WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981

Western Australian Consolidated Acts

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WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981

TABLE OF PROVISIONS

Long Title

PART I -- Preliminary

1. Short title
2. Commencement
3. Purposes
4. General application
5. Terms used
5A. Indexation of certain amounts

PART II -- Application of this Act in respect of certain persons and bodies

6. Local governments and other authorities
7. Tributers
8. Baptist clergymen
9. Anglican clergy
10. Other clergymen
10A. Working directors
11. Exclusion of certain persons who are contestants in sporting or athletic activities
11A. Jockeys
12. Compensation not payable in certain cases
13. Continued operation of this Act where compensation previously paid
14. Application to worker in employment of Crown
16. Act to apply as to injury to persons employed on Western Australian ships
17. Crew of fishing vessel

PART III -- Compensation

Division 1 -- Injury: general

18. Liability of employers to workers for injuries
19. Personal injury by accident arising out of or in course of employment
20. Compensation not payable unless worker’s employment connected with this State
21. Compensation from date of incapacity
22. Serious and wilful misconduct
23. Person not to be compensated twice

Division 1a -- Determination by courts and recognition of determination

23A. Term used: court
23B. Determination of State with which worker’s employment is connected in proceedings under this Act
23C. Determination by the District Court of State with which worker’s employment is connected
23D. Recognition of previous determinations
23E. Determination may be made by consent

Division 2 -- Discontinued regime for lump sum payments for specified injuries

24. Compensation for injuries mentioned in Schedule 2
24A. Lump sum compensation for noise induced hearing loss
24B. Election under section 24 or 24A
25. Term used: loss of
26. Subsequent injuries
27. Compensation in accordance with table at date of accident
28. Limit on compensation of worker electing
29. Compensation while incapacity continues
30. Compensation payable before election
31. Schedule 2 Part 1 interpretation

Division 2A -- New regime for lump sum payments for specified injuries

31A. Application of Division
31B. Degree of permanent impairment
31C. Compensation for impairments mentioned in Schedule 2
31D. Schedule 2 impairment assessment
31E. Lump sum compensation for noise induced hearing loss
31F. Lump sum compensation for AIDS
31G. Subsequent injuries
31H. Election under section 31C or 31E
31I. Effect of election
31J. Limit on compensation of worker electing
31K. Compensation payable before election

Division 3 -- Injury: specified industrial diseases

32. Compensation of worker dying from or affected by certain industrial diseases (Schedule 3)
33. Pneumoconiosis, mesothelioma or lung cancer
34. Worker suffering from chronic bronchitis and pneumoconiosis
35. Worker suffering from lung cancer and pneumoconiosis
36. Reference to medical panel
37. Oral submission by medical practitioner
38. Questions for determination by a medical panel
39. Worker disabled by tuberculosis and pneumoconiosis
40. Interpretation of this Division in cases of death without prior incapacity
41. Last employer liable but may join others
42. Relevant earnings
43. Employer to whom notice to be given
44. Disease deemed due to nature of employment
45. Additions to Schedule 3
46. Compensation limited to prescribed amount
47. Certain workers not to benefit
48. Notification of disease

Division 4 -- Injury: specified losses of functions

49. Injury occurs when loss of function renders worker less able to earn full wages
51. Compensation recoverable from last employer
52. How compensation calculated
53. Employer to whom notice given
54. Loss of function deemed due to nature of employment
55. Additions to Schedule 4

Division 5 -- Commencement, review, suspension, and cessation of payments

56. Entitlement to weekly payments ceasing on account of age
57. Saving as to expenses
57A. Claims procedure -- insured employer
57B. Claims procedure -- self-insurer or uninsured employer
57BA. Notices under sections 57A and 57B
57C. Notification to Commission
57D. Confidentiality
58. Arbitrator may determine liability
59. Information as to remunerated work
60. Application for discontinuance or reduction of weekly payments
61. Unlawful discontinuance of weekly payments
62. Review of weekly payments
63. No compensation during suspension
64. Medical examination
65. Periodical medical examination
66. Regulations as to medical examination
66A. Additional medical examinations
67. Lump sum in redemption of weekly payments
68. Calculation of lump sum
69. Worker not residing in the State
70. Furnishing medical reports
71. Recovery of payments
72. Suspension of payments during custody
72A. Suspension or cessation of payments for failure to undergo medical examination
72B. Suspension or cessation of payments for failure to participate in return to work program

Division 6 -- Disputes between employers

73. Worker entitled but dispute between employers
74. Dispute between insurers
74A. Apportionment under sections 73 and
75. Obligation to make weekly payments preserved

