Accident Compensation Legislation (Amendment) Act 2004 (Vic)
Accident Compensation Legislation (Amendment) Act 2004
Act No. 102/2004
table of provisions
Section Page
Part 1—Preliminary
1.Purpose
2.Commencement
Part 2—Accident Compensation Act 1985
Division 1—Common Law Provisions
3.Amendment of section 39—Jurisdiction—general
4.Amendment of section 104B consequent on changes to section 134AB
5.Amendment of section 104B—Impairment process
6.Amendment of section 134AB—Access to common law
7.Amendment to section 134AB consequential on amendments made by section 6
8.Amendment of section 134AB—Actions for damages
9.New section 134ABA inserted—Calculation of limitation of actions period
134ABA.Calculation of limitation of actions period
10.Amendment of section 134AF—Directions
11.Amendment of section 135A—Actions for damages
12.New Division 9A inserted—Actions by terminally ill workers
Division 9A—Actions by terminally ill workers
135BA.Actions by terminally ill workers
13.Amendment of section 39—consequential on amendment
made by section 12
Division 2—Compensation Provisions
14.Amendment of section 92A—Revised compensation for death
of worker15.Amendment of section 89—Further loss of hearing
16.Amendment of section 91—Assessment of impairment
17.Consequential amendments
18.Amendment of section 98C—Compensation for non‑economic loss
19.New section 119IA—Circumstances in which offer may be withdrawn or settlement avoided
119IA.Circumstances in which offer may be withdrawn or settlement avoided
Division 3—General Amendments
20.Amendment of section 93C—Grandfather provision
21.Amendment of section 93CB—After the first entitlement period and until the expiry of the second entitlement period
22.Amendment of section 93DA—Notional earnings
23.Amendment of section 93E—Injury after retirement
24.Occupational rehabilitation services
25.Amendment of section 102—Notice of injury
26.Time to forward claims
27.Amendment of section 107—Provision of information to claimant
28.New section 107A inserted—General right of access to information under this Act
107A.General right of access to information under this Act
29.Amendments consequential to amendments made by sections 27 and 28
30.Amendment of section 112—Medical examinations
31.Consequential amendments
32.Amendment of section 239—Power to obtain information and evidence
33.Amendment of section 239A—Certificate
34.New section 239AA inserted—Levy
239AA.Levy
35.Repeal of levy provisions
36.Amendment of section 249—False information
37.Repeal of unproclaimed amendment
Division 4—Upgrade of references to indexed amounts
38.Amendments to sections 5A, 92A, 92B, 93A, 93B, 93CA,
93CB, 93CC, 93CD and 98C39.Amendments to section 98E
40.Amendments to sections 98E, 99, 125, 125A, 129B, 134AB, 135A and 135C
41.New Division 4 inserted into Part IX
Division 4—Accident Compensation Legislation (Amendment) Act 2004
270.Sections 5(1), 88, 89, 91 and 98C—(claims for compensation for further loss of hearing)
271.Section 39 (Jurisdiction—general)
272.Section 92A (Revised compensation for death of
worker)273.Section 93C (Grandfather provision)
274.Section 93CB (After the first entitlement period and
until the expiry of the second entitlement period)275.Section 93E (Injury after retirement)
276.Section 99—occupational rehabilitation services
277.Section 102 (Notice of injury)
278.Sections 103, 106, 108 and 109—(forwarding of
claims for weekly payments)279.Section 104B (Claims for compensation under
section 98C)280.Section 119IA (Circumstances in which offer may be withdrawn or settlement avoided)
281.Section 134AB (Actions for damages)
282.Section 135A (Actions for damages)
283.Section 135BA (Actions by terminally ill workers)
Part 3—Accident Compensation (WorkCover Insurance) Act 1993
42.Amendment of section 8—Rateable remuneration
43.Amendment of section 22A—Application for refund of
premium44.New section 22B inserted—What happens if Authority refuses
or fails to determine an application for a refund or fails to make
a refund?22B.What happens if Authority refuses or fails to determine an application for a refund or fails to make a refund?
45.Section 26 amended—Payment of premiums
Part 4—Workers Compensation Act 1958
46.Amendment of clause 1 of section 9—Upgrade of references to indexed amounts
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EndnoteS
Accident Compensation Legislation (Amendment) Act 2004
[Assented to 21 December 2004]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purpose
The purpose of this Act is to—
(a)amend the Accident Compensation Act 1985 to—
(i)streamline processes enabling seriously injured and terminally ill workers access to common law to ensure they receive their current level of compensation without unnecessary delays;
(ii)amend the provisions relating to compensation for hearing loss;
(iii)ensure that workers injured over the age of 63 are not unduly discriminated against in their entitlements to weekly payments;
(iv)make further improvements to the return to work aspects of the WorkCover scheme;
(v)provide injured workers with a general right of access to information relating to their claim under the Act;
(vi)improve the administrative efficiency of the WorkCover scheme in general;
(b)amend the Accident Compensation (WorkCover Insurance) Act 1993 to improve the administrative efficiency of the premium collection system;
(c)amend the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993 and the Workers Compensation Act 1958 to upgrade references to indexed amounts.
2.Commencement
(1)This Act, other than sections 5, 15 to 18, 21, 23 to 31 and 45, comes into operation on the day on which it receives the Royal Assent.
(2)Sections 5, 15 to 18 and 23 are deemed to have come into operation on 18 November 2004.
(3)Sections 21, 24 to 31 and 45 come into operation on a day or days to be proclaimed.
(4)If a provision referred to in sub-section (3) does not come into operation before 1 July 2005, it comes into operation on that day.
__________________
Part 2—Accident Compensation Act 1985
Division 1—Common Law Provisions
3.Amendment of section 39—Jurisdiction—general
In section 39(1A) of the Accident Compensation Act 1985 for "section 135A(6A) or 134AB(20)" substitute "section 134AB(20), 134AB(20A), 135A(6A) or 135A(6B)".
4.Amendment of section 104B consequent on changes to section 134AB
After section 104B(1B) of the Accident Compensation Act 1985 insert—
"(1BA)If a worker has commenced an application under section 134AB(4)(b), the worker can not make a claim for compensation under section 98C until the proceedings under section 134AB in respect of that application have been finally determined.".
5.Amendment of section 104B—Impairment process
(1)After section 104B(1C) of the Accident Compensation Act 1985 insert—
"(1D)The Authority or self-insurer may within 90 days of receiving a claim for compensation under section 98C or 98E by notice in writing to the worker suspend the claim for compensation if—
(a)the Authority or self-insurer has insufficient medical information to determine the matters specified in sub-section (2); or
(b)the Authority or self-insurer can not make a determination under sub-section (2) because the condition of the injury of the worker is not stable.
(1E)The Authority or self-insurer must within 14 days—
(a)if sub-section (1D)(a) applies, of having sufficient medical information to determine the matters specified in sub-section (2); or
(b)if sub-section (1D)(b) applies, of being able to make a determination under sub-section (2) because the condition of the injury of the worker has stabilised—
by notice in writing to the worker remove the suspension under sub-section (1D).".
