Workers' Compensation and Injury Management Amendment Regulations (No. 2) 2005 (WA)
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PERTH, FRIDAY, 28 OCTOBER 2005 No. 200 SPECIAL PUBLISHED BY AUTHORITY JOHN A. STRIJK, GOVERNMENT PRINTER AT 3.45 PM
© STATE OF WESTERN AUSTRALIA
WORKERS’ COMPENSATION AND INJURY MANAGEMENT
ACT 1981
_________
WORKERS’ COMPENSATION AND INJURY MANAGEMENT
AMENDMENT REGULATIONS
(No. 2) 2005
28 October 2005 GOVERNMENT GAZETTE, WA 4855
Western Australia
Workers’ Compensation and Injury
Management Amendment Regulations
(No. 2) 2005
CONTENTS
1. Citation
2. Commencement
3. The regulations amended
4. Regulation 2A amended
5. Regulation 4 amended
6. Regulation 6AA amended
7. Regulation 6AB inserted
6AB. Relevant document (section 180(1)(j)) 8. Regulation 6A amended
9. Regulation 8 amended
10. Regulation 10 amended
11. Regulations 10A and 10B replaced
10A. Medical certificate for statutory expenses 12. Regulation 12 amended
13. Regulations 12AA and 12AB replaced by regulation 12AA
12AA. Notice of intention to dismiss worker
(section 84AB)14. Regulation 12A amended
15. Regulation 13A inserted
13A. Prescribed rate of interest
(sections 222(2), 223(2) and 224(2))16. Regulation 14 repealed
17. Regulation 16 repealed
18. Regulation 16A inserted
16A. Clause 1C notifications and elections 19. Regulation 17 amended
20. Regulation 17AA amended
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Regulations (No. 2) 2005
Contents
21. Regulations 17AB, 17AC and 17AD inserted
17AB. Exceptional circumstances —
clause 18A(2aa)(c)(ii)17AC. Management plan — clause 18A(2ac) 17AD. Extending final day 22. Regulation 17A amended
23. Regulation 17B inserted
17B. Witness allowances 24. Parts 2A and 2B inserted
Part 2A — Assessment of costs
18A. Application of this Part 18B. Meaning of terms used in this Part 18C. Application for assessment of costs 18D. Taxing officer may require application to
be given to other persons18E. Taxing officer may require documents or
further particulars18F. Consideration of application 18G. Assessment to give effect to order and
costs determination18H. Matters to be considered 18I. Cost of assessment 18J. Enforcement of assessment 18K. Correction of error Part 2B — Medical assessment
18L. Definitions 18M. Request for assessment by approved
medical specialist of worker’s degree of
impairment18N. Requirement to attend at place specified
by approved medical specialist18O. Requirement to produce to approved
medical specialist relevant documents and
information and give consent18P. Period for compliance with requirements 18Q. Requirement for worker to produce
requested information18R. Reports and certificates regarding
outcome of assessment18S. Requirement to attend at place specified
by approved medical specialist panel18T. Requirement to produce to approved
medical specialist panel relevant
documents and information and give
consent18U. Period for compliance with requirements
28 October 2005 GOVERNMENT GAZETTE, WA 4857 Workers’ Compensation and Injury Management Amendment
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Contents
18V. Requirement for worker to produce
requested information18W. Reports and certificates regarding
outcome of assessment25. Regulation 19A amended
26. Regulation 19C amended
27. Regulation 19E amended
28. Regulation 19F amended
29. Regulation 19G repealed
30. Heading to Part 3A Division 1 inserted
Division 1 — 1993 scheme
31. Regulation 19IA amended
32. Regulation 19J amended
33. Regulation 19K amended
34. Regulation 19L amended
35. Regulation 19O amended
36. Regulation 19P amended
37. Part 3A Division 2 inserted
Division 2 — 2004 scheme
20. Recording agreement 21. Recording assessment 22. Electing to retain right to seek damages 23. Extending termination day 24. Expected time for approved medical specialist to give assessment documents 25. Employer’s obligation to notify worker 38. Part 4 replaced by Parts 4 to 7
Part 4 — Registered agents
Division 1 — Preliminary
26. Meaning of terms used in this Part 27. Prescribed organisation
(section 277(1)(e))Division 2 — Registration and renewal
28. Application for registration 29.
WorkCover WA must register, and may impose conditions on registration
30.
Indemnity and other conditions of registration
31. Duration of registration 32. Application for renewal of registration 33. Certificate of registration 34. False or misleading information
4858 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
Contents
Division 3 — The register
35. Register
36. Removal from register
Division 4 — Disciplinary powers
37. Restriction on exercise of powers
38. Cancellation of registration
39. Taking disciplinary action
40. Return of certificate of registration
Division 5 — Review
41. Review
Division 6 — Miscellaneous
42. Evidentiary matters
43. Transitional provision
Part 5 — Injury management
44. Vocational rehabilitation services
45. Insurer to advise of injury management obligations
46. Particulars for notice under
section 157A(1) of ActPart 6 — Specialised retraining programs
47. Recording agreement
48. Extending final day
49. Request for WorkCover to direct payment
Part 7 — Infringement notices and
modified penalties
50. Prescribed offences
51. Prescribed modified penalties
52. Prescribed form of infringement notice
53. Prescribed form of withdrawal of notice
39. Amendments common to various provisions
40. Appendix I amended
Form 1A
Form 2CA
Form 7
Form 15G
Form 29
Form 30
Form 31
28 October 2005 GOVERNMENT GAZETTE, WA 4859 Workers’ Compensation and Injury Management Amendment
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Contents
Form 32 Form 33 Form 34 Form 35 Form 36 Form 37 Form 38 Form 39 Form 40 Form 41
41. Appendices IV and V inserted
Appendix IV — Registered agents code of conduct
1. Duties of registered agent 2. Integrity and diligence 3. Confidentiality 4. Conflict of interest 5. Proceedings 6. Advertising 7. Withdrawal 8. Fees 9. Records 10. Trust moneys 11. Costs Appendix V — Prescribed offences and modified penalties
28 October 2005 GOVERNMENT GAZETTE, WA 4861
Workers’ Compensation and Injury Management Act 1981
Workers’ Compensation and Injury
Management Amendment Regulations
(No. 2) 2005
Made by the Governor in Executive Council.
1. Citation
These regulations are the Workers’ Compensation and Injury
Management Amendment Regulations (No. 2) 2005.
2. Commencement
These regulations come into operation on 14 November 2005.
3. The regulations amended
The amendments in these regulations are to the Workers’
Compensation and Injury Management Regulations 1982*.[* Reprint 4 as at 17 April 2003. For amendments to 17 October 2005 see Western Australian Legislation Information Tables for 2004, Table 4, p. 465, and Gazette 21 January 2005 p. 275-7.]
4. Regulation 2A amended
Regulation 2A(1)(b) is amended by deleting “clause 1 of
Schedule 5 to the Act,” and inserting instead —“ the Act Schedule 5 clause 1, ”.
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5. Regulation 4 amended
(1) Regulation 4 is amended by inserting before “The” the
subregulation designation “(1)”.(2) At the end of regulation 4 the following subregulation is
inserted —“
(2)
The form of election referred to in section 31H of the Act must be in the form of Form 1A in Appendix I or, in the case of a worker suffering from noise induced
hearing loss, in the form of Form 2CA in Appendix I. ”.
