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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Workers' Compensation Reform Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments to the Workers'
Compensation and Rehabilitation
Act 1981
3. The Act amended 3
4. Long title amended 3
5. Section 1 amended 3
6. Section 3 amended 4
7. Section 4 amended 4
8. Section 5 amended 4
9. Section 7 amended 11
10. Section 10A replaced 12
10A. Working directors 12
11. Section 12 amended 12
12. Heading to Part III Division 1 replaced 13
Division 1 -- Injury: general 13
13. Section 22 amended 13
14. Heading to Part III Division 2 replaced 13
Division 2 -- Discontinued regime for lump sum
payments for specified injuries 13
15. Section 24 amended 13
16. Section 24A amended 14
17. Section 24B amended 14
18. Section 26 amended 15
19. Section 28 amended 15
288--3 page i
Workers' Compensation Reform Bill 2004
Contents
20. Section 31 amended 15
21. Part III Division 2A inserted 15
Division 2A -- New regime for lump sum payments for
specified injuries 15
31A. Application of Division 15
31B. Degree of permanent impairment 16
31C. Compensation for impairments mentioned in
Schedule 2 16
31D. Schedule 2 impairment assessment 17
31E. Lump sum compensation for noise induced
hearing loss 18
31F. Lump sum compensation for AIDS 20
31G. Subsequent injuries 21
31H. Election under section 31C or 31E 22
31I. Effect of election 23
31J. Limit on compensation of worker electing 24
31K. Compensation payable before election 25
22. Heading to Part III Division 3 replaced 25
Division 3 -- Injury: specified industrial diseases 25
23. Section 32 amended 25
24. Section 33 amended 25
25. Section 34 amended 26
26. Section 35 amended 26
27. Section 37 amended 26
28. Section 38 amended 26
29. Section 39 amended 27
30. Section 40 replaced 27
40. Interpretation of this Division in cases of death
without prior incapacity 27
31. Section 41 amended 27
32. Section 43 amended 28
33. Section 44 amended 28
34. Section 47 amended 28
35. Section 48 amended 29
36. Heading to Part III Division 4 replaced 29
Division 4 -- Injury: specified losses of functions 29
37. Section 49 replaced 29
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Workers' Compensation Reform Bill 2004
Contents
49. Injury occurs when loss of function renders worker
less able to earn full wages 30
38. Section 53 amended 30
39. Section 54 amended 30
40. Section 57 amended 30
41. Section 57A amended 31
42. Section 57B amended 32
43. Section 57BA inserted 33
57BA. Notices under sections 57A and 57B 33
44. Section 57C amended 36
45. Section 58 amended 36
46. Section 59 amended 37
47. Section 60 amended 37
48. Section 61 amended 38
49. Section 62 amended 40
50. Section 63 amended 41
51. Section 64 amended 41
52. Section 65 amended 42
53. Section 66 amended 42
54. Section 66A inserted 42
66A. Additional medical examinations 42
55. Section 67 amended 43
56. Section 70 replaced 44
70. Furnishing medical reports 44
57. Section 71 amended 45
58. Section 72 replaced by sections 72, 72A and 72B 46
72. Suspension of payments during custody 46
72A. Suspension or cessation of payments for
failure to undergo medical examination 47
72B. Suspension or cessation of payments for
failure to participate in return to work program 48
59. Section 73 amended 50
60. Section 74 amended 50
61. Section 75 amended 50
62. Section 76 amended 51
63. Section 79 amended 52
64. Section 80 amended 52
65. Section 83 amended 53
66. Section 84AB inserted 53
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Workers' Compensation Reform Bill 2004
Contents
84AB. Employer to notify worker and WorkCover WA
of intention to dismiss worker 53
67. Part IIIA repealed 54
68. Section 91 amended 54
69. Section 92 amended 54
70. Section 93 amended 55
71. Heading to Part IV Division 2 Subdivision 1 inserted 55
Subdivision 1 -- Preliminary provisions 55
72. Section 93A amended 55
73. Section 93B amended 55
74. Heading to Part IV Division 2 Subdivision 2 inserted 56
Subdivision 2 -- 1993 scheme 56
75. Sections 93CA and 93CB inserted 56
93CA. Meaning of "AMA Guides" in this Subdivision 56
93CB. Limits on application of this Subdivision 57
93CC. Application of this Subdivision 57
76. Section 93D amended 57
77. Section 93E amended 58
78. Section 93G amended 59
79. Part IV Division 2 Subdivision 3 inserted 59
Subdivision 3 -- 2004 scheme 59
93H. Terms used in this Subdivision 59
93I. Application of this Subdivision 59
93J. No damages for noise induced hearing loss if
not an injury 60
93K. Restrictions on awarding, and amount of,
damages 60
93L. Election to retain right to seek damages 63
93M. Termination day 64
93N. Special evaluation if condition has not
sufficiently stabilised 67
93O. Employer to give worker notice of certain
things 68
93P. How election may affect statutory
compensation 69
93Q. Special provisions about HIV and AIDS 71
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Workers' Compensation Reform Bill 2004
Contents
93R. Special provisions about specified industrial
diseases 72
93S. Regulations 73
80. Part V heading replaced 74
Part V -- WorkCover Western Australia Authority 74
81. Section 94 amended 74
82. Section 95 replaced 75
95. WorkCover WA's governing body 75
83. Section 96 amended 77
84. Section 97 amended 77
85. Section 98 amended 78
86. Section 99 amended 78
87. Section 100 amended 78
88. Section 100A amended 80
89. Section 100B inserted 82
100B. Disclosure of information 82
90. Section 101 amended 82
91. Section 101AA inserted 83
101AA. Delegation by WorkCover WA 83
92. Section 102 amended 83
93. Section 103A amended 84
94. Section 104 amended 84
95. Part V Division 1AA inserted 85
Division 1AA -- Personal interest 85
104AA. Disclosure of interests 85
104AB. Exclusion of interested member 85
104AC. Resolution that section 104AB inapplicable 86
104AD. Quorum where section 104AB applies 86
104AE. Minister may declare sections 104AB and
104AD inapplicable 86
96. Part V Division 1A repealed 86
97. Heading to Part V Division 3 amended 87
98. Section 106 amended 87
99. Section 109 amended 88
100. Heading to Part V Division 4 amended 88
101. Section 110 amended 88
102. Section 111 amended 89
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Workers' Compensation Reform Bill 2004
Contents
103. Part VI repealed 89
104. Part VII heading replaced 89
Part VII -- Medical assessment and assessment for
specialised retraining programs 89
Division 1 -- Medical assessment panels 89
105. Section 145A amended 90
106. Section 145C amended 90
107. Section 145D amended 90
108. Section 145E amended 91
109. Part VII Divisions 2, 3 and 4 inserted 92
Division 2 -- Assessing degree of impairment 92
146. Degree of impairment 92
146A. Evaluation of impairment generally 93
146B. Evaluation for the purposes of Part III
Division 2A 93
146C. Evaluation for purposes of Part IV Division 2
Subdivision 3 94
146D. Evaluation for the purposes of Part IXA 95
146E. Evaluation for the purposes of clause 18A 95
146F. Approved medical specialist 96
146G. Powers of approved medical specialist 97
146H. Outcome of assessment 98
146I. Release of information relevant to
assessment 100
146J. Decisions of approved medical specialist 100
Division 3 -- Approved medical specialist panels 101
146K. Panel to be constituted 101
146L. Procedures 101
146M. Failure to comply with requirement of
approved medical specialist panel 103
146N. Assessment of impairment by approved
medical specialist panel 104
146O. Outcome of assessment by approved medical
specialist panel 104
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Workers' Compensation Reform Bill 2004
Contents
146P. No assessment without unanimous
agreement 105
146Q. Remuneration 106
Division 4 -- WorkCover Guides 106
146R. WorkCover Guides 106
110. Part VII Division 5 inserted 107
Division 5 -- Assessment for specialised
retraining programs 107
146S. Register for panel membership 107
146T. Panel to be constituted 107
146U. Procedures 108
146V. Assessments 109
146W. Remuneration 111
111. Part VIII heading amended 111
112. Sections 147 to 150 repealed 111
113. Section 151 amended 111
114. Section 152 amended and transitional provision 111
115. Section 153 amended 112
116. Section 154 amended 112
117. Sections 154A and 154AB inserted 113
154A. Regulations for provision of information 113
154AB. Special directions by Minister 113
118. Part IX replaced 114
Part IX -- Injury management 114
155. Terms used in this Part 114
155A. Code of practice (injury management) 114
155B. Establishment of injury management systems
for employer's workers 115
155C. Establishment of return to work programs for
individual workers 115
155D. Injury management: insurers' obligations 116
156. Approval of vocational rehabilitation providers 117
156A. Vocational rehabilitation services 118
156B. Arbitrators' powers in relation to return to
work programs 119
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Workers' Compensation Reform Bill 2004
Contents
157. Information about injury management matters 119
157A. Early identification of injuries that require, or
may require, management 120
157B. Mediation and assistance 121
119. Part IXA inserted 122
Part IXA -- Specialised retraining programs 122
158. Meaning of "retraining criteria" 122
158A. Eligibility to participate in specialised
retraining programs 123
158B. Final day for recording agreed matters,
referring disputed matters for determination 125
158C. Disputes as to degree of permanent whole of
person impairment 127
158D. Disputes as to retraining criteria 128
158E. Specialised retraining program agreements 128
158F. WorkCover WA to direct payments in relation
to specialised retraining programs 130
158G. Obligations of employers, insurers 132
158H. 3 monthly reviews of performance, payments
under specialised retraining programs 133
158I. WorkCover WA may direct modification,
suspension, cessation of payments under
specialised retraining programs 133
158J. Cessation of payments 134
158K. Directions not open to challenge etc. 134
158L. Other effects of participation in specialised
retraining program 134
120. Section 160 amended 135
121. Section 162 amended 136
122. Section 164 amended 136
123. Section 165 amended 137
124. Section 168 amended 138
125. Section 171 amended 138
126. Section 174 amended 139
127. Section 174AA inserted 140
174AA. Recovery from responsible officers of body
corporate 140
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Workers' Compensation Reform Bill 2004
Contents
128. Sections 174AB and 174AC inserted 141
174AB. WorkCover WA may exercise rights of
employer 141
174AC. WorkCover WA's right of subrogation 142
129. Part XA inserted 143
Part XA -- Infringement notices and modified penalties 143
175E. Definitions 143
175F. Authorised officers 143
175G. Giving of notice 144
175H. Content of notice 144
175I. Extension of time 145
175J. Withdrawal of notice 145
175K. Benefit of paying modified penalty 145
175L. No admission implied by payment 146
175M. Application of penalties collected 146
130. Part XI replaced by Parts XI to XVIII 146
Part XI -- Dispute resolution 146
Division 1 -- General 146
176. Exclusive jurisdiction 146
177. Evidence of communication between worker
and injury management officer 147
Division 2 -- Requirements before
commencing proceeding 147
178. Notice of injury and claim 147
179. Service of notice of injury 148
180. Provision of certain documents before
commencement of proceeding 151
Division 3 -- Proceedings before an arbitrator 153
181. Arbitrators to determine disputes 153
182. Who is to be given a copy of an application 153
183. Information exchange between parties 154
184. Interim assessment and minor claims 156
185. Arbitrator to attempt conciliation 156
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Workers' Compensation Reform Bill 2004
Contents
186. Arbitrator may review decision 156
187. Decisions of arbitrator 157
Division 4 -- Practice and procedure 157
188. Practice and procedure, generally 157
189. Relief or redress not restricted to claim 158
190. Directions 158
191. Dependants 158
192. Arbitrator may regard illegal contracts of
employment as valid 159
193. Power of arbitrator to require information 159
194. Arbitrator may provide documents, material
and information to party 160
195. Representation 161
196. Arbitrator may appoint guardian 162
197. Interpreters and assistants 162
198. Electronic hearings and proceedings without
hearings 162
199. Hearings to be held in private 164
200. Notice of hearings 164
201. Expert or professional assistance 164
202. Summoning witnesses 165
203. Powers relating to witnesses 165
204. Privilege against self-incrimination 165
205. Legal professional privilege in relation to
medical reports 166
206. Other claims of privilege 167
207. Oaths and affirmations 167
208. Authorising person to take evidence 167
209. Dealing with things produced 168
210. Referral of medical dispute for assessment 168
Division 5 -- Decisions 169
Subdivision 1 -- General provisions 169
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Workers' Compensation Reform Bill 2004
Contents
211. Decisions generally 169
212. Conditional and ancillary orders and
directions 169
213. Form and content of decision and reasons 169
214. Validity of decision 171
215. When decision has effect 171
216. Correcting mistakes 171
Subdivision 2 -- Particular orders 171
217. Order as to total liability 171
218. Order relating to payment of compensation in
respect of persons under legal disability or
who are dependants 173
Subdivision 3 -- Enforcement of decisions 174
219. Enforcement of decisions 174
Division 6 -- Miscellaneous 175
220. Evidence not admissible in common law
proceedings 175
221. Payment of compensation awarded 175
222. Interest before order for payment 175
223. Interest after order for payment 176
224. Interest on agreed payment of lump sum
compensation 176
225. Regulations may exclude interest 177
Part XII -- Interim orders and minor claims 177
Division 1 -- Preliminary 177
226. Interpretation 177
227. Exercise of functions under this Part 177
228. Provisions of Part XI apply 178
229. Arbitrator may direct that matter be dealt with
under Part XI 178
230. DRD Rules apply 178
Division 2 -- Interim payment orders 178
231. Application for interim payment order 178
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Workers' Compensation Reform Bill 2004
Contents
232. Orders for interim weekly payments 180
233. Orders for interim payment of statutory
expenses 181
234. Limits on interim payment orders 181
235. Effect of interim payment order 182
236. Recovery of payments 182
237. Revocation of interim payment order 183
Division 3 -- Interim suspension or reduction orders 183
238. Interim suspension or reduction order 183
239. Effect of Part XI determination on the same
matter as a matter determined under this
Division 184
240. Revocation of interim suspension or reduction
order 185
Division 4 -- Expedited determination of minor claims 186
241. Application for determination of minor claim 186
242. Limits on minor claims orders 188
243. No recovery of compensation 188
244. Production of documents 189
Part XIII -- Questions of law and appeals 189
245. Application of Part XI 189
246. Reference of question of law to Commissioner 189
247. Appeal against decision of arbitrator 190
248. Commencing appeal 191
249. Commissioner hearing to be held in public 192
250. Effect of decision against which appeal made 192
251. Commissioner may state case 193
252. Indemnity as to costs 193
253. Decisions of Commissioner 193
254. Appeal against decision of Commissioner 194
Part XIV -- Offences 195
255. Failing to comply with decision 195
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Workers' Compensation Reform Bill 2004
Contents
256. Failing to comply with summons 196
257. Failing to give evidence as required 196
258. Giving false or misleading information 196
259. Misbehaviour and other conduct 196
260. Contempt of Commissioner 197
Part XV -- Costs 198
Division 1 -- General 198
261. Terms used in this Part 198
262. Costs to which this Part applies 199
263. This Part prevails over Legal Practice
Act 2003 199
Division 2 -- Costs of parties in proceedings and costs
of proceedings 199
264. Costs to be determined by dispute resolution
authority 199
265. Costs unreasonably incurred by
representative 200
266. Agent's costs 201
267. Appeal costs 201
268. Regulations for assessment of costs 201
Division 3 -- Maximum costs 202
269. Costs Committee 202
270. Constitution and procedure of Costs
Committee 203
271. Costs determination 203
272. Consultation 204
273. Approval and publication of determination 204
274. Effect of costs determination 205
275. Agreement as to costs 205
276. Division does not apply to Part IV proceedings 206
Part XVI -- Registered agents 206
277. Who may register as an agent 206
Part XVII -- The Dispute Resolution Directorate 207
page xiii
Workers' Compensation Reform Bill 2004
Contents
Division 1 -- Establishment and objectives 207
278. DRD established 207
279. Main objectives of the DRD 207
280. DRD's constitution 208
Division 2 -- Commissioner 208
281. Appointment of Commissioner 208
282. Terms and conditions of service 209
283. Declaration of inability to act 209
284. Acting appointment 209
285. Functions of Commissioner 210
Division 3 -- Arbitrators 211
286. Arbitrators 211
287. Control and direction of arbitrators 211
Division 4 -- Director Dispute Resolution and staff 211
288. Director Dispute Resolution 211
289. Functions and responsibilities of Director 211
290. Delegation by Director 212
291. Staff of DRD 212
Part XVIII -- Regulations, rules and practice notes 213
292. Regulations 213
293. DRD Rules 215
294. Practice notes 217
131. Section 177A inserted 218
177A. Delegation by chief executive officer 218
132. Section 180 amended 218
133. Section 180A inserted 219
180A. District Court to provide information to
WorkCover WA 219
134. Section 183 amended 219
135. Section 184 repealed and sections 184 to 187 inserted
instead 219
184. Protection from liability 219
185. Immunity 220
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Workers' Compensation Reform Bill 2004
Contents
186. Protection for compliance with this Act 221
187. Proceedings for defamation not to lie 221
136. Section 188A repealed 221
137. Sections 188B and 188C inserted 222
188B. Who can take proceedings for offences 222
188C. Time limit for taking proceedings 222
138. Section 192 amended 222
139. Section 192A amended 223
140. Section 198 repealed 223
141. Schedule 1 amended 223
142. Schedule 2 amended 239
Schedule 2 -- Table of compensation payable 239
143. Schedule 5 amended 242
144. Schedule 7 amended 242
145. Schedule 8 inserted 243
Schedule 8 -- Terms and conditions of service
of Commissioner 243
146. References to a disability changed to an injury 245
147. References to disability changed to injury 246
148. Other references to disabilities changed to injuries 248
149. References to dispute resolution body changed to
arbitrator 248
150. References to Commission changed to WorkCover
WA 249
151. References to Commission changed to WorkCover
WA's governing body 250
152. References to Executive Director changed to chief
executive officer 251
153. References to Committee changed to WorkCover WA 251
154. Renumbering of provisions of the Act 251
Part 3 -- Consequential amendments to
other Acts
155. Acts Amendment (ICWA) Act 1996 254
156. Blood Donation (Limitation of Liability) Act 1985 254
157. Constitution Acts Amendment Act 1899 254
158. Employers Indemnity Policies (Premium Rates)
Act 1990 255
page xv
Workers' Compensation Reform Bill 2004
Contents
159. Employers' Indemnity Supplementation Fund
Act 1980 255
38B. WorkCover WA may advise Insurance
Commission 257
160. Financial Administration and Audit Act 1985 258
161. Hospitals and Health Services Act 1927 258
162. Law Reporting Act 1981 259
163. Legal Practice Act 2003 259
164. Limitation Act 1935 260
165. Local Government Act 1995 260
166. Miner's Phthisis Act 1922 261
167. Police Assistance Compensation Act 1964 262
168. Public Sector Management Act 1994 262
169. Sentencing Act 1995 263
170. Waterfront Workers (Compensation for Asbestos
Related Diseases) Act 1986 263
171. Workers' Compensation and Rehabilitation (Acts of
Terrorism) Act 2001 265
172. Workers' Compensation and Rehabilitation
Amendment Act 1993 266
173. Workers' Compensation (Common Law Proceedings)
Act 2004 266
174. Workers' Compensation and Rehabilitation Act 1981
replaced with Workers' Compensation and Injury
Management Act 1981 267
175. Workers' Compensation Act 1912 etc. replaced with
Workers' Compensation and Injury Management
Act 1981 269
Part 4 -- Transitional provisions
Division 1 -- General
176. Interpretation 270
177. Application of Interpretation Act 1984 270
178. Transitional regulations 270
179. Power to amend subsidiary regulations 271
Division 2 -- Transitional provisions relating to
statutory entitlements
180. Section 217 of the Workers' Compensation and Injury
Management Act 1981 272
181. Transitional provisions -- amendments to Schedule 1 272
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Workers' Compensation Reform Bill 2004
Contents
Division 3 -- Transitional provisions relating to
dispute resolution
182. Interpretation 274
183. Conciliation and review 275
184. Compensation magistrate's court 276
185. Existing summonses and warrants 277
186. Director of Conciliation and Review 277
187. Records 278
188. Deemed eligibility for approval as Director or
arbitrator 279
Division 4 -- Transitional provisions relating to
Part VIII amendments
189. Transitional provisions for Part VIII amendments 279
page xvii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during Committee)
Workers' Compensation Reform Bill 2004
A Bill for
An Act to --
· amend the Workers' Compensation and Rehabilitation Act 1981;
· enact transitional provisions; and
· make consequential amendments to various Acts.
The Parliament of Western Australia enacts as follows:
page 1
Workers' Compensation Reform Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Workers' Compensation Reform
Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day to be fixed by
proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
page 2
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 3
Part 2 -- Amendments to the Workers' Compensation
and Rehabilitation Act 1981
3. The Act amended
The amendments in this Part are to the Workers' Compensation
5 and Rehabilitation Act 1981*.
[* Reprinted as at 14 September 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 438-9]
4. Long title amended
10 The long title is amended as follows:
(a) by deleting "for and the rehabilitation of workers
suffering disability by accident or disease in the course
of their employment," and inserting instead --
"
15 for, and the management of,
employment-related injuries,
";
(b) by deleting "establish a Workers' Compensation and
Rehabilitation Commission" and inserting instead --
20 "
provide for the WorkCover Western
Australia Authority
";
(c) by deleting "dispute resolution bodies" and inserting
25 instead --
" a Dispute Resolution Directorate ".
5. Section 1 amended
Section 1 is amended by deleting "Rehabilitation" and inserting
instead --
30 " Injury Management ".
page 3
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 6
6. Section 3 amended
Section 3 is amended as follows:
(a) by deleting paragraph (b) and inserting the following
paragraphs instead --
5 "
(b) to make provision for the management of
workers' injuries in a manner that is directed at
enabling injured workers to return to work;
(ba) to make provision for specialised retraining
10 programs for certain injured workers;
";
(b) in paragraph (d) by deleting "bodies" and inserting
instead --
" authorities ".
15 7. Section 4 amended
(1) Section 4(2)(a)(v) is amended by inserting after "injuries" --
" and impairments from injury ".
(2) Section 4(2)(b) is amended by deleting "rehabilitation" and
inserting instead --
20 " the injury management ".
8. Section 5 amended
(1) Section 5(1) is amended by deleting the definitions of
"approved rehabilitation provider", "Commission",
"Committee", "compensation magistrate's court", "conciliation
25 officer", "Directorate", "disability", "disabled from earning full
wages", "dispute resolution body", "Executive Director",
"rehabilitation", "review officer", "the Chairman of the
Commission" and "vocational rehabilitation".
page 4
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 8
(2) Section 5(1) is amended by inserting the following definitions in
the appropriate alphabetical positions --
"
"approved medical specialist" means a person for the
5 time being designated under section 146F as an
approved medical specialist;
"approved medical specialist panel" means an
approved medical specialist panel constituted
under Part VII Division 3;
10 "approved vocational rehabilitation provider"
means a person approved under section 156 as a
vocational rehabilitation provider;
"arbitrator" means an officer of WorkCover WA
approved under section 286(2) as an arbitrator;
15 "chief executive officer" means the person appointed
under the Public Sector Management Act 1994 to
the office of chief executive officer of WorkCover
WA and includes a person appointed to act in the
place and during the absence of the chief executive
20 officer while that person is so acting;
"Commissioner" means the Commissioner appointed
under section 281;
"decision" includes an order, award, direction or
determination;
25 "dispute resolution authority" means the Director, an
arbitrator or the Commissioner;
"DRD" means the Dispute Resolution Directorate
established under section 278;
"DRD Rules" means the rules made under
30 section 293;
page 5
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 8
"injury" means --
(a) a personal injury by accident arising out of
or in the course of the employment, or whilst
the worker is acting under the employer's
5 instructions;
(b) a disease because of which an injury occurs
under section 32 or 33;
(c) a disease contracted by a worker in the
course of his employment at or away from
10 his place of employment and to which the
employment was a contributing factor and
contributed to a significant degree;
(d) the recurrence, aggravation, or acceleration
of any pre-existing disease where the
15 employment was a contributing factor to that
recurrence, aggravation, or acceleration and
contributed to a significant degree; or
(e) a loss of function that occurs in the
circumstances mentioned in section 49,
20 but does not include a disease caused by stress if
the stress wholly or predominantly arises from a
matter mentioned in subsection (4) unless the
matter is mentioned in paragraph (a) or (b) of that
subsection and is unreasonable and harsh on the
25 part of the employer;
"injury management" means the management of
workers' injuries in a manner that is directed at
enabling injured workers to return to work;
"medical report" includes a medical opinion;
30 "NRE amount" means --
(a) in relation to any financial year ending on or
before 30 June 2005, the prescribed amount
in relation to that financial year;
page 6
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 8
(b) in relation to the financial year ending on
30 June 2006, $200 000;
(c) in relation to any subsequent financial year,
the nearest whole number of dollars to --
5 (i) the amount obtained by varying the
NRE amount for the preceding financial
year by the percentage by which the
amount that the Australian Statistician
published as the Wages Cost Index,
10 ordinary time hourly rates of pay
(excluding bonuses) for Western
Australia ("WCI") varied between the
second-last December quarter before the
financial year commenced and the last
15 December quarter before the financial
year commenced; or
(ii) if the calculation under subparagraph (i)
cannot be performed in relation to a
financial year because the WCI for a
20 relevant quarter was not published, the
amount obtained by varying the NRE
amount for the preceding financial year
in accordance with the regulations,
with an amount that is 50 cents more than a whole
25 number of dollars being rounded off to the next
highest whole number of dollars;
"officer of the DRD" refers to --
(a) the Director;
(b) an arbitrator; and
30 (c) any other officer of WorkCover WA made
available under section 291;
"participate", in relation to a return to work program
established under section 155C(1), means to
participate in the program in a cooperative manner
page 7
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 8
including attending appointments as required
under the program;
"registered agent" means a person registered under
regulations made under section 277;
5 "return to work", in relation to a worker who has
suffered an injury compensable under this Act,
means --
(a) the worker holding or returning to the
position held by the worker immediately
10 before the injury occurred, if it is reasonably
practical for the employer who employed the
worker at the time the injury occurred to
provide that position to the worker; or
(b) if the position is not available, or if the
15 worker does not have the capacity to work in
that position, the worker taking a position --
(i) for which the worker is qualified; and
(ii) that the worker is capable of
performing,
20 whether with the employer who employed the
worker at the time the injury occurred, or another
employer;
"specialised retraining assessment panel" means a
specialised retraining assessment panel constituted
25 under Part VII Division 5;
"specialised retraining program" means a program
directed at enabling a worker to return to work by
assisting the worker to undertake formal
vocational training or study through technical or
30 tertiary training courses of no longer than 3 years
duration;
"the Chairman of WorkCover WA" means the
person appointed to the office of Chairman of
WorkCover WA's governing body and includes a
page 8
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 8
person appointed to act in the place and during the
absence of the Chairman while that person is so
acting;
"vocational rehabilitation", in relation to a worker
5 who has suffered an injury compensable under this
Act, means the provision to the worker of
prescribed services, according to the worker's
assessed needs, for the purpose of enabling the
worker to return to work;
10 "WorkCover Guides" means the directions published
by WorkCover WA under section 146R;
"WorkCover WA" means the WorkCover Western
Australia Authority referred to in section 94;
".
15 (3) Section 5(1) is amended as follows:
(a) in the definition of "child's allowance" by deleting "in
clause 1(2), (3), and (4)";
(b) in the definition of "chiropractor" by deleting "and who
is approved by the Commission to practise chiropractic
20 for the purposes of this Act";
(c) by deleting the definition of "Director" and inserting
instead --
"
"Director" means the officer of WorkCover WA
25 approved under section 288(2) as the Director
Dispute Resolution;
";
(d) in the definition of "General Fund" by deleting
"Rehabilitation" and inserting instead --
30 " Injury Management ";
page 9
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 8
(e) by deleting the definition of "industrial award" and
inserting instead --
"
"industrial award" means --
5 (a) an award or order (including an enterprise
order or General Order) made by The
Western Australian Industrial Relations
Commission under the Industrial Relations
Act 1979;
10 (b) an industrial agreement as defined in the
Industrial Relations Act 1979;
(c) an award under the Coal Industry Tribunal
of Western Australia Act 1992; or
(d) an award or certified agreement, as those
15 terms are defined in the Workplace Relations
Act 1996 of the Commonwealth,
as the relevant employment requires;
";
(f) in the definition of "medical assessment panel" by
20 inserting after "Part VII" --
" Division 1 ";
(g) in the definition of "notional residual entitlement" --
(i) in paragraph (a) by deleting "that disability;" and
inserting instead --
25 "
the injury or impairment resulting from the
injury;
";
and
page 10
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 9
(ii) by deleting paragraph (b) and inserting
instead --
"
(b) the NRE amount as at the date of the
5 worker's death, less the amount of any
weekly payments made, the amount of
any lump sum paid in redemption of
weekly payments, and the amount of
any sum paid under Schedule 2, for the
10 injury suffered by the worker or
impairment resulting from the injury,
";
(h) in the definition of "relevant employment" in
paragraph (b) and (e) by deleting, in each case,
15 "disabling";
(i) in the definition of "Trust Fund" by deleting
"Rehabilitation" and inserting instead --
" Injury Management ".
(4) Before section 5(4) the following subsection is inserted --
20 "
(3) A reference in this Act to a "personal injury by
accident" is a reference to an injury of a kind referred
to in paragraph (a) of the definition of "injury" in
subsection (1).
25 ".
(5) Section 5(4) and 5(5) are amended by deleting "disability", in
each case, and inserting instead --
" "injury" ".
9. Section 7 amended
30 Section 7(2) is amended by deleting "industrial agreement or".
page 11
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 10
10. Section 10A replaced
Section 10A is repealed and the following section is inserted
instead --
"
5 10A. Working directors
(1) Despite anything in section 5, and except as provided
in subsection (2), a person who is a director of a
company is, to the extent that the person executes work
for or on behalf of the company, taken not to be a
10 worker within the meaning of this Act.
(2) If --
(a) a company contracts with another person (in
this section referred to as the "principal") for
the execution of work by or under the company,
15 being work which is for the purpose of the
principal's trade or business; and
(b) a director of the company executes any of that
work for or on behalf of the company,
then, to the extent that the director executes the work,
20 the director is taken to be a worker and the principal is
taken to be the employer of the director.
(3) Section 175 does not apply in respect of a director
referred to in subsection (2).
".
25 11. Section 12 amended
Section 12(1) is amended by deleting "disabled" and inserting
instead --
" injured ".
page 12
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 12
12. Heading to Part III Division 1 replaced
The heading to Part III Division 1 is deleted and the following
heading is inserted instead --
"
5 Division 1 -- Injury: general
".
13. Section 22 amended
Section 22 is amended by deleting "disability shall be
disallowed unless the disability results in death or serious and
10 permanent disablement." and inserting instead --
"
injury shall be disallowed unless the injury has serious
and permanent effects or results in death.