(2)For section 104B(2) of the Accident Compensation Act 1985 substitute—
"(2)The Authority or self-insurer must within 120 days of receiving the claim—
(a)accept or reject liability for each injury included in the claim;
(b)obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;
(c)after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i)section 98C;
(ii)section 134AB;
(iii)Subdivision 1 of Division 3A;
(d)determine whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1);
(e)calculate any entitlement to compensation under section 98C or 98E;
(f)advise the worker as to—
(i)the decision to accept or reject liability for each injury included in the claim;
(ii)each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) resulting from the injury or injuries in respect of which liability is accepted;
(iii)the calculation of any entitlement to compensation under section 98C or 98E;
(iv)the consequences as specified in sub-section (11A);
(g)provide to the worker a copy of—
(i)any medical reports, correspondence and other documents provided to; and
(ii)any medical reports, correspondence and other documents obtained from—
any medical practitioner referred to in section 91(1)(b) conducting an independent examination.
(2A)The Authority or self-insurer is not bound by the assessment or assessments obtained under sub-section (2)(b) in determining the degree of permanent impairment (if any) under sub-section (2)(c).".
(3)In section 104B(3) of the Accident Compensation Act 1985 after "liability in relation to the" insert "injuries included in the".
(4)For section 104B(4) of the Accident Compensation Act 1985 substitute—
"(4)The worker must at the request of the Authority or self-insurer attend an independent examination to be conducted by a medical practitioner referred to in section 91(1)(b) for the purposes of this section.".
(5)For section 104B(5) of the Accident Compensation Act 1985 substitute—
"(5)The Authority or self-insurer must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of—
(a)determining any entitlement of the worker to compensation under section 98C;
(b)determining the whole person impairment under sections 134AB(3) and 134AB(15);
(c)Subdivision 1 of Division 3A.".
(6)For sections 104B(5A) and 104B(5B) of the Accident Compensation Act 1985 substitute—
"(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.
(5AA)A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.
(5B)A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.".
(7)In section 104B of the Accident Compensation Act 1985—
(a)in sub-section (5E) for "assessments" substitute "determination of impairment";
(b)in sub-section (5F)—
(i)for "injury" substitute "event or circumstance";
(ii)for "assessments of" substitute "determination of impairment resulting from".
(8)For sections 104B(6) and 104B(7) of the Accident Compensation Act 1985 substitute—
"(6)The worker must within 60 days of being advised under sub-section (2) advise the Authority or self-insurer in writing whether the worker accepts or disputes the decision as to liability in respect of each of the injuries claimed.
(6A)If under sub-section (6) a worker disputes any part of the decision as to liability, the worker does not have to respond to any other part of the advice under sub-section (2).
(6B)If under sub-section (6) the worker accepts the decision as to liability, the worker must within 60 days of being advised under sub-section (2) advise the Authority or self-insurer in writing—
(a)whether the worker accepts or disputes the determinations of impairment and total loss;
(b)if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any;
(c)if the worker accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which he or she is entitled.
(7)If the decision made under sub-section (2)(a) to reject liability for an injury is varied as the result of a decision of a court or an agreement between the worker and the Authority or self-insurer, the Authority or self-insurer must within 90 days of the variation—
(a)obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted or determined;
(b)after taking into account the assessment or assessments obtained under paragraph (a), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—
(i)section 98C;
(ii)section 134AB;
(iii)Subdivision 1 of Division 3A;
(c)determine whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1);
(d)calculate any entitlement to compensation under section 98C or 98E;
(e)advise the worker as to—
(i)the decision or determination of liability for each injury included in the claim;
(ii)each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) resulting from the injury or injuries in respect of which liability is accepted;
(iii)the calculation of any entitlement to compensation under section 98C or 98E;
(iv)the consequences as specified in sub-section (11A);
(f)provide to the worker a copy of—
(i)any medical reports, correspondence and other documents provided to; and
(ii)any medical reports, correspondence and other documents obtained from—
any medical practitioner referred to in section 91(1)(b) conducting an independent examination.
(7A)The Authority or self-insurer is not bound by the assessment or assessments obtained under sub-section (7)(a) in determining the degree of permanent impairment (if any) under sub-section (7)(b).
(7B)The worker must within 60 days of being advised under sub-section (7) advise the Authority or self-insurer in writing—
(a)whether the worker accepts or disputes the determinations of impairment and total loss;
(b)if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any;
(c)if the worker accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which he or she is entitled.".
(9)In section 104B(8) of the Accident Compensation Act 1985—
(a)for "under sub-section (7) that the worker accepts both of the assessments and the entitlement to compensation" substitute "under sub-section (6) or (7B) that the worker accepts each of the determinations of impairment and total loss and the entitlement to compensation under section 98C or 98E";
(b)for "either under sub-section (7) or at a later date" substitute "under sub-section (6) or (7B) or at a later date".
(10)For section 104B(9) of the Accident Compensation Act 1985 substitute—
"(9)The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to—
(a)the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and
(b)whether the worker has an injury or injuries claimed for which liability is accepted or established which is a total loss mentioned in the Table to section 98E(1)—
to a Medical Panel for its opinion under section 67.
(9A)For the purposes of sub-section (9), if a worker has suffered an injury arising out of the same event or circumstance resulting in both psychiatric impairment and impairment other than psychiatric impairment—
(a)the worker may—
(i)accept or dispute the determinations of impairment of both psychiatric impairment and impairment other than psychiatric impairment; or
(ii)accept or dispute either the determination of psychiatric impairment or the determination of impairment other than psychiatric impairment but can not accept only part of the determination of impairment other than psychiatric impairment; and
(b)the Authority or self-insurer must refer under that sub-section the medical questions relating to the determination or determinations disputed in accordance with sub-section (9).".
(11)In section 104B(12) of the Accident Compensation Act 1985 for "an assessment" substitute "a determination".
(12)After section 104B(18) of the Accident Compensation Act 1985 insert—
"(19)If as at the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 a worker has attended at least 1 impairment examination, the assessment of impairment and the final determination of the claim of the worker must be completed in accordance with this section as in force before that commencement.
(20)If as at the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 a worker has lodged an impairment claim but has not attended any impairment examinations, the worker may before attending an impairment examination elect by notice in writing to the Authority or self-insurer—
(a)to continue to have the claim determined in accordance with this section as in force before that commencement; or
(b)to withdraw the claim.
(21)If a worker withdraws a claim under sub-section (20)(b), the worker may submit a new claim as if it were the first claim of that type that the worker was submitting in respect of that injury.".
6.Amendment of section 134AB—Access to common law
(1)For sections 134AB(3) and 134AB(4) of the Accident Compensation Act 1985 substitute—
"(3)A worker may not bring proceedings in accordance with this section unless—
(a)determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under sub-section (4); or
(b)subject to any directions issued under section 134AF, the worker elects to make an application under sub-section (4) on the ground that the worker has a serious injury within the meaning of this section.
(4)A worker may only make an application—
(a)if sub-section (3)(a) applies, after the worker—
(i)has advised the Authority or self-insurer under section 104B(6) or 104B(7B) that he or she accepts the determinations of degree of impairment; or
(ii)has received the advice of the Authority or self-insurer under section 104B(10); or
(b)if sub-section (3)(b) applies—
(i)after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred; or
(ii)if an application had been made under section 104B as in force before the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004, subject to section 104B(21).".
(2)In section 134AB(15) of the Accident Compensation Act 1985 after "section 104B" insert "made before an application under sub‑section (4) is made".
(3)After section 134AB(21) of the Accident Compensation Act 1985 insert—
"(21A)If after a worker has failed to satisfy a court that the relevant injury is a serious injury on an application for leave to bring proceedings in accordance with sub-section (16)(b), the worker obtains under section 104B determinations that the degree of impairment of the worker is 30 percentum or more, the worker is not entitled to recover damages for the same relevant injury.".
