WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 5

WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 5

5 .         Terms used

        (1)         In this Act, unless the contrary intention appears —

        application for conciliation means an application under section 182E;

        approved insurance office means an insurance office approved under section 161;

        approved medical specialist means a person for the 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;

        approved treatment means occupational therapy, clinical psychology, speech therapy and any treatment of a kind approved by the Minister for the purposes of this definition by notice published in the Gazette ;

        approved vocational rehabilitation provider means a person approved under section 156 as a vocational rehabilitation provider;

        arbitration rules means the rules made under section 293B;

        Arbitration Service means the Workers’ Compensation Arbitration Service established under section 182ZO;

        arbitrator means an officer of WorkCover WA designated or engaged under section 182ZQ as an arbitrator;

        Chairman of WorkCover WA means the person appointed to the office of Chairman of WorkCover WA’s governing body and includes a person appointed to act in the place and during the absence of the Chairman while that person is so acting;

        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 officer while that person is so acting;

        chiropractor means a person who is resident in this State and is registered under the Health Practitioner Regulation National Law (Western Australia) in the chiropractic profession;

        clause means —

            (a)         where the term is used in or in respect of a particular Schedule, a clause in that Schedule; and

            (b)         otherwise, a clause of Schedule 1;

        company means a company or a registered body within the meaning of the Corporations Act 2001 of the Commonwealth, other than a registered body specified, or of a kind specified, in the regulations;

        conciliation officer means a person designated or engaged under section 182B as a conciliation officer;

        conciliation rules means the rules made under section 293A;

        Conciliation Service means the Workers’ Compensation Conciliation Service established under section 181;

        contract of insurance includes a cover note;

        decision includes an order, award, direction or determination;

        dentist means —

            (a)         a person who is resident in this State and is registered under the Health Practitioner Regulation National Law (Western Australia) in the dental profession whose name is entered on the Dentists Division of the Register of Dental Practitioners kept under that Law; or

            (b)         a person who is not resident in a State or Territory of the Commonwealth but who is recognised as a dentist for the purposes of this Act by WorkCover WA;

        dependant of a deceased worker has the meaning given in Schedule 1A clause 3;

        Director means the officer of WorkCover WA designated under section 182A as the Director, Conciliation;

        disease includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development;

        dispute resolution authority means the Director, the Registrar, a conciliation officer or an arbitrator;

        District Court means The District Court of Western Australia established under the District Court of Western Australia Act 1969 ;

        Division means a Division of the Part wherein the term is used;

        drug of addiction has the meaning given in the Misuse of Drugs Act 1981 section 3(1);

        earnings includes weekly payments of compensation under this Act;

        employer includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer, and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person;

        the term employer shall extend to any person for or by whom any worker, as defined in paragraph (a) or (b) of the definition of worker , works or is engaged; and

        employer in relation to liability to pay compensation for or in respect of an injury to a worker, means the employer in the relevant employment;

        estimate means the estimate prepared and approved as provided by section 107(1);

        General Account means the Workers’ Compensation and Injury Management General Account established under this Act;

        industrial agreement means an agreement which wholly or partially regulates the terms or conditions of employment;

        industrial award means —

            (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 ; or

            (b)         an industrial agreement as defined in the Industrial Relations Act 1979 ; or

        [(c)         deleted]

            (d)         an award, order, agreement or other instrument —

                  (i)         of a class prescribed by the regulations; and

                  (ii)         under a law of the State or the Commonwealth prescribed by the regulations,

        as the relevant employment requires;

        industrial disease premium means the additional industrial disease premium fixed pursuant to section 151(a)(iii);

        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 instructions; or

            (b)         a disease because of which an injury occurs under section 32 or 33; or

            (c)         a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or

            (d)         the recurrence, aggravation, or acceleration of any pre-existing disease where the 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,

        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 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;

        inspector means a person authorised as an inspector under section 175A(1);

        Insurance Commission of Western Australia means the body continued under that name under the Insurance Commission of Western Australia Act 1986 ;

        medical assessment panel means a medical assessment panel constituted under Part VII Division 1;

        medical practitioner means —

            (a)         a person who is resident in this State and who is registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession; or

            (b)         a person who is not resident in a State or Territory of the Commonwealth but who is recognised as a medical practitioner for the purposes of this Act by WorkCover WA;

        medical report includes a medical opinion;

        mesothelioma means primary malignant neoplasm of the mesothelium (diffuse mesothelioma) of the pleura or the peritoneum;

        mine or mining operation means a mine or mining operation of a class prescribed for the purposes of this definition;

        minimum award rate means the weighted average minimum award rate for adult males under Western Australian State Awards, as published by the Australian Statistician;

        noise induced hearing loss means a noise induced loss or diminution of a worker’s hearing that is permanent and is due to the nature of any employment in which the worker was employed, other than a personal injury by accident;

        participate , in relation to a return to work program established under section 155C(1), means to participate in the program in a cooperative manner including attending appointments as required under the program;

        party to a dispute means the worker, the employer or the insurer of the employer;

        physiotherapist means a person who is resident in this State and is registered under the Health Practitioner Regulation National Law (Western Australia) in the physiotherapy profession;

        prescribed amount has the meaning given in section 5A(1A);

        prohibited person has the meaning given in section 5B;

        registered agent means a person registered under regulations made under section 277;