6. Regulation 6AA amended
(1) Regulation 6AA(1) is amended as follows:
(a) by inserting after “Form 2C” — “ or Form 2CA, as the case requires, ”;
(b) by deleting “84I(1)(b)” and inserting instead — “ 178(1)(b) ”.
(2) Regulation 6AA(2) is amended as follows:
(a) by deleting “84I(1)(b)” and inserting instead — “ 178(1)(b) ”;
(b) by deleting “176(1)(a)” and inserting instead — “ 292(1)(a) ”.
(3) Regulation 6AA(3) is amended as follows:
(a) by deleting “84I(1)(b)” and inserting instead — “ 178(1)(b) ”;
(b) by deleting “84I(2)” and inserting instead — “ 178(2) ”.
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7. Regulation 6AB inserted
After regulation 6AA the following regulation is inserted —
“
6AB. Relevant document (section 180(1)(j)) A certificate of currency in respect of the employer’s
insurance policy referred to in section 160(7) of the Act
is prescribed under section 180(1)(j) of the Act as a
relevant document.”.
8. Regulation 6A amended
(1) Regulation 6A(1) is amended by deleting “and 57B(1)(b)(i)”
and inserting instead —“ , 57B(1)(b)(i) and 231(1)(b)(i) ”. (2) Regulation 6A(2) is amended by deleting “176(1)(a)” and
inserting instead —“ 292(1)(a) ”. 9. Regulation 8 amended
(1) Regulation 8(4) is amended by deleting “a medical review or
examination” and inserting instead —“ an examination under section 64 or 65 of the Act ”. (2) After regulation 8(4) the following subregulations are
inserted —“
(5) A worker must not, under section 64 or 65 of the Act,
be required to attend medical examinations by more
than 3 medical practitioners who are specialists in the
same field of medicine.
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(6) Nothing in subregulation (5) limits the number of times
a worker may be required to attend a medical
examination by a medical practitioner.”.
10. Regulation 10 amended
Regulation 10(2) is amended by deleting “, under section 84N
of the Act, refer the dispute to the Director for conciliation.” and
inserting instead —
“apply under section 181 of the Act for determination of
the dispute by an arbitrator.
”.
11. Regulations 10A and 10B replaced
Regulations 10A and 10B are repealed and the following
regulation is inserted instead —“
10A. Medical certificate for statutory expenses Form 7 in Appendix I is the form prescribed under
sections 231(2)(b) and 241(2)(b) of the Act.”.
12. Regulation 12 amended
(1) Regulation 12(1) is amended by deleting “Directorate” and
inserting instead —“ office of the DRD ”.
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(2) Regulation 12(2) is amended by deleting “for each item, the
percentage loss of the full efficient use of a part or faculty of the
body for which compensation is to be paid, and the amount of
the compensation.” and inserting instead —
“for each item —
(a) if the Act Part III Division 2 applies in respect of the personal injury or noise induced hearing loss that is the subject of the agreement — (i) the percentage loss of the full efficient use of a part or faculty of the body for which compensation is to be paid; and
(ii) the amount of compensation;
or
(b) if the Act Part III Division 2A applies in respect of the personal injury or noise induced hearing loss that is the subject of the agreement — (i) the degree of permanent impairment of a part or faculty of the body for which compensation is to be paid; and
(ii) the amount of compensation.
”.
13. Regulations 12AA and 12AB replaced by regulation 12AA
Regulations 12AA and 12AB are repealed and the following
regulation is inserted instead —“
12AA. Notice of intention to dismiss worker (section 84AB)
(1) This regulation applies to a notice of intention to dismiss
a worker to which section 84AB of the Act refers.(2) Form 15G in Appendix I is the form prescribed for the
notice.”.
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14. Regulation 12A amended
(1) Regulation 12A(1) is amended by deleting “109(1)(a)” and
inserting instead —“ 109(1) ”. (2) Regulation 12A(2) is amended by deleting “109(4)(a)” and
inserting instead —“ 109(4) ”. 15. Regulation 13A inserted
Before regulation 14 the following regulation is inserted —
“
13A. Prescribed rate of interest (sections 222(2), 223(2)
and 224(2))
(1) Interest payable under an order made under
section 222(1) of the Act must be calculated at a rate of
6% per annum.(2) Interest payable under section 223(1) of the Act must
be calculated at a rate of 6% per annum.(3) Interest payable under section 224(1) of the Act in
respect of a sum agreed to be paid must be calculated at
a rate of 6% per annum.”.
16. Regulation 14 repealed
Regulation 14 is repealed.
17. Regulation 16 repealed
Regulation 16 is repealed.
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18. Regulation 16A inserted
Before regulation 17 the following regulation is inserted —
“
16A. Clause 1C notifications and elections
(1) The form of notification for the purposes of the Act
Schedule 1 clause 1C(1) must be in the form of
Form 29 in Appendix I.(2) The form of notification for the purposes of the Act
Schedule 1 clause 1C(4)(a) must be in the form of
Form 30 in Appendix I.(3) An election for the purposes of the Act Schedule 1
clause 1C(2) or clause 1C(4) or (6) must —(a) be made in writing;
(b) specify —(i) the name and address of the dependant;
(ii) the relationship (child or step-child) of the dependant to the deceased worker;
(iii) the name of the deceased worker, and the address of the deceased worker at the time of death;
(iv) an apportionment of the notional
residual entitlement or a child’swhether the dependant elects to receive clause 1A;
(v) whether the worker died leaving any spouse or de facto partner wholly dependent on the workers’ earnings, and whether that spouse or de facto partner is a parent of the dependant making the election;
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(vi) independently advised of the financial
that the dependant has been name, title, address and phone number of the person who gave that advice; and
(vii) the date on which the election is made;
(c)
be signed by the dependant or, in the case of an election by a person under a legal disability, the parent or guardian of that person;
(d)
include the signature and full name and address of a witness to the signature of the dependant or his or her parent or guardian; and
(e) be given to the Director. ”.
19. Regulation 17 amended
Regulation 17 is amended by inserting before “clause 11(2)” —
“ the Act Schedule 1 ”.
20. Regulation 17AA amended
Regulation 17AA(1) is amended by deleting “Schedule 1
clause 19(1) of the Act,” and inserting instead —“ the Act Schedule 1 clause 19(1), ”.
21. Regulations 17AB, 17AC and 17AD inserted
After regulation 17AA the following regulations are inserted —
“
17AB. Exceptional circumstances — clause 18A(2aa)(c)(ii)
(1) For the purposes of the Act Schedule 1
clause 18A(2aa)(c)(ii) the circumstances in relation to
the medical and associated conditions, treatment and
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management of a worker are exceptional if operative
intervention and reasonable post-operative treatment of
a kind related to an MBS item are required to alleviate
substantially the consequences of serious impairmentand improve the worker’s physical condition.
(2) For the purposes of the Act Schedule 1
clause 18A(2aa)(c)(ii) the applicant must produce the
following information to the arbitrator in writing —
(a)
clear medical opinion from a treating specialist that operative intervention and reasonable post-operative treatment of a kind related to an MBS item are required to alleviate the consequences of serious impairment and improve the worker’s physical condition; and
(b)
a management plan provided by the treating specialist that indicates that substantial medical improvement to the worker’s physical condition is anticipated as a result of operative intervention and reasonable post-operative treatment.
