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WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SCHEDULE 5

WORKERS' COMPENSATION AND INJURY MANAGEMENT ACT 1981 - SCHEDULE 5

[s. 56]

1 .         Terms used

        (1)         In this Schedule —

        de facto partner includes a former de facto partner of a worker;

        proclaimed date means the date on which this Schedule comes into operation;

        redemption amount means —

            (a)         the sum of $20 000 varied annually on 1 July, commencing 1 July 1983 and thereafter on the accumulative sum in accordance with such percentage change in the weighted average minimum award rate for adult males under the Western Australian State Awards published by the Australian Bureau of Statistics as occurs between 1 April in the calendar year preceding the variation and 31 March in the calendar year of the variation, or if the relevant minimum award rates are not published, the accumulative sum (in the form of the nearest whole number of dollars) obtained by varying the accumulative sum applying on the previous 1 July in accordance with the regulations (with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars); or

            (b)         a sum equivalent to the prescribed amount less the amount of weekly payments made,

        whichever is the less;

        spouse includes a former spouse of a worker;

        supplementary amount means —

            (a)         in relation to a worker with a dependent spouse or dependent de facto partner, or both, the sum of $34.50;

            (b)         in relation to a worker without a dependent spouse or dependent de facto partner, the sum of $20,

        or such higher amounts as are respectively prescribed.

        (2)         Schedule 1 shall be read and construed subject to this Schedule.

        [Clause 1 amended: No. 34 of 1999 s. 55(1); No. 28 of 2003 s. 216(1); No. 8 of 2018 s. 12(1).]

1A .         Successive lung diseases to be regarded as one

                If a worker, at the same time or successively, suffers more than one of the injuries of pneumoconiosis, mesothelioma, or lung cancer, they are to be regarded for the purposes of this Schedule as the same injury, being the injury for which the worker has claimed compensation under this Act, or as a progression of that injury.

        [Clause 1A inserted: No. 34 of 1999 s. 55(2); amended: No. 42 of 2004 s. 147 and 148(1).]

2 .         Worker who would have worked after age 65

                Where the worker shows to the satisfaction of the employer or, in the case of dispute, an arbitrator that, if incapacity resulting from the injury had not occurred, he would have continued to be a worker after attaining the age of 65, he shall be entitled to the supplementary amount as a weekly payment during any period of total incapacity resulting from the injury in the time he would have been a worker, but in any case —

            (a)         not beyond the time when he attains the age of 70 years; and

            (b)         subject to Schedule 1 clause 7(3).

        [Clause 2 amended: No. 96 of 1990 s. 49(a); No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 147 and 149.]

3 .         Incapacity for work resulting from pneumoconiosis, mesothelioma and lung cancer, weekly payments for

        (1)         This clause shall be read and construed subject to the qualifications on entitlement in sections 33 and 34 and subject to sections 46 and 47.

        (2)         In this clause weekly payments means weekly payments of compensation calculated and varied in accordance with Schedule 1.

        (2a)         Subclauses (3) to (7) apply only to the injuries of pneumoconiosis and mesothelioma.

        (3)         Subject to the provisions of this Schedule and to Schedule 1 clause 7(3), where a worker aged 65 or more on the proclaimed date had suffered one of those injuries before that date and, immediately before then, he was entitled to weekly payments of compensation for any incapacity resulting from that injury under the repealed Act, in respect of any incapacity resulting from that injury on or after the proclaimed date he is entitled to receive weekly payments.

        (4)         Subject to the provisions of this Schedule and Schedule 1 clause 7(3), where a worker who attains or has attained the age of 65 after the proclaimed date has or had suffered one of those injuries before attaining that age and, immediately before attaining that age, he was entitled to weekly payments for any incapacity resulting from that injury, in respect of any incapacity resulting from that injury on or after the day he attains or attained that age he is entitled to receive weekly payments.

        (5)         Subject to the provisions of this Schedule, where a worker attains or has attained the age of 65 after the proclaimed date and one of those injuries of the worker occurs or has occurred on or after his attaining that age, in respect of any incapacity arising from that injury he is entitled to receive weekly payments.

        (6)         Subject to the provisions of this Schedule, where a worker was aged 65 or more on the proclaimed date and one of those injuries of the worker occurs on or after the day on which the Workers’ Compensation and Assistance Amendment Act 1984 comes into operation, in respect of any incapacity arising from that injury he is entitled to receive weekly payments.