Division 7 -- Agreements

76. Registration of memorandum of agreement
77. Registration obligatory
78. Effect of non-registration of agreement

Division 8 -- Other matters affecting compensation

79. Wilful and false representation
80. Effect on annual leave, long service leave and sick leave
81. Effect on public holidays pay
82. Recovery of cost of services rendered
83. Industrial award and partial incapacity
84. Worker not to be prejudiced by resuming work
84AA. Employer to keep position available during worker’s incapacity
84AB. Employer to notify worker and WorkCover WA of intention to dismiss worker

PART IV -- Civil proceedings in addition to or independent of this Act

Division 1 -- General

85. Saving -- motor vehicle cases
86. Saving -- independent liability
87. Costs between solicitor and client in common law actions
91. Where action brought for injury for which compensation is payable under this Act
92. Both damages and compensation not recoverable
93. Remedies against stranger

Division 1a -- Choice of law

93AA. The applicable substantive law for work injury claims
93AB. Claims to which Division applies
93AC. What constitutes injury and employment
93AD. Claim in respect of death included
93AE. Terms used
93AF. Availability of action in another State not relevant

Division 2 -- Constraints on awards of common law damages

Subdivision 1 -- Preliminary provisions

93A. Term used: damages
93B. Application of this Division
93C. Limit on powers of courts

Subdivision 2 -- 1993 scheme

93CA. Term used: AMA Guides
93CB. Limits on application of this Subdivision
93CC. Application of this Subdivision
93D. Assessment of disability
93E. Restrictions on awarding of damages and payment of compensation
93EA. Referring questions with fresh evidence in particular cases
93EB. Referring questions in certain other cases
93EC. Extended time for commencing proceedings
93F. Restrictions on awarding and amount of damages if disability less than 30%
93G. Regulations

Subdivision 3 -- 2004 scheme

93H. Terms used
93I. Application of this Subdivision
93J. No damages for noise induced hearing loss if not an injury
93K. Restrictions on awarding, and amount of, damages
93L. Election to retain right to seek damages
93M. Termination day
93N. Special evaluation if condition has not sufficiently stabilised
93O. Employer to give worker notice of certain things
93P. How election may affect statutory compensation
93Q. Special provisions about HIV and AIDS
93R. Special provisions about specified industrial diseases
93S. Regulations

PART V -- WorkCover Western Australia Authority

Division 1 -- Constitution, purposes, and powers

94. WorkCover Western Australia Authority
95. WorkCover WA’s governing body
96. Term of office
97. Meetings
98. Defects not to invalidate proceedings
99. Conditions of appointment
100. Functions of WorkCover WA
100A. Advisory committees
100B. Disclosure of information
101. Powers
101AA. Delegation by WorkCover WA
101A. Borrowings by WorkCover WA
101B. Guarantees of borrowings
102. Limitation on powers
103A. Returns
104. Publishing and furnishing information

Division 1AA -- Personal interest

104AA. Disclosure of interests
104AB. Exclusion of interested member
104AC. Resolution that section 104AB inapplicable
104AD. Quorum where section 104AB applies
104AE. Minister may declare sections 104AB and 104AD inapplicable

Division 2 -- Accounts and audit

105. Application of Financial Management Act 2006 and Auditor General Act 2006

Division 3 -- Workers’ Compensation and Injury Management General Fund

106. General Account
107. Estimates
108. Total contributions
109. Contributions to General Account by insurers

Division 4 -- Workers’ Compensation and Injury Management Trust Fund

110. Trust Account

Division 5 -- Ministerial control

111. Minister may give directions
111A. Minister to have access to information

PART VII -- Medical assessment and assessment for specialised retraining programs

Division 1 -- Medical assessment panels

145. Exclusion
145A. Questions that have to be referred
145B. Register for panel membership
145C. Panel to be constituted
145D. Procedures
145E. Determinations
145F. Review
145G. Remuneration

Division 2 -- Assessing degree of impairment

146. Terms used
146A. Evaluation of impairment generally
146B. Evaluation for the purposes of Part III Division 2A
146C. Evaluation for purposes of Part IV Division 2 Subdivision 3
146D. Evaluation for the purposes of PART IXA
146E. Evaluation for the purposes of clause 18A
146F. Approved medical specialist
146G. Powers of approved medical specialist
146H. Outcome of assessment
146I. Release of information relevant to assessment
146J. Decisions of approved medical specialist

Division 3 -- Approved medical specialist panels

146K. Panel to be constituted
146L. Procedures
146M. Failure to comply with requirement of approved medical specialist panel
146N. Assessment of impairment by approved medical specialist panel
146O. Outcome of assessment by approved medical specialist panel
146P. No assessment without unanimous agreement
146Q. Remuneration

Division 4 -- WorkCover Guides

146R. WorkCover Guides

Division 5 -- Assessment for specialised retraining programs

146S. Register for panel membership
146T. Panel to be constituted
146U. Procedures
146V. Assessments
146W. Remuneration

