WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 174
WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 174
174 . Payment to worker from General Account
(1) Where —
(a)
compensation in accordance with this Act is due by an employer to a worker
(other than a worker in respect of whom refusal of insurance is permitted
pursuant to this Act); and
(b) the
employer is not insured against his liability to pay compensation to the
worker under this Act or the case is one to which section 173(2) applies or
the employer’s insurer declines to indemnify the employer against the
worker’s claim for compensation; and
(c) the
employer does not pay the compensation due within 30 days of the obtaining of
an award by the worker or his representative,
WorkCover WA is,
subject to subsection (5AA), to pay to the worker from moneys standing to the
credit of the General Account the amount required to satisfy the award and any
award for costs in respect thereof.
(1AA) Where —
(a) on
or after the day on which the Workers’ Compensation and Injury
Management Amendment Act 2011 section 113 comes into operation, an action for
damages is brought by a worker against the worker’s employer in respect
of a compensable injury; and
(b)
before that day no claim for compensation under this Act has been made in
respect of the same injury; and
(c) the
action —
(i)
proceeds to judgment, including the acceptance of an
offer to consent to judgment, against the employer and damages are awarded to
the worker against the employer; or
(ii)
is settled by an agreement of the kind described in
section 92(f) made between the worker and WorkCover WA, in the exercise of its
powers under section 174AB(1), under which damages are to be paid to the
worker;
and
(da) the
damages awarded or agreed are, or include, insurable damages; and
(d) the
employer is not insured under this Act against the employer’s liability
to pay the insurable damages to the worker or the case is one to which
section 173(2) applies or the employer’s insurer declines to indemnify
the employer against the worker’s claim for insurable damages; and
(e) the
employer does not pay the damages awarded or agreed within 60 days after the
date payment is due under the judgment or agreement,
Workcover WA is,
subject to subsection (5AA) and section 174AAA, to pay to the worker from
moneys standing to the credit of the General Account the amount required to
satisfy the judgment or agreement to the extent that the judgment or agreement
provides for the payment of insurable damages, and any order against the
employer for costs in respect of the action.
(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 in relation to the payment of that amount.
[(2) deleted]
(3) Where a worker
suffers injury of a kind mentioned in section 32 or 33 and compensation in
accordance with this Act is due by an employer to the worker but —
(a) the
identity of the employer’s insurer, if any, is not known; or
(b) the
employer’s insurer has ceased to operate in Australia,
an order may be made
under Part XI that WorkCover WA pay to the worker from moneys standing to the
credit of the General Account the amount required to satisfy an award of
compensation in accordance with this Act obtained by the worker or the
worker’s representative and any award for costs in respect of the award.
(4) If the identity of
the insurer is ascertained after payment has been made under subsection (3),
WorkCover WA may sue and recover the amount paid from the insurer, to the
extent that its insured may have sued for and recovered that amount under the
policy of insurance.
(5) The payment
mentioned in subsection (3) shall be made to the worker or the worker’s
representative within 30 days of the date of the award.
(5AA) Where WorkCover WA is to make a payment
under subsection (1) or (1AA) to a worker in respect of an injury —
(a) the
amount of that payment is to be reduced by any amount of compensation payable
to the worker by any employer in respect of the injury; and
(b) the
employer paying that compensation has no right under section 92 or 93 to
recovery of, or indemnity for, the compensation from the worker.
(5AB) Nothing in this
section requires WorkCover WA to make any payment to the employer of a worker
or to any person who is deemed by section 175(1) to be the employer of a
worker.
(5a) Despite any other
provisions of this section, if WorkCover WA is satisfied that the reason for
the employer not being insured against liability to pay compensation or
damages to the worker is that the employer believed on reasonable grounds that
the employer could not be liable under this Act in respect of the worker
because under section 20 the worker’s employment was not connected with
this State, the employer is not liable to WorkCover WA for any amount paid by
WorkCover WA under this section.
(6) Where WorkCover WA
has paid from the General Account an amount under subsection (1) or (1AA)
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 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 accordingly.
(9) Where more than
one person is liable as an employer to pay compensation under this 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.
[Section 174 amended: No. 85 of 1986 s. 11; No. 96
of 1990 s. 46; No. 72 of 1992 s. 20; No. 48 of 1993 s. 41; No. 49 of 1996
s. 64; No. 36 of 2004 s. 12 and 18; No. 42 of 2004 s. 126, 147 and 150; No. 16
of 2005 s. 21; No. 77 of 2006 Sch. 1 cl. 189(9); No. 31 of 2011 s. 113; No. 12
of 2012 s. 10.]