".
15 14. Heading to Part III Division 2 replaced
The heading to Part III Division 2 is deleted and the following
heading is inserted instead --
"
Division 2 -- Discontinued regime for lump sum
20 payments for specified injuries
".
15. Section 24 amended
(1) After the heading to section 24 the following subsection is
inserted --
25 "
(1) In this section --
"amendment day" means the day on which section 21
of the Workers' Compensation Reform Act 2004
comes into operation.
30 ".
page 13
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 16
(2) Section 24 is amended as follows:
(a) by inserting before "Notwithstanding" the subsection
designation "(2)";
(b) by inserting after "column 1 of " --
5 " Part 1 of ";
(c) by deleting "thereof " and inserting instead --
" of that Part ".
(3) At the end of section 24 the following subsections are
inserted --
10 "
(3) This Division does not apply if the compensable
personal injury by accident occurs on or after the
amendment day.
(4) This Division does not apply in relation to noise
15 induced hearing loss shown on or after the amendment
day by an audiometric test under Schedule 7 clause 4.
".
16. Section 24A amended
Section 24A(1) is amended by inserting before "the table" in
20 both places where it occurs --
" Part 1 of ".
17. Section 24B amended
(1) Section 24B(1)(b) is amended by deleting "Directorate" and
inserting instead --
25 " Director ".
(2) Section 24B(5) is amended as follows:
(a) by deleting "Part IIIA" in the first place where it occurs
and inserting instead --
" Part XI ";
30 (b) by deleting "in this Division or Part IIIA".
page 14
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 18
18. Section 26 amended
Section 26(1) is amended by inserting after "column 1 of " --
" Part 1 of ".
19. Section 28 amended
5 Section 28 is amended by inserting after "18," --
" 18A ".
20. Section 31 amended
Section 31 is amended by inserting after "application of " --
" Part 1 of ".
10 21. Part III Division 2A inserted
After section 31 the following Division is inserted --
"
Division 2A -- New regime for lump sum payments for
specified injuries
15 31A. Application of Division
(1) In this section --
"amendment day" means the day on which section 21
of the Workers' Compensation Reform Act 2004
comes into operation.
20 (2) This Division does not apply in respect of a
compensable personal injury by accident that occurs
before the amendment day.
(3) This Division does not apply in relation to noise
induced hearing loss shown before the amendment day
25 by an audiometric test under Schedule 7 clause 4.
page 15
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 21
31B. Degree of permanent impairment
In this Division --
"degree of permanent impairment" means --
(a) except as provided in paragraph (b), the
5 degree of permanent impairment of a part or
faculty of the body, evaluated as described in
sections 146A and 146B;
(b) in the case of scarring referred to in item 80
or 81 of Schedule 2, the degree of permanent
10 whole of person impairment, evaluated as
described in sections 146A and 146B,
resulting from the injury or injuries arising from a
single accident.
31C. Compensation for impairments mentioned in
15 Schedule 2
(1) Despite Schedule 1, in respect of a permanent
impairment from a compensable personal injury by
accident, if the worker so elects during the lifetime of
the worker as provided by section 31H in respect of an
20 impairment mentioned in column 1 of Part 2 of the
table in Schedule 2, the compensation payable for the
impairment is, subject to subsection (2) and the
provisions of this Act relating to Schedule 2, to be the
percentage ratio of the prescribed amount indicated in
25 column 2 of that Part.
(2) Except as provided in sections 31E and 31F(3), the
compensation payable for each such impairment from
injury is to be in accordance with the percentage ratio
of the prescribed amount indicated in column 2 of
30 Part 2 of the table in Schedule 2 in respect of such an
impairment at the date of the accident by which that
injury was caused to the worker, irrespective of when
the worker so elects.
page 16
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 21
31D. Schedule 2 impairment assessment
(1) In subsection (2) --
"full amount", in relation to an injury, means the
amount payable under this Division if the degree
5 of permanent impairment resulting from the injury
is 100%.
(2) If compensation is payable under section 31C but the
degree of permanent impairment from the injury of the
worker is less than 100%, a percentage of the full
10 amount equal to the degree of permanent impairment is
to be awarded in lieu of the full amount.
(3) If --
(a) there is not agreement between an employer
and a worker as to the degree of permanent
15 impairment of the worker; and
(b) the worker has a certificate of an approved
medical specialist given under section 146H
indicating that the worker has not less than the
degree of permanent impairment alleged by the
20 worker,
the worker may apply to have the question as to the
degree of permanent impairment arising from the
injury concerned determined by an arbitrator.
(4) An arbitrator to whom an application to determine a
25 question is made under subsection (3) may --
(a) determine the degree of permanent impairment;
or
(b) refer the question as to the degree of permanent
impairment for assessment by an approved
30 medical specialist panel and make a
determination as to the degree of permanent
impairment according to that assessment.
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Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 21
(5) If a determination is made that the worker's degree of
permanent impairment arising from the injury
concerned is not less than that alleged by the worker,
the arbitrator may order the employer to pay all or any
5 of the costs connected with the dispute, including any
costs connected with referral to an approved medical
specialist panel.
31E. Lump sum compensation for noise induced hearing
loss
10 (1) Subject to Schedule 7 and this section, a worker
suffering from noise induced hearing loss is entitled to
compensation for that loss under item 44 of Part 2 of
the table in Schedule 2 if the worker so elects as
provided by section 31H.
15 (2) The compensation payable for noise induced hearing
loss is to be, subject to the provisions of this Act
relating to Schedule 2, in accordance with the
percentage ratio of the prescribed amount indicated in
column 2 of Part 2 of the table in Schedule 2 in respect
20 of item 44 at the date of the audiometric test under
Schedule 7 that showed that a loss or diminution of the
worker's hearing had been incurred, irrespective of
when the worker so elects.
(3) A worker is entitled to compensation under this section
25 only in respect of noise induced hearing loss incurred
after 1 March 1991 and --
(a) in respect of the worker's first election under
this section (if the worker has not made a
successful first election under section 24A),
30 where that noise induced hearing loss is at least
a 10% loss of hearing; and
(b) in respect of a subsequent election by the
worker under this section after a successful first
page 18
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 21
election under section 24A or paragraph (a) of
this section --
(i) where that noise induced hearing loss is
at least a further 5% loss of hearing; or
5 (ii) where the worker has reached the age of
65 years or on the worker's retirement
from work before that age, where that
noise induced hearing loss is assessed
under Schedule 7 as any further
10 percentage of loss of hearing.
(4) Nothing in subsection (3) operates to stop a worker
who --
(a) has retired from work before attaining the age
of 65 years;
15 (b) has made a successful election under
section 24A(2)(b)(ii) or subsection (3)(b)(ii) of
this section; and
(c) subsequently returns to work,
from making an election under subsection (3)(b) in
20 respect of further loss of hearing.
(5) A worker is not entitled to compensation under this
section in respect of noise induced hearing loss
incurred after the worker has attained the age of
65 years.
25 (6) In subsection (3), loss of hearing means percentage loss
of hearing calculated in accordance with the National
Acoustic Laboratory Tables prescribed by the
regulations.
(7) Schedule 7 applies and noise induced hearing loss is to
30 be ascertained and measured for the purposes of this
section in accordance with that Schedule.
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Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 21
31F. Lump sum compensation for AIDS
(1) In this section and in the table in Schedule 2 --
"AIDS" means acquired immune deficiency syndrome;
"HIV" means human immunodeficiency virus;
5 "prohibited drug" has the meaning given to that term
by the Misuse of Drugs Act 1981 section 3.
(2) Subject to this section, for the purposes of this
Division --
(a) the infection of a worker by HIV by accident
10 arising out of or in the course of employment,
or whilst the worker is acting under the
employer's instructions, is taken to be a
personal injury by accident; and
(b) if that worker subsequently contracts AIDS, the
15 contracting of AIDS --
(i) is taken to be a compensable personal
injury by accident;
(ii) is taken to result in a degree of
permanent impairment of 100%; and
20 (iii) is taken to have occurred on the date on
which the worker contracted the HIV
infection referred to in paragraph (a).
(3) Despite section 31C the compensation payable for the
contracting of AIDS in the circumstances set out in
25 subsection (2) is 100% of the prescribed amount at the
date on which a certificate is given by a medical
practitioner that the worker has contracted AIDS.
(4) The regulations may make provision for methods of
deciding for the purposes of this section whether a
30 worker is HIV infected or has contracted AIDS.
(5) Sections 31C(2) and 31D do not apply to an
impairment that is AIDS.
page 20
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
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s. 21
(6) A worker is not entitled to compensation under this
Division in respect of an impairment that is AIDS if the
impairment resulted from the unlawful use of any
prohibited drug or from voluntary sexual activity.
5 (7) Subsection (6) does not limit the operation of
section 22.
(8) A worker is not entitled to compensation under this
Division in respect of an impairment that is AIDS if the
accident by which the worker became HIV infected
10 occurred on a day before the coming into operation of
section 21 of the Workers' Compensation Reform
Act 2004.
31G. Subsequent injuries
(1) In this section --
15 "impairment" includes a loss of full and efficient use
of a part or faculty of the body to which the
provisions of Division 2 apply.
(2) When --
(a) by a compensable personal injury by accident, a
20 worker has already suffered a permanent
impairment of any part or faculty of the body
referred to in column 1 of the table in
Schedule 2; and
(b) by a subsequent compensable personal injury
25 by accident the worker suffers further
permanent impairment of that part or faculty of
the body,
the compensation payable under the provisions of the
table in Schedule 2 and this Division in respect of each
30 such subsequent injury is to be proportionate to any
increase (resulting from that subsequent injury) in the
degree of permanent impairment, and the compensation
page 21
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 21
payable is to be calculated at the rates applicable at the
time of occurrence of each subsequent injury.
(3) Where a worker has received compensation payable
under the provisions of the table in Schedule 2 and
5 Division 2 or this Division in respect of an impairment
of a part of the body or a faculty for a degree of
permanent impairment of 100%, whether in one
payment for a degree of permanent impairment of
100% or in several payments, each of which has been
10 made for a degree of permanent impairment of less
than 100%, then and in such case, the worker is not
entitled to any further payment under the provisions of
that table and this Division in respect of that
impairment.
15 31H. Election under section 31C or 31E
(1) A worker elects under this section for the purposes of
section 31C or 31E when --
(a) the worker signs a form of election prescribed
by the regulations containing particulars
20 prescribed by the regulations in respect of the
impairment or loss; and
(b) that form of election is filed with the Director,
and a copy of it is served by or on behalf of the
worker on the employer.
25 (2) A worker can elect for the purposes of section 31C
only if --
(a) the worker and the worker's employer agree as
to the worker's degree of permanent
impairment resulting from the injury
30 concerned; or
(b) a determination has been made under
section 31D(4) in respect of the worker's
degree of permanent impairment resulting from
page 22
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 21
the injury concerned or the worker has a
certificate given for the purposes of
section 31F(3) that the worker has contracted
AIDS.
5 (3) In the case of an election for the purposes of
section 31E, the employer on whom the copy of the
form of election is served is to be the employer who
last employed the worker in employment to the nature
of which noise induced hearing loss is due.
10 (4) Where a worker makes an election under subsection (1)
for the purposes of section 31E, this Division and
Part XI apply as if the noise induced hearing loss in
respect of which the election was made were a
compensable personal injury by accident arising out of
15 or in the course of the worker's employment, and for
that purpose a reference to the time or date of a
personal accident by injury is, in respect of
compensable noise induced hearing loss, to be
construed as a reference to the date of the audiometric
20 test under Schedule 7 that showed that a loss or
diminution of the worker's hearing had been incurred.
31I. Effect of election
(1) A form of election referred to in section 31H(1) is not
binding upon a worker unless the Director is satisfied
25 that it contains a statement in clear terms of the effect
the election will have on the worker's future
entitlements to compensation under this Act.
(2) If not satisfied in accordance with subsection (1), the
Director is to, within 7 days of so determining, notify
30 the employer and the worker accordingly.
(3) Subject to this Act, a worker who elects as provided by
section 31H(1) is entitled to continue to receive any
page 23
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 21
weekly payments of compensation to which the worker
is entitled until --
(a) an agreement with respect to the election is
registered under section 76; or
5 (b) an order of an arbitrator is made with respect to
the amount of compensation payable under the
election,
whichever is the sooner.
(4) Sections 31C and 31E do not limit the amount of
10 compensation that is payable to a worker for any period
of incapacity resulting from the impairments or losses
referred to in those sections unless the worker elects
under section 31H and an agreement is registered or an
order of an arbitrator is made with respect to the
15 amount of compensation payable pursuant to the
election.
31J. Limit on compensation of worker electing
(1) A worker who elects under section 31H is not in any
case (including the case of a worker suffering by the
20 same accident more than one of the impairments
mentioned in Schedule 2) entitled to more than the
prescribed amount, in addition to payment of such
expenses as are provided for in clauses 9, 17, 18, 18A
and 19.
25 (2) Clauses 9, 17, 18, 18A and 19 are by this section made
applicable to each worker entitled to compensation
under this Division until that worker elects under
section 31H and an agreement is registered or an order
of an arbitrator is made with respect to the amount of
30 compensation payable pursuant to the election.
page 24
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 22
31K. Compensation payable before election
Subject to section 31J, when a worker elects under
section 31H, any amount of compensation that was
payable to the worker for any period of incapacity
5 resulting from the injuries referred to in section 31C or
31E and occurring before the worker so elects and an
agreement is registered or an order of an arbitrator is
made with respect to the amount of compensation
payable pursuant to the election is not to be deducted
10 from the amount payable in accordance with the table
in Schedule 2.
".
22. Heading to Part III Division 3 replaced
The heading to Part III Division 3 is deleted and the following
15 heading is inserted instead --
"
Division 3 -- Injury: specified industrial diseases
".
23. Section 32 amended
20 Section 32 is amended as follows:
(a) by deleting "disabled from earning" and inserting
instead --
" rendered less able to earn ";
(b) by deleting "the disablement" and inserting instead --
25 " being so rendered ".
24. Section 33 amended
Section 33 is amended as follows:
(a) by deleting "disabled from earning" and inserting
instead --
30 " rendered less able to earn ";
page 25
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 25
(b) by deleting "the disablement" and inserting instead --
" being so rendered ".
25. Section 34 amended
Section 34 is amended as follows:
5 (a) by deleting "becomes disabled from earning" and
inserting instead --
" is rendered less able to earn ";
(b) by deleting "disabled" and inserting instead --
" rendered ".
10 26. Section 35 amended
Section 35 is amended as follows:
(a) by deleting "becomes disabled from earning" and
inserting instead --
" is rendered less able to earn ";
15 (b) by deleting "disabled" and inserting instead --
" rendered ".
27. Section 37 amended
Section 37 is amended by deleting "in a compensation
magistrate's court" and inserting instead --
20 " before an arbitrator ".
28. Section 38 amended
(1) Section 38(1)(b) is amended by deleting "disabled from
earning" and inserting instead --
" less able to earn ".
25 (2) Section 38(1)(c) is amended by deleting "cause impairment of
his" and inserting instead --
" adversely affect the worker's ".
page 26
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 29
(3) Section 38(1)(d) is amended by deleting "disablement" and
inserting instead --
" being less able to earn full wages, ".
29. Section 39 amended
5 Section 39 is amended as follows:
(a) by deleting "disabled from earning" and inserting
instead --
" rendered less able to earn ";
(b) by deleting "disablement" and inserting instead --
10 " being so rendered ".
30. Section 40 replaced
Section 40 is repealed and the following section is inserted
instead --
"
15 40. Interpretation of this Division in cases of death
without prior incapacity
A reference in this Division to the date on which, or
time at which, a worker was rendered less able to earn
full wages is, in the case of a death of a worker who
20 was not rendered less able to earn full wages before the
worker died, a reference to the date of the worker's
death.
".
31. Section 41 amended
25 (1) Section 41(2) is amended by deleting "of disablement," and
inserting instead --
"
on which the worker was rendered less able to earn full
wages,
30 ".
page 27
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 32
(2) Section 41(4) is amended by deleting "of disablement," and
inserting instead --
"
on which the worker was rendered less able to earn full
5 wages,
".
32. Section 43 amended
Section 43 is amended by deleting "disablement" and inserting
instead --
10 " occurrence of the injury ".
33. Section 44 amended
Section 44 is amended by deleting "disablement" and inserting
instead --
"
15 date on which the worker was rendered less able to
earn full wages
".
34. Section 47 amended
Section 47 is amended as follows:
20 (a) by deleting "of a worker's disablement within the
meaning of " and inserting instead --
"
at which a worker was rendered less able to earn full
wages as mentioned in
25 ";
(b) in paragraph (b) by deleting "disabled" and inserting
instead --
" so rendered ";
page 28
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 35
(c) in paragraph (d) by deleting "disabled" and inserting
instead --
" rendered ";
(d) in the final phrase by deleting "disabled" and inserting
5 instead --
" so rendered ";
(e) by deleting "that disablement" and inserting instead --
" being so rendered ".
35. Section 48 amended
10 Section 48(1) is amended as follows:
(a) by deleting "the Executive Director" and inserting
instead --
" WorkCover WA ";
(b) by deleting "the disablement began." and inserting
15 instead --
"
at which the worker was rendered less able to earn full
wages.
".
20 36. Heading to Part III Division 4 replaced
The heading to Part III Division 4 is deleted and the following
heading is inserted instead --
"
Division 4 -- Injury: specified losses of functions
25 ".
37. Section 49 replaced
Section 49 is repealed and the following section is inserted
instead --
page 29
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 38
"
49. Injury occurs when loss of function renders worker
less able to earn full wages
Where a worker is rendered less able to earn full wages
5 by reason of suffering from a loss of function described
in column 1 of Schedule 4 and the loss of function is
due to the nature of any employment in which the
worker was employed at any time within 3 years before
the date on which the worker is rendered less able to
10 earn full wages, an injury, being that loss of function,
occurs and this Act applies to such an injury subject to
this Division.
".
38. Section 53 amended
15 Section 53 is amended by deleting "disablement" and inserting
instead --
" occurrence of the injury ".
39. Section 54 amended
Section 54 is amended by deleting "disablement" and inserting
20 instead --
"
date on which the worker is rendered less able to earn
full wages
".
25 40. Section 57 amended
Section 57 is amended as follows:
(a) by inserting after "18," --
" 18A ";
(b) by deleting "clause 17(1)" and inserting instead --
30 " clauses 17(1) and 18A(1c) ".
page 30
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 41
41. Section 57A amended
(1) Section 57A(3) is repealed and the following subsection is
inserted instead --
"
5 (3) Upon an employer making a claim as mentioned in
subsection (2), the insurer must, before the expiration
of 14 days after the claim was made by the
employer --
(a) give the worker to whom the claim relates and
10 the employer notice, in accordance with
section 57BA and the regulations, that liability
is accepted in respect of the weekly payments
claimed;
(b) subject to section 75, give the worker to whom
15 the claim relates and the employer notice, in
accordance with section 57BA and the
regulations, that liability is disputed in respect
of all or any of the weekly payments claimed;
or
20 (c) give the worker to whom the claim relates, the
employer and the Director notice, in accordance
with section 57BA and the regulations, that a
decision as to whether or not liability is to be
accepted in respect of the weekly payments
25 claimed is not able to be made within the time
allowed by this subsection.
Penalty: $1 000.
".
(2) Section 57A is amended at the foot of subsection (4) by
30 inserting --
" Penalty: $1 000. ".
(3) Section 57A(5) is amended by deleting "to the Directorate".
page 31
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 42
(4) Section 57A(6) is amended as follows:
(a) by deleting "the Directorate may" and inserting
instead --
" an arbitrator may ";
5 (b) by deleting "by the Directorate".
(5) Section 57A(7)(b) is amended by deleting "the Directorate" and
inserting instead --
" an arbitrator ".
42. Section 57B amended
10 (1) Section 57B(2) is repealed and the following subsection is
inserted instead --
"
(2) In the circumstances mentioned in subsection (1), an
employer must, before the expiration of 17 days after
15 those circumstances arose --
(a) if liability to make the weekly payments
claimed is accepted, subject to subsection (6),
make the first of those weekly payments;
(b) subject to section 75, give the worker notice, in
20 accordance with section 57BA and the
regulations, that liability is disputed in respect
of all or any of the weekly payments claimed;
or
(c) give the Director and the worker notice, in
25 accordance with section 57BA and the
regulations, that a decision as to whether or not
liability is to be accepted in respect of the
weekly payments claimed is not able to be
made within the time allowed by this
30 subsection.
Penalty: $1 000.
".
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Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 43
(2) Section 57B is amended as follows:
(a) at the foot of subsection (2b) by inserting --
" Penalty: $1 000. ";
(b) at the foot of subsection (3) by inserting --
5 " Penalty: $1 000. ".
(3) Section 57B(4) is amended by deleting "to the Directorate".
(4) Section 57B(5) is amended as follows:
(a) by deleting "the Directorate may" and inserting
instead --
10 " an arbitrator may ";
(b) by deleting "by the Directorate".
(5) Section 57B(6)(b) is amended by deleting "the Directorate" and
inserting instead --
" an arbitrator ".
15 43. Section 57BA inserted
After section 57B the following section is inserted --
"
57BA. Notices under sections 57A and 57B
(1) A notice under section 57A or 57B is to be expressed
20 in plain language.
(2) The regulations may make provision --
(a) as to information to be included in or to
accompany a notice under section 57A or 57B;
and
25 (b) requiring information included in or
accompanying a notice under section 57A or
57B to be given to WorkCover WA or other
persons prescribed by the regulations.
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Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
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s. 43
(3) A notice under section 57A(3)(b) or 57B(2)(b) is to be
in or to the effect of the form prescribed by the
regulations and is to contain a statement of --
(a) the reason the person giving the notice disputes
5 liability;
(b) the provisions of this Act on which the person
giving the notice relies to dispute liability.
(4) A notice under section 57A(3)(b) or 57B(2)(b) is to
also include --
10 (a) a statement to the effect that the worker can
apply for resolution of the dispute under this
Act;
(b) a statement to the effect that the worker can
seek advice or assistance from the worker's
15 trade union organisation, a legal practitioner or
a registered agent; and
(c) such other information as the regulations may
prescribe or, subject to the regulations, as
WorkCover WA may from time to time
20 approve and notify to insurers and, in the case
of information required in a notice under
section 57B(2)(b), to employers.
(5) A statement in a notice under section 57A(3)(b) or
57B(2)(b) is given --
25 (a) in the case of a notice under section 57A(3)(b),
subject to the insurer not being prejudiced in
any subsequent proceedings relating to the
claim by any information included in the
statement; and
30 (b) in the case of a notice under section 57B(2)(b),
subject to the employer, or the insurer if the
insurer subsequently agrees to indemnify the
employer, not being prejudiced in any
page 34
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 43
subsequent proceedings relating to the claim by
any information included in the statement.
(6) A notice under section 57A(3)(c) or 57B(2)(c) is to --
(a) be in or to the effect of the form prescribed by
5 the regulations;
(b) include a statement as to the reasons why a
decision as to whether or not liability is to be
accepted in respect of the weekly payments
claimed is not able to be made within the time
10 allowed by section 57A(3) or 57B(2), as the
case requires, and --
(i) if a reason is that the person giving the
notice requires further medical
information, a statement as to the nature
15 and substance of the medical
information and whether or not the
person giving the notice requires any
written authority from the worker for
that purpose;
20 (ii) if a reason is that the person giving the
notice requires further information as to
the worker's weekly earnings, a
statement as to the nature and substance
of the information required; and
25 (iii) any other particulars required by the
person giving the notice to make the
decision;
and
(c) include such other information as the
30 regulations may prescribe.
".
page 35
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 44
44. Section 57C amended
Section 57C is amended as follows:
(a) at the foot of subsection (2) by inserting --
" Penalty: $1 000. ";
5 (b) at the foot of subsection (3) by inserting --
" Penalty: $1 000. ";
(c) at the foot of subsection (4) by inserting --
" Penalty: $1 000. ";
(d) at the foot of subsection (5) by deleting the penalty
10 provision.
45. Section 58 amended
(1) Section 58(1) is amended by deleting "the Directorate" and
inserting instead --
" an arbitrator ".
15 (2) Section 58(2) is amended by deleting "the Directorate" and
inserting instead --
" an arbitrator ".
(3) Section 58(2a) is amended as follows:
(a) by deleting "the Directorate may order" and inserting
20 instead --
" the Director may order ";
(b) by deleting "for the Directorate to hear" and inserting
instead --
" for an arbitrator to hear ".
25 (4) Section 58(3) is amended as follows:
(a) by deleting "for the Directorate to hear" and inserting
instead --
" for an arbitrator to hear ";
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Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 46
(b) by deleting "the Directorate may hear" and inserting
instead --
" an arbitrator may hear ".
(5) Section 58(5) is amended as follows:
5 (a) by deleting "Directorate shall satisfy itself as to all the
evidence before it whereupon the Directorate" and
inserting instead --
"
arbitrator is to satisfy himself as to all the evidence
10 before him and
";
(b) in paragraph (a) by deleting "it" in both places where it
occurs and inserting instead --
" the arbitrator ";
15 (c) in paragraph (b) by deleting "it" in both places where it
occurs and inserting instead --
" the arbitrator ".
(6) Section 58(6) is amended by deleting "by the Directorate" and
inserting instead --
20 " by an arbitrator ".
46. Section 59 amended
Section 59(10) is amended by deleting "to the Directorate for an
order" and inserting instead --
" for an order of an arbitrator ".
25 47. Section 60 amended
(1) Section 60(1) is amended by deleting "to the Directorate at any
time for an order" and inserting instead --
" at any time for an order of an arbitrator ".
page 37
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 48
(2) Section 60(2) is amended as follows:
(a) by deleting "the Directorate that" and inserting
instead --
" an arbitrator that ";
5 (b) by deleting "the Directorate may" and inserting
instead --
" the arbitrator may ";
(c) by deleting "the Directorate directs" and inserting
instead --
10 " the arbitrator directs ";
(d) by deleting "it" in both places where it occurs and
inserting instead --
" the arbitrator ".
48. Section 61 amended
15 (1) Section 61(1) is amended as follows:
(a) by deleting "order of the Directorate" and inserting
instead --
" order of an arbitrator ";
(b) by deleting "to the Directorate".
20 (2) After section 61(2) the following subsection is inserted --
"
(2a) If a person is required to give notice under
subsection (1) and --
(a) fails to give the notice within the period
25 referred to in that subsection; or
(b) gives a notice that does not comply with
subsection (2),
the person commits an offence.
Penalty: $2 000.
30 ".
page 38
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 48
(3) Section 61(3) is amended as follows:
(a) by deleting "as the Directorate" and inserting instead --
" as an arbitrator ";
(b) by deleting "to the Directorate for an order" and
5 inserting instead --
" for an order of an arbitrator ".
(4) Section 61(4) is amended as follows:
(a) by deleting "the Directorate" and inserting instead --
" an arbitrator ";
10 (b) in paragraphs (a) and (c) by deleting "it" and inserting
instead --
" the arbitrator ".
(5) After section 61(4) the following subsection is inserted --
"
15 (4aa) A reference in subsection (1), (3) or (4) to the employer
is, where the employer is insured against liability to
pay compensation under this Act, a reference to the
employer's insurer.
".
20 (6) Section 61(4a) is amended as follows:
(a) by deleting "the Directorate" and inserting instead --
" an arbitrator ";
(b) by deleting paragraph (a) and the "and" after it and
inserting instead --
25 "
(a) may, where the case requires, take into account
whether --
(i) a return to work program has been
established for the worker under
30 section 155C(1);
page 39
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 49
(ii) the establishment, content and
implementation of the return to work
program are in accordance with the code
as defined in section 155; and
5 (iii) the worker has participated in the return
to work program,
and for the purposes of determining the
application accordingly treat the worker's
incapacity as being of such degree as the
10 arbitrator sees fit; and
".
(7) Section 61(7) is amended as follows:
(a) in paragraph (ba) by inserting after "93E(8)" --
" or 93P(2)(b) ";
15 (b) in paragraph (c) by deleting "64, 65,".
49. Section 62 amended
(1) Section 62(1) is amended as follows:
(a) by deleting "the Directorate at the request" and inserting
instead --
20 " an arbitrator on an application ";
(b) by deleting "as the Directorate" and inserting instead --
" as the arbitrator ".
(2) After section 62(1) the following subsection is inserted --
"
25 (2) An arbitrator may, instead of discontinuing, reducing
or increasing the weekly payments, suspend the weekly
payments from the date of the order until such time as
is specified in the order.
".
page 40
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 50
50. Section 63 amended
Section 63 is amended by deleting "the Directorate" and
inserting instead --
" an arbitrator ".
5 51. Section 64 amended
(1) Section 64(1) is amended by deleting ", and, if he, without
reasonable excuse, proof of which is on him, refuses to submit
himself to such an examination, or in any way obstructs it, his
right to compensation, and to take or prosecute any proceeding
10 under this Act shall be suspended until such an examination has
taken place, and shall cease unless he submits himself for
examination within one month after being required to do so".
(2) Section 64(2) is repealed and the following subsections are
inserted instead --
15 "
(2) Subsection (1) does not apply in relation to an election
made by the worker --
(a) for the purposes of section 24 to receive
compensation in accordance with that section
20 for permanent loss of the full efficient use of
the back, neck or pelvis; or
(b) for the purposes of section 31C to receive
compensation in accordance with that section
for impairment of the back, neck or pelvis.
25 (3) A reference in subsection (1) to the employer is, where
the employer is insured against liability to pay
compensation under this Act, a reference to the
employer's insurer.
".
page 41
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 52
52. Section 65 amended
Section 65 is amended as follows:
(a) by inserting after "employer" in the first place where it
occurs --
5 "
or, if the employer is insured against liability to pay
compensation under this Act, the employer's insurer
";
(b) by inserting after "employer" in the second place where
10 it occurs --
" or insurer, as the case may be ";
(c) by deleting ", and if he, without reasonable excuse,
proof of which is on him, refuses to submit himself to
such an examination, or in any way obstructs it, his right
15 to such weekly payments shall be suspended until such
examination has taken place, and shall cease unless he
submits himself for examination within one month after
being required to do so".
53. Section 66 amended
20 Section 66 is amended by inserting after "prescribed" --
" , nor more often than is prescribed ".
54. Section 66A inserted
After section 66 the following section is inserted --
"
25 66A. Additional medical examinations
(1) In this section --
"additional medical examination" means an
examination by a medical practitioner in addition
to those permitted by section 66.
page 42
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 55
(2) An arbitrator may by order require a worker to submit
himself for an additional medical examination if the
arbitrator is satisfied that the examination is necessary.
(3) An additional medical examination required under
5 subsection (2) is to be carried out by a medical
practitioner registered under section 145B --
(a) agreed to by the worker and the employer; or
(b) selected by the arbitrator, if the worker and the
employer cannot reach agreement under
10 paragraph (a) within such period as is specified
in the order.
(4) The medical practitioner is to be paid by the employer.