(3) In this regulation — “MBS item” means an item specified in the Medicare Benefits Schedule published by the
Commonwealth Department of Health and AgedCare;
“treating specialist”, in relation to an applicant, means
a medical practitioner who —
(a) is treating the applicant; and (b) is a specialist in a relevant field of medicine.
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17AC. Management plan — clause 18A(2ac) A reference in the Act Schedule 1 clause 18A(2ac) to a management plan is a reference to a management plan produced under regulation 17AB(2)(b).
17AD. Extending final day
(1) A worker may apply to the Director to extend the final
day under the Act Schedule 1 clause 18B.(2) The application is made by —
(a)
lodging with the Director a completed application in the form of Form 31 in Appendix I; and
(b)
providing to the Director, with the application form, anything that this regulation requires to be provided with the application form.
(3) When the application form is lodged —
(a)
if the worker has, in writing, requested an approved medical specialist to assess the worker’s degree of permanent whole of person
impairment, the Director must be provided with
a copy of the worker’s request; and(b)
if the approved medical specialist has notified the worker, in writing, that more time is or was required to give the worker the documents required to make an application under the Act Schedule 1 clause 18A(1b) before the final day, the Director must be provided with a copy of the notification.
(4) The Director may, within the limits imposed by the Act
Schedule 1 clause 18B(4), extend the final day until a
day that the Director, having regard to the further time
needed by the approved medical specialist, considers
will give the worker a reasonable opportunity to make
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an application under the Act Schedule 1
clause 18A(1b).
”.
22. Regulation 17A amended
Regulation 17A is amended by deleting “clause 1 of Schedule 5
to the Act” and inserting instead —“ the Act Schedule 5 clause 1 ”.
23. Regulation 17B inserted
After regulation 17A the following regulation is inserted —
“
17B. Witness allowances A person who appears before a dispute resolution
authority to give evidence is entitled to any allowance
for that appearance set by the Costs Committee
established under section 269 of the Act.”.
24. Parts 2A and 2B inserted
After regulation 18 the following Parts are inserted —
“ Part 2A — Assessment of costs
18A. Application of this Part This Part applies in relation to any costs incurred on or
after 14 November 2005 in relation to a proceeding
determined, or otherwise dealt with, by a dispute
resolution authority.
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18B. Meaning of terms used in this Part In this Part — “agent service” has the meaning given to that term in section 261 of the Act;
“applicant” means an applicant for assessment of
costs under regulation 18C;
“application” means an application for assessment of
costs under regulation 18C;
“legal service” has the meaning given to that term in
section 261 of the Act;
“taxing officer” means the Director or an arbitrator.
18C. Application for assessment of costs A person who has paid or is liable to pay, or who is
entitled to receive or who has received, costs as a result
of an order for the payment of an unspecified amount
of costs made by a dispute resolution authority may
apply under the Workers’ Compensation (DRD)
Rules 2005 for an assessment of the whole of, or any
part of, those costs by a taxing officer.18D. Taxing officer may require application to be given
to other persons
(1) A taxing officer may, by written notice, require an
applicant to give a copy of the application to —
(a)
a party to the proceeding in respect of which the relevant order for costs was made; or
(b)
a legal practitioner, agent or other interested party,
specified by the taxing officer.
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(2) The application must be given in accordance with the
Workers’ Compensation (DRD) Rules 2005 Part 3.(3)
If a person fails, without reasonable excuse, to comply with a notice given under subregulation (1) the taxing officer may decline to deal with the application.
18E. Taxing officer may require documents or further
particulars
(1) A taxing officer may, by written notice, require a
person (including the applicant, a party to the
proceeding in which the relevant order for costs was
made, the legal practitioner or agent concerned or any
other legal practitioner or agent) to produce any
relevant documents of or held by the person in respect
of the matter.(2) A taxing officer may, by written notice, require an
applicant to give to the taxing officer further particulars
as to any item of costs claimed.(3)
A notice given under subregulation (1) or (2) must specify the period within which the notice is to be complied with.
(4) If a person fails, without reasonable excuse, to comply
with a notice given under subregulation (1) or (2) the
taxing officer may decline to deal with the application
or may continue to deal with the application on the
basis of the information provided.(5)
Nothing in this regulation prevents a person from objecting to the production of a document on the grounds of legal professional privilege.
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18F. Consideration of application
(1) A taxing officer must not determine an application
unless the taxing officer —
(a)
has given the applicant and any other party to the proceeding in which the relevant order for costs was made a reasonable opportunity to
make oral or written submissions in relation to
the application; and(b)
has given due consideration to any submissions so made.
(2) In considering an application a taxing officer is not
bound by the rules of evidence and may inform himself
or herself on any matter in such manner as the taxing
officer thinks fit.
18G. Assessment to give effect to order and costs
determinationAn assessment of costs must be made in accordance with, and so as to give effect to, orders of the dispute resolution authority and any costs determination
published under section 273 of the Act. 18H. Matters to be considered
(1) When dealing with an application the taxing officer
must consider —
(a)
whether or not it was reasonable to carry out the work to which the costs relate; and
(b)
what is a fair and reasonable amount of costs for the work concerned.
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(2) In assessing what is a fair and reasonable amount of
costs, the taxing officer may have regard to any or all
of the following matters —
(a)
the skill, labour and responsibility displayed on the part of the legal practitioner or agent responsible for the matter;
(b)
the complexity, novelty or difficulty of the matter;
(c)
the quality of the work done and whether the level of expertise was appropriate to the nature of the work done;
(d)
the place where and circumstances in which the legal services or agent services were provided;
(e)
the time within which the work was required to be done;
(f) the outcome of the matter.
(3)
If the dispute resolution authority has ordered that the costs are to be assessed on a specified basis, the taxing officer must assess the costs on that basis.
18I. Cost of assessment The costs of and incidental to an assessment are at the
discretion of the taxing officer.18J. Enforcement of assessment
(1) The taxing officer must issue to each party a certificate
that sets out the amount in which costs have been
assessed and allowed by the taxing officer.(2) The costs are payable under the order made by the
dispute resolution authority as to the costs.
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18K. Correction of error At any time after making a determination a taxing
officer who made the determination may, for the
purpose of correcting an inadvertent error in the
determination —
(a)
make a new determination in substitution for the previous determination; and
(b)
issue a certificate under regulation 18J that sets out the new determination.
Part 2B — Medical assessment
18L. Definitions In this Part — “prescribed details”, in relation to a worker, means —
(a)
the worker’s name and address and any other details necessary to identify the worker;
(b)
details sufficient to enable the worker to be contacted;
(c) the worker’s date of birth; (d)
the date on which the worker’s injury occurred;
(e) a description of the worker’s injury; (f)
if a claim for compensation has been made under the Act with respect to the worker’s injury — details sufficient to identify the
claim, including any claim number that has
been given to the claim;(g)
the employer’s name and address and any other details necessary to identify the employer;
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(h) details sufficient to enable the employer to be contacted; and (i) the insurer’s name, if any;
“relevant provisions of the Act” means —
(a) Part III Division 2A of the Act (which provides for lump sum payments for specified injuries); (b) Part IV Division 2 Subdivision 3 of the Act (which provides for restrictions on awarding, and the amount of, damages); (c) Part IXA of the Act (which provides for specialised retraining programs); or (d) (except in regulation 18R(3)(e)) clause 18A of Schedule 1 to the Act (which provides for additional sums to be allowed for medical expenses).
