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93EA .         Questions as to degree of disability, referral of to Director in some cases due to new evidence

        (1)         Unless it does not apply because of subsection (2), subsection (3) applies if —

            (a)         on or before 30 September 2001, a worker —

                  (i)         sought to refer a question to the Director under section 93D(5); and

                  (ii)         in order to satisfy section 93D(6), produced to the Director anything that, even though it may not have constituted evidence of the kind required by that subsection, was accepted by the Director as evidence of that kind;


            (b)         the Director treated the question as having been referred under section 93D(5), after which, for a reason based on a failure to satisfy the requirements of section 93D(6) for a referral under section 93D(5) —

                  (i)         a review officer did not deal with the substance of the question; or

                  (ii)         a court set aside or quashed a decision of a review officer that dealt with the substance of the question.

        (2)         If the question is whether the worker’s degree of disability is not less than 16%, subsection (3) does not apply unless the production of what was produced as referred to in subsection (1)(a)(ii) and the purported referral of the question both occurred —

            (a)         not less than 21 days before the termination day; or

            (b)         before a day fixed under section 93E(7) by the Director.

        (3)         If this subsection applies, the worker may, within the time limited by subsection (4)(b) and otherwise in accordance with subsection (4), refer to the Director under section 93D(5) the same question as is mentioned in subsection (1)(a)(i), relating to the same injury and only that injury.

        (4)         A question can only be referred under subsection (3) if —

            (a)         the referral is made in writing in a form specified in the regulations stating that the worker is also acting under subsection (3); and

            (b)         the referral is made —

                  (i)         within the period of 3 months commencing after the day on which section 10 of the Workers’ Compensation (Common Law Proceedings) Act 2004 comes into operation  1 (called the commencement day in subparagraph (ii)); or

                  (ii)         if subsection (1)(b)(ii) applies and the decision is set aside or quashed after the commencement day, within the period of 3 months commencing after the day on which the decision is set aside or quashed;


            (c)         when referring the question to the Director, the worker produces to the Director evidence relating to the injury that complies with section 93D(6), or satisfies the Director that complying evidence has already been produced to the Director.

        (5)         If a worker seeks to make a referral under section 93D(5) stating that it is also made under subsection (3) of this section, the Director is required, as soon as practicable, to notify the worker and the employer, in accordance with the regulations —

            (a)         whether or not the Director is of the opinion that evidence complying with section 93D(6) has been produced and in all other respects the referral is properly made; and

            (b)         if the Director —

                  (i)         is of that opinion, that the referral is accepted and section 93E(6a), if relevant, and section 93EC apply;

                  (ii)         is not of that opinion, that the referral sought to be made by the worker is not accepted.

        [Section 93EA inserted by No. 35 of 2004 s. 10; amended by No. 42 of 2004 s. 147.]

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