(5) The regulations may limit the number of additional
medical examinations that may be required.
15 (6) A reference in subsection (3) or (4) to the employer is,
where the employer is insured against liability to pay
compensation under this Act, a reference to the
employer's insurer.
".
20 55. Section 67 amended
(1) Section 67(1)(a) and (b) and "and" after paragraph (a) are
deleted and the following is inserted instead --
"
(a) an arbitrator, with the consent of the worker
25 and the employer, makes an order that the
liability for the incapacity is to be redeemed by
the payment of a lump sum of an amount
specified in the order; or
(b) the worker and the employer agree to the
30 redemption, and on the amount of the lump
sum, and a memorandum of the agreement is
registered under Division 7.
".
page 43
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 56
(2) Section 67(4) is amended as follows:
(a) by deleting "settled, in default of agreement, under
Part IIIA" and inserting instead --
"
5 determined, in default of agreement, by an arbitrator
";
(b) by deleting "under Part IIIA" in the second place where
it occurs and inserting instead --
" by the arbitrator ".
10 (3) Section 67(5) is amended as follows:
(a) by deleting "subsection (4)" and inserting instead --
" subsection (1) or (4) ";
(b) in paragraph (b) by inserting after "18," --
" 18A ".
15 (4) After section 67(5) the following subsection is inserted --
"
(6) The regulations may make provision as to details that
are to be specified in a consent order, or an agreement
registered under Division 7, for payment of a lump
20 sum.
".
56. Section 70 replaced
Section 70 is repealed and the following section is inserted
instead --
25 "
70. Furnishing medical reports
(1) Where a worker has submitted himself for examination
by a medical practitioner as required under section 64,
65 or 66A, the employer or employer's insurer, as the
30 case requires, shall, within 14 days after receiving the
page 44
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 57
report of that practitioner as to the worker's medical
condition, furnish the worker with a copy of that report.
(2) If a person is required to furnish a worker with a copy
of a report under subsection (1) and fails to do so
5 within the period referred to in that subsection, that
person commits an offence.
Penalty: $2 000.
(3) In proceedings for an offence under subsection (2) it is
a defence for the employer or the employer's insurer,
10 as the case may be, to show that the other of them
furnished a copy of the report within the period
referred to in subsection (1).
(4) Where a worker has been examined by a medical
practitioner selected by himself, the worker shall,
15 within 14 days after receiving the report of that
practitioner as to the worker's medical condition,
furnish the employer with a copy of that report.
(5) The reference in subsection (4) to the employer is,
where the employer is insured against liability to pay
20 compensation under this Act, a reference to the
employer's insurer.
".
57. Section 71 amended
Section 71 is amended as follows:
25 (a) by deleting "the Commission, employer, or an" and
inserting instead --
" WorkCover WA, the employer, or the ";
(b) by deleting "the Commission, employer, or" and
inserting instead --
30 " WorkCover WA, the employer, or the ";
page 45
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 58
(c) by deleting "to the Directorate for an order" and
inserting instead --
" for an order of an arbitrator ";
(d) by deleting "the Directorate has" and inserting
5 instead --
" an arbitrator has ";
(e) by deleting "it" and inserting instead --
" the arbitrator ".
58. Section 72 replaced by sections 72, 72A and 72B
10 Section 72 is repealed and the following sections are inserted
instead --
"
72. Suspension of payments during custody
(1) Subject to subsection (2), a worker's entitlement to
15 weekly payments of compensation under this Act is
suspended during any period that the worker is --
(a) in custody under a law of this State, another
State or a Territory, or the Commonwealth
except where that custody is of a kind
20 prescribed by the regulations; or
(b) otherwise serving a term of imprisonment of a
kind prescribed by the regulations.
(2) The worker's entitlement to compensation is suspended
from the date on which an arbitrator certifies to the
25 existence of the ground of suspension under subsection
(1) until the date from which an arbitrator certifies that
the ground no longer exists.
(3) A certificate issued under subsection (2) is binding on
the worker, the employer and the insurer of the
30 employer.
page 46
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 58
(4) An arbitrator may exercise functions under this section
entirely on the basis of the documents and information
provided to the arbitrator.
72A. Suspension or cessation of payments for failure to
5 undergo medical examination
(1) A worker's entitlement to compensation under this Act,
and to take and prosecute any proceeding under this
Act, may be suspended by order of an arbitrator if the
worker --
10 (a) being required by the employer under
section 64 to submit himself for examination by
a medical practitioner; or
(b) being required by an arbitrator to submit
himself for an additional medical examination
15 as defined in section 66A(1), being an
examination additional to examinations under
section 64,
refuses or fails to do so or in any way obstructs the
examination.
20 (2) A worker's entitlement to compensation under this Act,
may be suspended by order of an arbitrator if the
worker --
(a) being required by the employer under
section 65 to submit himself for examination by
25 a medical practitioner; or
(b) being required by an arbitrator to submit
himself for an additional medical examination
as defined in section 66A(1), being an
examination additional to examinations under
30 section 65,
refuses or fails to do so or in any way obstructs the
examination.
page 47
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 58
(3) An arbitrator is not to make an order under
subsection (1) or (2) if the worker satisfies the
arbitrator that the worker had a reasonable excuse for
refusing or failing to submit to the medical
5 examination.
(4) An arbitrator is to revoke an order made under
subsection (1) or (2) if satisfied that the worker has
submitted himself for the examination and has not
obstructed the examination.
10 (5) The worker's entitlements are suspended from the date
on which the arbitrator makes the order until the date
on which the order is revoked or the worker's
entitlements cease under subsection (7).
(6) An order made under subsection (1) or (2) is binding
15 on the worker, the employer and the insurer of the
employer.
(7) If a worker continues to refuse or fail to submit to
medical examination for one month, or such time as an
arbitrator otherwise orders, after an order is made
20 under subsection (1) or (2) in respect of the worker,
then --
(a) the worker's entitlement to compensation for
the injury in respect of which the worker was
required to submit to medical examination
25 ceases; and
(b) in the case of an order under subsection (1), the
worker's entitlement to take and prosecute any
proceeding under this Act in relation to that
compensation ceases.
30 72B. Suspension or cessation of payments for failure to
participate in return to work program
(1) A worker's entitlement to compensation under this Act
may be suspended by order of an arbitrator if the
page 48
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 58
worker, being required by an arbitrator under
section 156B(2) to participate in a return to work
program, refuses or fails to participate in the return to
work program.
5 (2) An arbitrator is not to make an order under
subsection (1) if --
(a) the establishment, content or implementation of
the return to work program is not in accordance
with the code as defined in section 155; or
10 (b) the worker satisfies the arbitrator that the
worker had a reasonable excuse for refusing or
failing to participate in the return to work
program.
(3) An arbitrator is to revoke an order made under
15 subsection (1) if satisfied that the worker has
subsequently participated in a return to work program
that has been established for the worker under
section 155C(1).
(4) The worker's entitlements are suspended from the date
20 on which the arbitrator makes the order until the date
on which the order is revoked under subsection (3) or
the worker's entitlements cease under subsection (6).
(5) An order made under subsection (1) is binding on the
worker, the employer and the insurer of the employer.
25 (6) If a worker continues to refuse or fail to comply with
an order to participate in the return to work program
for one month, or such time as an arbitrator otherwise
orders, after an order is made under subsection (1) in
respect of the worker, then the worker's entitlement to
30 compensation for the injury in respect of which the
worker was required to participate in the return to work
program ceases.
".
page 49
Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 59
59. Section 73 amended
(1) Section 73(4) is amended by deleting "refer to the Director for
conciliation under Part IIIA" and inserting instead --
" apply for determination by an arbitrator of ".
5 (2) Section 73(5) is amended by deleting "it may" and inserting
instead --
" the arbitrator may ".
(3) Section 73(6) is amended as follows:
(a) by inserting after "24A" --
10 " or 31E ";
(b) by deleting "a conciliation officer, review officer or
court dealing with the dispute under Part IIIA" and
inserting instead --
" an arbitrator dealing with the dispute ".
15 60. Section 74 amended
(1) Section 74(1a) is amended by deleting "refer to the Director for
conciliation under Part IIIA" and inserting instead --
" apply for determination by an arbitrator of ".
(2) Section 74(2) is amended as follows:
20 (a) by deleting "A dispute resolution body" and inserting
instead --
" An arbitrator ";
(b) by deleting "it" and inserting instead --
" the arbitrator ".
25 61. Section 75 amended
Section 75 is amended as follows:
(a) by inserting before "Where" the subsection designation
"(1)";
page 50
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 62
(b) by inserting at the end of the section the following
subsection --
"
(2) An employer or insurer that gives notification contrary
5 to subsection (1) commits an offence.
Penalty: $1 000.
".
62. Section 76 amended
(1) Section 76(1) is amended as follows:
10 (a) by deleting "or 24A" and inserting instead --
" , 24A, 31C or 31E ";
(b) by deleting "the Directorate" and inserting instead --
" an arbitrator ".
(2) Section 76(4) is amended by deleting "the Directorate" and
15 inserting instead --
" an arbitrator ".
(3) Section 76(5) is amended by deleting "Directorate" and
inserting instead --
" Director ".
20 (4) Section 76(6) is amended as follows:
(a) by deleting "or 24A" in both places where it occurs and
inserting instead --
" , 24A, 31C or 31E ";
(b) by deleting "to a compensation magistrate's court
25 which" and inserting instead --
" to the Commissioner who ";
(c) by deleting "the court" and inserting instead --
" the Commissioner ".
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Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 63
(5) Section 76(7) is amended by deleting "or 24A" and inserting
instead --
" , 24A, 31C or 31E ".
(6) After section 76(7) the following subsection is inserted --
5 "
(7a) A medical practitioner nominated by the Director under
subsection (7) to examine a worker who has made an
election under section 31C in respect of an impairment
that is not AIDS must be an approved medical
10 specialist.
".
(7) Section 76(8) is amended as follows:
(a) by deleting "The Directorate" and inserting instead --
" An arbitrator ";
15 (b) by deleting "the Board's" and inserting instead --
" the arbitrator's ";
(c) by deleting "or 24A" and inserting instead --
" , 24A, 31C or 31E ";
(d) by deleting "the Directorate" and inserting instead --
20 " the arbitrator ".
63. Section 79 amended
Section 79 is amended by deleting "a dispute resolution body
may in its" and inserting instead --
" an arbitrator may in the arbitrator's ".
25 64. Section 80 amended
Section 80(1) is amended by deleting "or industrial agreement".
page 52
Workers' Compensation Reform Bill 2004
Amendments to the Workers' Compensation and Part 2
Rehabilitation Act 1981
s. 65
65. Section 83 amended
(1) Section 83(1) is amended as follows:
(a) by deleting "made under the Conciliation and
Arbitration Act 1904 of the Commonwealth" and
5 inserting instead --
"
as those terms are defined in the Workplace Relations
Act 1996 of the Commonwealth
";
10 (b) by deleting "disabled from earning" and inserting
instead --
" rendered less able to earn ".
(2) Section 83(2) is amended by deleting "by the Directorate" and
inserting instead --
15 " by an arbitrator ".
66. Section 84AB inserted
After section 84AA the following section is inserted --
"
84AB. Employer to notify worker and WorkCover WA of
20 intention to dismiss worker
(1) An employer must not dismiss a worker to whom
section 84AA(1) applies unless the employer has given
to the worker and to WorkCover WA in accordance
with subsection (2) a notice of intention to dismiss the
25 worker.
Penalty: $2 000.
(2) A notice of intention to dismiss a worker --
(a) is to be given to the worker and to WorkCover
WA not less than 28 days before the dismissal
30 is to take effect; and
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Workers' Compensation Reform Bill 2004
Part 2 Amendments to the Workers' Compensation and
Rehabilitation Act 1981
s. 67
(b) is to be in or to the effect of the form prescribed
and contain substantially the information
sought in the form.
(3) Nothing in this section limits any other obligation of an
5 employer or rights of a worker under this Act or any
other written law.
".
67. Part IIIA repealed
Part IIIA is repealed.
10 68. Section 91 amended
Section 91 is amended as follows:
(a) by inserting before "If " the subsection designation
"(1)";
(b) by deleting "to the Directorate" and inserting instead --
15 " for determination by an arbitrator ";
(c) by inserting at the end of the section the following
subsection --
"
(2) To the extent that it is practicable to do so, and
20 subject to the DRD Rules, a referral under
subsection (1) is to be dealt with as if it were an
application for resolution of a dispute under
Part XI.
".
25 69. Section 92 amended
Section 92 is amended as follows:
(a) in paragraph (f)(i) by deleting "Directorate" and
inserting instead --
" Director ";
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(b) in paragraph (f)(ii) by deleting "Directorate" and
inserting instead --
" Director ".
70. Section 93 amended
5 Section 93(3) is amended by deleting "by the Directorate in any
action brought by the worker before the Directorate" and
inserting instead --
" by an arbitrator on any application made by the worker ".
71. Heading to Part IV Division 2 Subdivision 1 inserted
10 After the heading to Part IV Division 2 the following heading is
inserted --
"
Subdivision 1 -- Preliminary provisions
".
15 72. Section 93A amended
Section 93A is amended by deleting the definition of "AMA
Guides".
73. Section 93B amended
(1) Section 93B(1) is amended as follows:
20 (a) by deleting "a disability suffered by a worker" and
inserting instead --
"
an injury suffered by a worker, or a noise induced
hearing loss suffered by a worker that is not an injury,
25 ";
(b) in each of paragraphs (a) and (b), by deleting "the
disability" and inserting instead --
" it ".
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(2) Section 93B(3a) is amended by deleting "if the disability" and
inserting instead --
" in respect of an injury if the injury ".
(3) After section 93B(4) the following subsection is inserted --
5 "
(5) In the context of a cause of action arising on or after
the day on which section 79 of the Workers'
Compensation Reform Act 2004 comes into operation,
a reference in the other subsections of this section to
10 the worker's employer does not include a reference to a
person who is the worker's employer only because of
section 175.
".
74. Heading to Part IV Division 2 Subdivision 2 inserted
15 After section 93C the following heading is inserted --
"
Subdivision 2 -- 1993 scheme
".
75. Sections 93CA and 93CB and 93CC inserted
20 Before section 93D the following sections are inserted --
"
93CA. Meaning of "AMA Guides" in this Subdivision
In this Subdivision --
"AMA Guides" means the edition of the Assessment
25 of Disability Guide published by the Western
Australian Branch of the Australian Medical
Association Incorporated that is prescribed in the
regulations.
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93CB. Limits on application of this Subdivision
(1) This Subdivision does not apply if the cause of action
arises on or after the day on which section 79 of the
Workers' Compensation Reform Act 2004 comes into
5 operation.
(2) This Subdivision does not apply to the awarding of
damages to the extent that they are for noise induced
hearing loss that is not an injury.
93CC. Application of this Subdivision
10 This Subdivision applies to a cause of action arising
before the day on which section 79 of the Workers'
Compensation Reform Act 2004 comes into operation,
regardless of when the cause of action arose and
whether proceedings in respect of the cause of action
15 have commenced, unless --
(a) because of section 32(7) of the Workers'
Compensation and Rehabilitation Amendment
Act 1999, the former provisions as defined in
section 32(6) of that Act apply to proceedings
20 in respect of the cause of action; or
(b) because of Part 2 of the Workers'
Compensation (Common Law Proceedings)
Act 2004, the former provisions as defined in
section 4 of that Act apply to proceedings in
25 respect of the cause of action.
".
76. Section 93D amended
(1) Section 93D(2)(a) is amended as follows:
(a) by inserting after "so far as Schedule 2" --
30 " Part 1 ";
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(b) by deleting "such a disability," and inserting instead --
" an injury suffered by the worker, ";
(c) by deleting "that Schedule" and inserting instead --
" that Part ".
5 (2) Section 93D(8) is amended by deleting "Part IIIA" and inserting
instead --
" Part XI ".
(3) Section 93D(10) is amended by deleting "the Director is to refer
the question for resolution under the provisions of Part IIIA
10 (other than Division 2)." and inserting instead --
"
it is to be dealt with under Part XI, and for that
purpose --
(a) an application is taken to have been made by
15 the worker under section 181; and
(b) the requirement to give copies under
section 182 does not apply.
".
77. Section 93E amended
20 (1) Section 93E(1) is amended by deleting "on a reference under"
and inserting instead --
" when dealt with as described in ".
(2) After section 93E(13) the following subsection is inserted --
"
25 (14) If a further additional sum has been allowed to the
worker under clause 18A(1b) in relation to an injury
that is compensable under this Act, damages are not to
be awarded in respect of the injury.
".
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78. Section 93G amended
Section 93G(a) is amended by deleting "Division" and inserting
instead --
" Subdivision ".
5 79. Part IV Division 2 Subdivision 3 inserted
After section 93G the following Subdivision is inserted --
"
Subdivision 3 -- 2004 scheme
93H. Terms used in this Subdivision
10 (1) In this Subdivision --
"degree of permanent whole of person impairment"
means the degree of permanent whole of person
impairment, evaluated as described in
sections 146A and 146C, resulting from the injury
15 or injuries arising from a single event, as defined
in subsection (2);
"election registration day" means the day on which
the Director registers the election under
section 93K(4)(b).
20 (2) In the definition of "degree of permanent whole of
person impairment" in subsection (1) --
"event" means anything that results, whether
immediately or not and whether suddenly or not,
in an injury or injuries of a worker and the term
25 includes continuous or repeated exposure to
conditions that results in an injury or injuries of a
worker.
93I. Application of this Subdivision
This Subdivision applies only if the cause of action
30 arises on or after the day on which section 79 of the
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Workers' Compensation Reform Act 2004 comes into
operation.
93J. No damages for noise induced hearing loss if not an
injury
5 Damages to which this Division applies are not to be
awarded, in circumstances to which this Subdivision
applies, in respect of noise induced hearing loss that is
not an injury.
93K. Restrictions on awarding, and amount of, damages
10 (1) If the liability for an incapacity resulting from the
injury has been redeemed under section 67, damages
are not to be awarded in respect of the injury.
(2) If a further additional sum has been allowed to the
worker under clause 18A(1b) in relation to an injury
15 that is compensable under this Act, damages are not to
be awarded in respect of the injury.
(3) If the worker is participating, or has at any time
participated, in a specialised retraining program
established in respect of an injury that is compensable
20 under this Act, damages are not to be awarded in
respect of the injury.
(4) Damages in respect of an injury can only be awarded
if --
(a) the worker elects, in the manner prescribed in
25 the regulations, to retain the right to seek the
damages;
(b) the Director registers the election in accordance
with the regulations;
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(c) court proceedings seeking the damages are
commenced within --
(i) the period of 30 days after the Director
gives the worker written notice that the
5 Director has registered the election; or
(ii) any further time provided for in the
regulations to allow for things to be
done before court proceedings are
commenced;
10 and
(d) the court is satisfied that the worker's degree of
permanent whole of person impairment is at
least 15%.
(5) Unless the court is satisfied that the worker's degree of
15 permanent whole of person impairment is at least
25% --
(a) the amount of damages to be awarded is to be a
proportion, determined according to the
severity of the injury or injuries, of the
20 maximum amount that may be awarded; and
(b) the maximum amount of damages that may be
awarded in respect of the injury or injuries is
Amount A, but the maximum amount may be
awarded only in a most extreme case in which
25 the worker's degree of permanent whole of
person impairment is less than 25%.
(6) Subsection (5) has effect in respect of the amount of a
judgment before the operation of section 92(b).
(7) No entitlement to damages is created by subsection (5)
30 and that subsection is subject to any other law that
prevents or limits the awarding of damages.
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(8) If --
(a) subsection (4) does not allow damages to be
awarded in respect of the injury; or
(b) damages in respect of the injury have been
5 awarded in accordance with subsection (5),
the employer is not liable to make any contribution
under the Law Reform (Contributory Negligence and
Tortfeasors' Contribution) Act 1947 (the
"Contribution Act") in respect of damages awarded
10 against another person in relation to the injury.
(9) If subsection (5) limits the damages that could have
been awarded in respect of the injury --
(a) the contributions that the employer may be
liable to make under the Contribution Act in
15 respect of damages awarded against other
persons in relation to the injury are not to
exceed the damages that could have been
awarded in accordance with subsection (5); and
(b) if the employer has made or been directed to
20 make a contribution under the Contribution Act
in respect of damages awarded against another
person in relation to the injury, the amount of
damages that may be awarded in accordance
with subsection (5) is reduced by the amount of
25 that contribution.
(10) This section applies regardless of whether the damages
are awarded against one or several employers.
(11) An issue as to the amount of damages that may be
awarded, is to be determined by reference to Amount A
30 as in effect on the date on which the determination is
made.
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(12) In this section --
"Amount A" means, in relation to a financial year,
the amount that section 93F(8) defines to be
Amount A in relation to that financial year.
5 (13) The court is not bound by an agreement or assessment
recorded by the Director under section 93L(2), but may
admit it as evidence relevant to the worker's degree of
permanent whole of person impairment.
93L. Election to retain right to seek damages
10 (1) In this section --
"termination day" has the meaning given in
section 93M.
(2) A worker can only elect under section 93K(4) to retain
the right to seek damages if --
15 (a) the worker and the employer agree --
(i) that the worker's degree of permanent
whole of person impairment is at least
15%; and
(ii) as to whether or not the worker's degree
20 of permanent whole of person
impairment is at least 25%;
or
(b) the worker's degree of permanent whole of
person impairment has been assessed to be a
25 percentage that is not less than 15%,
and the Director has, at the written request of the
worker, recorded that agreement or assessment in
accordance with the regulations.
(3) The Director cannot, under subsection (2), record an
30 assessment that involves a special evaluation as defined
in section 146C(4) unless the Director has been given a
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copy of the certificate referred to in section 93N(1) on
the basis of which the special evaluation was requested.
(4) If a claim for compensation by way of weekly
payments has been made wholly or partially with
5 respect to the injury or injuries concerned, an election
cannot be made after the termination day.
(5) An agreement or assessment that the Director has, at
the written request of the worker, recorded in
accordance with the regulations cannot be withdrawn
10 and, after it has been recorded, another agreement or
assessment as to the worker's degree of permanent
whole of person impairment cannot be recorded.
(6) An election that the Director has registered in
accordance with the regulations cannot be withdrawn
15 and a subsequent election cannot be made in respect of
the same injury or injuries.
(7) Subsection (5) does not prevent an agreement or
assessment as to the worker's degree of permanent
whole of person impairment from being made, whether
20 before or after the commencement of court
proceedings, after the Director has, at the written
request of the worker, recorded an agreement or
assessment in accordance with the regulations, or from
being used in court proceedings.
25 (8) The Director may at any time rectify an error that was
made in recording an agreement or assessment or
registering an election.
93M. Termination day
(1) If a claim for compensation by way of weekly
30 payments has been made wholly or partially with
respect to an injury, the termination day for an election
to retain the right to seek damages in respect of that
injury is the last day of the period of one year after the
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day on which the claim for compensation by way of
weekly payments is made unless a later day is fixed by
subsection (3) or under subsection (4).
(2) In subsection (1) --
5 "claim for compensation by way of weekly
payments" means a claim for compensation by
way of weekly payments for total or partial
incapacity that has been made on an employer in
accordance with section 178(1)(b).
10 (3) If, after the expiry of the period of 3 months after the
day on which the claim is made --
(a) a dispute resolution authority, acting under
section 58(1) or (2), determines the question of
liability to make the weekly payments claimed;
15 or
(b) the worker is first notified that liability is
accepted in respect of the weekly payments
claimed,
the termination day is the last day of the period of
20 9 months after the day of the act described in
paragraph (a) or (b) that was most recently done unless
a later day is fixed under subsection (4).
(4) The Director may, in accordance with the regulations,
from time to time extend the termination day, but only
25 if --
(a) before the termination day, an approved
medical specialist, in writing --
(i) certifies that the worker's condition has
not stabilised to the extent required for a
30 normal evaluation of the worker's
degree of permanent whole of person
impairment to be made in accordance
with the WorkCover Guides as
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described in sections 146A and 146C;
and
(ii) recommends a day until which the
termination day be extended;
5 (b) the Director is satisfied that the employer has
failed to comply with section 93O;
(c) the Director is satisfied that the extension
should be given because an approved medical
specialist requires or required more than the
10 time described in section 93O(1)(d) before
being able to give the worker the documents
required by section 146H; or
(d) the Director is satisfied that --
(i) the worker has, in accordance with the
15 regulations, requested an approved
medical specialist to assess the worker's
degree of permanent whole of person
impairment other than as described in
subparagraph (ii), allowing at least the
20 time described in section 93O(1)(d) for
the approved medical specialist to give
the worker the documents required by
section 146H at least 7 days before the
termination day, but the worker was not
25 given, or it would be impracticable to
give, those documents at least 7 days
before the termination day; or
(ii) the worker has, in accordance with the
regulations, requested an approved
30 medical specialist to make an
assessment that involves a special
evaluation of the worker's degree of
permanent whole of person impairment,
allowing at least 7 weeks for the
35 approved medical specialist to make the
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assessment and give the worker the
documents required by section 146H at
least 7 days before the termination day,
but the worker was not given, or it
5 would be impracticable to give, those
documents at least 7 days before the
termination day.
(5) In subsection (4) --
"normal evaluation" has the meaning given to that
10 term in section 146C(3);
"special evaluation" has the meaning given to that
term in section 146C(4).
(6) An extension under subsection (4) is to be to a day that
is not more than one year after the day that would have
15 been the termination day had there been no extension
under that subsection except that, in circumstances
described in subsection (4)(d), the Director may give
an extension for as long as the Director considers
necessary to give the worker an opportunity to make an
20 election.
(7) An extension is to be in writing and the Director is
required to give the worker and the employer each a
copy of the extension.
(8) An extension may be given even though the
25 termination day has passed.
93N. Special evaluation if condition has not sufficiently
stabilised
(1) This section applies if, after the expiry of the period of
6 months after the day that would have been the
30 termination day had there been no extension under
section 93M(4), an approved medical specialist
certifies that the worker's condition has not stabilised
to the extent required for a normal evaluation of the
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worker's degree of permanent whole of person
impairment to be made in accordance with
sections 146A and 146C.
(2) The worker may request an approved medical specialist
5 to make a special evaluation of the worker's degree of
permanent whole of person impairment in accordance
with sections 146A and 146C.
(3) The approved medical specialist requested to make a
special evaluation may be the approved medical
10 specialist who certified as described in subsection (1).
(4) The request is to be made in accordance with the
regulations not later than 8 weeks before the
termination day and is to be accompanied by a copy of
the certificate referred to in subsection (1).
15 (5) The approved medical specialist is to make the special
evaluation in accordance with sections 146A and 146C
unless the worker's condition is found to have
stabilised to the extent required for a normal
evaluation, in which case the approved medical
20 specialist is to make a normal evaluation in accordance
with those sections.
(6) In this section --
"normal evaluation" has the meaning given to that
term in section 146C.
25 93O. Employer to give worker notice of certain things
(1) At the time described in subsection (2), the employer is
required to notify the worker in writing in accordance
with the regulations --
(a) of the day that would be the termination day if
30 no later day were to be fixed under
section 93M(4);
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(b) that about 6 months remains before the
termination day;
(c) of the significance of the termination day for
the worker's ability to seek damages; and
5 (d) of the amount of time that, according to the
regulations, an approved medical specialist can
reasonably be expected to take, after a worker
requests an assessment of the worker's degree
of permanent whole of person impairment, to
10 give the worker the documents that an approved
medical specialist is required by section 146H
to give the worker.
(2) The notice is required to be given within the period of
14 days commencing on the day that is 6 months and
15 14 days before the day that would be the termination
day if no later day were to be fixed under
section 93M(4).
93P. How election may affect statutory compensation
(1) This section applies unless, according to an agreement
20 or assessment that the Director has recorded as
described in section 93L(2), the worker's degree of
permanent whole of person impairment is at least 25%.
(2) If a worker elects under section 93K to retain the right
to seek damages and this section applies --
25 (a) the amount of any weekly payment of
compensation to which the worker is entitled
under this Act in respect of the injury or
injuries, to the extent that the payment is for
any time during the first 6 months after the
30 election registration day, is varied to the
amount calculated as described in
subsection (4);
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(b) the worker is not entitled to any weekly
payment of compensation under this Act in
respect of the injury or injuries to the extent
that the payment would be for any time that is
5 more than 6 months after the election
registration day; and
(c) no other compensation under this Act is
payable in respect of the injury or injuries --
(i) in relation to a time that is after the
10 election registration day;
(ii) under Part III Division 2 or 2A,
irrespective of whether an election
under that Division is made before or
after the election registration day; or
15 (iii) for expenses incurred after the election
registration day.
(3) In subsection (2) --
"in respect of the injury or injuries" includes wholly
or partially in respect of the injury or injuries and
20 also includes wholly or partially in respect of any
recurrence, aggravation or acceleration of the
injury or injuries.
(4) The amount of a weekly payment is --
(a) to the extent that it is for any time during the
25 first 3 months after the election registration
day, 70% of the amount of the weekly payment
to which the worker would have been entitled if
this section had not applied; and
(b) to the extent that it is for any other time during
30 the first 6 months after the election registration
day, 50% of the amount of the weekly payment
to which the worker would have been entitled if
this section had not applied.
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93Q. Special provisions about HIV and AIDS
(1) Damages are not to be awarded in respect of the
infection of a worker by HIV but damages may be
awarded in respect of the contraction of AIDS unless it
5 results from the unlawful use of any prohibited drug or
from voluntary sexual activity.
(2) A worker who has contracted AIDS has, for the
purposes of this Subdivision, a degree of permanent
whole of person impairment resulting from the disease
10 of at least 25%.
(3) A certificate in writing by a medical practitioner to the
effect that the worker has contracted AIDS is to be
recorded by the Director under section 93L(2), and
otherwise treated for the purposes of this Subdivision,
15 as if it included an assessment that the worker's degree
of permanent whole of person impairment resulting
from the disease was at least 25%.
(4) The regulations may make provision for methods of
deciding for the purposes of this section whether a
20 worker has contracted AIDS.
(5) Part VII Division 2 does not apply to the degree of
permanent whole of person impairment of a worker
resulting from the contraction of AIDS.
(6) For the purposes of this Subdivision and any limitation
25 on the period within which proceedings may be
commenced to recover damages for that cause, the
cause of action of a worker who has contracted AIDS
is to be taken to have arisen when a certificate is first
given in writing by a medical practitioner to the effect
30 that the worker has contracted AIDS.
(7) Section 93L(4) and sections 93M, 93N, 93O, and 93P
do not apply in the case of an action for damages in
respect of the contraction of AIDS.
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(8) In this section --
"AIDS" means acquired immune deficiency syndrome;
"HIV" means human immunodeficiency virus;
"prohibited drug" has the meaning given to that term
5 by the Misuse of Drugs Act 1981 section 3.