18M. Request for assessment by approved medical
specialist of worker’s degree of impairmentFor the purposes of section 146A(3) of the Act, a request for a worker’s degree of impairment to be assessed by an approved medical specialist has to be
given in writing to the approved medical specialist,
specifying —
(a) the prescribed details in relation to the worker; (b) the approved medical specialist’s name; (c)
the relevant provisions of the Act for the purposes of which the assessment is to be made; and
(d) the date of the request for the assessment.
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18N. Requirement to attend at place specified by
approved medical specialistFor the purposes of section 146G(1)(a) of the Act, the requirement for a worker to attend at a place specified by an approved medical specialist —
(a) has to be given in writing to the worker and sent to the worker’s address specified in the request for assessment referred to in regulation 18M; and
(b) has to specify — (i) the prescribed details in relation to the worker;
(ii) the approved medical specialist’s name;
(iii) details sufficient to enable the approved medical specialist to be contacted;
(iv) the relevant provisions of the Act for the purposes of which the assessment is to be made; and
(v) the time when and the place where the worker is to submit to examination, as required under section 146G(1)(d) of
the Act.
18O. Requirement to produce to approved medical
specialist relevant documents and information and
give consent
(1) For the purposes of section 146G(1)(c)(i) of the Act,
the requirement to produce to an approved medical
specialist any relevant document or information has to
be given in writing to the worker, the employer, or the
employer’s insurer, specifying —
(a) the prescribed details in relation to the worker;
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(b)
details of any relevant document or information to which the requirement applies;
(c) the approved medical specialist’s name; (d)
details sufficient to enable the approved medical specialist to be contacted; and
(e)
the relevant provisions of the Act for the purposes of which the assessment is to be made.
(2)
For the purposes of section 146G(1)(c)(ii) of the Act, the requirement to consent to another person who has any relevant document or information producing it to an approved medical specialist has to be given in
writing to the worker, the employer, or the employer’s
insurer, specifying —
(a) the prescribed details in relation to the worker; (b)
details of any relevant document or information to which the requirement applies;
(c)
the name of the person who has the relevant document or information;
(d) the approved medical specialist’s name; (e)
details sufficient to enable the approved medical specialist to be contacted; and
(f)
the relevant provisions of the Act for the purposes of which the assessment is to be made.
18P. Period for compliance with requirements If the time for complying with a requirement referred
to in regulation 18O is not specified in the requirement,
the requirement has to be complied with within 7 days
after the day on which the person who is to comply
with the requirement receives it.
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18Q. Requirement for worker to produce requested
information
(1) On being requested in writing to do so by the approved
medical specialist, a worker who has requested an
approved medical specialist to assess his or her degree
of impairment is required to produce to the approved
medical specialist for use in dealing with the requested
assessment, within 7 days after the day on which the
worker receives the approved medical specialist’s
request, any information that —
(a)
relates to the injury from which the impairment resulted; and
(b)
is specified in the approved medical specialist’s request.
(2) A request by an approved medical specialist under
subregulation (1) has to include —
(a) the approved medical specialist’s name; and (b)
details sufficient to enable the approved medical specialist to be contacted.
(3) A person who contravenes a requirement under
subregulation (1) commits an offence and is liable to a
fine of $2 000.(4) Subregulation (1) does not apply to any information
that is the subject of a requirement referred to in
regulation 18O(1).
18R. Reports and certificates regarding outcome of
assessment
(1) A report of a worker’s degree of impairment given by
an approved medical specialist under
section 146H(1)(a) of the Act has to include —
(a) the prescribed details in relation to the worker;
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(b) the approved medical specialist’s name; (c)
details sufficient to enable the approved medical specialist to be contacted;
(d)
the date of the examination of the worker by, or at the request of, the approved medical specialist; and
(e)
the relevant provisions of the Act for the purposes of which the assessment was made.
(2) A certificate specifying a worker’s degree of
impairment given by an approved medical specialist
under section 146H(1)(b) of the Act has to include —
(a) the prescribed details in relation to the worker; (b) the approved medical specialist’s name; (c)
details sufficient to enable the approved medical specialist to be contacted; and
(d)
the date of the examination of the worker by, or at the request of, the approved medical specialist.
(3) A report given by an approved medical specialist under
section 146H(2)(c) of the Act has to include —
(a) the prescribed details in relation to the worker; (b) the approved medical specialist’s name; (c)
details sufficient to enable the approved medical specialist to be contacted;
(d)
the date of the examination of the worker by, or at the request of, the approved medical specialist; and
(e)
the relevant provisions of the Act for the purposes of which the relevant certificate under section 146H(2) of the Act was given.
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18S. Requirement to attend at place specified by
approved medical specialist panelFor the purposes of section 146L(2)(a) of the Act, the requirement for a worker to attend at a place specified by an approved medical specialist panel has to be given
in writing to the worker, specifying —
(a) the prescribed details in relation to the worker; (b)
the names of the members of the approved medical specialist panel; and
(c)
the time when and the place where the worker is to submit to examination, as required under section 146L(2)(d) of the Act.
18T. Requirement to produce to approved medical
specialist panel relevant documents and information
and give consent
(1) For the purposes of section 146L(2)(c)(i) of the Act,
the requirement to produce to an approved medical
specialist panel any relevant document or information
has to be given in writing to the worker, the employer,
or the employer’s insurer, specifying —
(a) the prescribed details in relation to the worker; (b)
details of any relevant document or information to which the requirement applies; and
(c)
the names of the members of the approved medical specialist panel.
(2)
For the purposes of section 146L(2)(c)(ii) of the Act, the requirement to consent to another person who has any relevant document or information producing it to an approved medical specialist panel has to be given in
writing to the worker, the employer, or the employer’s
insurer, specifying —
(a) the prescribed details in relation to the worker;
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(b)
details of any relevant document or information to which the requirement applies;
(c)
the name of the person who has the relevant document or information; and
(d)
the names of the members of the approved medical specialist panel.
18U. Period for compliance with requirements If the time for complying with a requirement referred
to in regulation 18T is not specified in the requirement,
the requirement has to be complied with within 7 days
after the day on which the person who is to comply
with the requirement receives it.18V. Requirement for worker to produce requested
information
(1) On being requested to do so by the approved medical
specialist panel, a worker in respect of whom a
question as to degree of impairment has been referred
to an approved medical specialist panel is required to
produce to the approved medical specialist panel for
use in dealing with the referral, within 7 days after the
day on which the worker receives the request, any
information that —
(a)
relates to the injury from which the impairment resulted; and
(b)
is specified in the approved medical specialist panel’s request.
(2) A request by an approved medical specialist panel
under subregulation (1) has to include the names of the
members of the approved medical specialist panel.
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(3) A person who contravenes a requirement under
subregulation (1) commits an offence and is liable to a
fine of $2 000.(4) Subregulation (1) does not apply to any information
that is the subject of a requirement referred to in
regulation 18T(1).