7.Amendment to section 134AB consequential on amendments made by section 6
After section 134AB(5) of the Accident Compensation Act 1985 insert—
"(5A)A copy of any claim under section 104B referred to in sub-section (3) and of an application under sub-section (4) must be served on each person against whom the applicant claims to have a cause of action.".
8.Amendment of section 134AB—Actions for damages
(1)In section 134AB(37) of the Accident Compensation Act 1985, after paragraph (a) of the definition of "determination date" insert—
"(ab)if the Authority or self-insurer fails to advise the worker in writing as required by sub-section (7) within the period referred to in sub-section (7), the date on which under sub‑section (9) the injury is deemed to be a serious injury; or".
(2)In section 134AB(37) of the Accident Compensation Act 1985, in paragraph (b) of the definition of "determination date", for sub-paragraph (ii) substitute—
"(ii)unless sub-paragraph (iii) applies, on which a court gives leave under sub-section (16)(b); or
(iii)on which any appeal by the Authority or a self-insurer against a decision of a court to give leave under sub-section (16)(b) is determined—".
9.New section 134ABA inserted—Calculation of limitation of actions period
After section 134AB of the Accident Compensation Act 1985 insert—
"134ABA.Calculation of limitation of actions period
For the purpose of calculating the period of time under the Limitation of Actions Act 1958 within which proceedings permitted by, and in accordance with, section 134AB may be commenced on or after the commencement of section 9 of the Accident Compensation Legislation (Amendment) Act 2004, the following periods of time are to be disregarded—
(a)if the degree of permanent impairment of the worker resulting from the injury is to be determined, the period of time commencing on the day a claim for impairment benefits is lodged under section 98C or 98E and ending 30 days after—
(i)the Authority or self-insurer advises the worker of the determination under section 104B(2); or
(ii)the Authority or self-insurer notifies the worker of the decision of the Medical Panel—
whichever is applicable;
(b)if the worker elects to make an application under section 134AB(4), the period of time commencing on the day on which the application is made and ending on the day on which proceedings are commenced in accordance with section 134AB(12)(e).".
10.Amendment of section 134AF—Directions
After section 134AF(1) of the Accident Compensation Act 1985 insert—
"(1A)For the purposes of section 134AB(3)(b), the Minister may issue directions specifying or limiting the classes of cases or circumstances in which an election can be made under that section.".
11.Amendment of section 135A—Actions for damages
(1)In section 135A(18)(a) of the Accident Compensation Act 1985 for "or 93C" substitute ", 93C, 93CA, 93CB, 93CC or 93CD".
(2)In section 135A(19) of the Accident Compensation Act 1985, at the end of paragraph (b) of the definition of "determination date" insert—
"or
(c)any appeal by the Authority or a self-insurer against a decision of a court to give leave under sub-section (4)(b) is determined—
whichever is applicable;".
12.New Division 9A inserted—Actions by terminally ill workers
After section 135B of the Accident Compensation Act 1985 insert—
"Division 9A—Actions by terminally ill workers
135BA.Actions by terminally ill workers
(1)This section applies if a worker who may have an entitlement to recover damages in accordance with section 134AB or 135A in respect of an injury arising out of or in the course of, or due to the nature of, employment believes that that injury or an unrelated medical condition or injury gives rise to an imminent risk of death.
(2)If this section applies, the worker may subject to compliance with the requirements of this section bring proceedings in accordance with—
(a)section 134AB without complying with the requirements of sub-sections (1) to (21) and sub-sections (27), (28) and (38) of that section; or
(b)section 135A without complying with sub-sections (1) to (6) and sub-sections (13), (13A), (18A) and (18B) of that section.
(3)If a worker commences proceedings under section 134AB or 135A on the basis that this section applies, the worker must within 30 days of the commencement of the proceedings apply to the Master of the Supreme Court—
(a)for an order allowing leave for the worker to proceed nunc pro tunc; and
(b)for an order allowing an expedited hearing of the proceedings.
(4)The Master of the Supreme Court must not grant the orders referred to in sub-section (3) unless the Master of the Supreme Court is satisfied on the balance of probabilities that the injury arising out of or in the course of, or due to the nature of, employment or an unrelated medical condition or injury gives rise to an imminent risk of death of the worker.
(5)If the Master of the Supreme Court does not grant the orders referred to in sub-section (3), the Master of the Supreme Court must make an order that the proceedings be struck out on the grounds that this section does not apply and that the proceedings have not been brought in accordance with section 134AB or 135A.
(6)If the Master of the Supreme Court does grant the orders referred to in sub-section (3), the worker can only recover damages in accordance with section 134AB, 135A or 135AC if the worker establishes that the worker has a serious injury within the meaning of section 134AB(38) or 135A(19).".
13.Amendment of section 39—consequential on amendment made by section 12
In section 39(2)(a) of the Accident Compensation Act 1985 for "or 6A" substitute ", 6A or 9A".
Division 2—Compensation Provisions
14.Amendment of section 92A—Revised compensation for death of worker
(1)In section 92A(1) of the Accident Compensation Act 1985—
(a)in the definition of "orphan child" for "worker." substitute "worker;";
(b)after the definition of "orphan child" insert—
' "partially dependent partner" means a partner who is to any extent dependent on the worker's earnings.'.
(2)After section 92A(8A) of the Accident Compensation Act 1985 insert—
"(8B)If the worker leaves—
(a)a partially dependent partner or partially dependent partners; and
(b)a dependent partner or dependent partners or a dependent child or dependent children or any combination thereof—
each of those dependants is entitled to the amount of compensation being such share of a sum not exceeding $207 390 which the County Court considers is reasonable and appropriate to the injury to that dependant.".
(3)In sections 92A(9) and 92A(10) of the Accident Compensation Act 1985 for "or dependent child" substitute ", dependent child or partially dependent partner".
15.Amendment of section 89—Further loss of hearing
(1)In section 89(1) of the Accident Compensation Act 1985 after "section" insert "and sections 88, 91 and 98C".
(2)In section 89(1) of the Accident Compensation Act 1985 insert the following definitions—
' "Compensation law" means this Act, the Workers Compensation Act 1958 or any other workers compensation law of the Commonwealth or a State or Territory of the Commonwealth;
"prior hearing loss" means a loss of hearing for which a worker has received compensation under a Compensation law for loss of hearing;'.
(3)In section 89(2) of the Accident Compensation Act 1985—
(a)for "A worker" substitute "Subject to sub-section (3A), a worker";
(b)before "a percentage" insert "compensation in accordance with section 98C(3A), being compensation referrable to".
(4)In section 89(3) of the Accident Compensation Act 1985—
(a)in paragraph (a) for "the injury" substitute "the further injury";
(b)in paragraph (b) for "the prior injury or in the case of more than one prior injury the latest of the prior injuries" substitute "the prior injury or prior hearing loss or in the case of more than one prior injury or prior hearing loss the latest of the prior injuries or prior hearing losses".
(5)After section 89(3) of the Accident Compensation Act 1985 insert—
"(3A)Despite anything to the contrary in this Act, a worker who suffers a further injury is not entitled to compensation under this section or section 98C unless the worker has suffered in total a binaural loss of hearing of at least 10 percent NAL resulting from the further injury and any prior injury or prior hearing loss.