93R. Special provisions about specified industrial
diseases
(1) If damages are sought or to be sought in respect of a
disease referred to in section 33 or 34, any assessment
10 to evaluate the worker's degree of permanent whole of
person impairment resulting from the disease as
described in sections 146A and 146C is to be made, not
by an approved medical specialist as stated in
section 146A(2), but by a medical panel constituted as
15 described in section 36.
(2) Subsection (1) does not prevent the evaluation of the
worker's degree of permanent whole of person
impairment being settled by agreement.
(3) A person seeking an assessment may advise the chief
20 executive officer, in accordance with any relevant
regulation, and the chief executive officer is to arrange
for a medical panel to be constituted to make the
assessment and refer the making of the assessment
sought to the panel.
25 (4) Section 36(3), section 37, and section 38(1) and (3)
apply for a reference under this section as they would
for a reference under section 36 except that what is to
be considered and determined is the assessment
referred under this section instead of the questions that
30 arise on a reference under section 36.
(5) Even though the worker's condition is not required to
have stabilised, the evaluation is not a special
evaluation as referred to in section 146C.
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(6) There is no termination day for an election to retain the
right to seek damages in respect of a disease described
in subsection (1).
(7) A medical panel from which an assessment under this
5 section is sought is not bound by a previous assessment
made under this section if the previous assessment has
not been recorded by the Director under
section 93L(2).
(8) If the Director, under section 93L(2), records an
10 assessment under this section --
(a) any reference in this Subdivision to the
worker's degree of permanent whole of person
impairment is to be taken to be a reference to
the worker's degree of permanent whole of
15 person impairment as evaluated in the
assessment recorded; and
(b) section 93K(13) does not apply.
93S. Regulations
Regulations may provide for --
20 (a) the notification to be given to workers, and the
notification to be given to employers, of --
(i) the effect of the provisions of this
Subdivision;
(ii) things done under this Subdivision;
25 (b) the form and lodgment of elections under
section 93K(4)(a);
(c) the registration by the Director of elections
under section 93K(4)(a) if an agreement or
assessment for the purposes of section 93L(2)
30 has been recorded, and the power of the
Director to refuse to register an election if not
satisfied that the worker has been properly
advised of the consequences of the election;
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(d) the recording by the Director of an agreement
or assessment under section 93L(2) as to the
worker's degree of permanent whole of person
impairment;
5 (e) how and when a worker may apply for the
Director to extend the termination day under
section 93M(4), and the period for which the
Director may give an extension.
".
10 80. Part V heading replaced
The heading to Part V is deleted and the following heading is
inserted instead --
"
Part V -- WorkCover Western
15 Australia Authority
".
81. Section 94 amended
(1) Section 94(1) is repealed and the following subsection is
inserted instead --
20 "
(1) When section 81(1) of the Workers' Compensation
Reform Act 2004 comes into operation, the name of the
body corporate that was previously called the
"Workers' Compensation and Rehabilitation
25 Commission" becomes the "WorkCover Western
Australia Authority", but the corporate identity of the
body corporate and its rights and obligations are not
affected by the change.
".
30 (2) Section 94(2) and (3) are each amended by deleting
"Commission" and inserting instead --
" WorkCover Western Australia Authority ".
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(3) After section 94(2) the following subsections are inserted --
"
(2a) The WorkCover Western Australia Authority is an
agent of the State and has the status, immunities, and
5 privileges of the State.
(2b) The WorkCover Western Australia Authority is to have
a governing body that, in the name of the WorkCover
Western Australia Authority, is to perform the
functions of the WorkCover Western Australia
10 Authority under this Act or any other written law.
".
82. Section 95 replaced
Section 95 is repealed and the following section is inserted
instead --
15 "
95. WorkCover WA's governing body
(1) WorkCover WA's governing body is to consist of --
(a) one person appointed by the Governor on the
recommendation of the Minister as a member
20 and Chairman of WorkCover WA's governing
body and referred to as a nominee member;
(b) the chief executive officer of WorkCover WA
and the chief executive officer of the
department of the Public Service of the State
25 principally assisting the Minister charged with
the administration of the Occupational Safety
and Health Act 1984; and
(c) 4 persons appointed by the Governor, on the
recommendation of the Minister, as members of
30 WorkCover WA's governing body and referred
to as nominee members of whom --
(i) one is a person experienced in
employers' interests;
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(ii) one is a person experienced in workers'
interests;
(iii) one is a person experienced in insurance
matters; and
5 (iv) one is a person experienced in
accounting and financial management.
(2) The person appointed as Chairman of WorkCover
WA's governing body is not to be a public service
officer within the meaning of the Public Sector
10 Management Act 1994.
(3) Before making a recommendation for the purposes of
subsection (1)(c)(i), the Minister may, in writing,
request the body known as the Chamber of Commerce
and Industry of Western Australia (Inc) to submit the
15 name of a person, or the names of such number of
persons as is specified in the request, who, or each of
whom, has the required experience and is willing to
act as a member under subsection (1)(c)(i), and
before making a recommendation for the purposes of
20 subsection (1)(c)(ii), the Minister may, in writing,
request the body known as UnionsWA (formerly
known as the Trades and Labor Council of Western
Australia) to submit the name of a person, or the
names of such number of persons as is specified in
25 the request, who, or each of whom, has the required
experience and is willing to act as a member under
subsection (1)(c)(ii).
(4) Before making a recommendation for the purposes of
subsection (1)(c)(iii) or (iv), the Minister may make
30 enquiries to find a person who has the required
experience and is willing to act as a member under
that provision.
(5) The Governor may, on the recommendation of the
Minister, appoint a person who is not a public service
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officer within the meaning of the Public Sector
Management Act 1994 as deputy of the member who is
the Chairman of WorkCover WA's governing body.
(6) In the absence, for any reason, of the Chairman and a
5 person appointed to act in the place and during the
absence of the Chairman from a meeting of
WorkCover WA's governing body, the Chairman's
appointed deputy may attend the meeting and while so
attending has all the powers, authorities, functions, and
10 duties of the Chairman.
".
83. Section 96 amended
(1) Section 96(4)(a) is amended by deleting "disability,
inefficiency" and inserting instead --
15 "
incapacity to carry out duties as a member in a
satisfactory manner, for inefficiency,
".
(2) Section 96(5)(c) is deleted.
20 (3) Section 96(6) is amended as follows:
(a) by inserting after "95(3)" --
" or (4), as the case requires, ";
(b) by deleting "with such modifications as are necessary".
84. Section 97 amended
25 (1) Section 97(1) is amended by deleting "upon it".
(2) Section 97(2) is amended by deleting "their members" and
inserting instead --
" their number ".
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(3) Section 97(3) is amended by deleting "5" and inserting
instead --
" 4 ".
(4) After section 97(5) the following subsection is inserted --
5 "
(5a) Division 1AA is about a member of WorkCover WA's
governing body having a material personal interest in a
matter being considered or about to be considered by
the governing body.
10 ".
(5) Section 97(6) is amended by deleting "its proceedings at" and
inserting instead --
" proceedings at its governing body's ".
85. Section 98 amended
15 Section 98 is amended by inserting after "office of a
member" --
" of its governing body ".
86. Section 99 amended
(1) Section 99(1) is amended by deleting "member, other than the
20 Executive Director," and inserting instead --
" nominee member ".
(2) Section 99(2) is amended by deleting "Public Service Board."
and inserting instead --
" Minister for Public Sector Management. ".
25 87. Section 100 amended
(1) Section 100(d) is deleted.
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(2) Section 100(da) is deleted and the following paragraph is
inserted instead --
"
(da) to promote injury management;
5 ".
(3) Section 100(e) is amended by deleting ", loss of function, or
disease".
(4) Section 100(f) is amended as follows:
(a) by deleting "all insurers and self-insurers" and inserting
10 instead --
"
persons who are insurers or self-insurers or are
referred to in section 292(2)(a) or (b) or (3)
";
15 (b) by inserting before "information" --
" and from courts ".
(5) Section 100(fa) is amended as follows:
(a) by deleting "insurers and self-insurers" in the first place
where it occurs and inserting instead --
20 "
persons who are insurers or self-insurers or are
referred to in section 292(2)(a) or (b) or (3)
";
(b) by deleting "for assessing the performance of insurers
25 and self-insurers" and inserting instead --
"
or prescribed by the regulations for assessing
the performance of those persons
".
30 (6) Section 100(h) is deleted.
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(7) Section 100(i) is amended by deleting "panel;" and inserting
instead --
"
panel, approved medical specialist panel or
5 specialised retraining assessment panel;
".
(8) Section 100 is amended by deleting paragraph (j) and "and"
after paragraph (i) and inserting instead --
"
10 (j) to collect such statistics, records, reports, and
other information as it may require to enable it
to perform its obligations under section 151(a),
and ensure that its functions under Part VIII are
performed efficiently; and
15 (k) to advise the Minister on --
(i) matters to do with insurance that is
required by this Act;
(ii) WorkCover WA's functions under this
Act;
20 (iii) the policy to be followed in the State
with regard to workers' compensation;
and
(iv) any other matter referred by the
Minister to WorkCover WA for its
25 advice.
".
88. Section 100A amended
(1) Section 100A(2) is amended by inserting at the end of the
subsection --
30 "
and at least one of them is to be a member of
WorkCover WA's governing body
".
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(2) Section 100A(3) is repealed and the following subsection is
inserted instead --
"
(3) The member of an advisory committee who is a
5 member of WorkCover WA's governing body or, if
there are 2 or more of them, whichever of them is
specified in their appointment as the person who is to
preside, is to preside at meetings of the committee but,
subject to the direction of WorkCover WA, an advisory
10 committee may otherwise determine its own
procedures.
".
(3) Section 100A(4) is amended by deleting "Public Service
Commissioner" and inserting instead --
15 " Minister for Public Sector Management ".
(4) Section 100A(6) is amended by deleting "management affairs in
commerce or industry (or both), persons experienced in trade
union affairs" and inserting instead --
"
20 employers' interests, persons experienced in workers'
interests
".
(5) After section 100A(6) the following subsection is inserted --
"
25 (7) Despite subsection (2), an advisory committee
appointed for the purposes of section 146R or in
connection with the assessment of matters of a medical
nature is to consist of the following members --
(a) at least one member of WorkCover WA's
30 govering body appointed by WorkCover WA;
(b) such medical practitioners as are nominated by
the Australian Medical Association (WA)
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incorporated and appointed by WorkCover WA
with the approval of the Minister; and
(c) such other members as are appointed by
WorkCover WA with the approval of the
5 Minister and after consultation with the
Australian Medical Association (WA)
incorporated.
(8) WorkCover WA may, with the Minister's approval,
appoint members of an advisory committee under
10 subsection (7) without complying with subsection (6).
".
89. Section 100B inserted
After section 100A the following section is inserted --
"
15 100B. Disclosure of information
(1) If the chief executive officer of the department
principally assisting the Minister in the administration
of the Occupational Safety and Health Act 1984 makes
a written request to WorkCover WA to disclose
20 information or data (including information and data
about accidents, injuries and diseases) relevant to
occupational safety and health that is in the possession
of WorkCover WA, WorkCover WA is to comply with
the request.
25 (2) This section has effect despite any other provision of
this Act.
".
90. Section 101 amended
Section 101 is amended as follows:
30 (a) in paragraph (d), by deleting "the Commission" and
inserting instead --
" the WorkCover Western Australia Authority ";
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(b) by inserting after paragraph (d) --
" and ";
(c) by deleting "; and" after paragraph (e) and inserting
instead a full stop;
5 (d) by deleting paragraph (f).
91. Section 101AA inserted
After section 101 the following section is inserted --
"
101AA. Delegation by WorkCover WA
10 (1) WorkCover WA may delegate to the chief executive
officer or another officer of WorkCover WA or to any
other member, or any group of members, of
WorkCover WA's governing body any power or duty
of WorkCover WA under another provision of this Act
15 except if it is under Part VIII.
(2) The delegation must be in writing executed by
WorkCover WA.
(3) A person to whom a power or duty is delegated under
this section cannot delegate that power or duty.
20 (4) A person exercising or performing a power or duty that
has been delegated to the person under this section is to
be taken to do so in accordance with the terms of the
delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of WorkCover
25 WA to perform a function through an officer or agent.
".
92. Section 102 amended
Section 102 is amended by deleting "section 100(d) and (e),"
and inserting instead --
30 " section 100(e), ".
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93. Section 103A amended
Section 103A is amended as follows:
(a) by inserting before "A person" the subsection
designation "(1)";
5 (b) by deleting "or self insurer" and inserting instead --
"
, a self-insurer, or a person referred to in
section 292(2)(a) or (b) or (3)
";
10 (c) at the foot of the section by deleting the penalty
provision;
(d) by inserting at the end of the section the following
subsection --
"
15 (2) A person who furnishes to WorkCover WA under
subsection (1) any information or return that is false in
a material particular commits an offence.
Penalty: $2 000.
".
20 94. Section 104 amended
Section 104 is amended as follows:
(a) in paragraph (b) by deleting "Act," and inserting
instead --
" Act. ";
25 (b) by deleting "but in so doing shall not give, or purport to
give, legal advice.".
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95. Part V Division 1AA inserted
After section 104 the following Division is inserted --
"
Division 1AA -- Personal interest
5 104AA. Disclosure of interests
(1) A member of WorkCover WA's governing body who
has a material personal interest in a matter being
considered or about to be considered by the governing
body must, as soon as possible after the relevant facts
10 have come to the member's knowledge, disclose the
nature of the interest at a meeting of the governing
body.
Penalty: $10 000.
(2) A disclosure under subsection (1) is to be recorded in
15 the minutes of the meeting.
104AB. Exclusion of interested member
(1) A member of WorkCover WA's governing body who
has a material personal interest in a matter that is being
considered by the governing body --
20 (a) must not vote on the matter; and
(b) must not be present while the matter is being
considered at a meeting.
(2) In subsection (1)(a) and (b) a reference to a matter also
refers to a proposed resolution under section 104AC in
25 respect of the matter, whether relating to that member
or a different member.
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104AC. Resolution that section 104AB inapplicable
Section 104AB does not apply if the governing body
has at any time passed a resolution that --
(a) specifies the member, the interest, and the
5 matter; and
(b) states that the members voting for the
resolution are satisfied that the interest should
not disqualify the member from considering or
voting on the matter.
10 104AD. Quorum where section 104AB applies
Despite section 97(3), when the governing body is
dealing with a matter in relation to which a member of
the governing body is disqualified under
section 104AB, 3 members who are entitled to vote on
15 any motion that may be moved in relation to the matter
constitute a quorum.
104AE. Minister may declare sections 104AB and 104AD
inapplicable
(1) The Minister may by writing declare that
20 section 104AB or 104AD does not apply in relation to
a specified matter either generally or in voting on
particular resolutions.
(2) The Minister must within 14 sitting days after a
declaration under subsection (1) is made cause a copy
25 of the declaration to be laid before each House of
Parliament.
".
96. Part V Division 1A repealed
Part V Division 1A is repealed.
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97. Heading to Part V Division 3 amended
The heading to Part V Division 3 is amended by deleting
"Rehabilitation" and inserting instead --
" Injury Management ".
5 98. Section 106 amended
(1) Section 106(1) is amended as follows:
(a) by deleting "Rehabilitation" and inserting instead --
" Injury Management ";
(b) in paragraph (a) by deleting "at the Treasury, forming"
10 and inserting instead --
" as ".
(2) Section 106(2)(b) is amended by deleting "Rehabilitation" and
inserting instead --
" Injury Management ".
15 (3) Section 106(3) is amended as follows:
(a) by deleting paragraph (a) and inserting the following
paragraph instead --
"
(a) all moneys required for the remuneration and
20 allowances of members of the governing body
of WorkCover WA and of WorkCover WA's
staff;
";
(b) by deleting paragraph (c);
25 (c) in paragraph (e) by deleting "dispute resolution bodies"
and inserting instead --
" the DRD ".
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s. 99
99. Section 109 amended
(1) Section 109(4b) is amended after "liable to" by inserting --
" a penalty of $2 000 and ".
(2) Section 109(6) is amended as follows:
5 (a) after "return" by inserting --
" or statutory declaration ";
(b) after "liable to" by inserting --
" a penalty of $2 000 and ".
100. Heading to Part V Division 4 amended
10 The heading to Part V Division 4 is amended by deleting
"Rehabilitation" and inserting instead --
" Injury Management ".
101. Section 110 amended
(1) Section 110(1) is amended as follows:
15 (a) by deleting "Rehabilitation" and inserting instead --
" Injury Management ";
(b) by deleting "at the Treasury, forming" and inserting
instead --
" as ".
20 (2) Section 110(2) is amended by deleting "section 84F." and
inserting instead --
" section 218. ".
(3) Section 110(7)(a) is amended by deleting "body" and inserting
instead --
25 " authority ".
(4) Section 110(8) is amended as follows:
(a) by deleting "and" after paragraph (a);
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(b) in paragraph (b) by deleting "body" and inserting
instead --
" authority ".
5 102. Section 111 amended
(1) Section 111(1) is amended by inserting after "particular
matter," --
" unless prevented by subsection (1a) from doing so, ".
(2) After section 111(1) the following subsection is inserted --
10 "
(1a) The Minister cannot give to WorkCover WA any
direction with respect to the performance of any of its
functions under section 151 unless the direction is
allowed by section 154AB.
15 ".
103. Part VI repealed
Part VI is repealed.
104. Part VII heading replaced
The heading to Part VII is deleted and the following headings
20 are inserted instead --
"
Part VII -- Medical assessment and assessment
for specialised retraining programs
Division 1 -- Medical assessment panels
25 ".
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s. 105
105. Section 145A amended
(1) Section 145A(1) is amended by deleting "under section 84R,
84ZH or 84ZR" and inserting instead --
" under section 210 ".
5 (2) Section 145A(2) is amended by deleting "under section 84R,
84ZH or 84ZR" and inserting instead --
" under section 210 ".
106. Section 145C amended
(1) Section 145C(1) is amended by deleting "2 or".
10 (2) After section 145C(2) the following subsection is inserted --
"
(2a) Despite subsection (2), if the question is referred under
clause 18A(2ab), each practitioner selected is to be a
specialist in a branch of medicine or surgery that is
15 relevant to the question.
".
107. Section 145D amended
(1) Section 145D(1) is amended by inserting after "legal forms
and" --
20 " , except as provided under this Act, ".
(2) Section 145D(5) is amended by deleting "the Director" in both
places where it occurs and inserting instead --
" an arbitrator ".
(3) After section 145D(5) the following subsection is inserted --
25 "
(6) To the extent that the practice and procedure of a
medical assessment panel are not prescribed under this
Act, they are to be as the panel determines.
".
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s. 108
108. Section 145E amended
(1) Section 145E(4) is amended by deleting "3" and inserting
instead --
" 7 ".
5 (2) Section 145E(5) is repealed and the following subsections are
inserted instead --
"
(5) The determination is not relevant in relation to --
(a) a determination of an arbitrator under Part III
10 Division 2A as to the permanent or other
impairment of the efficient use of any part or
faculty of the body for the purposes of Part III
Division 2A, or the degree of that impairment;
(b) an action for damages independently of this Act
15 if Part IV Division 2 Subdivision 3 applies to
the awarding of damages in the action;
(c) a determination of an arbitrator under
section 158C or 158D; or
(d) a determination of an arbitrator for the purposes
20 of clause 18A(2aa)(b).
(6) Unless rescinded under section 145F, the
determination, or if the determination is varied under
that section the determination as varied, is final and
binding on the worker and the worker's employer and
25 on any court or tribunal hearing a matter in which any
such determination is relevant.
(7) The determination is, in the absence of evidence that
the determination was rescinded or varied under
section 145F, conclusive evidence as to the matters
30 determined.
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(8) A determination of a medical assessment panel is
not --
(a) to be vitiated because of any informality or
want of form; or
5 (b) subject to an appeal.
(9) A decision of a medical assessment panel or anything
done under this Act in the process of coming to a
decision of a medical assessment panel is not amenable
to judicial review.
10 ".
109. Part VII Divisions 2, 3 and 4 inserted
After section 145G the following Divisions are inserted --
"
Division 2 -- Assessing degree of impairment
15 146. Degree of impairment
In this Part --
"degree of impairment", in relation to a worker,
means --
(a) the worker's degree of permanent
20 impairment for the purposes of Part III
Division 2A;
(b) the worker's degree of permanent whole of
person impairment for the purposes of
Part IV Division 2 Subdivision 3;
25 (c) the worker's degree of permanent whole of
person impairment for the purposes of
Part IXA;
(d) the worker's degree of permanent whole of
person impairment for the purposes of
30 clause 18A;
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s. 109
"secondary condition" means a condition, whether
psychological, psychiatric, or sexual, that,
although it may result from the injury or injuries
concerned, arises as a secondary, or less direct,
5 consequence of that injury or those injuries.
146A. Evaluation of impairment generally
(1) Subject to sections 146B, 146C, 146D and 146E, a
worker's degree of impairment is to be evaluated, as a
percentage, in accordance with the WorkCover Guides.
10 (2) If a worker and the employer do not agree about the
evaluation of the worker's degree of impairment, it is
to be assessed by an approved medical specialist or, if
this Act so provides, an approved medical specialist
panel.
15 (3) A request for assessment by an approved medical
specialist is to be made in accordance with the
regulations.
(4) For a case in which the evaluation of the degree of
impairment of the worker involves taking into account
20 a recurrence, aggravation, or acceleration of any
pre-existing disease that was to any extent
asymptomatic before the event from which the injury
or injuries arose, the WorkCover Guides are not to
provide for a deduction to reflect the pre-existing
25 nature of that disease to the extent that it was
asymptomatic before that event.
146B. Evaluation for the purposes of Part III Division 2A
(1) This section applies to an evaluation of a worker's
degree of permanent impairment for the purposes of
30 Part III Division 2A.
(2) Section 146A(2) does not prevent a finding that the
worker's condition has not stabilised to the extent
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required for an evaluation of the worker's degree of
permanent impairment to be made in accordance with
the WorkCover Guides for the purposes of Part III
Division 2A.
5 146C. Evaluation for purposes of Part IV Division 2
Subdivision 3
(1) This section applies to an evaluation of a worker's
degree of permanent whole of person impairment for
the purposes of Part IV Division 2 Subdivision 3.
10 (2) Section 146A(2) does not prevent a finding that the
worker's condition has not stabilised to the extent
required for a normal evaluation of the worker's degree
of permanent whole of person impairment to be made
in accordance with the WorkCover Guides.
15 (3) In subsection (2) --
"normal evaluation" means an evaluation that is not a
special evaluation as defined in subsection (4).
(4) If this Act provides for a special evaluation of the
worker's degree of permanent whole of person
20 impairment to be made in accordance with this section,
the evaluation (a "special evaluation") is to be made,
even though the worker's condition has not stabilised
to the extent otherwise required for an evaluation to be
made in accordance with the WorkCover Guides, in
25 accordance with any provisions of the WorkCover
Guides that apply to a special evaluation.
(5) If the evaluation of a worker's degree of permanent
whole of person impairment for the purposes of Part IV
Division 2 Subdivision 3 is assessed on the basis that
30 the worker's condition has not stabilised to the extent
otherwise required for an evaluation to be made in
accordance with the WorkCover Guides, the evaluation
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has to be a special evaluation made in accordance with
this section.
(6) In evaluating the degree of permanent whole of person
impairment of the worker, any secondary condition is
5 to be disregarded.
(7) Subsection (6) does not prevent a secondary condition
from contributing in the assessment of damages by a
court.
146D. Evaluation for the purposes of Part IXA
10 (1) This section applies to an evaluation of a worker's
degree of permanent whole of person impairment for
the purposes of Part IXA.
(2) Section 146A(2) does not prevent a finding that the
worker's condition has not stabilised to the extent
15 required for an evaluation of the worker's degree of
permanent whole of person impairment to be made in
accordance with the WorkCover Guides for the
purposes of Part IXA.
(3) In evaluating the degree of permanent whole of person
20 impairment of the worker, any secondary condition is
to be disregarded.
146E. Evaluation for the purposes of clause 18A
(1) This section applies to an evaluation of a worker's
degree of permanent whole of person impairment for
25 the purposes of clause 18A.
(2) The evaluation (a "special evaluation") is to be made
even if the worker's condition has not stabilised --
(a) in the case of an evaluation for the purposes of
clause 18A(2aa)(a), by an approved medical
30 specialist;
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(b) in the case of an evaluation for the purposes of
clause 18A(2aa)(b) if the employer disputes the
assessment referred to in clause 18A(2aa)(a),
by an approved medical specialist panel,
5 in accordance with any provisions of the WorkCover
Guides that apply to a special evaluation for the
purposes of this section.
(3) In evaluating the degree of permanent whole of person
impairment of the worker, any secondary condition is
10 to be disregarded.
146F. Approved medical specialist
(1) WorkCover WA may, by order published in the
Gazette, designate a person as an approved medical
specialist if the person is a medical practitioner who in
15 WorkCover WA's opinion, is sufficiently trained in the
use of the WorkCover Guides and otherwise satisfies
criteria for designation as an approved medical
specialist that WorkCover WA for the time being
applies.
20 (2) WorkCover WA is required to publish in the Gazette
the criteria that it applies for deciding whether a
medical practitioner is suitable for designation as an
approved medical specialist.
(3) WorkCover WA may require an approved medical
25 specialist to enter into a written agreement with
WorkCover WA about the procedures to be followed
and the fees to be charged for, and other matters
relating to, the performance of functions as an
approved medical specialist and other matters relevant
30 to the implementation of this Act.
(4) WorkCover WA may, by order published in the
Gazette, cancel the designation of a person as an
approved medical specialist.
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(5) WorkCover WA is required to monitor assessments for
consistency and monitor compliance with this Act and
agreements under subsection (3).
(6) The Director is to keep a register identifying persons
5 who have been designated as approved medical
specialists showing --
(a) the day on which the person was designated;
and
(b) if a person's designation as an approved
10 medical specialist has been cancelled, the day
on which it was cancelled.
(7) The Director is to make the register available for
inspection at any reasonable time by any member of
the public.
15 146G. Powers of approved medical specialist
(1) On being requested to assess a worker's degree of
impairment, an approved medical specialist may --
(a) in accordance with the regulations, require the
worker to attend at a place specified by the
20 approved medical specialist;
(b) require the worker to answer any question
about the injury;
(c) in accordance with the regulations, require the
worker, the employer, or the employer's insurer
25 to --
(i) produce to the approved medical
specialist any relevant document or
information; or
(ii) consent to another person who has any
30 relevant document or information
producing it to the approved medical
specialist;
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(d) require the worker to submit to examination by,
or as requested by, the approved medical
specialist.
(2) Regulations may be made --
5 (a) requiring a worker who requests an assessment
of the worker's degree of impairment to
produce any information described in the
regulations for use in dealing with the request,
and prescribing a fine of not more than $2 000
10 for a contravention of the requirement;
(b) about the time within which a requirement
made under subsection (1) or imposed by a
regulation under paragraph (a) has to be
complied with if the time for complying is not
15 specified in the requirement.
(3) A person who contravenes a requirement under
subsection (1) commits an offence and is liable to a
fine of $2 000.
(4) If the assessment is sought for the purpose of court
20 proceedings and a person contravenes a requirement
made under subsection (1) or imposed by a regulation
under subsection (2), the court may order that the
proceedings be stayed, either wholly or in part, or that
any pleading be struck out.
25 146H. Outcome of assessment
(1) An approved medical specialist making an assessment
for the purposes of Part III Division 2A, Part IV
Division 2 Subdivision 3, Part IXA or clause 18A is
required to give to each of the worker and the
30 employer, in writing in accordance with the
regulations --
(a) a report of the worker's degree of impairment,
including details of the assessment and reasons
justifying the assessment; and
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(b) a certificate specifying the worker's degree of
impairment.
(2) An approved medical specialist giving a certificate --
(a) for the purposes of Part III Division 2A or
5 Part IXA that a worker's condition has not
stabilised to the extent required for an
evaluation made in accordance with the
WorkCover Guides as described in
sections 146A, 146B, and 146D; or
10 (b) for the purposes of Part IV Division 2
Subdivision 3 that a worker's condition has not
stabilised to the extent required for a normal
evaluation made in accordance with the
WorkCover Guides as described in
15 sections 146A and 146C,
is required to give to each of the worker and the
employer, in writing in accordance with the
regulations --
(c) a report of any relevant details provided by the
20 worker; and
(d) brief reasons justifying the finding certified.
(3) A certificate for the purposes of --
(a) Part III Division 2A;
(b) Part IV Division 2 Subdivision 3;
25 (c) Part IXA; or
(d) clause 18A,
is to specify the provisions for the purposes of which it
is made.
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(4) A certificate for the purposes of the provisions referred
to in one of paragraphs (a), (b), (c) or (d) of
subsection (3) --
(a) is not to be given for the purposes of the
5 provisions referred to in any of the other
paragraphs; and
(b) has no effect for the purposes of the provisions
referred to in any of the other paragraphs.
(5) If any of the documents described in subsection (1) or
10 (2) is produced to the Director for the purposes of
Part III Division 2A, Part IV Division 2 Subdivision 3,
Part IXA or clause 18A and it contains an obvious
error, the Director may reject it and require the
approved medical specialist to replace it with a correct
15 document given to each of the recipients of the
document that contained the error.
146I. Release of information relevant to assessment
If an approved medical specialist has been requested to
assess a worker's degree of impairment, WorkCover
20 WA may, with the consent of the worker, disclose to
the approved medical specialist any information that it
has in relation to the worker that may be relevant to the
assessment.
146J. Decisions of approved medical specialist
25 (1) A decision of an approved medical specialist or
anything done under this Act in the process of coming
to a decision of an approved medical specialist is not
amenable to judicial review.
(2) In subsection (1) --
30 "decision of an approved medical specialist" means
an opinion, assessment, or other decision of an
approved medical specialist that is relevant to the
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operation of Part III Division 2A, Part IV
Division 2, Part IXA or clause 18A.
Division 3 -- Approved medical specialist panels
146K. Panel to be constituted
5 (1) On a question being referred under section 31D(4),
158C(2)(b) or clause 18C for assessment by an
approved medical specialist panel, the Director is to
select 2 approved medical specialists to be the panel
that is to assess the degree of impairment.
10 (2) An approved medical specialist who has treated or
examined the worker concerned in a professional
capacity or in the capacity of an approved medical
specialist is not eligible to be a member of the panel.
(3) If a referral is made to an approved medical specialist
15 panel, WorkCover WA may, with the consent of the
worker, disclose to the panel any information that it has
in relation to the worker that may be relevant to the
assessment.
146L. Procedures
20 (1) In assessing the degree of impairment the approved
medical specialist panel --
(a) is to act speedily and informally, and in
accordance with good conscience, without
regard to technicalities or legal forms; and
25 (b) is not bound by rules of evidence.