18W. Reports and certificates regarding outcome of
assessmentA report of a worker’s degree of impairment given by
an approved medical specialist panel under
section 146O(2)(a) of the Act, or a certificate
specifying a worker’s degree of impairment given by
an approved medical specialist panel under
section 146O(2)(b) of the Act, has to include —
(a) the prescribed details in relation to the worker; (b)
the names of the members of the approved medical specialist panel; and
(c)
the date of the examination of the worker by, or at the request of, the members of the approved medical specialist panel.
”.
25. Regulation 19A amended
Regulation 19A is amended in the definition of “clause” by
deleting “Schedule 7 to the Act.” and inserting instead —“ the Act Schedule 7. ”.
26. Regulation 19C amended
(1) Regulation 19C(5) is amended by deleting “a disability” and
inserting instead —“ an injury ”.
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(2) Regulation 19C(8) is amended by inserting after “section 24A”
in both places where it occurs —“ or 31E ”. 27. Regulation 19E amended
Regulation 19E(1) is amended by deleting “section 24A(2)” and
inserting instead —“ sections 24A(2) and 31E(3) ”.
28. Regulation 19F amended
At the foot of regulation 19F(3) the following provision is
inserted —
“Penalty: a fine of $1 000.
”.
29. Regulation 19G repealed
Regulation 19G is repealed.
30. Heading to Part 3A Division 1 inserted
Before regulation 19IA, the following Division heading is
inserted —“ Division 1 — 1993 scheme
”.
31. Regulation 19IA amended
Regulation 19IA(1) is amended by deleting “93A” and inserting
instead —“ 93CA ”.
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32. Regulation 19J amended
Regulation 19J(1)(b) is amended by deleting “in the Form 22”.
33. Regulation 19K amended
Regulation 19K(1) is amended by inserting before “degree” —
“ level of the ”.
34. Regulation 19L amended
Regulation 19L(1) is amended by deleting paragraph (a) and
“or” after that paragraph and inserting instead —“
(a)
a dispute dealt with as required by section 93D(10) of the Act; or
”.
35. Regulation 19O amended
Regulation 19O is amended by deleting “Workers’
Compensation (Conciliation and Review) Rules 1994 as if it
were an application referring for conciliation” and inserting
instead —
“Workers’ Compensation and Injury Management (DRD) Rules 2005 as if it were an application in respect of
”.
36. Regulation 19P amended
Regulation 19P(2)(a) is amended by deleting “dispute resolution
body” and inserting instead —“ dispute resolution authority ”.
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37. Part 3A Division 2 inserted
At the end of Part 3A, the following Division is inserted —
“ Division 2 — 2004 scheme
20. Recording agreement
(1) If —
(a) the worker and the employer agree — (i) that the worker’s degree of permanent whole of person impairment is at least 15%; and
(ii) as to whether or not the worker’s degree of permanent whole of person impairment is at least 25%;
and
(b) the worker, in writing, requests the Director to record the agreement,
the Director is required to record the agreement in a register kept for the purpose unless an agreement or assessment as to the worker’s degree of permanent whole of person impairment has already been recorded
under this regulation or regulation 21.
(2) The request under subregulation (1)(b) for the Director
to record the agreement has to include —
(a)
the worker’s name and any other details necessary to identify the worker;
(b)
details sufficient to enable the worker to be contacted;
(c) the worker’s date of birth; (d)
the date on which the injury occurred and a description of the injury;
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(e)
if a claim for compensation under the Act for the injury has been made, the date on which the worker’s claim was made and sufficient other details to identify the claim (including any claim number that may have been given to the claim);
(f)
the employer’s name and any other details necessary to identify the employer;
(g)
details sufficient to enable the employer to be contacted; and
(h) the name of the insurer, if any.
(3) The Director’s record in the register is to be in the form
of Form 32 in Appendix I, and the Director is required
to give a copy of the record to each of the worker and
the employer.21. Recording assessment
(1) If —
(a) the worker’s degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%; (b) the Director has been given — (i) a copy of the certificate given to the worker under section 146H(1)(b) of the Act; and
(ii) if the assessment involves a special evaluation as defined in section 146C(4) of the Act, a copy of the certificate referred to in section 93N(1) of the Act on the basis of which the special evaluation was requested;
and
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(c) the worker, in writing, requests the Director to record the assessment,
the Director is required to record the assessment in a register kept for the purpose unless an agreement or assessment as to the worker’s degree of permanent whole of person impairment has already been recorded
under regulation 20 or this regulation.
(2) The Director’s record in the register is to be in the form
of Form 33 in Appendix I, and the Director is required
to give a copy of the record to each of the worker and
the employer.22. Electing to retain right to seek damages
(1)
An election under section 93K(4)(a) of the Act is made by completing an election form in the form of Form 34 in Appendix I and lodging it with the Director.
(2) Unless under subregulation (3) the Director refuses to
register the election, the Director is to —
(a)
register the election in a register kept for that purpose on the day on which the Director receives the election form; and
(b)
complete the relevant section of the election form and give a copy of it to the worker and the employer.
(3) The Director may refuse to register the election if not satisfied that the worker has been properly advised of the consequences of the election. 23. Extending termination day
(1) A worker may apply for the Director to extend the
termination day under section 93M of the Act.
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(2) The application is made by —
(a)
lodging with the Director a completed application form in the form of Form 35 in Appendix I; and
(b)
providing to the Director, with the application form, anything that this regulation requires to be provided with the application form.
(3) If the application is made in the circumstances
described in section 93M(4)(a) of the Act —
(a)
when the application form is lodged, the Director has to be provided with —
(i) specialist’s certificate certifying that the
worker’s condition has not stabilised to
the extent required for a normal
evaluation of the worker’s degree of
permanent whole of person impairmenta copy of the approved medical WorkCover Guides as described in sections 146A and 146C of the Act;
(ii) specialist’s recommendation of a day
a copy of the approved medical extended; and
(iii) a copy of the approved medical section 146H(2)(c) of the Act;
and (b) the Director may, within the limits imposed by the Act, extend the termination day until a day that the Director, having regard to the approved medical specialist’s recommendation, considers will give the worker a reasonable opportunity to
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make an election under section 93K(4)(a) of the
Act.
(4) If the application is made in the circumstances
described in section 93M(4)(b) of the Act, the Director
cannot extend the termination day to a day that is more
than 6 months after the day on which the Director gives
the extension.(5) If the application is made in the circumstances
described in section 93M(4)(c) of the Act —
(a) when the application form is lodged — (i) if the worker has, in writing, requested an assessment of the worker’s degree of permanent whole of person impairment, the Director has to be provided with a copy of the worker’s request; and
(ii) if the approved medical specialist has notified the worker, in writing, that more time is or was required to give the worker the documents required by section 146H of the Act than the time described in section 93O(1)(d) of the Act, the Director has to be provided with a copy of the notification;
and
(b)
the Director may, within the limits imposed by the Act, extend the termination day until a day that the Director, having regard to the further
time needed by the approved medical specialist,
considers will give the worker a reasonable
opportunity to make an election under
section 93K(4)(a) of the Act.