(3B)The total percentage referred to in sub-section (3)(a) is to be determined in accordance with section 91(4).
(3C)The total percentage referred to in sub-section (3)(b) is to be determined by reference to—
(a)if a percentage has been determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory, that percentage; or
(b)in any other case, the percentage which having regard to the medical evidence available is determined to be the equivalent of the percentage that (as nearly as can be estimated) would have been determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory.
(3D)If a worker disputes the total percentage referred to in sub-section (3)(b) as determined in accordance with sub-section (3C), the Authority, self-insurer or a court must refer the question of what is the amount of the total percentage referred to in sub-section (3)(b) as a medical question to a Medical Panel for an opinion.".
(6)Section 89(5) of the Accident Compensation Act 1985 is repealed.
16.Amendment of section 91—Assessment of impairment
(1)After section 91(3) of the Accident Compensation Act 1985 insert—
"(3A)Sub-section (3) does not apply for the purposes of assessing the degree of impairment of the whole person resulting from binaural hearing impairment in the case of a further injury.".
(2)In section 91(4) of the Accident Compensation Act 1985 after "this section" insert "and section 89(3)(a)".
17.Consequential amendments
(1)In section 5(1) of the Accident Compensation Act 1985 in the definition of "medical question" after paragraph (d) insert—
"(da)a question as to the amount of the total percentage referred to in section 89(3)(b); or".
(2)In section 88(3) of the Accident Compensation Act 1985 after "Officer" insert ", the Medical Panel".
18.Amendment of section 98C—Compensation for non‑economic loss
(1)In section 98C(2) of the Accident Compensation Act 1985 after "psychiatric impairment" insert "and industrial deafness in respect of a further injury".
(2)After section 98C(3) of the Accident Compensation Act 1985 insert—
'(3A)Despite sub-section (1), the amount of non-economic loss in respect of industrial deafness in respect of a further injury is to be calculated as at the date of the relevant injury as follows—
(a)if T is not less than 10% and not more than 30% and T - P is less than 10%—the amount of the non-economic loss is to be determined in accordance with the formula—
[(T - 10) × $2220] + [(10 - (T – P)) × $1481];
(b)if T is not less than 10% and not more than 30% and T - P is not less than 10%—the amount of the non-economic loss is to be determined in accordance with the formula—
[P × $2220];
(c)if T is more than 30% and T - P is less than 10%—the amount of the non-economic loss is to be determined in accordance with the formula—
[(T - 30) × $3700] + [(30 - 10) × $2220] + [(10 - (T - P)) × $1481];
(d)if T is more than 30% and T - P is not less than 10% and is less than 30%—the amount of the non-economic loss is to be determined in accordance with the formula—
[(T - 30) × $3700] + [(30 - (T - P)) × $2220];
(e)if T is more than 30% and T - P is not less than 30%—the amount of the non-economic loss is to be determined in accordance with the formula—
[P × $3700]—
where—
"T" is the percentage referred to in section 89(3)(a) rounded up to the next whole number;
"P" is the percentage referred to in section 89(3) as being the difference between "T" and the total percentage referred to in section 89(3)(b) rounded up to the next whole number.'.
(3)After section 98C(9) of the Accident Compensation Act 1985 insert—
"(9A)If compensation has been paid for non-economic loss in respect of a prior injury or prior hearing loss, that prior injury or prior hearing loss must be taken into account in accordance with sections 88, 89, 91 and this section in determining the amount of compensation payable under this section.".
19.New section 119IA—Circumstances in which offer may be withdrawn or settlement avoided
After section 119I of the Accident Compensation Act 1985 insert—
"119IA.Circumstances in which offer may be withdrawn or settlement avoided
(1)If this section applies, the Authority or a self-insurer may—
(a)withdraw an offer of settlement made to the worker under this Division before the worker has accepted the offer of settlement;
(b)if the worker has accepted the offer of settlement made to the worker under this Division and the settlement payment has not been made, avoid the settlement.
(2)This section applies if a worker applying for a settlement under this Division has made a fraudulent or reckless misrepresentation relating to his or her circumstances or any change in his or her circumstances which would have been material to the decision of the Authority or self-insurer under section 119E whether or not to offer a settlement to the worker.
(3)Without limiting the generality of sub-section (2), the circumstances include—
(a)the worker ceases to satisfy any of the eligibility criteria specified in section 115, 116, 117 or 118;
(b)the worker is serving a sentence of imprisonment which would disentitle the worker to weekly payments in accordance with section 97(7);
(c)the worker becomes aware that any other ground for the termination of weekly payments in accordance with section 114 applies but weekly payments have not been terminated.".
Division 3—General Amendments
20.Amendment of section 93C—Grandfather provision
In section 93C(13) of the Accident Compensation Act 1985 for "section 115" substitute "Division 3A".
21.Amendment of section 93CB—After the first entitlement period and until the expiry of the second entitlement period
(1)In section 93CB(2) of the Accident Compensation Act 1985—
(a)in paragraph (b) for "lesser." substitute "lesser;";
(b)after paragraph (b) insert—
"(c)if the worker has a current work capacity but the worker's employer has failed to offer suitable employment, the rate of—
(i)75 per cent of the worker's pre-injury average weekly earnings; or
(ii)$1130—
whichever is the lesser.".
(2)In section 93CB(3) of the Accident Compensation Act 1985—
(a)in paragraph (b)(iii) omit "where the worker's employer cannot provide suitable employment,";
(b)in paragraph (b) for "self-insurer." substitute "self-insurer;";
(c)after paragraph (b) insert—
"(c)where sub-section (2)(c) applies, the worker—
(i)participates in an occupational rehabilitation service or a return to work plan; and
(ii)makes every reasonable effort to return to work in suitable employment at the worker's place of employment in co-operation with the employer and the Authority or with the self-insurer (as the case may be); and
(iii)makes every effort to return to work in suitable employment at another place of employment; and
(iv)participates in assessments of the worker's capacity, rehabilitation progress and future employment prospects when required by the Authority or self-insurer.".
22.Amendment of section 93DA—Notional earnings
In section 93DA(2)(a) of the Accident Compensation Act 1985 for "section 93CA, 93CB or 93CC" substitute "section 93A or 93B".
23.Amendment of section 93E—Injury after retirement
In section 93E of the Accident Compensation Act 1985 for "52" (where twice occurring) substitute "104".
24.Occupational rehabilitation services
(1)For section 99(3A) of the Accident Compensation Act 1985 substitute—
"(3A)A worker is entitled to receive occupational rehabilitation services referred to in sub-section (1) from—
(a)a provider of occupational rehabilitation services chosen by the worker from a list of approved providers of those services nominated by the Authority, employer or self‑insurer in accordance with sub-section (3B); or
(b)if the Authority, employer or self-insurer does not nominate a list of approved providers of those services for the purposes of this sub-section, from an approved provider of those services of the worker's choice.
(3B)A list of providers of occupational rehabilitation services referred to in sub-section (1) must consist of the names of not less than 3 approved providers of those services nominated by the Authority, employer or self-insurer having regard as far as is possible to—
(a)the type of injury the worker has suffered;
(b)the type of occupational rehabilitation services required;
(c)where the worker resides;
(d)where the provider is requested by the Authority, self-insurer or employer to provide the services.
(3C)If 3 approved providers of particular occupational rehabilitation services are not available, it is sufficient compliance with sub-section (3B) if the list consists of the names of the available approved provider or providers of those occupational rehabilitation services.