PART VIII -- Premium rates

151. Fixing premiums
151A. Report as to rates
152. Loading not to exceed 75% unless permitted by WorkCover WA
153. Fixing maximum loading or discount
153A. Minimum premiums
154. Appeals
154A. Regulations for provision of information
154AB. Special directions by Minister
154AC. Regulations for subsidy from Supplementation Fund

PART IX -- Injury management

155. Terms used
155A. Code of practice (injury management)
155B. Establishment of injury management systems for employer’s workers
155C. Establishment of return to work programs for individual workers
155D. Injury management: insurers’ obligations
156. Approval of vocational rehabilitation providers
156A. Vocational rehabilitation services
156B. Arbitrators’ powers in relation to return to work programs
157. Information about injury management matters
157A. Early identification of injuries that require, or may require, management
157B. Mediation and assistance

PART IXA -- Specialised retraining programs

158. Terms used
158A. Eligibility to participate in specialised retraining programs
158B. Final day for recording agreed matters, referring disputed matters for determination
158C. Disputes as to degree of permanent whole of person impairment
158D. Disputes as to retraining criteria
158E. Specialised retraining program agreements
158F. WorkCover WA to direct payments in relation to specialised retraining programs
158G. Obligations of employers, insurers
158H. 3 monthly reviews of performance, payments under specialised retraining programs
158I. WorkCover WA may direct modification, suspension, cessation of payments under specialised retraining programs
158J. Cessation of payments
158K. Directions not open to challenge etc.
158L. Other effects of participation in specialised retraining program

PART X -- Insurance

Division 1 -- Liability of employers and insurers

160. Employer to obtain insurance
160A. Insurance in respect of working directors
161A. Issue or renewal of policy without approval
161. Approvals
162. The State Government Insurance Commission sole insurer against certain industrial diseases
163. Payment of industrial disease premium and issue of policy
164. Exempt employer
165. Review of exemptions
166. Other cancellations
167. Effect of cessation of exemption
168. Cessation of exemption
169. Forms of policy
170. Failure to insure
171. Insurance offices to furnish certain statements
172. WorkCover WA may provide certain information to insurer and recover premiums
173. Worker’s rights against insurer
174. Payment to worker from General Account
174AA. Recovery from responsible officers of body corporate
174AB. WorkCover WA may exercise rights of employer
174AC. WorkCover WA’s right of subrogation
174A. Insurer may not refuse to indemnify in certain circumstances

Division 2 -- Insurance by principals, contractors, and sub-contractors

175. Principal contractor and sub-contractor deemed employers
175AA. Certain persons deemed workers

Division 3 -- Inspectors

175A. Authorisation
175B. Powers
175C. Interpreters
175D. Offences

PART XA -- Infringement notices and modified penalties

175E. Terms used
175F. Authorised officers
175G. Giving of notice
175H. Content of notice
175I. Extension of time
175J. Withdrawal of notice
175K. Benefit of paying modified penalty
175L. No admission implied by payment
175M. Application of penalties collected

PART XI -- Dispute resolution

Division 1 -- General

176. Exclusive jurisdiction
177. Evidence of communication between worker and injury management officer

Division 2 -- Requirements before commencing proceeding

178. Notice of injury and claim
179. Service of notice of injury
180. Provision of certain documents before commencement of proceeding

Division 3 -- Proceedings before an arbitrator

181. Arbitrators to determine disputes
182. Who is to be given a copy of an application
183. Information exchange between parties
184. Interim assessment and minor claims
185. Arbitrator to attempt conciliation
186. Arbitrator may review decision
187. Decisions of arbitrator

Division 4 -- Practice and procedure

188. Practice and procedure, generally
189. Relief or redress not restricted to claim
190. Directions
191. Dependants
192. Arbitrator may regard illegal contracts of employment as valid
193. Power of arbitrator to require information
194. Arbitrator may provide documents, material and information to other party or medical practitioner
195. Representation
196. Arbitrator may appoint guardian
197. Interpreters and assistants
198. Electronic hearings and proceedings without hearings
199. Hearings to be held in private
200. Notice of hearings
201. Expert or professional assistance
202. Summoning witnesses
203. Powers relating to witnesses
204. Privilege against self-incrimination
205. Legal professional privilege in relation to medical reports
206. Other claims of privilege
207. Oaths and affirmations
208. Authorising person to take evidence
209. Dealing with things produced
210. Referral of medical dispute for assessment

Division 5 -- Decisions

Subdivision 1 -- General provisions

211. Decisions generally
212. Conditional and ancillary orders and directions
213. Form and content of decision and reasons
214. Validity of decision
215. When decision has effect
216. Correcting mistakes

Subdivision 2 -- Particular orders

217. Order as to total liability
218. Order relating to payment of compensation in respect of persons under legal disability or who are dependants