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(6) If the application is made in the circumstances
described in section 93M(4)(d)(i) or (ii) of the Act —
(a) when the application form is lodged — (i) the Director has to be provided with a copy of the worker’s request for an assessment of the worker’s degree of permanent whole of person impairment; and
(ii) if the approved medical specialist has notified the worker, in writing, that it would be impracticable to give the
worker the documents required by
section 146H of the Act at least 7 days
before the termination day, the Director
has to be provided with a copy of the
notification;
and
(b) the Director may, within the limits imposed by the Act, extend the termination day until a day that the Director considers will give the worker a reasonable opportunity to make an election under section 93K(4)(a) of the Act.
24. Expected time for approved medical specialist to give assessment documents
An approved medical specialist can reasonably be
expected to take 6 weeks, after a worker requests an
assessment of the worker’s degree of permanent whole
of person impairment, to give the worker the
documents that the approved medical specialist is
required by section 146H of the Act to give the worker.
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25. Employer’s obligation to notify worker
The notice that an employer is required by
section 93O(1) of the Act to give to a worker has to be
given by sending the worker a document in the form of
Form 36 in Appendix I.”.
38. Part 4 replaced by Parts 4 to 7
Part 4 is repealed and the following Parts are inserted instead —
“ Part 4 — Registered agents
Division 1 — Preliminary
26. Meaning of terms used in this Part
In this Part —
“applicant” means an applicant for registration;
“code of conduct” means the code of conduct set outin Appendix IV;
“employer”, in relation to an applicant or registered
agent, means the person or body —
(a)
by which the applicant or registered agent is employed or engaged; and
(b)
as an employee or officer of which the applicant proposes to act as a registered agent, or of which the registered agent acts as a registered agent;
“registration” means registration under this Part as a
registered agent.
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27. Prescribed organisation (section 277(1)(e))
The Asbestos Diseases Advisory Service of Australia is
prescribed as an organisation for the purposes of
section 277(1)(e) of the Act.Division 2 — Registration and renewal
28. Application for registration
(1) An application for registration must be made to
WorkCover WA in a form approved by
WorkCover WA.(2) The application must include a nomination of the
applicant signed by the applicant’s employer.(3) The application must be accompanied by evidence
satisfactory to WorkCover WA that —
(a)
there is, or upon registration under this Part will be, in force with respect to the applicant a policy of professional indemnity insurance for not less than $1 million for any one claim; or
(b)
within the meaning of subregulation (4), the applicant has sufficient material resources to provide professional indemnity.
(4) A person has sufficient material resources to provide
professional indemnity if —
(a)
the person will not act as a registered agent other than as an employee or officer of a body referred to in section 277(1)(a), (b), (c), (d) or (e) of the Act; and
(b) that body —
(i) maintains professional indemnity for any one claim; or
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(ii) holds legal or equitable estates or interests of not less than $1 million in real or personal property.
(5) The applicant must provide WorkCover WA with any
additional information or document that WorkCover
WA may ask for.29. WorkCover WA must register, and may impose conditions on registration
(1) WorkCover WA must register an applicant if the
application is duly made.(2) WorkCover WA cannot refuse an application unless it
has —
(a)
given the applicant written notice of the intention to refuse the application, and of the grounds for the proposed refusal; and
(b)
allowed at least 21 days for the applicant to show cause why the application should not be refused.
(3) Registration has effect to the extent that the person acts
as a registered agent as an employee or officer of the
employer that nominates the person in the application
under regulation 28(2), and not otherwise.30. Indemnity and other conditions of registration
(1) It is a condition of registration that the professional
indemnity insurance or material resources of the
registered agent referred to in regulation 28(3) must be
maintained during the period of registration.(2) It is a condition of registration that the registered agent
must comply with the code of conduct.
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(3) It is a condition of registration that the person will not act as a registered agent other than as an employee or officer of the employer who nominated the agent in the application for registration. 31. Duration of registration
(1) Except as provided in subregulation (3), a registration
has effect from the day it is granted and continues in
force until the following 30 June.(2) An application for the renewal of registration may be made at any time before the registration expires and, except as provided in subregulation (3), any such renewal has effect for the period 1 July to 30 June. (3) If a registered agent is removed from the register under
regulation 36, or has his or her registration suspended
or cancelled under regulation 38 or 39, the registration
or renewal has effect until that removal or suspension,
as the case requires.32. Application for renewal of registration
(1) An application for renewal of registration must be
made in the same manner and form as an application
for registration.(2)
An application for renewal must be made not later than 28 days before the day on which the registration is due to expire.
(3)
WorkCover WA may shorten the period referred to in subregulation (2) and may do so either before or after the application is required to be made under that
subregulation. (4) WorkCover WA must renew the registration if the
application for renewal is duly made.
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(5) WorkCover WA cannot refuse to renew the registration
unless it has —
(a) given the applicant written notice of the intention to refuse the application, and of the grounds for the proposed refusal; and (b) allowed at least 21 days for the applicant to show cause why the application should not be refused.
33. Certificate of registration
(1) WorkCover WA must issue a person with a certificate
of registration —
(a) on the registration of the person; and (b) on the renewal of the person’s registration.
(2) The period for which the registration of the person has
effect must be entered on the certificate.(3) In the absence of evidence to the contrary a certificate of registration is evidence that the person to whom the certificate is issued is registered for the period specified in the certificate. 34. False or misleading information
A person must not in relation to an application for
registration or renewal of registration give information
orally or in writing that the person knows to be —
(a) false or misleading in a material particular; or (b) likely to deceive in a material way.
Penalty: a fine of $1 000.
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Division 3 — The register
35. Register
(1) WorkCover WA must keep a register in a manner and
form determined by it.(2) WorkCover WA is to record in the register —
(a) the name and address of each registered agent; (b)
the name and address of the employer of each registered agent;
(c)
the date of the initial registration and each date of renewal of registration of each registered agent; and
(d)
such other particulars as WorkCover WA may determine.
(3) WorkCover WA must allow any person —
(a) to inspect the register; and (b)
to take copies of, or extracts from, any part of it.
(4) A person may, on application to WorkCover WA, obtain a certified copy of a part of, or entry in, the register. (5) WorkCover WA must make the amendments, additions
and corrections to the register that are necessary to
make the register an accurate record of the particulars
in relation to all registered agents.36. Removal from register
(1) WorkCover WA may, on the written request of a
registered agent and the return of the relevant
certificate of registration, remove the name of the
registered agent from the register.
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(2)
WorkCover WA may remove the name of a registered agent from the register if the employer who nominated the registered agent under regulation 28(2) notifies
WorkCover WA in writing that the employer has withdrawn the nomination.
Division 4 — Disciplinary powers
37. Restriction on exercise of powers
WorkCover WA cannot take disciplinary action under
regulation 38 or 39 unless it has given the registered
agent and the employer who nominated the registered
agent under regulation 28(2) an opportunity to show
cause why the action should not be taken.38. Cancellation of registration
WorkCover WA may cancel the registration of a
registered agent if WorkCover WA is satisfied that the
registered agent has ceased to be an employee or
officer of the employer who nominated the registered
agent under regulation 28(2).39. Taking disciplinary action
(1) Proper causes for disciplinary action in respect of a
registered agent are that the registered agent —(a) improperly obtained registration;
(b)
has contravened a condition of that person’s registration; or
(c)
has done or omitted to do something, or engaged in conduct, that renders the person unfit to be registered.
(2) WorkCover WA may, on receiving a written complaint
about a registered agent, carry out any investigation
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necessary to decide whether there is proper cause for
disciplinary action in respect of a registered agent.