(3D)If—
(a)the Authority, employer or self-insurer offers occupational rehabilitation services from an approved provider of occupational rehabilitation services chosen by the worker from a list of providers of those services nominated by the Authority, employer or self‑insurer in accordance with sub-section (3B) or (3C); and
(b)the worker does not choose an approved provider of those occupational rehabilitation services within 14 days of the offer of occupational rehabilitation services—
the occupational rehabilitation services will be offered or provided to the worker by an approved provider of occupational rehabilitation services nominated by the Authority, employer or self-insurer in accordance with sub-section (3B).".
(2)In section 161(d) of the Accident Compensation Act 1985 after "services" insert "in accordance with section 99(3A)".
25.Amendment of section 102—Notice of injury
After section 102(6) of the Accident Compensation Act 1985 insert—
"(7)Without limiting the generality of sub-section (6)(a), it is to be taken not to have been reasonably practicable to give notice of the injury in accordance with the time limit specified in sub-section (1) if the failure to give notice was due to—
(i)ignorance or a mistake; or
(ii)undue influence or duress; or
(iii)being absent from Victoria.".
26.Time to forward claims
(1)After section 103(1) of the Accident Compensation Act 1985 insert—
"(1A)The employer must as soon as is reasonably practicable give the worker acknowledgement in writing that a claim for compensation given to or served on the employer has been received.
(1B)A worker may notify the Authority that a claim for weekly payments has been given or served on the employer by lodging with the Authority—
(a)a copy of the claim for weekly payments signed and dated by the worker; and
(b)a copy of the certificate under section 103(1)(b).".
(2)After section 106(3) of the Accident Compensation Act 1985 insert—
"(4)A claim for weekly payments which purports to be lodged in accordance with this section when the conditions specified in this section do not apply is deemed not to have been made if within 14 days of the claim being lodged the claim is returned to the claimant with a notice under sub-section (5).
(5)The notice must—
(a)specify that the claim for weekly payments must be given to or served on the employer; and
(b)state that any period within which the claim is to be dealt with does not commence until a claim for weekly payments has been given to or served on the employer.".
(3)In section 108(1) of the Accident Compensation Act 1985—
(a)after paragraph (a) insert—
"(ab)any claim for weekly payments;";
(b)after paragraph (b) insert—
"(ba)any claim for compensation under section 99 which comes within the employer's liability under the employer's excess under section 125(1)(a) or 125A(3) and which is rejected by the employer;".
(4)For sections 108(3) and 108(4) of the Accident Compensation Act 1985 substitute—
"(3)An employer must forward to the Authority at such intervals and dates as are determined by the Authority a return in a form approved by the Authority of claims for compensation under section 99 which do not exceed the employer's liability under the employer's excess.
(4)An employer who fails without reasonable cause to forward a claim for weekly payments to the Authority as required by this section is liable for weekly payments made by the Authority to the worker during the period commencing—
(a)after the employer's liability under the excess under section 125A(3) is reached and ending when the claim for weekly payments is received by the Authority; or
(b)if section 125A(6) applies, after the period of employer's liability under section 125A(3) has been met by the Authority and ending when the claim for weekly payments is received by the Authority.
(4A)The Authority may impose on an employer to whom sub-section (4) applies a penalty for the failure referred to in that sub-section in respect of the relevant period referred to in that sub-section calculated in accordance with the method determined under sub-section (5A).
(4B)Sub-sections (4) and (4A)—
(a)impose a liability and penalty which is in addition to any other liability or penalty under this Act;
(b)do not apply to an employer who is an uninsured employer to whom Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993 applies;
(c)do not apply to an employer in relation to the employment of a student worker.
(4C)If an employer neglects, refuses or is unable to reimburse the Authority in respect of the liability imposed under sub-section (4) or section 109(4), the Authority may recover an amount equal to that liability in a court of competent jurisdiction as a debt due to the Authority.".
(5)After section 109(1) of the Accident Compensation Act 1985 insert—
'(1A)If a worker notifies the Authority of a claim for weekly payments in accordance with section 103 and the claim for weekly payments complies with the requirements of that section, sub-section (1) applies as if for "within 28 days of receiving the claim" there were substituted whichever of the following is the earlier commencement date for the period of 28 days—
(a)if the Authority receives a claim for compensation from the employer in accordance with section 108, "within 28 days after the day the Authority receives the claim for weekly payments from the employer"; or
(b)if the Authority does not receive a claim for compensation from the employer in accordance with section 108, "within 28 days of the 11th day after the Authority received notice of the claim from the worker".
(1B)If the Authority receives a claim for weekly payments from the employer more than 28 days after the expiry of the period of 10 days referred to in section 108 and the Authority has not rejected the claim for weekly payments in accordance with sub-section (1), the claim for compensation is deemed to have been accepted by the Authority under sub-section (1).'.
(6)After section 109(3) of the Accident Compensation Act 1985 insert—
"(4)If sub-section (1B) applies—
(a)a deemed decision under that sub-section is binding on the employer;
(b)the employer is liable for all weekly payments made by the Authority to the worker until the day the claim for weekly payments is received by the Authority from the employer.".
27.Amendment of section 107—Provision of information to claimant
At the end of section 107 of the Accident Compensation Act 1985 insert—
"(2)The Authority, a self-insurer or an employer must take all reasonable steps, as soon as is practicable but in any case not later than 28 days of the request being received, to give to the person making the request—
(a)a notice of the reasons for its decision;
(b)if the decision is to provide all or part of the information requested under sub-section (1), that information.
(3)If the Authority, a self-insurer or an employer believes on reasonable grounds that the information requested under sub-section (1) includes information which is health information which would pose a serious threat to the life or health of the person if the information were to be given to that person—
(a)the Authority, self-insurer or employer must not give access to that health information; and
(b)the procedure set out in Division 3 of Part 5 of the Health Records Act 2001 applies as if the refusal of access were a refusal under section 26 of that Act.
(4)The failure by the Authority, a self-insurer or an employer to comply with this section is to be taken to be a dispute to which Divisions 1 and 2 of Part III apply.".
28.New section 107A inserted—General right of access to information under this Act
After section 107 of the Accident Compensation Act 1985 insert—
'107A.General right of access to information under this Act
(1)Subject to this Act, the Authority or self-insurer must, at the request of a person who has made a claim for compensation, give that person in accordance with this section any information held by the Authority or self-insurer which is relevant to the claim for compensation.
(2)This section is to be construed as being in addition to the right conferred under section 107.
(3)The Authority or self-insurer must take all reasonable steps, as soon as is practicable but in any case not later than 28 days of the request being received, to give to the person making the request—
(a)a notice of the reasons for its decision;
(b)if the decision is to provide all or part of the information requested under sub‑section (1), that information.
(4)The Authority or self-insurer may refuse to provide the information requested under sub-section (1) if the Authority or self-insurer is satisfied that—
(a)subject to sub-section (5), the information is exempt information; or
(b)there are no reasonable grounds for requesting information—
(i)which is the same as information which has been given to the person making the request under this or any other Act in the period of 12 months before the request; or
(ii)to which access has previously been refused under this or any other Act.
(5)If—
(a)the Authority or self-insurer decides not to grant a request for information on the ground that some of the information is exempt information; and
(b)it is practicable for the Authority or self-insurer to give a copy of the information with deletions of the exempt information; and
(c)it appears from the request or subsequent indications from the person making the request, that the person would wish to have access to information with those deletions—
the Authority or self-insurer must provide that information.