(2) On being referred a question as to a worker's degree of
impairment, an approved medical specialist panel
may --
(a) in accordance with the regulations, require the
30 worker to attend at a place specified by the
approved medical specialist panel;
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(b) require the worker to answer any question
about the injury;
(c) in accordance with the regulations, require the
worker, the employer, or the employer's insurer
5 to --
(i) produce to the approved medical
specialist panel any relevant document
or information; or
(ii) consent to another person who has any
10 relevant document or information
producing it to the approved medical
specialist panel;
(d) require the worker to submit to examination by,
or as requested by, the members of the
15 approved medical specialist panel.
(3) Regulations may be made --
(a) requiring a worker in respect of whom a
question as to degree of impairment has been
referred to an approved medical specialist panel
20 to produce any information described in the
regulations for use in dealing with the referral,
and prescribing a fine of not more than $2 000
for a contravention of the requirement;
(b) about the time within which a requirement
25 made under subsection (2) or imposed by a
regulation under paragraph (a) has to be
complied with if the time for complying is not
specified in the requirement.
(4) Powers given by subsection (2)(a), (b) or (d) are to be
30 exercised in private unless the worker otherwise
consents, and any information or document obtained
from, or by the consent of, the worker is not to be
disclosed or given to any other person, except the
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person from whom it was obtained, without the consent
of the worker.
(5) A person is not entitled to be represented in
proceedings before an approved medical specialist
5 panel.
(6) To the extent that the practice and procedure of an
approved medical specialist panel are not prescribed
under this Act, they are to be as the panel determines.
146M. Failure to comply with requirement of approved
10 medical specialist panel
(1) If a worker --
(a) fails to comply with a requirement made by an
approved medical specialist panel under
section 146L(2)(a), (b) or (c); or
15 (b) on being required to submit to examination by
the panel refuses or fails to do so or in any way
obstructs the examination,
an arbitrator may issue a certificate to that effect and
upon the issue of that certificate the making of an
20 assessment of the worker's degree of impairment is
suspended until an arbitrator certifies that the
suspension is removed.
(2) An arbitrator is not to issue a certificate under
subsection (1) if the worker satisfies the arbitrator that
25 there was a reasonable excuse for refusing or failing to
comply with the requirement or obstructing the
examination.
(3) An employer or insurer who refuses or fails to comply
with a requirement of an approved medical specialist
30 panel under section 146L(2)(c) commits an offence.
Penalty: $5 000.
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(4) It is a defence to a charge under subsection (3) to prove
that the employer or insurer had a reasonable excuse
for failing to comply with the requirement.
146N. Assessment of impairment by approved medical
5 specialist panel
A worker's degree of impairment is to be assessed by
an approved medical specialist panel in accordance
with section 146A, and section 146B, 146D or 146E, as
the case requires.
10 146O. Outcome of assessment by approved medical
specialist panel
(1) Subject to section 146P, the assessment is to be made
as soon as is practicable after the day on which a
medical examination of the worker concerned is carried
15 out by the approved medical specialist panel.
(2) An approved medical specialist panel is required to
give to the Director in writing in accordance with the
regulations --
(a) a report of the worker's degree of impairment,
20 including details of the assessment and reasons
justifying the assessment; and
(b) a certificate specifying the worker's degree of
impairment.
(3) The Director is to give copies of the report and
25 certificate to the arbitrator who referred the question to
the panel, the worker concerned, and the employer of
the worker concerned, within 7 days after the day on
which the Director receives them.
(4) The assessment is --
30 (a) final and binding on the worker, the worker's
employer, on any dispute resolution authority,
court or tribunal hearing a matter in which any
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such determination is relevant and on any other
approved medical specialist panel; and
(b) conclusive evidence as to the matters
determined.
5 (5) An assessment of an approved medical specialist panel
is not --
(a) to be vitiated because of any informality or
want of form; or
(b) subject to an appeal.
10 (6) A decision of an approved medical specialist panel or
anything done under this Act in the process of coming
to a decision of an approved medical specialist panel is
not amenable to judicial review.
(7) In subsection (6) --
15 "decision of an approved medical specialist panel"
means an opinion, assessment, or other decision of
an approved medical specialist panel that is
relevant to the operation of Part III Division 2A,
Part IXA or clause 18A.
20 (8) If any of the documents described in subsection (1) or
(2) contains an obvious error, the Director may reject it
and require the approved medical specialist panel to
replace it with a correct document which the Director is
to give to each of the recipients of the document that
25 contained the error.
146P. No assessment without unanimous agreement
(1) If the members of the approved medical specialist
panel are not in unanimous agreement as to the degree
of impairment, the panel is discharged and a new panel
30 is to be selected to assess the worker's degree of
impairment in accordance with section 146N.
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(2) A member of a panel discharged under subsection (1)
is not eligible to be selected as a member of a new
panel under that subsection.
146Q. Remuneration
5 (1) A member of an approved medical specialist panel is
entitled to such fees and allowances as may be
determined by the Minister.
(2) The fees and allowances mentioned in subsection (1)
are to be paid by WorkCover WA from moneys
10 standing to the credit of the General Fund.
Division 4 -- WorkCover Guides
146R. WorkCover Guides
(1) WorkCover WA may issue directions with respect to
the evaluation of degree of impairment.
15 (2) The directions, and any amendment of them, are to be
developed in consultation with an advisory committee
appointed under section 100A for the purposes of this
section.
(3) The directions may adopt the provisions of other
20 publications, whether with or without modification or
addition and whether in force at a particular time or
from time to time.
(4) Sections 41, 42, 43 and 44 of the Interpretation
Act 1984 apply to the directions as if they were
25 regulations.
".
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110. Part VII Division 5 inserted
At the end of Part VII the following Division is inserted --
"
Division 5 -- Assessment for specialised
5 retraining programs
146S. Register for panel membership
(1) The Director is to keep a register, with such divisions
as the Director considers appropriate, containing the
names of persons approved under subsection (2) who
10 are willing to be selected for a specialised retraining
assessment panel.
(2) WorkCover WA may, with the person's consent,
approve of the name of a person being included in the
register.
15 146T. Panel to be constituted
(1) On a question being referred under section 158D(2) for
assessment by a specialised retraining assessment
panel, the Director is to select 3 persons who are
registered under section 146S to be the panel that is to
20 make the assessment.
(2) Of the members of the panel --
(a) one is to be an occupational physician who is
an approved medical specialist;
(b) one is to be a person --
25 (i) who in the opinion of WorkCover WA,
has knowledge of, and experience in,
matters relating to the labour market;
and
(ii) who is not an officer of
30 WorkCover WA;
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(c) one is to be an officer of WorkCover WA who
is experienced in the review of injury
management.
(3) A person is not eligible to be a member of the panel if
5 the person --
(a) has treated or examined the worker concerned
in a professional capacity; or
(b) has had dealings with, or has knowledge of, the
worker concerned in a professional capacity.
10 (4) The Director is to nominate one of the members of the
panel to be its chairman.
146U. Procedures
(1) In making an assessment a specialised retraining
assessment panel is to act speedily and informally, and
15 in accordance with good conscience, without regard to
technicalities or legal forms and, except as provided in
this Act, is not bound by rules of practice nor evidence.
(2) For the purposes of assisting it in making an
assessment a specialised retraining assessment panel
20 may request the worker, employer, insurer, medical
practitioner or approved vocational rehabilitation
provider concerned --
(a) to attend before the panel;
(b) to answer questions put by the panel;
25 (c) to produce to the panel any relevant document;
or
(d) to authorise any person who possesses a
relevant document to produce it to the panel.
(3) Powers given by subsection (2) to a panel are to be
30 exercised in private unless the worker otherwise
consents, and any information or document obtained
from, or by the consent of, the worker is not to be
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disclosed or given to any other person, except the
person from whom it was obtained, without the consent
of the worker.
(4) A person is not entitled to be represented in
5 proceedings before a specialised retraining assessment
panel.
(5) If the worker concerned, without reasonable excuse
(proof of which is on the worker), refuses to comply
with a request made by the panel under
10 subsection (2)(a), (b), (c) or (d), an arbitrator may issue
a certificate to that effect and upon the issue of the
certificate the making of an assessment in relation to
the retraining criterion in question is suspended until an
arbitrator certifies that the suspension is removed.
15 (6) To the extent that the practice and procedure of a
specialised retraining assessment panel are not
prescribed under this Act, they are to be as the panel
determines.
146V. Assessments
20 (1) If the members of a specialised retraining assessment
panel are not in unanimous agreement as to a question,
the assessment is to be made in accordance with the
opinion of at least 2 members of the panel.
(2) The assessment is to be made as soon as is practicable
25 but in any event within 28 days after the day on which
the panel first convenes to make the assessment.
(3) The assessment and the reasons for making it are to be
given in writing signed by the chairman in a form
approved by the Director, and are to be given to the
30 Director within 7 days after the day on which the
assessment is made.
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(4) The Director is to give the assessment and reasons to
the person who referred the question to the panel and
the worker concerned within 7 days after the day on
which the Director receives them.
5 (5) The assessment is not relevant in relation to an action
for damages independently of this Act if Part IV
Division 2 Subdivision 3 applies to the awarding of
damages in the action.
(6) The assessment is --
10 (a) final and binding on the worker and the
worker's employer and on any body hearing a
matter in which any such assessment is
relevant; and
(b) conclusive evidence as to the matters assessed.
15 (7) An assessment of a specialised retraining assessment
panel is not --
(a) to be vitiated because of any informality or
want of form; or
(b) subject to an appeal.
20 (8) A decision of a specialised retraining assessment panel
or anything done under this Act in the process of
coming to a decision of a specialised retraining
assessment panel is not amenable to judicial review.
(9) In subsection (8) --
25 "decision of a specialised retraining assessment
panel" means an opinion, assessment, or other
decision of a specialised retraining assessment
panel that is relevant to the operation of Part IXA.
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146W. Remuneration
(1) A member of a specialised retraining assessment panel
who is not an officer of WorkCover WA is entitled to
such fees and allowances as may be determined by the
5 Minister.
(2) The fees and allowances mentioned in subsection (1)
shall be paid by WorkCover WA from moneys
standing to the credit of the General Fund.
".
10 111. Part VIII heading amended
The heading to Part VIII is amended by deleting "Committee".
112. Sections 147 to 150 repealed
Sections 147, 148, 149 and 150 are repealed.
113. Section 151 amended
15 Section 151(b) is amended as follows:
(a) by inserting before "formulate" at the beginning of the
paragraph --
" WorkCover WA is to ";
(b) by deleting "the Committee may" and inserting
20 instead --
" it is to ".
114. Section 152 amended and transitional provision
(1) Section 152 is amended by deleting "100%" and inserting
instead --
25 " 75% ".
(2) Section 152 is amended at the foot of the section by inserting --
" Penalty: $1 000. ".
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(3) The amendment made by subsection (1) does not apply to the
charging of a loading in so far as the loading relates to a period
of insurance that commenced before the commencement of that
subsection.
5 115. Section 153 amended
Section 153 is amended by deleting ", on the recommendation
of the Committee,".
116. Section 154 amended
(1) Section 154(1) is amended by deleting "to the Commission or
10 against the" and inserting instead --
" or ".
(2) Section 154(2) is amended as follows:
(a) in paragraph (a) --
(i) by deleting "where it is against classification, to
15 the Commission, the Committee," and inserting
instead --
" to WorkCover WA "; and
(ii) by inserting after "classification" --
" or assessment ";
20 (b) by deleting paragraph (b) and "or" after paragraph (a).
(3) Section 154(4) is amended as follows:
(a) by deleting "The Commission or the Committee, as the
case requires," and inserting instead --
" WorkCover WA ";
25 (b) by deleting "in the case of the Commission" and
inserting instead --
" , as the case requires, ";
(c) by deleting "in the case of the Committee decide".
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117. Sections 154A and 154AB inserted
After section 154 the following sections are inserted --
"
154A. Regulations for provision of information
5 (1) Regulations may provide for an insurer to inform an
employer of --
(a) specified details of the premium for, and other
charges relating to, the policy;
(b) specified details of anything done under this
10 Part that may be relevant to the premium;
(c) specified provisions of this Act, rights or
obligations under this Act, or things done under
this Act, that may be relevant to the premium.
(2) In subsection (1) --
15 "employer" means an employer holding, or seeking to
obtain, a policy of insurance against liability to
pay compensation under this Act;
" specified" means specified in the regulations.
154AB. Special directions by Minister
20 (1) The Minister may give directions in writing as to the
effect that the matter described in subsection (2) is to
have, while the directions remain in effect, on the
fixing under section 151 of recommended premium
rates.
25 (2) That matter is the extent to which the cost of paying
compensation under this Act as amended by the
Workers' Compensation Reform Act 2004 in respect of
claims made before section 141 of the Workers'
Compensation Reform Act 2004 commenced would
30 differ from what it would have cost to pay
compensation arising out of those claims if section 141
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of the Workers' Compensation Reform Act 2004 had
not commenced.
(3) Effect is to be given to directions under this section.
".
5 118. Part IX replaced
Part IX is repealed and the following Part is inserted instead --
"
Part IX -- Injury management
155. Terms used in this Part
10 In this Part --
"code" means the code of practice (injury
management) issued under section 155A(1) that is
currently in force;
"injury management system" means an injury
15 management system established under
section 155B;
"return to work program" means a return to work
program established under section 155C(1);
"treating medical practitioner", in relation to a
20 worker, means the medical practitioner who the
worker has chosen or accepted to have the primary
responsibility for the medical care and
coordination of medical care for the worker.
155A. Code of practice (injury management)
25 (1) WorkCover WA may issue a code of practice (injury
management).
(2) The code may include provisions and guidelines in
relation to --
(a) the establishment, content and implementation
30 of injury management systems;
(b) the establishment, content and implementation
of return to work programs;
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(c) the development by approved vocational
rehabilitation providers of service delivery
plans and the contents of, and other
requirements in relation to, those plans;
5 (d) such other matters relating to injury
management as WorkCover WA considers
appropriate.
(3) The code may adopt the provisions of other
publications, whether with or without modification or
10 addition and whether in force at a particular time or
from time to time.
(4) Sections 41, 42, 43 and 44 of the Interpretation
Act 1984 apply to the code as if the code were
regulations.
15 155B. Establishment of injury management systems for
employer's workers
Each employer is to ensure that --
(a) an injury management system is established in
relation to the employer's workers; and
20 (b) the establishment, content and implementation
of the injury management system are in
accordance with the code.
Penalty: $2 000.
155C. Establishment of return to work programs for
25 individual workers
(1) An employer of a worker who has suffered an injury
compensable under this Act must ensure that a return to
work program is established for the worker as soon as
practicable after either of the following occurs --
30 (a) the worker's treating medical practitioner
advises the employer in writing that a return to
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work program should be established for the
worker;
(b) the worker's treating medical practitioner signs
a medical certificate to the effect that the
5 worker has a total or partial capacity to return
to work.
(2) Subsection (1) does not require a return to work
program to be established for a worker --
(a) who has returned to the position held by the
10 worker immediately before the injury occurred;
and
(b) who has a total capacity to work in that
position.
(3) An employer must ensure that the establishment,
15 content and implementation of a return to work
program are in accordance with the code.
Penalty applicable to subsections (1) and (3): $2 000.
155D. Injury management: insurers' obligations
(1) An insurer must take such action as is prescribed by the
20 regulations in relation to making each employer who is
insured by the insurer aware of the employer's
obligations under sections 155B and 155C(1) and (3).
(2) If an insured employer requests the insurer to assist the
employer to comply with any of the employer's
25 obligations under section 155B or 155C(1) or (3), the
insurer must take such action as is reasonable --
(a) to assist the employer to comply with the
employer's obligations that are the subject of
the employer's request; and
30 (b) to ensure that the employer complies with the
employer's obligations that are the subject of
the employer's request.
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(3) If an insured employer requests the insurer to discharge
the employer's obligations under section 155C(1) or
(3) on behalf of the employer, the insurer must take
such action as is reasonable --
5 (a) to discharge the employer's obligations that are
the subject of the employer's request; and
(b) to comply with the employer's obligations that
are the subject of the employer's request,
within such time as is reasonable in the circumstances.
10 Penalty applicable to subsection (3): $2 000.
156. Approval of vocational rehabilitation providers
(1) WorkCover WA may, in writing --
(a) subject to such conditions, if any, as it sees fit
to impose, approve as a vocational
15 rehabilitation provider any person
WorkCover WA considers capable of
satisfactorily providing vocational
rehabilitation; and
(b) revoke any such approval.
20 (2) In considering whether or not to approve a person as a
vocational rehabilitation provider, to impose conditions
on any such approval, or to revoke any such approval,
WorkCover WA --
(a) may have regard to performance criteria
25 established by an advisory committee under
section 100A, and to the advice of such a
committee in a particular case; and
(b) in the case of the revocation of an approval that
is subject to conditions, is to have regard to
30 whether or not there has been compliance with
the conditions.
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(3) An implied and non-revocable condition of a person's
approval as a vocational rehabilitation provider is that
the person is to comply with the code in relation to --
(a) the development and content of service delivery
5 plans;
(b) other requirements in relation to service
delivery plans; and
(c) other requirements applicable to vocational
rehabilitation providers.
10 156A. Vocational rehabilitation services
(1) WorkCover WA, upon request, is to provide to
workers, employers and other persons information as to
the persons who are approved vocational rehabilitation
providers.
15 (2) If a person providing vocational rehabilitation --
(a) is not an approved vocational rehabilitation
provider; or
(b) is an approved vocational rehabilitation
provider but contravenes a condition imposed
20 in respect of the person's approval,
the amount of any fee or other reward paid in respect of
the vocational rehabilitation is not to be regarded as a
reasonable expense incurred in respect of vocational
rehabilitation for the purposes of clause 17(1a).
25 (3) If a fee or other reward is paid for the provision of
vocational rehabilitation mentioned in subsection (2)
by a person who --
(a) not being approved as a vocational
rehabilitation provider, held himself or herself
30 out as being so approved; or
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(b) being approved as a vocational rehabilitation
provider subject to any condition, contravenes
any such condition,
the person who paid the fee or other reward may
5 recover as a debt due from that person the amount of
the fee or other reward paid.
156B. Arbitrators' powers in relation to return to
work programs
(1) The employer of a worker, or a worker, may apply for
10 an order of an arbitrator requiring the worker to
participate in a return to work program.
(2) The arbitrator may require the worker to participate in
a return to work program if satisfied that --
(a) a return to work program is required under
15 section 155C(1) to be established for the
worker;
(b) the worker, without reasonable excuse, refuses
or has failed to participate in a return to work
program; and
20 (c) the establishment, content and implementation
of the return to work program are, or will be, in
accordance with the code.
(3) The arbitrator may require the worker to participate in
a return to work program other than that proposed by
25 or on behalf of a party to the application.
157. Information about injury management matters
(1) WorkCover WA is to provide information and advice
on injury management generally.
(2) WorkCover WA is to make available, upon request, to
30 employers, workers and other persons such information
or other assistance as it considers appropriate to
facilitate the arranging of injury management.
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(3) WorkCover WA may make arrangements with other
persons or authorities for the use of facilities for
providing information about injury management and
related matters.
5 (4) An arbitrator may request WorkCover WA to provide
information on injury management or related matters,
and WorkCover WA is to provide that information to
the arbitrator.
157A. Early identification of injuries that require, or may
10 require, management
(1) An insurer or a self-insurer shall, not later than the
expiration of 7 days after acquiring the knowledge
referred to in paragraph (a) or (b), give to
WorkCover WA notice in writing, containing the
15 prescribed particulars, with respect to --
(a) a worker whose period of incapacity the insurer
or self-insurer knows to have exceeded
4 consecutive weeks; or
(b) a worker whose periods of incapacity during
20 any period of 12 months or less the insurer or
self-insurer knows to have exceeded, in sum,
12 weeks.
Penalty: $1 000.
(2) Subsection (1) does not apply --
25 (a) to an insurer or self-insurer who is exempted
under subsection (3) and who is acting in
accordance with the exemption; or
(b) in relation to a period of incapacity with respect
to which notice has already been given
30 under --
(i) this section;
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(ii) section 155 as in force before
section 118 of the Workers'
Compensation Reform Act 2004 came
into operation; or
5 (iii) section 155 as in force before
8 March 1991, being the day on which
section 33 of the Workers'
Compensation and Assistance
Amendment Act 1990 came into
10 operation.
(3) WorkCover WA may, in writing, exempt an insurer or
a self-insurer from the requirement to comply with
subsection (1), either absolutely or subject to such
conditions as it sees fit to impose, and any such
15 exemption has effect according to its tenor until
revoked by WorkCover WA.
(4) If WorkCover WA is of the opinion that a worker's
injury should be reviewed to determine whether a
return to work program should be established for the
20 worker, WorkCover WA may --
(a) notify the worker, the worker's employer and
the employer's insurer of that opinion; and
(b) inform those persons of the requirements of
section 155C and 155D and their obligations
25 under those provisions.
157B. Mediation and assistance
WorkCover WA may provide mediation and
independent guidance on injury management and
related matters with a view to facilitating the informal
30 resolution of questions and disputes arising from those
matters.
".
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119. Part IXA inserted
After Part IX the following Part is inserted --
"
Part IXA -- Specialised retraining programs
5 158. Meaning of "retraining criteria"
(1) In this Part --
"degree of permanent whole of person impairment"
means the degree of permanent whole of person
impairment, evaluated as described in
10 sections 146A and 146D, resulting from the injury
or injuries arising from a single event, as defined
in subsection (2);
"retraining criteria", in relation to a worker, means
the following criteria --
15 (a) the worker has participated in a return to
work program established under
section 155C(1) but has not been able to
return to work;
(b) the worker has a capacity for retraining and
20 is a person for whom a specialised retraining
program is a viable option;
(c) formal vocational training or study through a
technical or tertiary training course appears
to be the only course of action that will
25 enable the worker to return to work;
(d) it is reasonable to expect that a specialised
retraining program will provide the worker
with the qualification or skills necessary to
return to work, having regard to the labour
30 market, the worker's existing qualifications
and work experience;
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(e) such other criteria as may be prescribed in
the regulations for the purposes of this
definition.
(2) In the definition of "degree of permanent whole of
5 person impairment" in subsection (1) --
"event" means anything that results, whether
immediately or not and whether suddenly or not,
in an injury or injuries of a worker and the term
includes continuous or repeated exposure to
10 conditions that result in an injury or injuries of a
worker.
158A. Eligibility to participate in specialised retraining
programs
(1) A worker may participate in a specialised retraining
15 program if --
(a) the worker has suffered an injury that is
compensable under this Act;
(b) the injury occurred on or after the day on which
section 119 of the Workers' Compensation
20 Reform Act 2004 comes into operation;
(c) either --
(i) the worker and the worker's employer
agree that the worker's degree of
permanent whole of person impairment
25 is at least 10% but less than 15%; or
(ii) an arbitrator has determined that the
worker's degree of permanent whole of
person impairment is at least 10% but
less than 15%;
30 and
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(d) either --
(i) the worker and the worker's employer
agree that the worker satisfies all of the
retraining criteria; or
5 (ii) an arbitrator has determined that the
worker satisfies all of the retraining
criteria.
(2) A worker is eligible to participate in a specialised
retraining program even if --
10 (a) the worker is receiving weekly payments under
clause 7 or other compensation under
Schedule 1; or
(b) the weekly payments paid for periods of the
incapacity arising from the worker's injury
15 have reached the prescribed amount.
(3) Despite having suffered an injury referred to in
subsection (1)(a) and (b), a worker is not eligible to
participate in a specialised retraining program if --
(a) an election by the worker under section 93K(4)
20 in respect of the injury has been registered;
(b) an agreement in respect of the whole of the
liability for the incapacity or impairment
arising from the injury has been registered
under Part III Division 7;
25 (c) an order for redemption of the liability for
incapacity arising from the injury has been
made under section 67(1)(a) or (4);
(d) an order in respect of the whole of the liability
for the incapacity or impairment arising from
30 the injury has been made under Part XI; or
(e) the worker's claim for damages in respect of
the injury or the incapacity or impairment
arising from the injury has been settled by
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agreement independently of this Act and has
not been disapproved under section 92(f).
(4) The participation of a worker in a specialised retraining
program is subject to sections 158B and 158E.
5 158B. Final day for recording agreed matters, referring
disputed matters for determination
(1) A worker is not eligible to participate in a specialised
retraining program unless, on or before the final day
referred to in subsection (2) --
10 (a) either --
(i) the Director has, at the written request
of the worker, recorded in accordance
with the regulations an agreement as to
the worker's degree of permanent whole
15 of person impairment; or
(ii) if there is not agreement between the
worker and the worker's employer as to
the worker's degree of permanent whole
of person impairment, the worker has
20 applied under section 158C to have the
matter in dispute determined by an
arbitrator;
and
(b) either --
25 (i) the Director has, at the written request
of the worker, recorded in accordance
with the regulations an agreement that
the worker satisfies all of the retraining
criteria; or
30 (ii) if there is not agreement between the
worker and the worker's employer that
the worker satisfies all of the retraining
criteria, the worker has applied under
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section 158D to have the matter in
dispute determined by an arbitrator.
(2) If a claim for compensation by way of weekly
payments has been made on an employer in accordance
5 with section 178(1)(b) with respect to an injury of a
worker, the final day for purposes of subsection (1) is
the last day of the period of 2 years after the day on
which the claim for compensation is made unless a
later day is fixed under subsection (3) or (4).
10 (3) If, after the expiry of the period of 3 months after the
day on which the claim is made --
(a) an arbitrator, acting under section 58(1) or (2),
determines the question of liability to make the
weekly payments claimed; or
15 (b) the worker is first notified that liability is
accepted in respect of the weekly payments
claimed,
the final day is the last day of the period 1 year and
9 months after the day of the act described in
20 paragraph (a) or (b) that was most recently done unless
a later day is fixed under subsection (4).
(4) The Director may, in accordance with the regulations,
from time to time extend the final day, but only if the
Director is satisfied that the worker has, in accordance
25 with the regulations and at least 8 weeks before the
final day requested an approved medical specialist to
assess the worker's degree of permanent whole of
person impairment, but the worker could not take, or it
would be impracticable for the worker to take, the
30 action referred to in subsection (1) before the final day
referred to in subsection (2).
(5) An extension under subsection (4) is to be to a day that
is not more than 6 months after the day that would have
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been the final day had there been no extension under
that subsection.
(6) An extension is to be in writing and the Director is
required to give the worker and the employer each a
5 copy of the extension.
(7) An extension may be given even though the final day
has passed.
158C. Disputes as to degree of permanent whole of person
impairment
10 (1) If --
(a) there is not agreement between a worker and
the worker's employer that the worker's degree
of permanent whole of person impairment is at
least 10% but less than 15%; and
15 (b) the worker's degree of permanent whole of
person impairment has been assessed by an
approved medical specialist under
sections 146A and 146D as at least 10% but
less than 15%,
20 but the employer disputes the assessment referred to in
paragraph (b), the worker may apply to have the
question as to the worker's degree of permanent whole
of person impairment arising from the injury concerned
determined by an arbitrator.
25 (2) An arbitrator to whom an application to determine a
question is made under subsection (1) may --
(a) determine the worker's degree of permanent
whole of person impairment; or
(b) refer the question as to the worker's degree of
30 permanent whole of person impairment for
assessment by an approved medical specialist
panel in accordance with sections 146A and
146D.
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(3) If a determination or assessment is made that the
worker's degree of permanent whole of person
impairment is at least 10% but less than 15%, the
arbitrator may order the employer to pay all or any of
5 the costs or expenses connected with the dispute,
including expenses connected with the referral to an
approved medical specialist panel.
158D. Disputes as to retraining criteria
(1) If there is not agreement between a worker and the
10 worker's employer that the worker satisfies all of the
retraining criteria, the worker may apply to have the
question as to whether the worker satisfies all of the
retraining criteria determined by an arbitrator.
(2) An arbitrator to whom an application to determine a
15 question is made under subsection (1) is to refer the
question for assessment by a specialised retraining
assessment panel in accordance with section 146V.
(3) If an assessment is made that the worker is suitable to
participate in a specialised retraining program, the
20 arbitrator may order the employer to pay all or any of
the costs or expenses connected with the dispute,
including expenses connected with the referral to a
specialised retraining assessment panel.
158E. Specialised retraining program agreements
25 (1) A worker who is eligible under sections 158A and
158B to participate in a specialised retraining program
cannot participate in the program unless --
(a) the worker has entered into an agreement with
WorkCover WA in relation to the program; and
30 (b) the agreement is entered into on or before the
final day referred to in subsection (2).
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(2) The final day for the purposes of subsection (1) is the
later of --
(a) the day that is 30 days after the day on
which --
5 (i) the worker is notified of the recording
of an agreement referred to in
section 158B(1)(a)(i) as to the worker's
degree of permanent whole of person
impairment; or
10 (ii) the worker is given the decision of an
arbitrator as to the worker's degree of
permanent whole of person impairment,
as is relevant to the case; and
(b) the day that is 30 days after the day on
15 which --
(i) the worker is notified of the recording
of an agreement referred to in
section 158B(1)(b)(i) that the worker
satisfies all of the retraining criteria; or
20 (ii) the worker is given the decision of an
arbitrator as to whether the worker
satisfies all of the retraining criteria,
as is relevant to the case.
(3) An agreement is to make provision in relation to --
25 (a) course attendance requirements;
(b) the worker's role in relation to reviews under
section 158H including attendances and
communications with WorkCover WA and
providing information in relation to the
30 performance and cooperation of the worker in
the specialised retraining program;
(c) acknowledgement by the worker of the effects
of this Part relating to the modification,
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suspension and cessation of amounts payable in
respect of the worker's participation in the
program.
(4) Any provision of an agreement that is inconsistent with
5 a provision of this Act is of no effect to the extent of
the inconsistency.
158F. WorkCover WA to direct payments in relation to
specialised retraining programs
(1) As soon as practicable after an agreement under
10 section 158E has been signed by the worker and
WorkCover WA, WorkCover WA is to notify the
following persons of the agreement --
(a) the worker's employer; and
(b) if the employer is insured against liability to
15 pay compensation under this Act, the
employer's insurer.
(2) The total of the amounts payable in respect of a
worker's participation in a specialised retraining
program is the amount equal to 75% of the prescribed
20 amount calculated as at the date on which the worker
signed the agreement.
(3) WorkCover WA may, as it sees fit, but subject to this
section and any regulations under subsection (10), give
a written direction to the worker's employer or the
25 employer's insurer to make a payment in respect of a
worker's participation in a specialised retraining
program.
(4) A direction may be for periodic payments or for a
particular payment.
30 (5) A payment may be for, but is not limited to --
(a) reasonable fees for a course;
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(b) the cost of books and relevant resource
materials reasonably necessary to undertake a
course;
(c) subject to subsections (8) and (9), a weekly
5 retraining allowance.
(6) Subject to subsection (7), a payment may be for
reasonable expenses incurred in respect of vocational
rehabilitation under clause 17(1a) that is requested by
the worker if the assistance of an approved vocational
10 rehabilitation provider is necessary to coordinate the
specialised retraining program.