(3) If WorkCover WA is satisfied that proper cause exists
for disciplinary action, WorkCover WA may —
(a) reprimand or caution the registered agent; (b) attach a condition to the registration; (c)
suspend the registration for a period not exceeding 12 months; or
(d) cancel the registration.
40. Return of certificate of registration
(1)
If WorkCover WA suspends or cancels a person’s registration it must give directions in writing to the person as to the return to it of the certificate of
registration. (2) A person given a direction under subregulation (1)
must comply with the direction.Penalty: a fine of $1 000.
Division 5 — Review
41. Review
A person aggrieved by a decision of WorkCover WA
to —
(a) refuse an application for registration or for renewal of registration; or (b)
suspend or cancel the person’s registration,
may apply to the State Administrative Tribunal for a
review of that decision.
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Division 6 — Miscellaneous
42. Evidentiary matters
In all courts and before all persons and bodies
authorised to receive evidence, in the absence of
evidence to the contrary —
(a) a certificate purporting to be issued by WorkCover WA and stating — (i) that a person was or was not registered;
(ii) that a person’s registration was suspended or cancelled,
on any day or days or during a period
mentioned in the certificate is evidence of thematters so stated; and
(b) a copy of, or extract from the register or any statement that purports to reproduce matters entered in the register and that is certified by WorkCover WA as a true copy, extract or statement, is evidence of the facts appearing in
that copy, extract or statement.
43. Transitional provision
(1) If a person, other than a legal practitioner, was,
immediately before the commencement day, the
representative of a party to a pending proceeding, that
person may continue to act as the representative of the
party in that proceeding during the transition period,
and for that purpose the person is to be taken to be a
registered agent.(2) The transition period is from the commencement day
until —
(a)
in the case of a person who does not make an application within 30 days after the
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commencement day for registration, on the 30th
day after the commencement day; and
(b) in the case of a person who makes an application within 30 days after the commencement day for registration — (i) that person is registered under this Part; or
(ii) the application is refused and the review period is completed,
whichever happens first.
(3) For the purposes of subregulation (2)(b) a review
period is completed when —
(a) the time for applying for a review of the decision expires without an application for review being made; or (b) an application for review of the decision is made but — (i) results in the refusal being confirmed; or
(ii) is withdrawn, discontinued or dismissed for want of prosecution.
(4) In this regulation — “commencement day” means the day on which section 130 of the Workers’ Compensation Reform
Act 2004 comes into operation;
“dispute resolution body” has the same meaning as in
Workers’ Compensation and Injury
the before the commencement day;
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“pending proceeding” means —
(a)
any matter the conciliation, review or other determination of which has been sought but not commenced before a dispute resolution body; or
(b)
any matter that has been partly or fully heard or otherwise dealt with before, but not determined by, a dispute resolution body.
Part 5 — Injury management
44. Vocational rehabilitation services
The services listed in column 2 of the Table to this
regulation and described in column 3 are services the
provision of which, if they are for the purpose of
enabling the worker to return to work, may be
“vocational rehabilitation” as defined in section 5(1) of
the Act.
Table
column 1 column 2 column 3 item service description 1 support counselling activities to assist the worker to
adjust to the injury and to the
worker’s return to work; family
counselling related to vocational
rehabilitation; progress counselling
related to the progress of, and
problems with, the worker’s return to
work2 vocational activities focussed on problems the counselling worker has in selecting and preparing
for vocational change3 purchase of aids advising and assisting the worker and appliances with the purchase of aids and
appliances
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column 1 column 2 column 3 item service description 4 case management activities associated with the
management of the worker’s return
to work, which may include liaising
and negotiating with the parties,
developing, coordinating and
otherwise managing, and reviewing,
the service delivery plan, and
arranging for interpreter services5 retraining criteria assisting a worker to explore assistance eligibility to participate in a
specialised retraining program and to
prepare information to show that the
retraining criteria are satisfied6 specialised services to assist a worker undertake retraining program a specialised retraining program assistance 7 training and assisting to develop the worker’s education skills and knowledge, which may
include providing training courses or
other aspects of injury management8
workplace activities
activities involving analysis of work behaviour and analysis and design of job duties
9 placement activities activities focussed on obtaining a
new job for the worker, which may
include assistance with the
preparation of a resume and
preparation for an interview and
research and other assistance in
finding jobs10 assessments:
(a) functional capacity activities associated with assessing
the worker’s functional capacity,
which may include preparing a report
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column 1 column 2 column 3 item service description
(b) vocational activities associated with assessing
the worker’s vocational and
retraining options, which may
include preparing a report(c)
ergonomic
activities associated with assessing how a particular work environment would affect the worker, which may include preparing a report
(d) job demands activities associated with identifying
and assessing the physical and
cognitive demands of a job, which
includes preparing a report(e)
workplace
activities associated with assessing the suitability of various workplace alternatives and other job options,
which may include preparing a report
(f) aids and appliances activities associated with developing
recommendations for aids and
appliances to assist the worker,
which may include preparing a report
11 travel travel that is associated with
providing vocational rehabilitation12 medical discussion with specialists and other
medical practitioners about
vocational rehabilitation, which may
include preparing a report13 general reports status reports relating to vocational
rehabilitation45. Insurer to advise of injury management obligations
(1) Subregulation (2) specifies the action that
section 155D(1) of the Act requires an insurer to take
to make an employer aware of the employer’s
obligations under section 155B and section 155C(1)
and (3) of the Act.
4906 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
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(2)
Whenever the insurer issues to an employer, or renews, a policy of insurance against the employer’s liability to pay compensation under the Act, the insurer has to give the employer a written notice informing the employer
of the things described in subregulation (3). (3) The notice has to inform the employer that —
(a) section 155A(1) of the Act authorises WorkCover WA to issue a code of practice (injury management) and WorkCover WA will, on request, provide a copy of a code it issues; (b) section 155B of the Act requires the employer to establish and implement an injury management system in accordance with the code; and (c) section 155C of the Act requires the employer to establish and implement a return to work program for a worker in accordance with the code in circumstances described in that section.
46. Particulars for notice under section 157A(1) of Act
The prescribed particulars for a notice under
section 157A(1) of the Act are —
(a) the full name of the worker concerned; (b) the number given by the insurer or self-insurer to the claim by the worker for compensation; and (c) knowledge described in section 157A(1)(a) of
whether the notice is required because of section 157A(1)(b) of the Act.
28 October 2005 GOVERNMENT GAZETTE, WA 4907 Workers’ Compensation and Injury Management Amendment
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r. 38
Part 6 — Specialised retraining programs
47. Recording agreement
(1) If —
(a)
the worker and the employer agree that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%; and
(b)
the worker, in writing, requests the Director to record the agreement,
the Director is required to record the agreement in a
register kept for the purpose.
(2) If —
(a)
the worker and the employer agree that the worker satisfies all of the retraining criteria; and
(b)
the worker, in writing, requests the Director to record the agreement,
the Director is required to record the agreement in a
register kept for the purpose.