(6)If the Authority or self-insurer believes on reasonable grounds that the information requested under sub-section (1) includes information which is exempt information because it is health information which would pose a serious threat to the life or health of the person if the information were to be given to that person—
(a)the Authority or self-insurer must not give access to that health information; and
(b)the procedure set out in Division 3 of Part 5 of the Health Records Act 2001 applies as if the refusal of access were a refusal under section 26 of that Act.
(7)The failure by the Authority or a self-insurer to comply with this section is to be taken to be a dispute to which Divisions 1 and 2 of Part III apply.
(8)In this section, "exempt information" means information of a kind which if it were contained in a document requested under the Freedom of Information Act 1982 would make that document an exempt document because section 30, 31, 32, 33 or 35 of the Freedom of Information Act 1982 would apply.'.
29.Amendments consequential to amendments made by sections 27 and 28
(1)After section 43(1) of the Accident Compensation Act 1985 insert—
"(1A)The Magistrates' Court has jurisdiction to inquire into, hear and determine any question or matter relating to a decision, recommendation or direction in respect of a request made under section 107 or 107A.".
(2)After section 57(1)(b) of the Accident Compensation Act 1985 insert—
"(ba)in the case of a dispute arising under section 107 or 107A—
(i)give a direction that information relevant to a claim made under this Act is to be given to the person who requested the information; or
(ii)notify the person who requested the information that there is a genuine dispute with respect to the giving of the information requested;".
(3)After section 60(4) of the Accident Compensation Act 1985 insert—
"(5)The Magistrates' Court may, on the application of a person to whom a direction has been given under section 57(1)(ba), revoke the direction.".
30.Amendment of section 112—Medical examinations
After section 112(5)(a) of the Accident Compensation Act 1985 insert—
"(ab)a registered dentist; or".
31.Consequential amendments
In section 5(1) of the Accident Compensation Act 1985 insert the following definitions—
' ''registered chiropractor" means a registered chiropractor within the meaning of section 3 of the Chiropractors Registration Act 1996;
''registered dentist" means a registered dentist within the meaning of section 3 of the Dental Practice Act 1999;
''registered osteopath" means a registered osteopath within the meaning of section 3 of the Osteopaths Registration Act 1996;
''registered physiotherapist" means a registered physiotherapist within the meaning of section 3 of the Physiotherapists Registration Act 1998;
''registered podiatrist" means a registered podiatrist within the meaning of section 3 of the Podiatrists Registration Act 1997;'.
32.Amendment of section 239—Power to obtain information and evidence
For section 239(1) of the Accident Compensation Act 1985 substitute—
"(1)For the purposes specified in sub-section (1A), the Authority may, by notice in writing, require any person—
(a)to furnish the Authority with such information as the Authority requires; or
(b)to attend and give evidence before the Authority or before any person employed in the administration or execution of this Act and authorised by the Authority in that behalf—
and may require the person to produce all books in the custody or under the control of the person relating thereto.
(1A)The purposes are—
(a)in the case of sub-section (1)(a), for determining whether any of the provisions of this Act or the Accident Compensation (WorkCover Insurance) Act 1993 are being or have been contravened;
(b)in the case of sub-section (1)(a) or (1)(b), for inquiring into or ascertaining the person's or any other person's liability or entitlement under any of the provisions of this Act, the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958; or
(c)in the case of sub-section (1)(a) or (1)(b), for ascertaining for the purposes of this Act, the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958 the identity of any person who—
(i)may have a liability or entitlement under any of the provisions of this Act, the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958; or
(ii)may, by reason of being related to or associated or connected with another person, affect the liability or entitlement of that other person.".
33.Amendment of section 239A—Certificate
In section 239A of the Accident Compensation Act 1985 for "the prescribed particulars" substitute "any of the prescribed particulars specified in the certificate".
34.New section 239AA inserted—Levy
After section 239A of the Accident Compensation Act 1985 insert—
"239AA.Levy
(1)Unless sub-section (2) applies, on the commencement of section 34 of the Accident Compensation Legislation (Amendment) Act 2004—
(a)the Authority ceases to have the power to determine, collect or recover any levy under this Act;
(b)an employer is not required to pay any outstanding or additional levy;
(c)an employer is not entitled to the refund of any overpaid levy.
(2)Despite the repeal of Part VII and the commencement of section 34 of the Accident Compensation Legislation (Amendment) Act 2004, this Act as in force before that commencement continues to apply to, or in respect of, the determination, collection and recovery of levy payable in respect of remuneration paid or payable by an employer on or before 1 July 1993 and the imposition and recovery of additional levy in respect thereof, if the Authority considers the payment of that levy was avoided through fraudulent conduct.".
35.Repeal of levy provisions
(1)Sections 20(1)(h), 20(1)(i) and 20(1)(j) of the Accident Compensation Act 1985 are repealed.
(2)Sections 32(3)(a) and 32(4)(b) of the Accident Compensation Act 1985 are repealed.
(3)Sections 125(5), 125(5A), 125(5B), 125(5C) and 134 of the Accident Compensation Act 1985 are repealed.
(4)Section 78(2) of the Accident Compensation (Amendment) Act 1994 is repealed.
36.Amendment of section 249—False information
In section 249(1) of the Accident Compensation Act 1985 after "in writing" insert "or by electronic transmission".
37.Repeal of unproclaimed amendment
Section 34 of the Accident Compensation (Amendment) Act 1994 is repealed.
Division 4—Upgrade of references to indexed amounts
38.Amendments to sections 5A, 92A, 92B, 93A, 93B, 93CA, 93CB, 93CC, 93CD and 98C
(1)In the Accident Compensation Act 1985—
(a)in sections 5A(8) and 5A(9)(b) for "$850" substitute "$1130";
(b)in section 5A(11)(b) for "$680" substitute "$903";
(c)in sections 92A(4), 92A(5), 92A(7), 92A(8), 92A(8A) and 92A(9) for "$175 000" substitute "$207 390";
(d)in section 92A(6)(a) for "$157 500" substitute "$186 660";
(e)in section 92A(6)(b) for "$17 500" substitute "$20 740";
(f)in section 92A(7)(a) for "$8750" substitute "$10 370";
(g)in section 92A(8)(a) for "$131 250" substitute "$155 550";
(h)in section 92A(8)(b) for "$43 750" substitute "$51 840";
(i)in sections 92B(3)(a)(ii), 92B(3)(b)(i), 92B(3)(b)(ii), 92B(4)(a)(ii), 92B(4)(b)(i), 92B(4)(b)(ii), 92B(5)(a)(ii), 92B(5)(b)(ii), 92B(6)(a)(ii), 92B(6)(b)(ii), 92B(7)(b), 92B(11), 93CA(2)(a)(ii), 93CA(2)(b)(ii), 93CB(2)(a)(ii) and 93CC(2)(b) for "$850" substitute "$1130";
(j)in sections 92B(3)(b)(iii) and 92B(4)(b)(iii), for "$567" substitute "$754";
(k)in section 92B(8)(b) for "$283" substitute "$374";
(l)in sections 93A(2)(a)(ii), 93A(2)(b)(ii) and 93B(1)(b)(ii) for "$650" substitute "$903";
(m)in section 93B(1)(a)(ii) for "$664" substitute "$903";
(n)in section 93B(1)(c)(ii) for "$390" substitute "$542";
(o)in sections 93CB(2)(b)(ii) and 93CD(5)(b) for "$510" substitute "$677";
(p)in section 93CD(3)(a) for "$100" substitute "$132";
(q)in section 98C(2)(b) for "$8990" substitute "$9190";
(r)in section 98C(2)(b) for "$7650" substitute "$7820";
(s)in section 98C(2)(c) for "$14 490" substitute "$14 810";
(t)in section 98C(2)(c) for "$2170" substitute "$2220";
(u)in section 98C(2)(d) for "$57 960" substitute "$59 250";
(v)in section 98C(2)(d) for "$3620" substitute "$3700";
(w)in section 98C(2)(e) for "$202 930" substitute "$207 460";
(x)in section 98C(2)(e) for "$14 500" substitute "$14 820";
(y)in section 98C(2)(f) for "$347 890" substitute "$355 650".