(7) If the amount payable under clause 17(1a) is exhausted
in respect of a worker, then for the purpose mentioned
in subsection (6), WorkCover WA may direct that an
15 additional amount, not exceeding 3% of the amount
referred to in subsection (2), be paid in respect of the
worker, as long as the additional amount does not
exceed the total amount applicable to the worker under
subsection (2).
20 (8) The worker cannot receive any weekly retraining
allowance payments until the total weekly payments
under clause 7 have reached the prescribed amount.
(9) Any weekly retraining allowance amount --
(a) is not to be linked to or represent the worker's
25 capacity or otherwise to work; and
(b) is not to exceed the worker's pre-injury weekly
earnings.
(10) Subject to subsections (6), (7), (8) and (9), the
following matters may be prescribed by the
30 regulations --
(a) the submission of requests for payment and
requirement for copies of invoices to be
provided to WorkCover WA;
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(b) the manner in which funds may be apportioned;
(c) when funds should be directed to be paid;
(d) when funds should be paid;
(e) the rate of any weekly training allowance.
5 158G. Obligations of employers, insurers
(1) An employer or insurer who receives a direction under
section 158F or 158I must comply with the direction
within the time specified in the direction, or such
longer period as may be subsequently specified by
10 WorkCover WA but not exceeding 30 days.
(2) An employer or insurer must not modify, suspend or
cease an amount payable under a direction under
section 158F or affected by a direction under
section 158I unless WorkCover WA has given the
15 employer or insurer written approval to do so.
(3) A reference in section 174(1)(c) to the obtaining of an
award by the worker includes a reference to the receipt
by an employer or insurer of a direction under
section 158F or 158I.
20 (4) Nothing in section 174 prevents moneys standing to the
credit of the General Fund from being paid in
accordance with a direction under section 158F or 158I
within 30 days of the direction being received if --
(a) the direction relates to a payment in respect of a
25 particular specialised retraining program; and
(b) moneys have already been paid from the
General Fund in respect of that program.
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158H. 3 monthly reviews of performance, payments under
specialised retraining programs
(1) WorkCover WA is to conduct, at the times set out in
subsection (2), a review of --
5 (a) the performance and cooperation of each
worker who is participating in a specialised
retraining program; and
(b) the payments directed to be made in respect of
each worker who is participating in a
10 specialised retraining program.
(2) The first review in respect of a worker is to be
conducted 3 months after the day on which the worker
commences participation in the specialised retraining
program, and subsequent reviews are to be at
15 3 monthly intervals.
158I. WorkCover WA may direct modification,
suspension, cessation of payments under specialised
retraining programs
(1) WorkCover WA may, as it sees fit, but subject to this
20 Part and any regulations in relation to the
administration of funds for specialised retraining
programs, and having regard to the results of a review
under section 158H in relation to a worker, give a
written direction to the worker's employer or the
25 employer's insurer to modify, suspend or cease the
amounts payable in respect of the worker's
participation in the program.
(2) Without affecting subsection (1) WorkCover WA may
give a written direction to the worker's employer or the
30 employer's insurer to do any of the following --
(a) suspend any entitlement that a worker has
under an agreement under section 158E if
WorkCover WA is of the opinion that the
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worker has not complied, or is not complying,
with a provision of the agreement;
(b) cease the entitlement if the worker does not,
within one month of being requested in writing
5 by WorkCover WA to do so, comply with the
provision;
(c) modify, suspend or cease the amounts payable
in respect of the worker's participation in the
program if the worker fails a course
10 requirement or does not achieve the results that,
in the opinion of WorkCover WA, are required
for the course to be successfully completed.
158J. Cessation of payments
Payments in respect of a worker's participation in a
15 specialised retraining program cease from the date on
which an event referred to in section 158A(3)(a) to (e)
occurs in respect of a claim for the injury concerned.
158K. Directions not open to challenge etc.
A decision of WorkCover WA to direct the payment,
20 modification, suspension or cessation of an amount
payable to or in respect of a worker participating in a
specialised retraining program is not liable to be
challenged, appealed against, reviewed, quashed or
called into question under this Act or by any court.
25 158L. Other effects of participation in specialised
retraining program
(1) The amount referred to in section 158F(2) is in addition
to and separate from any other compensation that a
worker is entitled to under this Act in relation to an
30 injury.
(2) A worker's participation in a specialised retraining
program is not, of itself, a ground for the suspension,
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discontinuance, reduction or increasing, under this Act,
of payments of other compensation that the worker
receives in respect of the injury.
(3) A worker's participation in a specialised retraining
5 program is not, of itself, a ground for an arbitrator to
require or not require, under section 156B, the worker
to participate in a return to work program.
(4) No part of the specialised retraining program
entitlement can be taken into account in the calculation
10 of any other compensation to which the worker is
entitled under this Act.
".
120. Section 160 amended
(1) Section 160(2a) is repealed.
15 (2) After section 160(3) the following subsection is inserted --
"
(3a) Where WorkCover WA permits an approved insurance
office to cancel a policy or contract of insurance
obtained by an employer under this section, the
20 approved insurance office shall notify the employer of
the cancellation within 14 days after the cancellation
has effect.
Penalty: $1 000.
".
25 (3) After section 160(4) the following subsections are inserted --
"
(5) Where an approved insurance office declines to
indemnify an employer in respect of a liability referred
to in subsection (4) in respect of which the approved
30 insurance office would be liable to indemnify the
employer if the liability were incurred during the term
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of the policy or contract of insurance, the approved
insurance office commits an offence.
Penalty: $2 000.
(6) A conviction for an offence under subsection (5) does
5 not affect the liability of the approved insurance office
under subsection (4).
(7) Where an employer has obtained a policy of insurance
from an approved insurance office under this section,
the employer shall ensure that a valid certificate of
10 currency issued by the insurance office in respect of the
policy is available for inspection at the employer's
principal office or place of business in the State.
Penalty: $2 000.
(8) An employer does not have to comply with
15 subsection (7) if it is not reasonably practicable to do
so.
".
121. Section 162 amended
After section 162(1) the following subsection is inserted --
20 "
(1a) An insurer that issues or renews a policy contrary to
subsection (1) commits an offence.
Penalty: $1 000.
".
25 122. Section 164 amended
Section 164(1) is amended by deleting "deposited at the
Treasury" and inserting instead --
" given to the State ".
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123. Section 165 amended
(1) Section 165(2) is amended by deleting "deposited at the
Treasury" and inserting instead --
" given to the State ".
5 (2) Section 165(3)(b) is amended as follows:
(a) by deleting "deposit at the Treasury" and inserting
instead --
" give to the State ";
(b) by deleting "deposited" and inserting instead --
10 " given ".
(3) Section 165(4)(a) is amended by deleting "deposited at the
Treasury" in both places where it occurs and inserting
instead --
" given to the State ".
15 (4) Section 165(4)(b)(i) is amended as follows:
(a) by deleting "deposit at the Treasury" and inserting
instead --
" give to the State ";
(b) by deleting "deposited" and inserting instead --
20 " given ".
(5) Section 165(4)(b)(ii) is amended as follows:
(a) by deleting "deposit at the Treasury" and inserting
instead --
" give to the State ";
25 (b) by deleting "deposit at the Treasury" and inserting
instead --
" give to the State ".
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(6) After section 165(4) the following subsection is inserted --
"
(5) Where an employer or group of employers fails to give
to the State, within 21 days after the direction is given,
5 any securities directed by the Minister to be given
under subsection (4)(b) --
(a) the employer; or
(b) each employer belonging to the group of
employers,
10 as the case may be, commits an offence.
Penalty: $1 000.
".
124. Section 168 amended
Section 168(a) is amended by deleting "lodged by it or them
15 with the Treasury" and inserting instead --
" given by it or them to the State ".
125. Section 171 amended
(1) Section 171(1)(b) is amended after "lapsed" by inserting --
20 "
(or, where WorkCover WA has permitted
cancellation, cancelled)
".
(2) Section 171 is amended at the foot of subsection (1) by
25 inserting --
" Penalty: $1 000. ".
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126. Section 174 amended
(1) Section 174(1) is amended by deleting all of the subsection after
"thereof " and inserting instead a full stop.
(2) After section 174(1) the following subsection is inserted --
5 "
(1a) Without limiting section 174AB, until the amount paid
to a worker under this section is recovered under this
section or section 174AA, WorkCover WA may
exercise any rights of the employer under this Act in
10 relation to the payment of that award.
".
(3) Section 174(2) is repealed.
(4) Section 174(3) is amended by deleting "Part IIIA" and inserting
instead --
15 " Part XI ".
(5) Section 174(6) and (7) are repealed and the following
subsections are inserted instead --
"
(6) Where WorkCover WA has paid from the General
20 Fund an amount under subsection (1) WorkCover WA
may file in a court of competent jurisdiction a
certificate of WorkCover WA showing the amount
paid.
(7) No charge is to be made for filing a copy of a
25 certificate under this section.
(8) On filing, the certificate is to be taken to be a judgment
of that court for a debt payable by the employer of the
worker to WorkCover WA of the same amount as the
amount stated in the certificate, and may be enforced
30 accordingly, and section 142(1) of the Supreme Court
Act 1935 applies to the amount specified in the
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certificate as if it were payable under a judgment of the
court.
(9) Where by reason of section 175 more than one person
is liable as an employer to pay compensation under this
5 Act to a worker, the reference in subsection (8) to the
employer is to be read as a reference to each person so
liable, and the judgment may be enforced against those
persons jointly and severally.
".
10 127. Section 174AA inserted
After section 174 the following section is inserted --
"
174AA. Recovery from responsible officers of body
corporate
15 (1) If none, or some but not all, of an amount paid from the
General Fund under section 174 is recovered from a
body corporate liable to pay the amount under that
section, WorkCover WA may sue and recover the
unpaid amount from a responsible officer of the body
20 corporate.
(2) A person is a responsible officer of a body corporate
if --
(a) the body corporate has contravened
section 160(1) in respect of a policy of
25 insurance or otherwise failed to ensure that it
had a sufficient policy of insurance that would
have covered the body corporate for the
liability to which the payment made under
section 174 related (whether or not the body
30 corporate has been proceeded against or
convicted of an offence for the contravention);
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(b) at the time of the contravention or failure the
person was a director or other officer concerned
in the management of the body corporate; and
(c) the person does not prove that --
5 (i) the contravention or failure occurred
without the person's consent or
connivance; and
(ii) the person exercised all such due
diligence to prevent the contravention or
10 failure as ought to have been exercised
having regard to the nature of the
person's functions and to all the
circumstances.
(3) If there are 2 or more responsible officers of a body
15 corporate they are jointly and severally liable for the
payment of the unpaid amount recoverable under
subsection (1).
".
128. Sections 174AB and 174AC inserted
20 Before section 174A the following sections are inserted --
"
174AB. WorkCover WA may exercise rights of employer
(1) If an employer is uninsured and is not defending a
claim brought by a worker, WorkCover WA has all of
25 the rights of the employer under this Act in place of the
employer including the right to --
(a) consent to an award or order being made in a
proceeding before a dispute resolution
authority;
30 (b) enter into an agreement as to redemption of the
claim;
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(c) become a party to proceedings in relation to the
claim;
(d) exercise the rights of the employer in relation to
injury management; and
5 (e) require the worker to submit himself for
examination under sections 64 and 65.
(2) If an employer --
(a) is uninsured and is defending a claim brought
by a worker; or
10 (b) may be uninsured and a worker has brought a
claim, irrespective of whether or not the
employer is defending the claim,
then, unless an order to the contrary is made pursuant
to an application under subsection (3), WorkCover WA
15 has all of the rights of the employer under this Act in
place of the employer as if subsection (1) applied.
(3) The employer may apply under Part XI for an order as
to the rights WorkCover WA may exercise under
subsection (2) and the exercise of those rights.
20 (4) An arbitrator may hear and determine an application
under subsection (3) and may make such orders in
relation to the application as the arbitrator thinks fit.
(5) WorkCover WA may sue for and recover from the
employer fees, costs and charges incurred by
25 WorkCover WA under this section, whether or not
WorkCover WA was successful in any proceedings.
174AC. WorkCover WA's right of subrogation
If WorkCover WA has paid, or is liable to pay, from
the General Fund an amount as compensation for
30 which an employer is liable under this Act, WorkCover
WA is subrogated to any right of the employer and any
insurer of the employer to recover any amount from
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any other person in respect of that payment (had the
payment been made by the employer or insurer),
whether the right arises by way of liability for
contribution, apportionment of liability or otherwise.
5 ".
129. Part XA inserted
After section 175D the following Part is inserted --
"
Part XA -- Infringement notices and
10 modified penalties
175E. Definitions
In sections 175G, 175H, 175I and 175J --
"authorised officer" means a person designated as an
authorised officer under section 175F for the
15 purposes of the section in which the term is used;
"prescribed" means prescribed by the regulations.
175F. Authorised officers
(1) The chief executive officer may designate officers of
WorkCover WA as authorised officers for the purposes
20 of section 175G, 175H, 175I or 175J or for the
purposes of 2 or more of those sections, but a person
who is authorised to give infringement notices under
section 175G is not eligible to be an authorised officer
for the purposes of any of the other sections.
25 (2) The chief executive officer is to issue a certificate of
authorisation to each person designated as an
authorised officer under subsection (1).
(3) An authorised officer is to produce the certificate
whenever required to do so by a person in respect of
30 whom the officer has exercised, or is about to exercise,
any power under this Part.
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(4) Production of a certificate referred to in subsection (2)
in respect of a person is evidence in any court that the
person is duly designated under subsection (1).
175G. Giving of notice
5 (1) An authorised officer who has reason to believe that a
person has committed a prescribed offence under this
Act may give an infringement notice to the alleged
offender.
(2) The notice is to be given within 6 months after the
10 alleged offence is believed to have been committed.
175H. Content of notice
(1) An infringement notice is to be in the prescribed form.
(2) An infringement notice is to --
(a) contain a description of the alleged offence;
15 (b) specify the amount of the modified penalty for
the offence;
(c) advise that if the alleged offender does not wish
to have a complaint of the alleged offence
heard and determined by a court, that amount
20 may be paid to an authorised officer within the
period of 28 days after the giving of the notice;
and
(d) inform the alleged offender as to who are
authorised officers for the purpose of receiving
25 payment of modified penalties.
(3) The amount specified under subsection (2)(b) is to be
the amount that was the prescribed modified penalty at
the time the alleged offence is believed to have been
committed.
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(4) The modified penalty that may be prescribed for an
offence is not to exceed 20% of the maximum penalty
that could be imposed for that offence by a court.
175I. Extension of time
5 An authorised officer may, in a particular case, extend
the period of 28 days within which the modified
penalty may be paid, and the extension may be allowed
whether or not the period of 28 days has elapsed.
175J. Withdrawal of notice
10 (1) An authorised officer may, whether or not the modified
penalty has been paid, withdraw an infringement notice
within 60 days after the day on which it was given by
sending to the alleged offender a notice in the
prescribed form stating that the infringement notice has
15 been withdrawn.
(2) If an infringement notice is withdrawn after the
modified penalty has been paid, the amount is to be
refunded.
175K. Benefit of paying modified penalty
20 (1) Subsection (2) applies if the modified penalty specified
in an infringement notice has been paid within 28 days
or such further time as is allowed and the notice has not
been withdrawn.
(2) If this subsection applies it prevents the bringing of
25 proceedings and the imposition of penalties to the same
extent that they would be prevented if the alleged
offender had been convicted by a court of, and
punished for, the alleged offence.
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175L. No admission implied by payment
Payment of a modified penalty is not to be regarded as
an admission for the purposes of any proceedings,
whether civil or criminal.
5 175M. Application of penalties collected
An amount paid as a modified penalty is to be dealt
with in accordance with section 312, unless
section 175J(2) requires the amount to be refunded.
".
10 130. Part XI replaced by Parts XI to XVIII
Part XI is repealed and the following Parts are inserted
instead --
"
Part XI -- Dispute resolution
15 Division 1 -- General
176. Exclusive jurisdiction
(1) In this Part --
"dispute" means --
(a) a dispute in connection with a claim for
20 compensation, or the liability to pay
compensation, under this Act;
(b) a dispute in connection with an obligation
imposed under Part IX;
(c) any other dispute or matter for which
25 provision is made under this Act for
determination by an arbitrator;
(d) any other matter of a kind prescribed by the
regulations.
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(2) A proceeding for the determination of a dispute is not
capable of being brought other than under this Part or
Part XII.
(3) Subject to this Act, arbitrators have exclusive
5 jurisdiction to examine, hear and determine all
disputes.
177. Evidence of communication between worker and
injury management officer
Evidence of any communication between a worker and
10 a person employed by WorkCover WA and acting in
the capacity of an injury management officer is not
admissible in a proceeding before an arbitrator unless,
during the course of the proceeding, the worker
consents to the evidence being so admitted.
15 Division 2 -- Requirements before
commencing proceeding
178. Notice of injury and claim
(1) Proceedings for the recovery under this Act of
compensation for an injury are not maintainable
20 unless --
(a) a notice of the occurrence of the injury has been
given under section 179 in writing containing
substantially the information required by
subsection (2) as soon as practicable after the
25 occurrence; and
(b) the claim for compensation with respect to such
injury has been made within 12 months from
the occurrence of the injury or, in case of death,
within 12 months from the time of death,
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but --
(c) the want of or any defect or inaccuracy in such
notice is not a bar to the maintenance of such
proceedings, if it is found in the proceedings for
5 settling the claim that the employer is not, or
would not, if a notice or an amended notice
were then given and the hearing postponed, be
prejudiced in defending the proceedings by the
want, defect or inaccuracy, or that such want,
10 defect or inaccuracy was occasioned by
mistake, absence from the State, or other
reasonable cause; and
(d) the failure to make a claim within the period
mentioned in paragraph (b) is not a bar to the
15 maintenance of such proceedings, if it is shown
that the employer has not been prejudiced in
defending the proceedings by such failure, or if
it is found that the failure was occasioned by
mistake, absence from the State, or other
20 reasonable cause.
(2) Notice in respect of an injury under this Act is to
state --
(a) the name and address of the person injured;
(b) in ordinary language the cause of the injury;
25 and
(c) the date and place at which the injury occurred,
and is to include such other information, if any, as may
be prescribed by the regulations.
179. Service of notice of injury
30 (1) Notice in respect of an injury under this Act is to be
served on the employer, or, if there is more than one
employer, upon one of such employers.
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(2) The notice may be served by delivering it at, or sending
it by post in a registered letter addressed to, the
residence or place of business of the person on whom it
is to be served.
5 (3) When the employer is a body of persons, corporate or
unincorporate, the notice may also be served by
delivering it at, or by sending it by post in a registered
letter addressed to the employer at the office, or, if
there is more than one office, any one of the offices of
10 such body.
(4) When the employer is --
(a) the State, notice in respect of an injury under
this Act is to be served on the State Solicitor, at
Perth, or the manager of the work on which the
15 worker was employed at the time the injury
occurred;
(b) the Governor under the Governor's
Establishment Act 1992, notice in respect of an
injury under this Act is to be served on the
20 Official Secretary within the meaning of that
Act;
(c) the President of the Legislative Council, notice
in respect of an injury under this Act is to be
served --
25 (i) in the case of a worker who is a member
of the Department of the Legislative
Council, on the Clerk of the Legislative
Council; or
(ii) in the case of a worker who is an
30 electorate officer, on the
Director-General;
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(d) the Speaker of the Legislative Assembly, notice
in respect of an injury under this Act is to be
served --
(i) in the case of a worker who is a member
5 of the Department of the Legislative
Assembly, on the Clerk of the
Legislative Assembly; or
(ii) in the case of a worker who is an
electorate officer, on the
10 Director-General;
or
(e) the President of the Legislative Council and the
Speaker of the Legislative Assembly, acting
jointly, notice in respect of an injury under this
15 Act is to be served, in the case of a worker who
is a member of --
(i) the Department of the Parliamentary
Reporting Staff, on the Chief Hansard
Reporter;
20 (ii) the Department of the Parliamentary
Library, on the Parliamentary Librarian;
or
(iii) the Joint House Department, on the
Executive Officer of the Joint House
25 Department,
as the case requires.
(5) A reference in subsection (4)(c), (d) or (e) to an
expression that is defined in the Parliamentary and
Electorate Staff (Employment) Act 1992 is a reference
30 to that expression as so defined.
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180. Provision of certain documents before
commencement of proceeding
(1) In this section --
"injury" includes alleged injury;
5 "relevant document" means any of the following --
(a) a contract of service or apprenticeship to
which the worker is a party;
(b) a contract for service to which the worker is
a party;
10 (c) records of wages or other remuneration paid
to the worker;
(d) a report relevant to the injury by a medical
practitioner who has treated the worker for
the injury;
15 (e) a report by a medical practitioner who has
conducted tests or investigations on the
worker in relation to the injury;
(f) a report by a medical practitioner who has
been consulted by a medical practitioner
20 referred to in paragraph (d) or (e) in
connection with treatment of, or tests related
to, the injury;
(g) a report by an approved vocational
rehabilitation provider in relation to the
25 worker;
(h) a notice of occurrence of the injury made in
accordance with section 178(1)(a);
(i) a claim for compensation with respect to the
injury made in accordance with
30 section 178(1)(b);
(j) a document of a kind prescribed by the
regulations.
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(2) A worker who has suffered an injury, or the worker's
legal practitioner or agent, may request the worker's
employer at the time the injury occurred, or that
employer's insurer, to provide the person making the
5 request with a copy of such relevant documents as are
in the possession of or under the control of the
employer and the insurer.
(3) If a worker has made a claim for compensation with
respect to noise induced hearing loss in accordance
10 with section 178(1)(b), the worker's employer or that
employer's insurer may request WorkCover WA to
provide the person making the request with a copy of
any documents in the possession of or under the control
of WorkCover WA that --
15 (a) are of a kind described in paragraph (d), (e) or
(f) of the definition of "relevant document" in
subsection (1); or
(b) relate to the worker's employment history or
the worker's exposure to noise.
20 (4) A request under subsection (2) or (3) is to be made in
accordance with the DRD Rules and within the time
prescribed by the DRD Rules.
(5) An employer or insurer requested to provide a copy of
a relevant document under subsection (2) or (3) that
25 fails to comply with the request within the period
referred to in subsection (4) commits an offence.
Penalty: $1 000.
(6) An arbitrator may make an order requiring the
production of documents under this section.
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Division 3 -- Proceedings before an arbitrator
181. Arbitrators to determine disputes
(1) A party to a dispute may apply to the Director in
accordance with this Act and the DRD Rules for
5 determination of the dispute by an arbitrator.
(2) A proceeding before an arbitrator commences when the
application is accepted by the Director.
182. Who is to be given a copy of an application
(1) When an application is accepted by the Director the
10 applicant is to give a copy of the application to --
(a) each other party;
(b) any other person entitled under this Act to a
copy of, or notice of, the application; and
(c) any person to whom the applicant is directed by
15 the Director to give a copy of the application.
(2) Subsection (1) does not require the applicant to give a
copy of the application to a person mentioned in
subsection (1) (a "notifiable person") if --
(a) the Director has undertaken to give a copy of
20 the application to the notifiable person; or
(b) under subsection (3) an arbitrator dispenses
with the requirement to give a copy of the
application to a notifiable person.
(3) An arbitrator may make an order dispensing with the
25 requirement to give a copy of an application to a
notifiable person specified in the order if satisfied --
(a) that the applicant has made all reasonable
attempts to give a copy of the application to the
notifiable person but has been unsuccessful; or
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(b) that the hearing of the application without
notice to the notifiable person would not cause
injustice.
(4) The DRD Rules may provide for the manner in which
5 and time within which subsection (1) is to be complied
with.
183. Information exchange between parties
(1) When, and at times prescribed by the DRD Rules after,
an application is made for a determination of a dispute
10 by an arbitrator, each party to the dispute must provide
to the other party and to the Director, in accordance
with the DRD Rules, such documents, material and
information as the DRD Rules require.
(2) Subject to section 206, a party to a dispute who fails to
15 comply with a requirement of subsection (1) commits
an offence.
Penalty: $2 000.
(3) Where a worker, after an injury has occurred, makes a
statement in writing, in relation to the injury to the
20 employer of the worker or to an insurer or to any
person acting on behalf of the employer or insurer, that
statement is not to be admitted in evidence if tendered
by the employer or insurer or used by the employer or
insurer in a proceeding before an arbitrator unless the
25 employer or insurer has supplied to the worker or to a
legal practitioner or agent acting on behalf of the
worker in the proceeding a copy in writing of the
statement.
(4) Any document, material or information that a party to a
30 dispute has failed to provide in contravention of
subsection (1) cannot be admitted on behalf of the
party in a proceeding on the dispute before an
arbitrator.
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(5) A witness cannot appear in a proceeding on a dispute
before an arbitrator if a party to the dispute has failed
to file a statement from that witness in contravention of
this section.
5 (6) Subsections (2), (4) and (5) do not apply if the party is
a worker unless it is established that the worker was
represented by a legal practitioner or agent (as defined
in section 261) at the relevant time.
(7) The DRD Rules may provide for exceptions to
10 subsections (4) and (5) and may authorise an arbitrator
to permit --
(a) the admission in a proceeding before the
arbitrator in specified circumstances of any
document, material or information that would
15 otherwise be not admissible under
subsection (4); or
(b) the appearance in a proceeding before the
arbitrator in specified circumstances of a
witness who would otherwise not be permitted
20 to appear under subsection (5).
(8) If an arbitrator is satisfied that a party has failed
without reasonable excuse to comply with a
requirement of this section, the arbitrator may do any
one or more of the following --
25 (a) refer the matter to WorkCover WA;
(b) note the matter in a certificate issued by the
arbitrator in respect of the dispute (together
with details of the documents, material or
information to which the failure relates);
30 (c) order that a specified amount or proportion of
the costs that would otherwise be recoverable
by the party in connection with the application
to the arbitrator are not recoverable.
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184. Interim assessment and minor claims
When an application is made under this Part, the
Director may refer the application or any part of the
application to be dealt with under Part XII if the
5 application or that part of the application could have
been made under that Part, and may defer
determination of a dispute under this Part while the
matter referred is being dealt with under that Part.
185. Arbitrator to attempt conciliation
10 (1) An arbitrator is not to determine a dispute without first
using the arbitrator's best endeavours to bring the
parties to the dispute to a settlement acceptable to all of
them.
(2) No objection may be taken to the determination of a
15 dispute by an arbitrator on the ground that the arbitrator
had previously used the arbitrator's best endeavours to
bring the parties to a dispute to a settlement.
(3) The DRD Rules may make provision for or with
respect to conciliation.
20 186. Arbitrator may review decision
(1) In this section --
"new information" means information relevant to a
decision that, although available to a party at the
time the decision was made, was not available to
25 the arbitrator and, in the opinion of the arbitrator,
justifies reconsideration of the matter.
(2) If new information becomes available after an
arbitrator makes a decision, the arbitrator may
reconsider the decision and --
30 (a) vary or revoke the decision previously made; or
(b) make any further decision,
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as the arbitrator considers appropriate having regard to
the new information.
187. Decisions of arbitrator
(1) Except as otherwise provided by this Act a decision of
5 an arbitrator --
(a) is final and binding on the parties and is not
subject to an appeal; and
(b) is not to be vitiated because of any informality
or want of form.
10 (2) A decision of an arbitrator or anything done under this
Act in the process of coming to a decision of an
arbitrator is not amenable to judicial review.
Division 4 -- Practice and procedure
188. Practice and procedure, generally
15 (1) An arbitrator is bound by rules of natural justice except
to the extent that this Act authorises, whether expressly
or by implication, a departure from those rules.
(2) The Evidence Act 1906 does not apply to proceedings
before an arbitrator and an arbitrator --
20 (a) is not bound by the rules of evidence or any
practice or procedure applicable to courts of
record, except to the extent that the DRD Rules
make them apply; and
(b) is to act according to equity, good conscience
25 and the substantial merits of the case without
regard to technicalities and legal forms.
(3) An arbitrator may inform himself on any matter as the
arbitrator thinks fit.
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(4) An arbitrator may --
(a) receive in evidence any transcript of evidence
in proceedings before a court or other person or
body acting judicially and draw any conclusion
5 of fact from the transcript; and
(b) adopt, as the arbitrator thinks fit, any finding,
decision, or judgment of a court or other person
or body acting judicially that is relevant to the
proceeding.
10 (5) To the extent that the practice and procedure of an
arbitrator are not prescribed under this Act, they are to
be as the arbitrator determines.
189. Relief or redress not restricted to claim
The granting of relief or redress under this Act is not
15 necessarily to be restricted to the specific claim made
nor to the subject matter of the claim.
190. Directions
(1) An arbitrator may give directions at any time in a
proceeding and do whatever is necessary for the speedy
20 and fair conduct of the proceeding.
(2) An arbitrator may give directions on the initiative of
the arbitrator or on the application of a party.
(3) A directions hearing conducted by an arbitrator may be
held for the purposes of this section before the hearing
25 of the proceeding.
191. Dependants
In considering a question as to whether a person who
resides outside the State is a dependant of a worker, an
arbitrator is to require proof by or including
30 documentary evidence that the worker has, wholly or in
part as the case may be, supported the person and is not
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to accept as sufficient proof a statutory declaration or
affidavit unsupported by documentary evidence to that
effect.
192. Arbitrator may regard illegal contracts of
5 employment as valid
If in any proceeding for the recovery under this Act of
compensation for an injury it appears to an arbitrator
that the contract under which the injured worker was
engaged at the time when the injury occurred was
10 illegal, the arbitrator may, if, having regard to all the
circumstances of the case the arbitrator thinks proper to
do so, deal with the matter as if the injured person had
at that time been a worker under a valid contract.
193. Power of arbitrator to require information
15 (1) An arbitrator may order any person (whether or not a
party to a dispute before the arbitrator) --
(a) to produce, at a time and place specified in the
order, the documents or material specified in
the order; or
20 (b) to furnish specified information within a time
specified in the order.
(2) The order may require the documents or material to be
produced or the information to be furnished --
(a) to the arbitrator or to another party to a dispute
25 before the arbitrator, in the case of an order
given to a party to the dispute; or
(b) to the arbitrator in the case of an order given to
a person who is not a party to a dispute before
the arbitrator.
30 (3) If a person fails without reasonable excuse to produce a
document or material or furnish information in
compliance with an order given to the person under this
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section, the person cannot as a party to a proceeding
before a dispute resolution authority have the
document, material or information admitted in the
proceeding.
5 (4) An arbitrator may exercise powers under this section at
the request of a party to a dispute before an arbitrator
or of the arbitrator's own motion.
(5) The regulations or DRD Rules may make provision for
or with respect to any of the following matters --
10 (a) exempting specified kinds of documents,
material or information from the operation of
this section;
(b) specifying cases and circumstances in which an
arbitrator is required to exercise the arbitrator's
15 powers under this section;
(c) specifying cases and circumstances in which an
arbitrator is not to exercise the arbitrator's
powers under this section.
(6) An arbitrator may order a person to produce a
20 document, material or information despite any rule of
law relating to privilege or the public interest in
relation to the production of documents.