        (7)         Subject to the provisions of this Schedule, where a worker aged 65 or more on the proclaimed date suffers from one of those injuries and the injury occurred on or after the proclaimed date but before the coming into operation of the Workers’ Compensation and Assistance Amendment Act 1984 , in respect of any incapacity resulting from that injury he is entitled to receive —

            (a)         a lump sum payment equivalent to the value of weekly payments he would have received prior to the coming into operation of the Workers’ Compensation and Assistance Amendment Act 1984 if he had been entitled to receive such weekly payments from the time the injury occurred but so that such lump sum payment shall not exceed the aggregate of 52 such weekly payments; and

            (b)         weekly payments, if and to the extent that the total sum of weekly payments received, together with the lump sum payment received pursuant to paragraph (a), does not exceed the aggregate of 52 such weekly payments.

        (8)         Subject to the provisions of this Schedule and Schedule 1 clause 7(3) —

            (a)         where a worker aged 65 or more on the relevant day had suffered the injury of lung cancer before that day and, immediately before then, he was entitled to weekly payments of compensation for any incapacity resulting from that injury, in respect of any incapacity resulting from that injury on or after the relevant day he is entitled to receive weekly payments; and

            (b)         where a worker who attains or has attained the age of 65 after the relevant day has or had suffered the injury of lung cancer before attaining that age and, immediately before attaining that age, he was entitled to weekly payments for any incapacity resulting from that injury, in respect of any incapacity resulting from that injury on or after the day he attains or attained that age he is entitled to receive weekly payments; and

            (c)         where a worker who attains or has attained the age of 65 after the relevant day suffers or has suffered the injury of lung cancer on or after attaining that age, in respect of any incapacity arising from that injury he is entitled to receive weekly payments; and

            (d)         where a worker who was aged 65 or more on the relevant day suffers the injury of lung cancer on or after the relevant day, in respect of any incapacity arising from that injury he is entitled to receive weekly payments; and

            (e)         where a worker would be entitled to receive weekly payments under paragraph (a), (b), (c) or (d) if the references in those paragraphs to “relevant day” were references to 28 June 1985, he is entitled to receive —

                  (i)         a lump sum payment equivalent to the value of the weekly payments he would have received up until the “relevant day” but so that such lump sum payment shall not exceed the aggregate of 52 such weekly payments; and

                  (ii)         weekly payments, if and to the extent that the total sum of weekly payments received, together with the lump sum payment received pursuant to subparagraph (i), does not exceed the aggregate of 52 such weekly payments,

                and for the purposes of this subclause, the relevant day means the day of the commencement of section 49 of the Workers’ Compensation and Assistance Amendment Act 1990 .

        [Clause 3 inserted: No. 104 of 1984 s. 8; amended: No. 96 of 1990 s. 49(b); No. 42 of 2004 s. 147 and 148(1).]

4 .         Worker entitled under cl. 3 may elect to take redemption amount as lump sum or to get supplementary amount weekly

                A worker entitled to receive weekly payments of compensation under clause 3 may elect during his lifetime and while he is so entitled and —

            (a)         where he receives payments under clause 3(3), within 3 months of the coming into operation of the Workers’ Compensation and Assistance Amendment Act 1984 ; or

            (b)         where he receives payments under clause 3(4), within the period ending on the date that is —

                  (i)         3 months after the coming into operation of the Workers’ Compensation and Assistance Amendment Act 1984 ; or

                  (ii)         one year after he becomes or became entitled to receive payments,

                whichever date is the later; or

            (c)         where he receives payments under clause 3(5) —

                  (i)         if, at the coming into operation of the Workers’ Compensation and Assistance Amendment Act 1984 , he has received such payments for a period of not less than one year, within 3 months of the coming into operation of that Act; or

                  (ii)         in any other case, within the period of one year from the time when he became or becomes entitled to receive weekly payments;

                or

            (d)         where he receives weekly payments under clause 3(6) or clause 3(8)(a), (b), (c) or (d), within the period of one year from the time when he becomes entitled to receive those payments; or

            (e)         where he receives —

                  (i)         only a lump sum payment under clause 3(7) or 3(8)(e), at the time of receiving that lump sum payment; or

                  (ii)         a lump sum payment and weekly payments under clause 3(7) or 3(8)(e), before receiving the aggregate of 52 weekly payments,

                to receive the redemption amount as a lump sum or to receive the supplementary amount weekly during his lifetime from the date he so elects and the employer shall be liable to pay compensation accordingly and not in accordance with clause 3.

        [Clause 4 inserted: No. 104 of 1984 s. 8; amended: No. 96 of 1990 s. 49(c).]

5 .         Requirements for election under cl. 4

        (1)         A worker elects for the purposes of clause 4 if, and only if —

            (a)         the worker signs a prescribed form of election containing prescribed particulars in respect of the relevant injury; and

            (b)         that form is filed with the Director, and a copy of it is served on the employer, by or on behalf of the worker.

        (2)         A form of election shall not be binding upon a worker unless the Director is satisfied that it contains a statement in clear terms of the effect the election will have on the worker’s, and the worker’s dependants’, future entitlement to compensation under this Act.