(2)In the Accident Compensation Act 1985—
(a)in section 98C(3)(b) for "$11 590" substitute "$11 850";
(b)in section 98C(3)(b) for "$3770" substitute "$3850";
(c)in section 98C(3)(c) for "$87 000" substitute "$88 940";
(d)in section 98C(3)(c) for "$5800" substitute "$5930";
(e)in section 98C(3)(d) for "$202 930" substitute "$207 460";
(f)in section 98C(3)(d) for "$14 500" substitute "$14 820";
(g)in sections 98C(3)(e), 98C(7) and 98C(8) for "$347 890" substitute "$355 650";
(h)in section 98C(4) for "$52 110" substitute "$53 270".
39.Amendments to section 98E
In the Accident Compensation Act 1985, for the Table to section 98E(1) substitute—
"TABLE
Injury Total Losses—Minimum Compensation Payable for Total Loss
$
Total loss of the sight of both eyes 214 390 Total loss of the sight of an only eye 214 390 Loss of both hands 214 390 Loss of both feet 214 390 Loss of a hand and a foot 214 390 Total loss of the right arm or of the greater part of the right arm
171 500Injury Total Losses—Minimum Compensation Payable for Total Loss
$
Total loss of the left arm or of the greater part of the left arm
160 780Total loss of the right hand or of five fingers of the right hand, or of the lower part of the right arm
150 050Total loss of the left hand or of five fingers of the left hand, or of the lower part of the left arm
139 360Total loss of a leg 160 780 Total loss of a foot 139 360 Total loss of the lower part of the leg 150 050 Total loss of the sight of one eye, together with the serious diminution of the sight of the other eye
160 780Total loss of hearing 139 360 Total loss of the sight of one eye 85 750 Loss of binocular vision 85 750 Loss of eyeball (in addition to compensation for loss of sight of an eye)
47 170Total loss of power of speech 128 630 Total loss of sense of taste or smell 36 450 Total loss of senses of both taste and smell
72 890Total loss of male sexual organs 100 770 Total loss of penis 100 770 Total loss of one testicle 21 420 Total loss of two testicles or an only testicle
100 770Total loss of female sexual organs 100 770 Total loss of both breasts 100 770 Total loss of one breast 64 300 Injury Total Losses—Minimum Compensation Payable for Total Loss
$
Total loss of the thumb of the right hand
64 300Total loss of the thumb of the left hand
55 740Total loss of the forefinger of the right hand
45 030Total loss of the forefinger of the left hand
38 580Total loss of two joints of the forefinger of the right hand
34 290Total loss of two joints of the forefinger of the left hand
25 710Total loss of a joint of the thumb 34 290 Total loss of the first joint of the forefinger of the right hand
21 420Total loss of the first joint of the forefinger of the left hand
19 300Total loss of the first joint of the middle or little or ring finger of either hand
12 860Total loss of the middle finger of either hand
25 710Total loss of the little or ring finger of either hand
23 590Total loss of two joints of the middle finger of either hand
21 420Total loss of two joints of the little or ring finger of either hand
19 300Total loss of the great toe of either foot
47 170Total loss of a joint of the great toe of either foot
21 420Total loss of any other toe 12 860 Injury Total Losses—Minimum Compensation Payable for Total Loss
$
Total loss of a joint of any other toe 4 290 Quadriplegia 214 390 Paraplegia 214 390 Total impairment of the spine 214 390
".
40.Amendments to sections 98E, 99, 125, 125A, 129B, 134AB, 135A and 135C
In the Accident Compensation Act 1985—
(a)in section 98E(5) for "$161 390" substitute "$214 390";
(b)in section 99(1)(aa) for "$1530" substitute "$1870";
(c)in sections 99(5), 125(1)(a)(iii) and 125A(3)(c) for "$407" (wherever occurring) substitute "$506";
(d)in section 129B(7) for "$8090" substitute "$11 240";
(e)in section 134AB(22)(a)(i) for "$35 120" substitute "$44 730";
(f)in section 134AB(22)(a)(ii) for "$790 610" substitute "$1 006 760";
(g)in section 134AB(22)(b)(i) for "$33 920" substitute "$43 190";
(h)in section 134AB(22)(b)(ii) for "$344 210" substitute "$438 320";
(i)in section 135A(7)(a)(i) for "$32 170" substitute "$44 730";
(j)in section 135A(7)(b)(i) for "$32 170" substitute "$39 900";
(k)in section 135A(7)(a)(ii) for "$724 070" substitute "$1 006 760";
(l)in section 135A(7)(b)(ii) for "$326 380" substitute "$404 900";
(m)in section 135C(2) for "$500 000" substitute "$664 160".
41.New Division 4 inserted into Part IX
After section 269 of the Accident Compensation Act 1985 insert—
"Division 4—Accident Compensation Legislation (Amendment) Act 2004
270.Sections 5(1), 88, 89, 91 and 98C—(claims for compensation for further loss of hearing)
(1)Subject to sub-section (2), sections 5(1), 88, 89, 91 and 98C as amended by sections 15 to 18 of the Accident Compensation Legislation (Amendment) Act 2004 apply in respect of a claim for compensation lodged under section 98C on or after 18 November 2004 irrespective of whether the further injury, the prior injury or the prior hearing loss occurred before, on or after that date.
(2)Sections 5(1), 88, 89, 91 and 98C as in force before the commencement of sections 15 to 18 of the Accident Compensation Legislation (Amendment) Act 2004 continue to apply in respect of a claim for compensation lodged under section 98C before 18 November 2004 in respect of a further injury which occurred before 12 November 1997.
271.Section 39 (Jurisdiction—general)
(1)Section 39 as amended by section 3 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of proceedings commenced on or after the commencement of section 3 of the Accident Compensation Legislation (Amendment) Act 2004.
(2)Any proceedings commenced before the commencement of section 3 of the Accident Compensation Legislation (Amendment) Act 2004 may be continued as if that section had not been enacted.
272.Section 92A (Revised compensation for death of worker)
Section 92A as amended by section 14 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for compensation made on or after the commencement of section 14 of the Accident Compensation Legislation (Amendment) Act 2004.
273.Section 93C (Grandfather provision)
Section 93C as amended by section 20 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of an application for a settlement made on or after the commencement of section 20 of the Accident Compensation Legislation (Amendment) Act 2004.
274.Section 93CB (After the first entitlement period and until the expiry of the second entitlement period)
Section 93CB as amended by section 21 of the Accident Compensation Legislation (Amendment) Act 2004 applies to or in respect of a worker who lodges a claim for weekly payments on or after the commencement of section 21 of the Accident Compensation Legislation (Amendment) Act 2004.