194. Arbitrator may provide documents, material and
information to party
25 (1) When a document or other material or information
relevant to a proceeding before an arbitrator is
produced or furnished to the arbitrator by a party to the
proceeding or another person (whether or not pursuant
to a requirement under this Part), the arbitrator may
30 produce or furnish the document, material or
information to --
(a) any other party to the proceeding;
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(b) any other party's legal representative or
registered agent; or
(c) a medical practitioner (including a medical
assessment panel and an approved medical
5 specialist panel).
(2) The arbitrator may, when producing or furnishing
documents, material or information, to another person
direct that the person must not cause or permit
disclosure of the information, or information in the
10 documents or material, or any specified part of that
information, to another person.
195. Representation
(1) At any hearing or conference before an arbitrator, a
party to the proceeding may appear in person or may
15 be represented by --
(a) a legal practitioner;
(b) a registered agent;
(c) if the party is a body corporate, a director,
secretary, or other officer of the body
20 corporate; or
(d) if the party is a public sector body as defined in
section 3(1) of the Public Sector Management
Act 1994, a public sector employee authorised
by the party to represent the party.
25 (2) In any proceeding an arbitrator may refuse to permit an
employer or an insurer to be represented by a legal
practitioner or registered agent if a party who is a
worker is not represented by a legal practitioner or
registered agent.
30 (3) A person who has been struck off the roll of
practitioners of the Supreme Court cannot represent a
party.
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(4) An arbitrator may refuse to permit a party to be
represented by an agent if of the opinion that the agent
does not have sufficient authority to make binding
decisions on behalf of the party.
5 (5) The regulations or the DRD Rules may prevent
specified persons, or persons of a specified class, from
representing a party.
196. Arbitrator may appoint guardian
If a child is a party or potential party to a proceeding or
10 proposed proceeding, an arbitrator may appoint a
litigation guardian in accordance with the DRD Rules
to conduct the proceeding on the child's behalf.
197. Interpreters and assistants
(1) Unless the arbitrator directs otherwise, a party or a
15 party's representative may be assisted in the course of a
proceeding by an interpreter or another person
necessary or desirable to make the proceeding
intelligible to that party and to enable the party to
communicate adequately.
20 (2) A person may present a written submission or evidence
in a language other than English if it is accompanied by
a translation into English and a statutory declaration by
the translator to the effect that the translation
accurately reproduces in English the contents of the
25 original document.
198. Electronic hearings and proceedings without
hearings
(1) A proceeding before an arbitrator need not be
conducted by formal hearing and may, if the DRD
30 Rules so provide or if the arbitrator thinks it
appropriate, be conducted by way of a conference
between the parties.
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(2) If an arbitrator thinks it appropriate, the arbitrator is to
allow the parties and their representatives and any
witnesses (or one or more of them) to participate in a
conference or hearing of a proceeding by means of
5 telephones, video links, or any other system or method
of communication.
(3) If an arbitrator thinks it appropriate, the arbitrator may
conduct all or part of a proceeding entirely on the basis
of documents without the parties or their
10 representatives or any witnesses attending or
participating in a conference or hearing.
(4) An arbitrator may take into account a written
submission prepared by a legal practitioner acting for a
party to a proceeding and submitted by or on behalf of
15 the party, whether or not the party is represented by a
legal practitioner at any conference or hearing of the
proceeding.
(5) If an arbitrator conducts a proceeding in accordance
with this section, the arbitrator is to take steps to ensure
20 that the public has access to, or is precluded from
access to, matters disclosed in the proceeding to the
same extent as if the proceeding had been heard before
the arbitrator with the attendance in person of all
persons involved in the proceeding.
25 (6) Provisions of this Act applying to hearings apply with
any necessary modifications in relation to a conference
or proceeding conducted in accordance with
subsection (3).
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199. Hearings to be held in private
Hearings and conferences before an arbitrator are to be
conducted in private unless --
(a) the arbitrator conducting the hearing or
5 conference decides that it should be conducted
in public; or
(b) the DRD Rules otherwise provide.
200. Notice of hearings
(1) Notice of the time and place for the hearing of a
10 proceeding is to be given in accordance with the DRD
Rules to --
(a) each party to the proceeding;
(b) each other person entitled to notice of the
hearing under this Act.
15 (2) If a person, including a party, to whom notice has been
given in accordance with the DRD Rules fails to
attend, the hearing may be held in the absence of that
person.
(3) The failure of a party to attend a hearing of a
20 proceeding does not affect the validity of any decision
made in relation to the proceeding.
201. Expert or professional assistance
(1) An arbitrator may refer any technical or specialised
matter to an expert and accept that expert's report as
25 evidence.
(2) An arbitrator who obtains an expert's report is to call
the expert for examination on the subject matter of the
report if a party to the proceedings so requests.
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202. Summoning witnesses
The Director or an arbitrator may issue a summons
requiring the attendance of a person before an
arbitrator.
5 203. Powers relating to witnesses
(1) In any proceeding before an arbitrator, the arbitrator
may --
(a) call any person to give evidence;
(b) examine any witness on oath or affirmation, or
10 by use of a statutory declaration;
(c) examine or cross-examine any witness to such
extent as the arbitrator thinks proper; and
(d) require any witness to answer questions put to
the witness.
15 (2) Nothing in subsection (1) enables an arbitrator to
require a witness to answer a question if the witness --
(a) is excused by section 206(1) from answering
the question; or
(b) has a reasonable excuse (other than on the
20 ground mentioned in section 204(1) or 205) for
refusing to answer the question.
204. Privilege against self-incrimination
(1) A person is not excused from complying with a
requirement under this Part to answer a question,
25 produce a document or other material, or furnish
information, on the ground that the answer, the
production of the document or other material, or the
furnishing of the information, might incriminate the
person or render the person liable to a penalty.
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(2) However neither --
(a) an answer given by that person that was given
to comply with the requirement; nor
(b) the fact that a document or other material
5 produced by the person, or information
furnished by the person, to comply with the
requirement was produced or furnished,
is admissible in evidence in any criminal proceedings
against the person other than proceedings for perjury or
10 for an offence against this Act arising out of the false
or misleading nature of an answer.
205. Legal professional privilege in relation to medical
reports
(1) A legal practitioner is not excused from complying
15 with a requirement under this Part to answer a question
in relation to a medical report or produce a medical
report on the ground that the answer to the question
would disclose, or the report contains, a privileged
communication made by or to the legal practitioner in
20 his capacity as a legal practitioner.
(2) Subsection (1) does not apply in respect of a question
that does not relate directly to the treatment, or nature
or extent of impairment, or assessment of degree of
impairment, of a worker.
25 (3) A medical report may be produced by the legal
practitioner in compliance with a requirement under
this Part with the omission of passages that --
(a) do not relate directly to the treatment, or nature
or extent of impairment, or assessment of
30 degree of impairment, of a worker; and
(b) contain a privileged communication made by or
to the legal practitioner in his capacity as a
legal practitioner.
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206. Other claims of privilege
(1) Unless it would be contrary to section 204 or 205 or an
order under section 193, a person is excused from
answering a question or producing or furnishing a
5 document, material or information in a proceeding if
the person could not be compelled to answer the
question or produce or furnish the document, material
or information in proceedings in the Supreme Court.
(2) An arbitrator may require a person to produce a
10 document or other material to the arbitrator for the
purpose of determining whether or not it is a document
or material that the arbitrator has power to require the
person to produce.
207. Oaths and affirmations
15 An arbitrator may administer an oath or take an
affirmation for the purposes of this Act.
208. Authorising person to take evidence
(1) An arbitrator may authorise, in writing, a person
(whether or not an arbitrator) to take evidence on
20 behalf of the arbitrator for the purposes of any
proceeding.
(2) The arbitrator may authorise evidence to be taken
under this section outside Western Australia.
(3) The arbitrator may give directions as to the taking of
25 evidence under this section.
(4) If a person other than an arbitrator is authorised to take
evidence the person has all the powers of an arbitrator
in relation to the taking of evidence.
(5) Evidence taken under this section is to be regarded as
30 having been given to the arbitrator.
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209. Dealing with things produced
An arbitrator may inspect any document or other
material produced before the arbitrator, and retain it for
as long as the arbitrator reasonably thinks fit, and make
5 copies of any document or any of its contents.
210. Referral of medical dispute for assessment
(1) If permitted by section 145A to do so, an arbitrator
may refer a question as to --
(a) the nature or extent of an injury;
10 (b) whether an injury is permanent or temporary; or
(c) a worker's capacity for work,
for determination by a medical assessment panel.
(2) Without limiting subsection (1), that subsection applies
to --
15 (a) questions as to the permanent or other loss of
the efficient use of any part or faculty of the
body for the purposes of Part III Division 2, or
to the degree of that loss;
(b) questions as to the degree of disability assessed
20 in accordance with section 93D(2);
(c) questions for the purposes of section 31F as to
whether a worker has contracted AIDS.
(3) Subsection (1) does not apply to questions as to --
(a) the permanent or other impairment of the
25 efficient use of any part or faculty of the body
for the purposes of Part III Division 2A, or to
the degree of that impairment;
(b) the degree of permanent whole of person
impairment for the purposes of Part IV
30 Division 2 Subdivision 3;
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(c) the degree of whole of person impairment for
the purposes of Part IXA; or
(d) the degree of permanent whole of person
impairment for the purposes of clause 18A.
5 Division 5 -- Decisions
Subdivision 1 -- General provisions
211. Decisions generally
(1) Subject to this Act, an arbitrator may make such
decisions as the arbitrator thinks fit.
10 (2) Subject to the provisions of Part XII, an arbitrator may
confirm, vary or revoke a direction or order made
under Part XII Division 2 or 3.
212. Conditional and ancillary orders and directions
A power of an arbitrator to make an order or give a
15 direction (the "primary power") includes the power to
make the order subject to conditions and the power to
make any ancillary order or direction the arbitrator
considers appropriate for achieving the purpose for
which the arbitrator may exercise the primary power.
20 213. Form and content of decision and reasons
(1) A decision of an arbitrator is to be given in writing to a
party to a proceeding if --
(a) the DRD Rules state that the decision is to be
given in writing to that party; or
25 (b) within 14 days after the arbitrator makes the
decision, the party requests that the decision be
given in writing.
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(2) An arbitrator's decision in writing is to include
information as to appeal rights that may be available to
the parties under this Act.
(3) The reasons for a decision of an arbitrator are to be
5 given in writing to a party to a proceeding if --
(a) the DRD Rules state that the reasons are to be
given in writing to that party; or
(b) within 14 days after the arbitrator makes the
decision, the party requests that the reasons for
10 the decision be given in writing.
(4) The reasons for an arbitrator's decision --
(a) need only identify the facts that the arbitrator
has accepted in coming to the decision and give
the reasons for doing so;
15 (b) need only identify the law that the arbitrator has
applied in coming to the decision and give the
reasons for doing so;
(c) need not canvass all the evidence given in the
case; and
20 (d) need not canvass all the factual and legal
arguments or issues arising in the case.
(5) A written transcript of the part of the proceeding in
which a decision is given orally or reasons are given
orally is sufficient compliance with the requirement for
25 the decision or reasons to be in writing.
(6) The fact that a decision is, or reasons are, given orally
or in accordance with subsection (4) or (5) is not of
itself a ground for reversing or modifying the decision
on an appeal.
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214. Validity of decision
A failure of an arbitrator to comply with a requirement
of this Subdivision does not affect the validity of a
decision.
5 215. When decision has effect
(1) A decision of an arbitrator comes into effect
immediately after it is given, or at such later time as is
specified in it.
(2) Subsection (1) does not prevent a stay of the effect of
10 the decision from being given under section 250.
216. Correcting mistakes
An arbitrator may correct a decision an arbitrator gives
or a statement of the reasons an arbitrator has given for
the decision to the extent necessary to rectify --
15 (a) a clerical mistake;
(b) an error arising from an accidental slip or
omission;
(c) a material miscalculation of figures or a
material mistake in the description of any
20 person, thing, or matter referred to in the
decision; or
(d) a defect of form.
Subdivision 2 -- Particular orders
217. Order as to total liability
25 (1) This section applies where --
(a) an arbitrator considers that an injury to a
worker that is compensable under this Act has
resulted in the permanent total incapacity for
work of the worker;
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(b) an order for redemption of the liability for the
incapacity has not already been made under
section 67;
(c) no memorandum of agreement for the payment
5 of a lump sum in redemption of the liability for
the incapacity has been recorded under
section 76; and
(d) the total weekly payments by way of
compensation payable under clause 7 for that
10 injury have reached the prescribed amount.
(2) If this section applies, the arbitrator may, subject to this
section, make any order as to the total liability of the
employer for the incapacity that the arbitrator thinks
proper in the circumstances.
15 (3) An arbitrator is not to make an order under
subsection (2) unless the arbitrator considers an order
ought to be made, having regard to the social and
financial circumstances and the reasonable financial
needs of the worker.
20 (4) The total liability of the employer ordered under this
section is not to exceed the lesser of --
(a) an amount equal to 75% of the prescribed
amount; or
(b) weekly payments at the rate to which the
25 worker was entitled at the time when the total
weekly payments for the injury of the worker
reached the prescribed amount --
(i) for the period of the expectation of life
of the worker; or
30 (ii) if section 56 or Schedule 5 clause 2
applies in respect of the incapacity, up
to the date when weekly payments
would cease by reason of age,
whichever is the shorter.
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(5) An arbitrator is to deal with the payment of the final
liability by ordering weekly payments at such rate as
the arbitrator thinks proper in the circumstances,
having regard to the matters referred to in
5 subsection (3), but not at a rate that exceeds the rate to
which the worker was entitled at the time when the
total weekly payments for the injury of the worker
reached the prescribed amount.
(6) In making an order as to final liability under this
10 section an arbitrator may order payment of an amount
for arrears of such weekly payments from the time
when the total weekly payments for the worker's injury
reached the prescribed amount to the date of the order.
218. Order relating to payment of compensation in
15 respect of persons under legal disability or who are
dependants
(1) A question as to the payment of compensation that is
payable to --
(a) a person under a legal disability to give an
20 effective discharge for payment; or
(b) a dependant or dependants of a deceased
worker,
may be determined on application under this Part as a
dispute.
25 (2) An arbitrator may order that compensation that is
payable to a person under a legal disability to give an
effective discharge for payment is to be paid to
WorkCover WA and applied in the manner specified in
the order.
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(3) An arbitrator may order that all or any of the
compensation that is payable to a dependant or
dependants of a deceased worker --
(a) is to be paid to WorkCover WA and applied in
5 the manner specified in the order; or
(b) is to be paid to a dependant or dependants of
the deceased worker as specified in the order.
(4) After it has been ordered under subsection (2) or (3)(a)
that compensation be paid to WorkCover WA, a
10 question as to --
(a) whether the compensation should be applied
differently; or
(b) if the order was under subsection (3)(a),
whether all or any of the compensation should
15 be paid to a dependant or dependants of the
deceased worker,
may be determined on application under this Part as a
dispute.
(5) An arbitrator may make such orders under
20 subsections (1) and (4) as the arbitrator thinks fit.
Subdivision 3 -- Enforcement of decisions
219. Enforcement of decisions
(1) A person to whom money is to be paid under a decision
of an arbitrator may enforce the decision by filing in a
25 court of competent jurisdiction --
(a) a copy of the decision that the Director has
certified to be a true copy; and
(b) an affidavit as to the amount not paid under the
decision.
30 (2) No charge is to be made for filing a copy of a decision
or affidavit under this section.
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(3) On filing, the decision is to be taken to be an order of
that court, and may be enforced accordingly, and
section 142(1) of the Supreme Court Act 1935 applies
to the amount not paid under the decision as if it were
5 payable under a judgment of the court.
Division 6 -- Miscellaneous
220. Evidence not admissible in common law
proceedings
Evidence of a statement made in a proceeding before
10 an arbitrator is not admissible in an action brought by a
worker for damages independently of this Act unless
the person who made the statement agrees to the
evidence being admitted.
221. Payment of compensation awarded
15 A sum awarded as compensation, unless paid into the
custody of WorkCover WA and in the absence of any
order to the contrary, is to be paid to the person to
whom it is payable under any agreement, award, or
order.
20 222. Interest before order for payment
(1) In any proceeding before an arbitrator, the arbitrator
may order that there is to be included, in any sum to be
paid, interest on the whole or any part of the sum for
the whole or any part of the period before the sum is
25 payable.
(2) Interest payable under an order made under
subsection (1) is to be calculated at a rate prescribed by
or determined under the regulations.
(3) This section does not --
30 (a) authorise the giving of interest upon interest; or
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(b) apply in relation to any debt upon which
interest is payable as of right whether by virtue
of any agreement or otherwise.
223. Interest after order for payment
5 (1) Unless an arbitrator orders in any particular case that
interest is not payable, interest is payable on so much
of the amount of any sum ordered to be paid by an
arbitrator as is from time to time unpaid.
(2) Interest payable under subsection (1) in respect of any
10 sum ordered to be paid --
(a) is to be calculated as from the date when the
order was made or from such later date as an
arbitrator in any particular case fixes;
(b) is to be calculated at a rate prescribed by or
15 determined under the regulations; and
(c) forms part of the sum ordered to be paid, but
not so as to require the payment of interest on
interest.
(3) Despite subsections (1) and (2), where an amount
20 ordered to be paid is paid in full within the period
prescribed or determined under the regulations, interest
is not payable on the amount so paid.
224. Interest on agreed payment of lump sum
compensation
25 (1) An arbitrator may order, in accordance with the
regulations, that interest is payable on so much of the
amount of any sum agreed to be paid under this Act as
is from time to time unpaid.
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(2) Interest payable under subsection (1) in respect of any
sum so agreed to be paid --
(a) is to be calculated as from the date provided by
the agreement as the date when the sum is due
5 to be paid or, if the agreement does not so
provide, the date that is 21 days after the date
the agreement was made;
(b) is to be calculated at a rate prescribed by or
determined under the regulations; and
10 (c) forms part of the sum agreed to be paid, but not
so as to require the payment of interest on
interest.
225. Regulations may exclude interest
Interest is not payable under section 222, 223 or 224 in
15 the circumstances prescribed in the regulations.
Part XII -- Interim orders and minor claims
Division 1 -- Preliminary
226. Interpretation
In this Part --
20 "statutory expenses" means a compensation
entitlement under clause 17.
227. Exercise of functions under this Part
(1) Without limiting section 198, an arbitrator may make a
decision under this Part on the basis of --
25 (a) documents and information provided when the
relevant application was made; and
(b) advice given to the arbitrator by an officer of
the DRD.
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(2) An arbitrator is not to conduct a formal hearing under
this Part.
(3) An arbitrator is not required to give reasons in writing
for a decision under this Part.
5 (4) A decision under this Part is not subject to an appeal or
amenable to judicial review.
228. Provisions of Part XI apply
Except where provision to the contrary is made in this
Part or in the DRD Rules, the provisions of Part XI
10 apply to and in relation to proceedings and decisions
under this Part.
229. Arbitrator may direct that matter be dealt with
under Part XI
An arbitrator may direct that a matter under this Part,
15 or a matter referred under section 184 to be dealt with
under this Part, is to be dealt with instead under
Part XI.
230. DRD Rules apply
(1) An application under this Part is to be made in the
20 manner, and is to include the information, prescribed
by the DRD Rules.
(2) The giving of directions and orders under this Part is
subject to the provisions of the DRD Rules relating to
those directions and orders.
25 Division 2 -- Interim payment orders
231. Application for interim payment order
(1) An application for an order as to payment of weekly
payments before liability for those weekly payments is
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otherwise determined under this Act may be made
under this Division by a worker at any time after --
(a) a claim for compensation by way of weekly
payments for total or partial incapacity has been
5 made on an employer in accordance with
section 178(1)(b); and
(b) the worker suffering the injury has served on
the employer a certificate signed by a medical
practitioner --
10 (i) in or to the effect prescribed by the
regulations containing substantially the
information sought in the form; or
(ii) to the effect that the worker is unfit for
work because of a recurrence of an
15 injury in respect of which a certificate
as first referred to has previously been
served.
(2) An application for an order as to payment of statutory
expenses before liability for those expenses is
20 otherwise determined under this Act may be made by a
worker at any time after --
(a) a claim for compensation by way of payment of
statutory entitlements has been made on an
employer in accordance with section 178(1)(b);
25 and
(b) the worker suffering the injury has served on
the employer a certificate in or to the effect
prescribed and signed by a medical practitioner
to the effect that the expenses claimed are
30 expenses incurred by the worker for treatment
or services required in relation to the injury.
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232. Orders for interim weekly payments
(1) Subject to section 234, if --
(a) a period of not less than 21 days has elapsed
since a worker served on the worker's employer
5 the documents referred to in section 231(1); and
(b) the worker has not received the first of the
weekly payments claimed,
an arbitrator may order the employer to pay weekly
payments to the worker.
10 (2) An order under subsection (1) is referred to in this
Division as an "interim payment order".
(3) An arbitrator may make an interim payment order for
weekly payments of compensation on an application
under this Division unless it appears to the arbitrator
15 that --
(a) the claim concerned would have minimal
prospects of success under Part XI;
(b) insufficient medical evidence is available
concerning the nature or period of incapacity of
20 the worker; or
(c) circumstances exist that are prescribed by the
DRD Rules as circumstances in which such an
order is not to be made.
(4) An interim payment order can be made subject to
25 conditions.
(5) A further interim payment order can be made after the
expiry of any earlier order.
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233. Orders for interim payment of statutory expenses
(1) Subject to section 234, if --
(a) a period of not less than 21 days has elapsed
since a worker served on the worker's employer
5 the documents referred to in section 231(2); and
(b) the worker has not received the statutory
expenses claimed,
an arbitrator may order the employer to pay statutory
expenses to the worker.
10 (2) An order under subsection (1) is referred to in this
Division as an "interim payment order".
(3) An arbitrator may make an interim payment order for
statutory expenses unless it appears to the arbitrator
that --
15 (a) the claim concerned would have minimal
prospects of success under Part XI;
(b) insufficient evidence is available as to whether
or not the expenses claimed are reasonable; or
(c) circumstances exist that are prescribed by the
20 DRD Rules as circumstances in which such an
order is not to be made.
(4) An interim payment order can be made subject to
conditions.
(5) A further interim payment order can be made after the
25 expiry of any earlier order.
234. Limits on interim payment orders
(1) An arbitrator is not to order the payment of weekly
payments of compensation for a period that exceeds
12 weeks.
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(2) An arbitrator may order payment of weekly payments
during a period that is before the order is made, but that
period is not to exceed 10 weeks.
(3) An arbitrator is not to make an interim payment order
5 for payment of statutory expenses for an amount that is
more than 5% of the prescribed amount.
235. Effect of interim payment order
(1) The payment of compensation in accordance with an
interim payment order --
10 (a) is not an admission of liability by the person
paying the compensation; and
(b) does not prevent a question of liability from
being heard and determined on an application
under section 58 or otherwise under this Act as
15 if the compensation had not been paid.
(2) Refusal to make an interim payment order is not a
finding as to liability in respect of the matter
concerned.
236. Recovery of payments
20 If an arbitrator subsequently determines that a person is
not liable to pay compensation by way of the weekly
payments or statutory expenses that have been paid in
accordance with an interim payment order, the
following provisions apply --
25 (a) the worker or other person who received that
compensation is not required to refund the
compensation unless the arbitrator otherwise
orders under paragraph (b);
(b) if the arbitrator is satisfied that the claim for
30 compensation was wholly or partly fraudulent
or made without proper justification, the
arbitrator may order the worker or other person
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concerned to refund the whole or a specified
part of the compensation;
(c) the arbitrator may (instead of making an order
for a refund) order any other person whom the
5 arbitrator determines was liable for the whole
or any part of the compensation to reimburse
the person who paid the compensation;
(d) the compensation is to be excluded from any
determinations of the claims experience of the
10 employer for the purposes of calculating the
premium payable by the employer for a policy
of insurance.
237. Revocation of interim payment order
(1) An arbitrator may revoke an interim payment order at
15 any time.
(2) When an interim payment order is revoked the
obligation to pay compensation under the order ceases.
(3) The revocation of an interim payment order does not
affect the requirement to pay the compensation before
20 the revocation.
(4) Revocation of, or refusal to revoke, an interim payment
order is not a finding as to liability in respect of the
matter concerned.
Division 3 -- Interim suspension or reduction orders
25 238. Interim suspension or reduction order
(1) An application for an order suspending or reducing
weekly payments may be made under this Division by
an employer --
(a) at the same time as lodging an application
30 under Part XI in respect of the same matter (the
"Part XI application"); or
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(b) after lodging an application under Part XI in
respect of the same matter (the "Part XI
application") and before that application is
determined.
5 (2) The arbitrator may order that a specified number of
weekly payments are suspended or reduced but is not
to suspend or reduce more than 12 weekly payments.
(3) An order under subsection (2) is referred to in this
Division as an "interim suspension order" or an
10 "interim reduction order", as the case requires.
(4) The arbitrator may make the interim suspension or
reduction order unless it appears to the arbitrator
that --
(a) the Part XI application has minimal prospects
15 of success; or
(b) circumstances exist that are prescribed by the
DRD Rules as circumstances in which such an
order is not to be made.
(5) An interim suspension or reduction order can be made
20 subject to conditions.
(6) A further interim suspension or reduction order can be
made after the expiry of any earlier order.
239. Effect of Part XI determination on the same matter
as a matter determined under this Division
25 (1) If --
(a) an interim suspension order is made under
section 238(2); and
(b) an arbitrator dismisses the Part XI application,
the weekly payments of the worker during the period of
30 suspension are to be paid.
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(2) If --
(a) an interim suspension order is made under
section 238(2); and
(b) on the Part XI application an arbitrator orders
5 that the weekly payments be increased or
reduced,
the weekly payments of the worker during the period of
suspension are to be paid as if the order under Part XI
had effect during that period.
10 (3) If --
(a) an interim reduction order is made under
section 238(2); and
(b) on the Part XI application an arbitrator
dismisses the application or orders that the
15 weekly payments be increased,
the weekly payments of the worker during the period of
reduction are to be paid as if the order under Part XI
had effect during that period.
(4) Nothing in this Division affects the operation of
20 section 71 in relation to a determination under Part XI
of an application in respect of the same matter as an
application that has been dismissed under this Division.
240. Revocation of interim suspension or reduction
order
25 (1) An arbitrator may revoke an interim suspension or
reduction order at any time.
(2) When an interim suspension order is revoked --
(a) the obligation to make weekly payments
recommences from the date on which the
30 suspension is revoked; and
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(b) the worker is to be paid the weekly payments
that were not paid during the period of
suspension unless the arbitrator orders
otherwise.
5 (3) When an interim reduction order is revoked --
(a) the obligation to make weekly payments as if
the interim reduction order had not been made
recommences from the date on which the
interim reduction order is revoked; and
10 (b) the worker is to be paid any amount of weekly
payments to which the worker would have been
entitled if the interim reduction order had not
been made unless the arbitrator orders
otherwise.
15 (4) Revocation of, or refusal to revoke, an interim
suspension or reduction order is not a finding as to
liability in respect of the matter concerned.
Division 4 -- Expedited determination of minor claims
241. Application for determination of minor claim
20 (1) An application for an order as to payment of not more
than 12 weekly payments in respect of a period prior to
the application may be made under this Division by a
worker at any time after --
(a) a claim for compensation by way of weekly
25 payments for total or partial incapacity has been
made on an employer in accordance with
section 178(1)(b); and
(b) the worker suffering the injury has served on
the employer a certificate signed by a medical
30 practitioner --
(i) in or to the effect prescribed by the
regulations containing substantially the
information sought in the form; or
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(ii) to the effect that the worker is unfit for
work because of a recurrence of an
injury in respect of which a certificate
as first referred to has previously been
5 served.
(2) An application for an order as to payment of statutory
expenses not exceeding 5% of the prescribed amount
may be made by a worker at any time after --
(a) a claim for compensation under this Act by way
10 of payment of statutory entitlements has been
made on an employer in accordance with
section 178(1)(b); and
(b) the worker suffering the injury has served on
the employer a certificate in or to the effect
15 prescribed by the regulations and signed by a
medical practitioner to the effect that the
expenses claimed are expenses incurred by the
worker for treatment or services required in
relation to the injury.
20 (3) If --
(a) a period of not less than 21 days has elapsed
since a worker served on the worker's employer
the documents referred to in subsection (1) or
(2), as the case requires;
25 (b) the worker has not received the first of the
weekly payments or the statutory expenses
claimed; and
(c) an arbitrator is satisfied that the worker is
entitled to some or all of the compensation
30 claimed,
the arbitrator may order the employer to pay the
compensation to which it appears to the arbitrator the
worker is entitled.
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(4) An arbitrator may make an order for weekly payments
of compensation unless it appears to the arbitrator
that --
(a) the claim would have minimal prospects of
5 success under Part XI;
(b) insufficient medical evidence is available
concerning the nature or period of incapacity of
the worker; or
(c) circumstances exist that are prescribed by the
10 DRD Rules as circumstances in which such an
order is not to be made.
(5) An arbitrator may make an order for payment of
statutory expenses unless it appears to the arbitrator
that --
15 (a) the claim concerned would have minimal
prospects of success under Part XI;
(b) insufficient evidence is available as to whether
or not the expenses claimed are reasonable; or
(c) circumstances exist that are prescribed by the
20 DRD Rules as circumstances in which such an
order is not to be made.
242. Limits on minor claims orders
(1) An arbitrator is not to order the payment of weekly
payments of compensation for a period that exceeds the
25 period set out in the application.
(2) An arbitrator is not to make an order for payment of
statutory expenses for an amount that exceeds the
amount set out in the application.
243. No recovery of compensation
30 A worker cannot be required to refund compensation
paid to the worker under this Division.
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244. Production of documents
A worker or an employer may make an application
under this Division for an order as to the production of
documents, material or information under section 70 or
5 180 and an arbitrator may make the order accordingly.
Part XIII -- Questions of law and appeals
245. Application of Part XI
(1) Unless the contrary intention appears in this Part --
(a) the provisions of Part XI apply to and in
10 relation to the exercise of jurisdiction of the
Commissioner under this Part as if references in
Part XI to an arbitrator were references to the
Commissioner; and
(b) in the exercise of jurisdiction under this Part the
15 Commissioner has and may exercise or perform
all of the powers, duties, responsibilities,
authorities and jurisdictions of an arbitrator.
(2) A party to a proceeding or a witness appearing before
the Commissioner has the same duties and
20 responsibilities as a party to a proceeding or a witness
appearing before an arbitrator.
(3) A person representing a party in a proceeding before
the Commissioner has the same duties and
responsibilities as a person representing a party in a
25 proceeding before an arbitrator.
246. Reference of question of law to Commissioner
(1) A novel or complex question of law arising in a
proceeding before an arbitrator under Part XI may be
referred by the arbitrator for the determination of the
30 Commissioner.
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(2) A question of law arising in a proceeding before an
arbitrator under Part XI may, with the leave of the
Commissioner, be referred by a party to the proceeding
for the determination of the Commissioner.