Subdivision 3 -- Enforcement of decisions

219. Enforcement of decisions

Division 6 -- Miscellaneous

220. Evidence not admissible in common law proceedings
221. Payment of compensation awarded
222. Interest before order for payment
223. Interest after order for payment
224. Interest on agreed payment of lump sum compensation
225. Regulations may exclude interest

PART XII -- Interim orders and minor claims

Division 1 -- Preliminary

226. Term used: statutory expenses
227. Exercise of functions under this Part
228. Provisions of Part XI apply
229. Arbitrator may direct that matter be dealt with under Part XI
230. DRD Rules apply

Division 2 -- Interim payment orders

231. Application for interim payment order
232. Orders for interim weekly payments
233. Orders for interim payment of statutory expenses
234. Limits on interim payment orders
235. Effect of interim payment order
236. Recovery of payments
237. Revocation of interim payment order

Division 3 -- Interim suspension or reduction orders

238. Interim suspension or reduction order
239. Effect of PART XI determination on the same matter as a matter determined under this Division
240. Revocation of interim suspension or reduction order

Division 4 -- Expedited determination of minor claims

241. Application for determination of minor claim
242. Limits on minor claims orders
243. No recovery of compensation
244. Production of documents

PART XIII -- Questions of law and appeals

245. Application of Part XI
246. Reference of question of law to Commissioner
247. Appeal against decision of arbitrator
248. Commencing appeal
249. Commissioner hearing to be held in public
250. Effect of decision against which appeal made
251. Commissioner may state case
252. Indemnity as to costs
253. Decisions of Commissioner
254. Appeal against decision of Commissioner

PART XIV -- Offences

255. Failing to comply with decision
256. Failing to comply with summons
257. Failing to give evidence as required
258. Giving false or misleading information
259. Misbehaviour and other conduct
260. Contempt of Commissioner

PART XV -- Costs

Division 1 -- General

261. Terms used
262. Costs to which this Part applies
263. This Part prevails over Legal Profession Act 2008

Division 2 -- Costs of parties in proceedings and costs of proceedings

264. Costs to be determined by dispute resolution authority
265. Costs unreasonably incurred by representative
266. Agent’s costs
267. Appeal costs
268. Regulations for assessment of costs

Division 3 -- Maximum costs

269. Costs Committee
270. Constitution and procedure of Costs Committee
271. Costs determination
272. Consultation
273. Approval and publication of determination
274. Effect of costs determination
275. Agreement as to costs
276. Division does not apply to Part IV proceedings

PART XVI -- Registered agents

277. Registration of agents

PART XVII -- The Dispute Resolution Directorate

Division 1 -- Establishment and objectives

278. DRD established
279. Main objectives of the DRD
280. DRD’s constitution

Division 2 -- Commissioner

281. Appointment of Commissioner
282. Terms and conditions of service
283. Declaration of inability to act
284. Acting appointment
285. Functions of Commissioner

Division 3 -- Arbitrators

286. Arbitrators
287. Control and direction of arbitrators

Division 4 -- Director Dispute Resolution and staff

288. Director Dispute Resolution
289. Functions and responsibilities of Director
290. Delegation by Director
291. Staff of DRD

PART XVIII -- Regulations, rules and practice notes

292. Regulations
293. DRD Rules
294. Practice notes

PART XIX -- Miscellaneous

295. Public Service
296. Delegation by chief executive officer
297. Agreements and receipts under this Act exempt from duty
298. Order for detention of ship
299. Judicial notice
300. District Court to provide information to WorkCover WA
301. Prohibition of contracting out
302. Deductions towards compensation not lawful
303. Payments not assignable
303A. Making employment conditional on avoidance arrangement
304. Protection from liability
305. Immunity
306. Protection for compliance with this Act
307. Proceedings for defamation not to lie
308. Fraud
309. Who can take proceedings for offences
310. Time limit for taking proceedings
311. General penalty
312. Fines
313. Penalties not affected
314. WorkCover WA may specify alternative form of sending information
315. Publication of prescribed amount and average weekly earnings

PART XX -- Repeal, savings, and transitional

316. Terms used
317. Repeal
318. Operation of Interpretation Act 1918
319. No renewal of liability or entitlement
320. Moneys paid under repealed Act taken into account
321. Compensation for injuries mentioned in Schedule 2
322. Child’s allowance
323. Continuation
324. References to the Board, the Supplementary Board or officers
SCHEDULE 1 -- Compensation entitlements
SCHEDULE 2 -- Table of compensation payable
SCHEDULE 3 -- Specified industrial diseases
SCHEDULE 4 -- Specified losses of functions
SCHEDULE 5 -- Exceptions to cessation of weekly payments by reason of age
SCHEDULE 6 -- Adjacent areas
SCHEDULE 7 -- Noise induced hearing loss
SCHEDULE 8 -- Terms and conditions of service of Commissioner
Compilation table

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