275.Section 93E (Injury after retirement)
Section 93E as amended by section 23 of Accident Compensation Legislation (Amendment) Act 2004 applies to or in respect of—
(a)a worker who as at 18 November 2004 has an entitlement under section 93E in respect of an injury which first arose when the worker had attained the age of 63 years; or
(b)a worker who is injured on or after 18 November 2004 and has attained the age of 63 years as at the date of injury.
276.Section 99—occupational rehabilitation services
Section 99 as amended by section 24 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of the provision of occupational rehabilitation services on or after the commencement of section 24 of the Accident Compensation Legislation (Amendment) Act 2004.
277.Section 102 (Notice of injury)
Section 102 as amended by section 25 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of an injury occurring on or after the commencement of section 25 of the Accident Compensation Legislation (Amendment) Act 2004.
278.Sections 103, 106, 108 and 109—(forwarding of claims for weekly payments)
Sections 103, 106, 108 and 109 as amended by section 26 of the Accident Compensation Legislation (Amendment) Act 2004 apply in respect of claims for weekly payments made on or after the commencement of section 26 of the Accident Compensation Legislation (Amendment) Act 2004.
279.Section 104B (Claims for compensation under section 98C)
Section 104B as amended by section 4 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for compensation lodged under section 98C on or after the commencement of section 4 of the Accident Compensation Legislation (Amendment) Act 2004 irrespective of whether the injury occurred before, on or after that date.
280.Section 119IA (Circumstances in which offer may be withdrawn or settlement avoided)
Section 119IA as inserted by section 19 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of an application for a settlement made on or after the commencement of section 19 of the Accident Compensation Legislation (Amendment) Act 2004.
281.Section 134AB (Actions for damages)
(1)Section 134AB as amended by sections 6 and 7 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of an application made under section 134AB(4) on or after the commencement of sections 6 and 7 of the Accident Compensation Legislation (Amendment) Act 2004.
(2)Section 134AB as amended by section 8(1) of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for damages in respect of which a determination as to whether the injury is a serious injury has not been made or deemed to have been made before the commencement of section 8(1) of the Accident Compensation Legislation (Amendment) Act 2004.
(3)Section 134AB as amended by section 8(2) of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for damages made on or after the commencement of section 8(2) of the Accident Compensation Legislation (Amendment) Act 2004 in respect of which a determination as to whether the injury is a serious injury has not been made or deemed to have been made before that commencement.
282.Section 135A (Actions for damages)
(1)Section 135A as amended by section 11(1) of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for damages made on or after the commencement of section 11(1) of the Accident Compensation Legislation (Amendment) Act 2004 in respect of which a judgment has not been obtained or a compromise or settlement made before that commencement.
(2)Section 135A as amended by section 11(2) of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for damages made on or after the commencement of section 11(2) of the Accident Compensation Legislation (Amendment) Act 2004 in respect of which an application for leave to bring proceedings for the recovery of damages has not been made before that commencement.
283.Section 135BA (Actions by terminally ill workers)
Section 135BA as inserted by section 12 of the Accident Compensation Legislation (Amendment) Act 2004 applies in respect of a claim for compensation made on or after the commencement of section 12 of the Accident Compensation Legislation (Amendment) Act 2004.".
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Part 3—Accident Compensation (WorkCover Insurance) Act 1993
42.Amendment of section 8—Rateable remuneration
In section 8(3) of the Accident Compensation (WorkCover Insurance) Act 1993—
(a)after "is sent or given" insert "or an amount is transferred";
(b)after "so sent or given" insert "or the amount was so transferred".
43.Amendment of section 22A—Application for refund of premium
(1)In section 22A(1) of the Accident Compensation (WorkCover Insurance) Act 1993 after "section" insert "and section 22B".
(2)In section 22A(2) of the Accident Compensation (WorkCover Insurance) Act 1993 after "recover premium," insert "paid or purportedly paid,".
(3)For section 22A(3) of the Accident Compensation (WorkCover Insurance) Act 1993 substitute—
"(3)An application under sub-section (2) must be lodged with the Authority within 5 years after the commencement of the policy period to which the payment of premium relates.".
(4)In section 22A(6) of the Accident Compensation (WorkCover Insurance) Act 1993, in the definition of "proceedings", after paragraph (a) omit "or".
44.New section 22B inserted—What happens if Authority refuses or fails to determine an application for a refund or fails to make a refund?
After section 22A of the Accident Compensation (WorkCover Insurance) Act 1993 insert—
'22B.What happens if Authority refuses or fails to determine an application for a refund or fails to make a refund?
(1)This section applies if—
(a)an employer has lodged an application with the Authority in accordance with section 22A; and
(b)within the period of 4 months after the application was lodged, the Authority—
(i)by notice in writing to the employer refuses the application; or
(ii)fails to determine the application; or
(iii)determines that the employer is entitled to a refund but fails to make the refund.
(2)If this section applies, the employer may bring proceedings for the refund or recovery of the premium within the period of 4 months commencing after—
(a)the day on which the period specified in sub-section (1)(b) ends; or
(b)the day which is the date of the notice of refusal—
whichever first occurs.
(3)In this section—
"premium" has the same meaning as in section 22(3);
"proceedings" includes—
(a)seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction;
(b)seeking any order under the Administrative Law Act 1978.'.
45.Section 26 amended—Payment of premiums
(1)For section 26(1) of the Accident Compensation (WorkCover Insurance) Act 1993 substitute—
"(1)The premium payable by an employer for a WorkCover insurance policy is payable in accordance with the relevant premiums order.".
(2)Sections 26(2) and 26(3) of the Accident Compensation (WorkCover Insurance) Act 1993 are repealed.
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Part 4—Workers Compensation Act 1958
46.Amendment of clause 1 of section 9—Upgrade of references to indexed amounts
(1)In section 9 of the Workers Compensation Act 1958, in clause 1 of "The Clauses Referred To"—
(a)in paragraphs (a)(i) and (a)(ii) for "$33 160" substitute "$138 809";
(b)in paragraph (b)(i) for "$105" substitute "$442";
(c)in paragraph (b)(i) for "$30" substitute "$124";
(d)in paragraph (b)(i) for "$10" (where twice occurring) substitute "$42";
(e)in paragraph (b)(i) for "$155" substitute "$651";
(f)in paragraph (b)(i) for "$78" substitute "$325";
(g)in paragraph (b)(i) for "$135" substitute "$562";
(h)in paragraph (b)(iii) for "$36 960" substitute "$154 717".
(2)In section 9 of the Workers Compensation Act 1958, in clause 1 of "The Clauses Referred To", for the Table substitute—
"
Column 1
Years of AgeColumn 2
Amounts of Compensation$ Under 1 33 863 Under 2 31 668 Under 3 29 486 Under 4 27 305 Under 5 25 118 Under 6 22 933 Under 7 20 749 Under 8 18 564 Under 9 16 385 Under 10 14 195 Under 11 12 012 Under 12 9 825 Not under 12 but under 16 7 643 Not under 16 but under 21 (full-time students)
7 643".
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EndnoteS
Minister's second reading speech—
Legislative Assembly: 18 November 2004
Legislative Council: 8 December 2004
The long title for the Bill for this Act was "to amend the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993 and the Workers Compensation Act 1958 and for other purposes."
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