5 (3) The Commissioner is not to grant leave unless satisfied
that the question involves a novel or complex question
of law.
(4) The reference of a question of law under this section
may be by stating a case on a question of law.
10 (5) On hearing a matter referred under this section, the
Commissioner has jurisdiction to make such orders as
the Commissioner thinks fit with regard to the matter
and to the costs of and incidental to the hearing and
determination of it.
15 247. Appeal against decision of arbitrator
(1) A party to a dispute may, with the leave of the
Commissioner, appeal to the Commissioner against a
decision in respect of the dispute by an arbitrator under
Part XI.
20 (2) Subject to subsection (3), the Commissioner is not to
grant leave to appeal unless --
(a) in the case of an appeal in which an amount of
compensation is at issue --
(i) a question of law is involved and the
25 amount at issue in the appeal is both --
(I) at least $5 000 or such other
amount as may be prescribed
by the regulations; and
(II) at least 20% of the amount
30 awarded in the decision
appealed against;
or
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(ii) a question of law is involved and, in the
opinion of the Commissioner, the matter
is of such importance that, in the public
interest, an appeal should lie;
5 and
(b) in any other case, a question of law is involved.
(3) The Commissioner may grant leave to appeal from a
decision of an arbitrator on a matter referred under
section 93D(10) if the appeal involves a question of
10 law.
(4) An appeal cannot be made later than 28 days after the
making of the decision appealed against.
(5) An appeal under this section is to be by way of review
of the decision appealed against.
15 (6) Evidence that is fresh evidence or evidence in addition
to or in substitution for the evidence received in
relation to the decision appealed against cannot be
given on an appeal to the Commissioner except with
the leave of the Commissioner.
20 (7) On hearing an appeal made under this section, the
Commissioner may --
(a) affirm, vary, or quash the decision appealed
against, or substitute, and make in addition, any
decision that should have been made in the first
25 instance; and
(b) subject to section 267, make any further or
other decision, as to costs or otherwise, as the
Commissioner thinks fit.
248. Commencing appeal
30 (1) A person appealing to the Commissioner against a
decision of an arbitrator is to do so in accordance with
this Act.
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(2) An appeal commences when the application is accepted
by the Director.
249. Commissioner hearing to be held in public
(1) Unless otherwise provided under this Act, hearings of
5 the Commissioner are to be held in public.
(2) On the application of a party or on its own initiative the
Commissioner may, in the circumstances described in
subsection (3), order that a hearing or any part of it be
held in private.
10 (3) The Commissioner may make an order under
subsection (2) if the Commissioner considers it is
necessary to do so --
(a) to avoid prejudicing the administration of
justice;
15 (b) to avoid endangering the physical or mental
health or safety of any person;
(c) to avoid the publication of confidential
information or information the publication of
which would be contrary to the public interest;
20 or
(d) for any other reason in the interests of justice.
250. Effect of decision against which appeal made
(1) The Commissioner may, by order, stay the operation of
a decision of an arbitrator pending the determination of
25 an application for leave to appeal from the decision and
of any appeal.
(2) Subject to any order made by the Commissioner, an
appeal does not affect the operation of the decision
appealed against or prevent the taking of action to
30 implement the decision.
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251. Commissioner may state case
(1) When a question of law arises before the
Commissioner, the Commissioner may state a case for
the decision of the Full Court of the Supreme Court on
5 that matter.
(2) A case may be stated under this section despite a
decision having been made or given by the
Commissioner.
252. Indemnity as to costs
10 (1) If the Commissioner has stated a case for the decision
of the Full Court of the Supreme Court, the
Commissioner may in the Commissioner's absolute
discretion indemnify any of the parties against the costs
or part of the costs of the proceedings resulting from a
15 case being stated.
(2) Any moneys payable to a party by reason of an
indemnity under subsection (1) when certified by
the Commissioner as payable are to be paid by
WorkCover WA from moneys standing to the credit
20 of the General Fund.
253. Decisions of Commissioner
(1) Except as otherwise provided by this Act a decision of
the Commissioner --
(a) is final and binding on the parties and is not
25 subject to an appeal; and
(b) is not to be vitiated because of any informality
or want of form.
(2) A decision of the Commissioner or anything done
under this Act in the process of coming to a decision of
30 the Commissioner is not amenable to judicial review.
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(3) The Commissioner may reconsider any matter that has
been dealt with by the Commissioner and rescind, alter
or amend any decision previously made or given by the
Commissioner.
5 254. Appeal against decision of Commissioner
(1) A party to a proceeding before the Commissioner may
by leave of the Supreme Court appeal to the Supreme
Court from a decision of the Commissioner in the
proceeding on a question of law.
10 (2) The appeal is to be heard and determined by the Full
Court of the Supreme Court.
(3) The Supreme Court may --
(a) affirm, vary, or set aside the decision of the
Commissioner;
15 (b) make any decision that the Commissioner could
have made in the proceeding; or
(c) send the matter back to the Commissioner for
reconsideration, either with or without the
hearing of further evidence, in accordance with
20 any directions or recommendations that the
Court considers appropriate,
and, in any case, may make any order the Court
considers appropriate.
(4) An appeal, or an application for leave to appeal, is to
25 be made in accordance with the rules of the Supreme
Court and within the period of 28 days after --
(a) the day on which the Commissioner's decision
is given; or
(b) if the Commissioner gives a decision that is not
30 in writing and the party then requests the
Commissioner to give a written decision, the
day on which the written reasons are given.
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(5) If leave is granted, the appeal is to be instituted in
accordance with the rules of the Supreme Court and
within the period of 21 days after the day on which
leave is granted.
5 (6) The Supreme Court may extend a time limit fixed by
this section, and the extension may be given even
though the time limit has passed.
Part XIV -- Offences
255. Failing to comply with decision
10 (1) A person who fails to comply with a decision of a
dispute resolution authority commits an offence.
Penalty: $5 000.
(2) Subsection (1) does not apply if, or to the extent that --
(a) the person is excused by section 206 from
15 complying with that decision;
(b) the person has a reasonable excuse (other than
an excuse mentioned in section 204(1) or 205)
for failing to comply with the decision; or
(c) the decision is an order of the dispute resolution
20 authority requiring the payment of money.
(3) If the dispute resolution authority made the decision
without giving a person an opportunity to be heard,
subsection (1) only applies to that person on the person
being given personally or in accordance with
25 subsection (4) --
(a) a copy of the decision that the Director has
certified to be a true copy; and
(b) a copy of this section.
(4) If a dispute resolution authority is satisfied that it is not
30 possible or appropriate for a person to be personally
given the documents referred to in subsection (3), the
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dispute resolution authority may specify another
method for service of the documents on the person
under that subsection.
256. Failing to comply with summons
5 A person who, without reasonable excuse, fails to
comply with a summons issued by a dispute resolution
authority under this Act commits an offence.
Penalty: $2 000.
257. Failing to give evidence as required
10 A person appearing before a dispute resolution
authority commits an offence if the person --
(a) refuses to swear an oath or make an affirmation
or statutory declaration when required by the
dispute resolution authority to do so; or
15 (b) when required by a dispute resolution authority
to give evidence that the person is competent
and compellable to give, does not do so.
Penalty: $2 000.
258. Giving false or misleading information
20 A person who gives to a dispute resolution authority
information knowing it to be false or misleading in a
material particular commits an offence.
Penalty: $5 000.
259. Misbehaviour and other conduct
25 A person who --
(a) insults, or obstructs or hinders the performance
of the functions of, a dispute resolution
authority;
(b) insults, obstructs or hinders a person attending
30 a hearing before a dispute resolution authority;
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(c) misbehaves at a hearing before a dispute
resolution authority;
(d) interrupts a hearing before a dispute resolution
authority; or
5 (e) obstructs or hinders a person from complying
with an order or direction of a dispute
resolution authority or a summons to attend
before the dispute resolution authority,
commits an offence.
10 Penalty: $2 000.
260. Contempt of Commissioner
(1) If the Commissioner is satisfied that an act or omission
of a person would constitute a contempt of the Court if
a proceeding of the Commissioner were a proceeding
15 in the Supreme Court, the Commissioner may report
that act or omission to the Supreme Court and the
Court has jurisdiction to deal with the matter as if it
were a contempt of that Court.
(2) If --
20 (a) subsection (1) applies to an act or omission by a
person and that act or omission is also an
offence under this Part; and
(b) the person has been dealt with under
subsection (1) for the act or omission,
25 the person is not liable to be punished for the offence
under this Act.
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Part XV -- Costs
Division 1 -- General
261. Terms used in this Part
In this Part --
5 "agent" means a person who acts as agent for a person
in connection with a dispute under this Act;
"agent service" means any service performed by a
person --
(a) in the person's capacity as an agent; and
10 (b) in or for the purposes of a proceeding before
a dispute resolution authority;
"costs" means --
(a) costs of a party (including fees, charges and
disbursements);
15 (b) costs of a proceeding; and
(c) such other costs as may be prescribed by
regulation;
"costs determination" means a determination
published under section 273;
20 "costs of a proceeding" means costs of, or incidental
to, a proceeding of a dispute resolution authority,
other than costs of a party, or costs of the kind
referred to in section 31D(5) and clause 18C(2) in
relation to an approved medical specialist panel;
25 "legal service" means any service performed by a
person --
(a) in the person's capacity as a legal
practitioner; and
(b) in or for the purposes of a proceeding before
30 a dispute resolution authority.
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262. Costs to which this Part applies
(1) This Part applies to and in respect of costs payable on a
party and party basis, on a practitioner and client basis
or on any other basis, unless this Part or a regulation
5 otherwise provides.
(2) The regulations may make provision for or with respect
to excluding any class of matters from any or all of the
provisions of this Part.
263. This Part prevails over Legal Practice Act 2003
10 This Part and any regulations under this Part prevail to
the extent of any inconsistency with the Legal Practice
Act 2003, and in particular Part 13 of that Act.
Division 2 -- Costs of parties in proceedings and costs
of proceedings
15 264. Costs to be determined by dispute resolution
authority
(1) Subject to this Division, costs are in the discretion of
the relevant dispute resolution authority.
(2) A dispute resolution authority may determine by
20 whom, to whom and to what extent costs are to be paid.
(3) A dispute resolution authority may order costs to be
assessed on the basis set out in Part 13 Division 3 of
the Legal Practice Act 2003 (or in relevant regulations
under section 268) or on an indemnity basis.
25 (4) Any party to a proceeding may apply to a dispute
resolution authority for an order as to costs.
(5) A dispute resolution authority is not to order the
payment of costs by a worker unless the dispute
resolution authority is satisfied that the costs relate to
30 an application made by the worker that was frivolous
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or vexatious, fraudulent or made without proper
justification.
(6) If a dispute resolution authority is satisfied that a part
only of the application was frivolous or vexatious,
5 fraudulent or made without proper justification, the
dispute resolution authority may order the worker to
pay the costs relating to that part of the application.
(7) Without limiting section 265, the regulations may
make provision in relation to the making of orders for
10 the payment by a party of the costs of another party so
as to --
(a) promote the early settlement of issues and
disputes by agreement; and
(b) discourage unnecessary delay, excessive
15 attendances and excessive preparation of
documentation.
265. Costs unreasonably incurred by representative
(1) If in any proceeding before a dispute resolution
authority or in any matter under this Act which is
20 resolved by agreement, costs are incurred improperly
or without reasonable cause or are wasted by undue
delay or by any other misconduct or default, of a legal
practitioner or agent representing a party (the
"representative"), a dispute resolution authority may
25 make an order --
(a) disallowing the costs, as between the
representative and the client;
(b) directing the representative to repay the client
costs which the client has been ordered to pay
30 to any other party to the proceeding; and
(c) directing the representative personally to
indemnify any other person than the client
against costs payable by the person
indemnified.
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(2) A dispute resolution authority may by order exempt
any costs or proportion of any costs from the operation
of this section if of the opinion that it would be unjust
not to do so because the representative concerned made
5 all reasonable efforts to avoid unnecessary litigation in
the proceeding or for any other reason should not be
held responsible for the incurring of the costs
concerned.
266. Agent's costs
10 An agent is not entitled to be paid or recover any
amount for an agent service unless the agent is a
registered agent.
267. Appeal costs
Despite section 264 --
15 (a) an order for costs on the ground that an appeal
was successful is not to be made by the
Commissioner against a worker; and
(b) if the appellant is a worker and is unsuccessful
on an appeal, the Commissioner is not to make
20 an order for the payment of the appellant's
costs on the appeal by any other party to the
appeal.
268. Regulations for assessment of costs
(1) If a dispute resolution authority makes an order for the
25 payment of costs and does not fix the amount of costs,
that amount is to be assessed or settled in accordance
with the regulations.
(2) Without limiting subsection (1), the regulations may --
(a) make provision for or with respect to any
30 matter for or in connection with which
provision is made by Part 13 Division 3 of the
Legal Practice Act 2003;
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(b) adopt, with or without modification, any of the
provisions of Part 13 Division 3 of the Legal
Practice Act 2003; and
(c) make provision for or with respect to the
5 assessment of costs by an arbitrator or another
officer of the DRD.
(3) To the extent that regulations under this section make
provision for the costs payable to a legal practitioner,
those regulations displace the provisions of the Legal
10 Practice Act 2003.
Division 3 -- Maximum costs
269. Costs Committee
(1) In this section --
"Legal Costs Committee" means the Legal Costs
15 Committee established under the Legal Practice
Act 2003.
(2) A committee called the Costs Committee is
established.
(3) The Costs Committee is to be constituted by the
20 following members --
(a) a presiding member who is to be a member of
WorkCover WA;
(b) one or more other members of WorkCover
WA; and
25 (c) 2 members of the Legal Costs Committee
nominated by the chairperson of that
Committee.
(4) The members are to be appointed by WorkCover WA.
(5) If the chairperson of the Legal Costs Committee fails to
30 nominate a member under subsection (3)(c) within
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30 days after receiving a written request from
WorkCover WA, WorkCover WA may appoint a
person as a member for the purposes of
subsection (3)(c) in place of a member of the Legal
5 Costs Committee.
270. Constitution and procedure of Costs Committee
(1) Subject to section 269, the constitution and procedure
of, and other matters relating to, the Costs
Committee --
10 (a) may be prescribed by the regulations;
(b) if not prescribed by the regulations, may be as
directed in writing by WorkCover WA.
(2) To the extent that the procedure of the Costs
Committee is not prescribed by the regulations or
15 directed by WorkCover WA, the Costs Committee may
determine its own procedure.
271. Costs determination
(1) The Costs Committee may make a determination --
(a) fixing maximum costs for legal services and
20 agent services;
(b) fixing maximum costs for matters that are not
legal services or agent services but are related
to a claim for compensation (for example,
expenses for witnesses or medical reports).
25 (2) A provision of the determination --
(a) may authorise any matter or thing to be
determined, applied or regulated by a specified
person or body;
(b) may fix a cost or amount by reference to a cost
30 or amount fixed by a legal costs determination
under the Legal Practice Act 2003.
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(3) The power under this section to make a determination
for services or matters includes power to make a
determination that no amount is recoverable for a
particular service or matter or class of services or
5 matters, with the result that a legal practitioner or agent
is not entitled to be paid or recover any amount for the
service or matter concerned.
(4) A costs determination may be amended or revoked by a
subsequent costs determination.
10 272. Consultation
(1) Before making a determination the Costs Committee
may --
(a) publish notice of its intention and consider any
submissions made to it in respect of the
15 proposed determination; and
(b) make such other inquiries as it considers
necessary to facilitate the making of the
determination.
(2) In making a determination the Costs Committee --
20 (a) is not bound by the rules of evidence and may
inform itself as it thinks fit; and
(b) is not required to conduct any proceeding in a
formal manner.
273. Approval and publication of determination
25 (1) The Costs Committee is to report to the Minister --
(a) a determination under section 271; and
(b) the reasons for its decisions in respect of the
determination.
(2) If the Minister approves the determination, the
30 determination is to be published in the Gazette.
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(3) A costs determination takes effect on and from --
(a) the day on which it is published in the Gazette;
or
(b) if a later day is specified in the determination,
5 the later day.
(4) Judicial notice is to be taken of --
(a) a costs determination published in the Gazette;
and
(b) the day of publication of the determination.
10 274. Effect of costs determination
(1) A legal practitioner is not entitled to be paid or recover
for a legal service or other matter an amount that
exceeds any maximum costs fixed for the service or
matter by a costs determination.
15 (2) An agent is not entitled to be paid or recover for an
agent service or other matter an amount that exceeds
any maximum costs fixed for the service or matter by a
costs determination.
(3) This section does not entitle a legal practitioner or
20 agent to recover costs for a legal service or matter that
a dispute resolution authority determines were
unreasonably incurred.
275. Agreement as to costs
(1) An agreement is not to be made for a legal practitioner
25 or agent to receive, for any legal service or agent
service, any greater reward than is provided for in a
costs determination.
(2) An agreement made contrary to this section is void.
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276. Division does not apply to Part IV proceedings
Nothing in this Division affects the operation of
section 87 in relation to an action for damages
independently of this Act.
5 Part XVI -- Registered agents
277. Who may register as an agent
(1) This section applies to the following persons --
(a) an officer of an organisation as defined in the
Industrial Relations Act 1979;
10 (b) an officer of an association of employers or
employees registered under the Workplace
Relations Act 1996 of the Commonwealth;
(c) a person employed by an insurer or self-insurer;
(d) a person (other than a legal practitioner)
15 employed by a legal practitioner or an
incorporated legal practice;
(e) an employee or officer of an organisation
prescribed by the regulations;
(f) a person, or a person in a class of persons,
20 prescribed by the regulations.
(2) A person to whom this section applies may apply for
registration as an agent in accordance with the
regulations.
(3) Regulations are to --
25 (a) provide for a scheme of registration of persons
for the purposes of this section and the
procedure for obtaining registration;
(b) prescribe the circumstances in which, and the
procedures by which, a person may be refused
30 registration, or registered subject to conditions,
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or the registration may be suspended or
cancelled;
(c) provide for applications for review by the State
Administrative Tribunal of decisions refusing,
5 suspending or cancelling registration or
imposing conditions upon registration; and
(d) provide for any other matter necessary or
convenient to be prescribed for the purposes of
this section.
10 (4) A person is not to be registered under this section
unless that person can demonstrate that the person has
professional indemnity insurance, or has sufficient
material resources, of a kind prescribed by the
regulations to provide professional indemnity.
15 Part XVII -- The Dispute Resolution
Directorate
Division 1 -- Establishment and objectives
278. DRD established
A directorate called the Dispute Resolution Directorate
20 is established.
279. Main objectives of the DRD
(1) The main objectives of the DRD are --
(a) to provide a fair and cost effective system for
the resolution of disputes under this Act;
25 (b) to reduce administrative costs across the
workers' compensation system;
(c) to provide a dispute resolution service that --
(i) is timely and ensures that workers'
entitlements are paid promptly;
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(ii) meets user expectations in relation to
accessibility, approachability and
professionalism;
(iii) is effective in settling matters;
5 (iv) leads to durable agreements between the
parties in accordance with this Act;
and
(d) to establish effective communication and
liaison with interested parties concerning the
10 role of the DRD.
(2) In exercising their functions, the Commissioner, the
arbitrators, the Director, and other officers of the DRD
are to have regard to the DRD's objectives.
280. DRD's constitution
15 The following persons constitute the DRD --
(a) the Commissioner;
(b) the Director;
(c) the arbitrators;
(d) other officers of the DRD.
20 Division 2 -- Commissioner
281. Appointment of Commissioner
(1) A person is to be appointed as the Commissioner by
the Governor on the recommendation of the Minister.
(2) A person cannot be the Commissioner unless the
25 person is a Judge of the District Court.
(3) Before recommending a person for appointment as the
Commissioner, the Minister is to consult the Chief
Justice of Western Australia and the Chief Judge of the
District Court.
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282. Terms and conditions of service
Schedule 8 has effect with respect to the tenure,
remuneration and conditions of service of the
Commissioner and other matters provided for in that
5 Schedule.
283. Declaration of inability to act
The Commissioner may declare himself unable to act
in respect of a particular matter by reason of --
(a) an actual or potential conflict of interest; or
10 (b) having to perform other functions under this
Act.
284. Acting appointment
(1) The Governor may appoint a person who is a Judge of
the District Court, or is eligible for appointment as a
15 Judge of the District Court, to act in the office of
Commissioner --
(a) during a vacancy in that office;
(b) during any period or during all periods when
the person holding the office of Commissioner,
20 or a person appointed under this subsection, is
unable to perform the functions of that office or
is absent from the State; or
(c) in relation to any matter in respect of which the
person holding the office of Commissioner, or a
25 person appointed under this subsection, has
under section 283 declared himself unable to
act.
(2) An appointment under this section --
(a) may be made at any time and may be
30 terminated at any time by the Governor; and
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(b) may be expressed to have effect only in the
circumstances specified in the instrument of
appointment.
(3) If a person appointed under this section is a Judge of
5 the District Court, Schedule 8 clause 3 has effect in
relation to the person.
(4) A person acting under this section for the reason
mentioned in subsection (1)(c) may perform functions
of the Commissioner in relation to the matter for which
10 the person is appointed even though the Commissioner
is at the same time performing other functions of the
office.
(5) If a person is acting under this section for the reason
mentioned in subsection (1)(c), a reference to the
15 Commissioner in a provision of this Act that is relevant
to the performance by that person of a function of the
Commissioner in relation to the matter for which that
person is appointed includes a reference to that person.
(6) The validity of anything done by or in relation to a
20 person purporting to act under this section is not to be
called into question on the ground that --
(a) the occasion for an appointment under this
section had not arisen;
(b) there is a defect or irregularity in the
25 appointment;
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen
or had ceased.
285. Functions of Commissioner
30 The Commissioner has the functions conferred under
this Act or any other written law.
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Division 3 -- Arbitrators
286. Arbitrators
(1) Arbitrators are to be officers of WorkCover WA.
(2) A person is not to become an arbitrator without the
5 approval of the Minister.
(3) A person cannot be approved as an arbitrator unless the
person is a legal practitioner.
287. Control and direction of arbitrators
(1) An arbitrator is, in the exercise of his functions, subject
10 to the general control and direction of the Director.
(2) An arbitrator is not subject to direction as to the
decision to be given in a particular matter.
Division 4 -- Director Dispute Resolution and staff
288. Director Dispute Resolution
15 (1) The Director Dispute Resolution is to be an officer of
WorkCover WA.
(2) A person is not to become the Director Dispute
Resolution without the approval of the Minister.
(3) A person is not eligible for approval as the Director
20 Dispute Resolution unless the person is a legal
practitioner.
289. Functions and responsibilities of Director
(1) In addition to the Director's functions under this or any
other written law, the Director has and may exercise all
25 the functions of an arbitrator.
(2) The Director is responsible for the administration of
the DRD and the allocation of work to arbitrators.
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(3) The Director is subject to the general control and
direction of the chief executive officer in relation to the
administration of the DRD.
(4) In matters concerning the resolution of disputes the
5 Director is responsible directly to the Minister.
290. Delegation by Director
(1) The Director may delegate to another officer of the
DRD a power or duty given to the Director under this
Act.
10 (2) The Director is to make the delegation in writing
signed by the Director.
(3) An officer of the DRD to whom a power or duty is
delegated under this section cannot delegate that power
or duty.
15 (4) An officer of the DRD exercising or performing a
power or duty that has been delegated to the person
under this section is taken to do so in accordance with
the terms of the delegation unless the contrary is
shown.
20 (5) Nothing in this section limits the ability of the Director
to perform a function through an officer or agent.
291. Staff of DRD
(1) The chief executive officer is to make officers of
WorkCover WA available to assist, as officers of the
25 DRD under the control of the Director, in the
administration of the DRD and the exercise of the
functions of the DRD.
(2) Otherwise, the services and facilities of WorkCover
WA may be used for the purposes of this Act on such
30 terms as are agreed by the Director and the chief
executive officer.
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Part XVIII -- Regulations, rules and
practice notes
292. Regulations
(1) The Governor may make regulations --
5 (a) prescribing such forms as may be necessary or
expedient for the purposes of this Act;
(b) regulating the operations of the DRD and the
persons who constitute the DRD;
(c) regulating the operations of medical assessment
10 panels, approved medical specialist panels and
specialised retraining assessment panels;
(d) with respect to matters of general or special
application, which may apply to both
employers and workers, for the prevention or
15 minimising of occurrences of injuries in
employment or places of employment in the
State;
(e) providing for the allowances to be paid to
witnesses, and the circumstances in which, and
20 extent to which, they are to be paid from
moneys standing to the credit of the General
Fund;
(f) with respect to the implementation by medical
practitioners who issue more than one
25 certificate to a worker for the purposes of this
Act of the code of practice (injury
management) issued under section 155A(1);
(g) with respect to injury management and related
matters;
30 (h) with respect to specialised retraining programs
and related matters;
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(i) prescribing penalties not exceeding $1 000 for
any non-compliance with or any contravention
of any regulation;
(j) regulating the meetings and proceedings of
5 WorkCover WA's governing body;
(k) prescribing the fees and expenses payable with
respect to establishing and maintaining
registers;
(l) prescribing scales of the maximum amount of
10 commission or brokerage for insurance agents
and brokers in respect of workers'
compensation insurance business;
(m) providing for any matters which by this Act are
required or permitted to be prescribed or which
15 may be necessary or convenient to prescribe
(either generally or in any particular case) for
giving effect to this Act.
(2) The Governor, on the recommendation of WorkCover
WA, may make regulations --
20 (a) fixing scales of fees to be paid to --
(i) medical specialists and other medical
practitioners;
(ii) dentists;
(iii) physiotherapists;
25 (iv) chiropractors;
(v) occupational therapists;
(vi) clinical psychologists;
(vii) speech pathologists; and
(viii) persons providing treatment of a kind
30 approved for the purposes of the
definition of "approved treatment" in
section 5(1),
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for attendance on, and treatment of, workers
suffering injuries that are compensable under
this Act;
(b) fixing scales of fees to be paid to approved
5 vocational rehabilitation providers.
(3) The Governor, on the recommendation of WorkCover
WA, may make regulations fixing scales of the
maximum fees to be paid to approved medical
specialists for making or attempting to make
10 assessments referred to in Part VII Division 2.
(4) WorkCover WA is not to recommend the making of a
regulation under subsection (2) or (3) unless it has first
negotiated with any body it considers has a relevant
interest in the regulation.
15 (5) Without limiting subsection (4), WorkCover WA is not
to recommend the making of a regulation under
subsection (2)(a)(i) unless it has first negotiated with
the Australian Medical Association (WA) incorporated.
(6) A regulation may require any matter or thing to be
20 verified by statutory declaration.
(7) Any regulations made under this section may adopt,
either wholly or in part or with modifications and either
specifically or by reference, any rules, regulations,
codes, instructions or other subordinate legislation
25 made, determined or issued under any other Act or
under any Act of the Commonwealth or the United
Kingdom, or any of the tables, standards, rules, codes
or other specifications of any body specified in the
regulations.
30 293. DRD Rules
(1) The Commissioner may, after consultation with the
Director, make rules of the DRD prescribing all matters
that are required or permitted by this Act to be
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prescribed by the DRD Rules, or are necessary or
convenient to be prescribed by the DRD Rules for
giving effect to the purposes of this Act.
(2) Without limiting subsection (1), DRD Rules may make
5 provision for or with respect to --
(a) the organisation and management of the
business of the DRD;
(b) the practice and procedure governing the
jurisdiction, functions and proceedings of the
10 Commissioner and arbitrators;
(c) limiting the number of medical reports in
connection with a claim or any aspect of a
claim and, in particular, limiting the number of
medical reports that may be admitted in
15 evidence in a proceeding before a dispute
resolution authority;
(d) limiting the number of expert witnesses that
may be called by any party and otherwise
restricting the calling of expert witnesses by a
20 party;
(e) the practice and procedure governing medical
assessment panels, approved medical specialist
panels and specialised retraining assessment
panels; and
25 (f) records of the DRD.
(3) A DRD Rule may require any matter or thing to be
verified by statutory declaration.
(4) DRD Rules --
(a) are rules of court under the Interpretation
30 Act 1984;
(b) must be published in the Gazette;
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(c) take effect from the date of publication or from
any later date or dates that are specified in the
rules; and
(d) must be laid before each House of Parliament
5 within 6 sitting days of the House next
following the publication of the rules.
(5) If either House of Parliament passes a resolution, of
which notice has been given at any time within
6 sitting days after the rules have been laid before it,
10 disallowing the whole or a part of the rules, the rules or
the part of it disallowed ceases to have effect.
(6) If the whole or part of a rule is disallowed, the validity
of any proceedings taken or of anything done under the
rules or the part of it in the meantime is not affected.
15 (7) If such a resolution is passed, notice of the fact must be
published in the Gazette as soon as is practicable.
294. Practice notes
(1) The Commissioner may issue practice notes about --
(a) the practice and procedure of the
20 Commissioner;
(b) the practice and procedure of arbitrators; and
(c) the giving of orders under Part XII.
(2) The Commissioner is to give the Minister a copy of
each practice note the Commissioner issues as soon as
25 practicable after issuing it.
(3) A practice note is not a DRD Rule and does not form
part of the DRD Rules.
".
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131. Section 177A inserted
After section 177 the following section is inserted --
"
177A. Delegation by chief executive officer
5 (1) The chief executive officer may delegate to another
officer of WorkCover WA any power or duty of the
chief executive officer under another provision of this
Act, but not a power or duty that WorkCover WA has
delegated to the chief executive officer under
10 section 101AA.
(2) The delegation must be in writing signed by the chief
executive officer.
(3) A person to whom a power or duty is delegated under
this section cannot delegate that power or duty.
15 (4) A person exercising or performing a power or duty that
has been delegated to the person under this section is to
be taken to do so in accordance with the terms of the
delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of the chief
20 executive officer to perform a function through an
officer or agent.
".
132. Section 180 amended
Section 180(a) is deleted and the following paragraphs are
25 inserted instead --
"
(a) the signature of a person who is, or was the
Commissioner, an arbitrator or the Director;
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(aa) the fact that a person referred to in
paragraph (a) is or was the Commissioner, an
arbitrator or the Director, as the case requires;
".
5 133. Section 180A inserted
After section 180 the following section is inserted --
"
180A. District Court to provide information to
WorkCover WA
10 WorkCover WA may make a written request to the
Registrar of the District Court to provide WorkCover
WA with such information concerning actions to which
Part IV applies as WorkCover WA specifies and the
Registrar of the District Court is to provide that
15 information to WorkCover WA.
".
134. Section 183 amended
Section 183(1) is amended by deleting "Directorate" and
inserting instead --
20 " Director ".
135. Section 184 repealed and sections 184 to 187 inserted instead
Section 184 is repealed and the following sections are inserted
instead --
"
25 184. Protection from liability
(1) This section applies to --