        Registrar means the officer of WorkCover WA designated under section 182ZP as the Registrar, Arbitration;

        relevant employment means —

            (a)         the employment in which the personal injury by accident occurred; or

            (b)         the last employment, during the period of one year mentioned in section 32 or, in the case of pneumoconiosis, mesothelioma, lung cancer or diffuse pleural fibrosis, the last employment, to the nature of which the Schedule 3 disease is, or was, due; or

            (c)         the employment in the course of which the disease was contracted and which was a contributing factor and contributed to a significant degree; or

            (d)         the employment which contributed and contributed to a significant degree to the recurrence, aggravation, or acceleration of the pre-existing disease; or

            (e)         the last employment, during the period of 3 years mentioned in section 49, to the nature of which the Schedule 4 loss of function is, or was, due,

        as the case requires;

        repealed Act means the Act repealed by section 317;

        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 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 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,

        whether with the employer who employed the worker at the time the injury occurred, or another employer;

        self-insurer means an employer whom, or an employer belonging to a group of employers which, the Governor exempts under section 164 from the obligation to insure pursuant to this Act except for the obligation to insure against liability to pay compensation for any industrial disease of the kinds referred to in section 151(a)(iii);

        ship means any kind of vessel used in navigation by water, however propelled or moved, and includes —

            (a)         a barge, lighter, or other floating vessel; and

            (b)         an air-cushion vehicle, or other similar craft,

        used wholly or primarily in navigation by water;

        specialised retraining assessment panel means a specialised retraining assessment panel constituted 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 tertiary training courses of no longer than 3 years duration;

        specialist means a medical practitioner —

            (a)         who is resident in this State and whose name is contained in a register of specialists kept by the Medical Board of Australia under the Health Practitioner Regulation National Law (Western Australia) section 223; or

            (b)         who is not resident in the State, but who is recognised as a specialist for the purposes of this Act by WorkCover WA;

        State includes Territory;

        tributer means a person who works a mine under an agreement with the lessee or owner of the mine to pay or receive from the lessee or owner a portion of the percentage product taken from the mine;

        Trust Account means the Workers’ Compensation and Injury Management Trust Account established under this Act;

        vocational rehabilitation , in relation to a worker 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;

        weekly payments of compensation , in respect of the prescribed amount, include payments made under clause 10 and weekly payments of the supplementary amount made under Schedule 5 clause 2;

        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;

        worker does not include a person whose employment is of a casual nature and is not for the purpose of the employer’s trade or business, or except as hereinafter provided in this definition a police officer or Aboriginal police liaison officer appointed under the Police Act 1892 ; but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing;

        the term worker , save as hereinbefore provided in this definition, includes a police officer or Aboriginal police liaison officer appointed under the Police Act 1892 , who suffers an injury and dies as a result of that injury;

        the term worker save as aforesaid, also includes —

            (a)         any person to whose service any industrial award or industrial agreement applies; and

            (b)         any person engaged by another person to work for the purpose of the other person’s trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services,

        and any reference to a worker who has suffered an injury shall, where the worker is dead, include a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable.

        [(2)         deleted]

        (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).

        (4)         For purposes of the definition of injury , the matters are as follows —

            (a)         the worker’s dismissal, retrenchment, demotion, discipline, transfer or redeployment; and

            (b)         the worker’s not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and

            (c)         the worker’s expectation of —

                  (i)         a matter; or

                  (ii)         a decision by the employer in relation to a matter,

                referred to in paragraph (a) or (b).

        (5)         In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of injury and relevant employment , the following shall be taken into account —

            (a)         the duration of the employment; and

            (b)         the nature of, and particular tasks involved in, the employment; and

            (c)         the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment; and

            (d)         the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease; and

            (e)         matters affecting the worker’s health generally; and

            (f)         activities of the worker not related to the employment.

        [Section 5 amended: No. 79 of 1983 s. 2; No. 44 of 1985 s. 3; No. 51 of 1986 s. 46(2); No. 85 of 1986 s. 4; No. 86 of 1986 s. 5 and 6; No. 21 of 1987 s. 3; No. 36 of 1988 s. 4; No. 96 of 1990 s. 6; No. 72 of 1992 s. 16(3); No. 48 of 1993 s. 18, 21, 28(1) and 29; No. 62 of 1994 s. 109; No. 45 of 1996 Sch. 1 it. 16; No. 34 of 1999 s. 4 and 32(1); No. 10 of 2001 s. 218; No. 28 of 2003 s. 214; No. 36 of 2004 s. 4; No. 42 of 2004 s. 8, 146, 147, 150 and 154(4); No. 16 of 2005 s. 30(2); No. 31 of 2005 Sch. 3 cl. 8; No. 77 of 2006 Sch. 1 cl. 189(1); No. 22 of 2008 Sch. 3 cl. 54; No. 8 of 2009 s. 139(2) and (3); No. 42 of 2009 s. 25; No. 35 of 2010 s. 164; No. 31 of 2011 s. 25 and 80; No. 47 of 2011 s. 27; No. 13 of 2014 s. 191; No. 50 of 2016 s. 13; No. 8 of 2018 s. 4; No. 31 of 2020 s. 4; No. 9 of 2022 s. 410.]