WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 93E
WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SECT 93E
93E . Constraints on awards and paying compensation
(1) In this section
—
agreed means agreed between the worker and the
employer, whether under section 93D(12) or otherwise;
degree of disability means the degree of
disability of the worker assessed in accordance with section 93D(2);
determined means determined or decided when dealt
with as described in section 93D(10) or (11);
termination day means the day that is 6 months
after the day on which weekly payments commenced.
(2) Weekly payments of
compensation ordered by an arbitrator to commence are to be regarded for the
purposes of this section as commencing or having commenced on —
(a) the
first day of the period in relation to which weekly payments are ordered to be
made; or
(b) the
day that is 5 months (or such shorter period as is prescribed) before the day
on which the order is made,
whichever is later.
(3) Damages can only
be awarded if —
(a) it
is agreed or determined that the degree of disability is not less than 30% and
that agreement or determination is recorded in accordance with the
regulations; or
(b) the
worker has a significant injury and elects, in the prescribed manner, to
retain the right to seek damages and the election is registered in accordance
with the regulations.
(4) For the purposes
of subsection (3)(b) the worker has a significant injury if it is agreed or
determined that the degree of disability is not less than 16% and that
agreement or determination is recorded in accordance with the regulations.
(5) Subject to
subsections (6), (6a), and (7), if weekly payments of compensation in respect
of the injury have commenced an election cannot be made under subsection
(3)(b) after the termination day.
(6) Despite subsection
(5), if —
(a)
medical evidence complying with section 93D(6) was produced to the Director
not less than 21 days before the termination day; and
(b)
although a question of whether the degree of disability is not less than 16%
was referred to the Director under section 93D(5) not less than 21 days before
the termination day, at the end of the seventh day before the termination day
the Director has not given the worker notice in writing that an agreement or
determination of the question has been recorded,
an election can be
made under subsection (3)(b) within 14 days after the Director gives the
worker notice in writing that an agreement or determination of the question
has been recorded.
(6a) Despite
subsection (5) and even though subsection (6) does not apply, if the Director
gives the worker notice under section 93EA(5)(b)(i) or 93EB(5)(b)(i) that this
subsection applies an election can be made under subsection (3)(b) within 14
days after the Director subsequently gives the worker notice in writing that
an agreement or determination of the question has been recorded.
(7) Despite subsection
(5), the Director may, in such circumstances as are set out in regulations,
extend the period within which an election can be made under subsection (3)(b)
until a day (not being a day that is more than 6 months after the termination
day) to be fixed by the Director by notice in writing to the worker.
(8) Subject to
subsections (9) and (11), if an election has been made under subsection (3)(b)
compensation under this Act is not payable in respect of the injury, or any
recurrence, aggravation or acceleration of it, in relation to any period after
the day on which the election is registered or any expenses incurred during
such a period.
(9) Subsection (8)
ceases to apply if, after the election is made, it is agreed or determined
that the degree of disability is 30% or more and that agreement or
determination is recorded in accordance with the regulations.
(10) Subsection (9)
relates only to the degree of the original injury, and any recurrence,
aggravation or acceleration of it is not to be taken into account.
(11) If an agreement
or determination under subsection (9) is recorded, the worker may apply for
any compensation which, but for subsection (8), would have been payable under
this Act in relation to a relevant period or expenses incurred during a
relevant period.
(12) In subsection
(11) —
relevant period means any period —
(a)
which is after the day on which the election is registered and before the
agreement or determination under subsection (9) is recorded; and
(b)
during which the degree of disability is agreed or determined to have been not
less than 30%.
(13) 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.
(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.
[Section 93E inserted: No. 34 of 1999 s. 32(5);
amended: No. 44 of 2000 s. 4; No. 35 of 2004 s. 9; No. 42 of 2004 s. 77, 147
and 149.]