        (3)         Where the Director is not satisfied in accordance with subclause (2), he shall within 7 days notify the employer and the worker accordingly.

        [Clause 5 inserted: No. 104 of 1984 s. 8; amended: No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 143(1) and 147.]

6 .         Effect of receiving the redemption amount as a lump sum

                From the date a worker receives the redemption amount as a lump sum —

            (a)         section 67 does not apply; and

            (b)         for the injury from which the incapacity resulted —

                  (i)         the worker is not entitled to further compensation; and

                  (ii)         clauses 9, 10, 17, 18, 18A and 19 of Schedule 1 cease to apply to the worker;

                and

            (c)         Schedule 1A does not apply in respect of the worker’s death.

        [Clause 6 inserted: No. 104 of 1984 s. 8; amended: No. 42 of 2004 s. 143(2) and 147; No. 8 of 2018 s. 12(2).]

7 .         Effect of receiving supplementary amount weekly

                From the date a worker commences to receive a supplementary amount weekly —

            (a)         section 67 does not apply; and

            (b)         if his death results from the injury and a dependent spouse or dependent de facto partner, survives him —

                  (i)         the employer is liable to pay into the custody of WorkCover WA for the benefit of the spouse or de facto partner, as a lump sum the aggregate of the supplementary amount for a worker with a dependent spouse or dependent de facto partner at the rate applicable at the date of death for a period of 3 years, and after the amount is so paid there shall be liberty to apply to WorkCover WA by or on behalf of the dependent spouse or dependent de facto partner in respect of the manner in which that amount or any part of it is applied and that dependant is entitled to receive that lump sum; and

                  (ii)         if application is made to WorkCover WA under subparagraph (i) by or on behalf of more than one such dependant, the lump sum referred to in that subparagraph is to be apportioned between the dependants according to the respective financial losses of support suffered by them, which apportionment is to be determined by an arbitrator, and those dependants are entitled to receive that lump sum as so apportioned; and

                  (iii)         the dependent spouse or dependent de facto partner is also entitled to receive, and the employer is liable to pay weekly, from the date of the worker’s death and during the lifetime of the dependent spouse or dependent de facto partner, the supplementary amount at the rate for a worker without a dependent spouse or dependent de facto partner, and where there is more than one such dependant, the amount is to be apportioned between them according to the respective financial losses of support suffered by them, which apportionment is to be determined by an arbitrator;

                and

            (c)         Schedule 1A does not apply in respect of the worker’s death.

        [Clause 7 inserted: No. 104 of 1984 s. 8; amended: No. 28 of 2003 s. 216(2); No. 42 of 2004 s. 147, 149 and 150; No. 8 of 2018 s. 12(3).]

8 .         Payment of supplementary amount weekly

        (1)         An employer is not liable to pay compensation in accordance with clause 3 to a worker who does not make an election within the time specified in clause 4 but is liable to pay that worker the supplementary amount weekly during his lifetime from the last day on which the worker was entitled to make an election.

        (2)         A worker who —

            (a)         receives a lump sum payment under clause 3(7)(a) or 3(8)(e)(i); and

            (b)         is not entitled to receive weekly payments under clause 3(7)(b) or 3(8)(e)(ii); and

            (c)         does not elect to take the redemption amount as a lump sum at the time of receiving the payment referred to in paragraph (a),

                is entitled to receive a further lump sum payment equivalent to the value of the supplementary amounts weekly he would have been entitled to receive during the period commencing one year after his injury occurred and ending on the day on which he is entitled to make an election under clause 4(e)(i) and thereafter he is entitled to receive the supplementary amount weekly during his lifetime.

        [Clause 8 inserted: No. 104 of 1984 s. 8; amended: No. 96 of 1990 s. 49(d); No. 42 of 2004 s. 147.]

9 .         Death of a worker before 8 Mar 1991 — dependent spouse’s entitlements

        (1)         Where a worker who died prior to the commencement of section 49 of the Workers’ Compensation and Assistance Amendment Act 1990 would otherwise have been entitled to compensation or other benefits, or both, under clause 3(8)(e), 4(e) or 8(2) in respect of incapacity resulting from the injury of lung cancer is survived by a dependent spouse, that spouse is entitled to receive any compensation or other benefits, and the employer is liable to pay the compensation or to pay for the provision of the other benefits, that the worker would have received or been entitled to receive up until the time of his death.

        (2)         The payment of a supplementary amount weekly to a dependent spouse instead of to a worker under subclause (1) does not act to stop clause 7(b) applying to that dependent spouse.

        [Clause 9 inserted: No. 96 of 1990 s. 49(e); amended: No. 42 of 2004 s. 147.]