between a tributer or sub-tributer and the lessee or owner of any mine
or claim, the tributer or sub-tributer (as the case may be) shall, for the
purposes of this Act, be deemed to be working under a contract of service with
the lessee or owner and the lessee or owner shall for those purposes be deemed
to be the employer in relation to the tributer or sub-tributer.

(7) In subsection (6), claim, lessee, mine, sub-tributer and tributer have
respectively the same meanings as in Part I or (if the case so requires) Part
II of the Mines Act 1958.

(8) If there is caused to a person who is not a worker otherwise than by
reason of this subsection an injury arising out of or in the course of any
employment programme provided or arranged by the Authority-

   (a)  the person shall be deemed for the purposes of this Act to be a worker
        employed by the Authority; and

   (b)  for the purposes of Division 2 of Part IV, the person's pre-injury
        average weekly earnings in relation to the injury shall be deemed to
        be the pre-injury average weekly earnings in relation to the injury
        because of which the worker is on the employment programme as indexed
        in accordance with section 100.

(8A) For the purposes of sections 6(1), 8(1) and 9(2)(e), superannuation
benefit has the same meaning as it has in section 3(1) of the
Accident Compensation (WorkCover Insurance) Act 1993.

(9) For the purposes of this Act, a reference to remuneration includes a
reference to fringe benefits.





(10) In this Act, a reference to remuneration does not include a reference to
allowances for travelling or accommodation paid or payable at a rate in a
particular case or class of cases that does not exceed such rate as is
prescribed in respect of that case or class of cases.

(11) In this Act any wages, remuneration, salary, commission, bonuses or
allowances referred to in paragraph (e) in the interpretation of remuneration
shall be deemed to be paid or payable by the employer.

(12) A reference in this Act to remuneration paid or payable by an employer
includes remuneration which is deemed to be paid or payable by the employer.

(13) A reference in this Act to remuneration paid or payable by a related
person or associate in a group within the meaning of section 196 of this Act
or section 67 of the Accident Compensation (WorkCover Insurance) Act 1993
includes remuneration which would be deemed to be paid or payable by a related
person or an associate if the related person or associate were the employer of
the worker to whom it was paid.

(14) In this Act in relation to wages, remuneration, salary, commission,
bonuses or allowances paid includes provided, conferred and assigned.



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(18) For the purposes of the definition of domestic partner in subsection (1)-

   (a)  registered relationship has the same meaning as in the
        Relationships Act 2008; and

   (b)  in determining whether persons who are not in a registered
        relationship are domestic partners of each other, all the
        circumstances of their relationship are to be taken into account,
        including any one or more of the matters referred to in section 35(2)
        of the Relationships Act 2008 as may be relevant in a particular case.