(3) A request under subregulation (1)(b) or (2)(b) for the
Director to record an agreement has to include —
(a)
the worker’s name and any other details necessary to identify the worker;
(b)
details sufficient to enable the worker to be contacted;
(c) the worker’s date of birth; (d)
the date on which the injury occurred and a description of the injury;
4908 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
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(e)
if a claim for compensation under the Act for the injury has been made, the date on which the worker’s claim was made and sufficient other details to identify the claim (including any claim number that may have been given to the claim);
(f)
the employer’s name and any other details necessary to identify the employer;
(g)
details sufficient to enable the employer to be contacted; and
(h) the name of the insurer, if any.
(4) The Director’s record in the register is to be in the form
of —
(a)
if subregulation (1) requires the record, Form 37 in Appendix I;
(b)
if subregulation (2) requires the record, Form 38 in Appendix I,
and the Director is required to give a copy of the record
to each of the worker and the employer.48. Extending final day
(1) A worker may apply for the Director to extend the final
day under section 158B of the Act.(2) The application is made by —
(a) lodging with the Director a completed application form in the form of Form 39 in Appendix I; and (b) providing to the Director, with the application form, particulars about — (i) the action taken by the worker to obtain from the employer by the final day any
28 October 2005 GOVERNMENT GAZETTE, WA 4909 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 38
agreement that the worker was unable to
obtain as to —
(I) the worker’s degree of
permanent whole of person
impairment; or(II) whether the worker satisfies all
of the retraining criteria;
(ii) before the final day, requested an
approved medical specialist to assessthe worker’s having, at least 8 weeks of person impairment; and
(iii) the action taken by the worker towards applying under section 158C or 158D of the Act to have a matter in dispute determined by an arbitrator.
(3) The Director may, within the limits imposed by the
Act, extend the final day until a day that the Director
considers will give the worker a reasonable opportunity
to take the action referred to in section 158B(1) of
the Act.49. Request for WorkCover to direct payment
(1) A person seeking that, under section 158F of the Act,
WorkCover WA direct an employer or an insurer to
make a payment may, in accordance with this
regulation, request WorkCover WA to give the
direction.(2) The request has to be made to WorkCover WA in
writing, giving —
(a) the date on which the request is made; (b)
the worker’s name and any other details necessary to identify the worker;
4910 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
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(c)
details sufficient to enable the worker to be contacted;
(d)
reasons justifying the giving of the direction; and
(e)
the date, if any, by which the payment needs to be made.
(3)
If the payment is to satisfy a debt incurred or to recoup the cost of any payment that has been made, the request has to be accompanied by copies of relevant invoices
or other sufficient evidence of the debt or cost,
showing details of each item charged and the rate at
which it was charged, if applicable.Part 7 — Infringement notices and
modified penalties
50. Prescribed offences
The offences described in Appendix V are the offences
for which an infringement notice may be given under
section 175G(1) of the Act.51. Prescribed modified penalties
A penalty specified in Appendix V is the modified
penalty for the corresponding offence in Appendix V
for the purposes of section 175H(2)(b) of the Act.52. Prescribed form of infringement notice
The form of an infringement notice is set out in
Appendix I Form 40 for the purposes of
section 175H(1) of the Act.
28 October 2005 GOVERNMENT GAZETTE, WA 4911 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
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53. Prescribed form of withdrawal of notice
The form of a notice to withdraw an infringement
notice is set out in Appendix I Form 41 for the
purposes of section 175J(1) of the Act.”.
39. Amendments common to various provisions
(1) The regulations are amended by deleting “levels of disability” in
each place specified in the Table to this subregulation and
inserting instead —“ relevant levels of the degree of disability ”.
Table
r. 19JA(3) (in 3 places) r. 19JB(3) (in 3 places)
(2) The regulations are amended by inserting before “disability” in
each place specified in the Table to this subregulation —“ the degree of ”.
Table
r. 19J(1)(b) r. 19JB(2) r. 19JA(2)
(3) The regulations are amended by deleting “disability” in each
place specified in the Table to this subregulation and inserting
instead —“ injury ”.
Table
r. 19N(2)(a), (aa), (b), and (c)
4912 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 40
40. Appendix I amended
(1) Appendix I Form 1 is amended as follows:
(a) by deleting “[r.4]” and inserting instead — “ [r. 4(1)] ”;
(b)
by deleting “ELECTION FOR SCHEDULE 2 INJURIES” and inserting instead —
“
ELECTION FOR SCHEDULE 2 INJURIES UNDER
PART III DIVISION 2
”;
(c) by deleting “suffered personal injury” and inserting instead — “ suffered compensable personal injury ”;
(d) by deleting “Schedule 2” and inserting instead — “ Part III Division 2 ”;
(e) by deleting “disability” in the 3 places where it occurs and inserting instead — “ injury ”;
(f) by deleting “(state the part of the body affected)” and inserting instead — “ (state the part or faculty of the body affected) ”;
(g) by deleting “dispute resolution body” and inserting instead — “ dispute resolution authority ”;
(h) by deleting “clauses 9, 17, 18 and 19 of Schedule 1” and “
the Workers’ Compensation and Injury
Management Act 1981 Schedule 1 clauses 9, 17, 18, 18Aand 19
”;
28 October 2005 GOVERNMENT GAZETTE, WA 4913 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
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(i) by deleting “rehabilitation” and inserting instead —
“ injury management ”.
(2) After Appendix I Form 1 the following form is inserted —
“
Form 1A
[r. 4(2)]
Workers’ Compensation and Injury Management Act 1981
ELECTION FOR SCHEDULE 2 INJURIES UNDER PART III
DIVISION 2A
(Section 31H)
Surname Mr/Mrs/Miss/Ms ………………………………………….…………………………………
Other Names
………………………………………….…………………………………
Address
………………………………………….…………………………………..
………………………………………….…………………………………..
………………………………………….Postcode…………………………
Worker’s details
Surname Other names
Date of birth Sex Occupation Address Postcode
Telephone no. WorkCover claim number (WCCN) (if not known, insurer can provide WCCN) Employer’s details Name Address Postcode
Telephone no. WorkCover number (WCN) Contact person Title Telephone no.
4960 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
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Insurer’s details
Name
Address
Postcode
Contact person Telephone no. Injury details Description of injury Date injury occurred Date the claim for compensation by way of weekly payments was made on employer Claim number given by insurer (if known) Final day under section 158B of the Act 1. Did a dispute resolution authority, acting under section 58(1) or (2) of the Act, determine the question of liability to make the weekly payments claimed?
Yes † If so, answer question 2. No † If not, skip question 2.
2. Was the question determined more than 3 months after the day on which compensation by way of weekly payments was claimed?
Yes † If so, on which date? No †
3. Was the worker first notified that liability is accepted in respect of the weekly payments claimed more than 3 months after the day on which compensation by way of weekly payments was claimed?
Yes † If so, on which date?
No 4. Has the final day been extended under section 158B(4) of the Act?
†
.
Yes † If so, to which date? No †
28 October 2005 GOVERNMENT GAZETTE, WA 4961 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 40
Extension sought
1. This application is for the final day to be extended under section 158B(4) of the Act.
2. Specify date until which extension sought.
Signature
of worker Date / / How to lodge this form 1. This form should be lodged with: Director Dispute Resolution
WorkCover WA
Perth, WA
2. WHEN LODGING THIS FORM ALSO PROVIDE ANYTHING ELSE THAT REGULATION 48 REQUIRES YOU TO PROVIDE.
Extension given or refused
The final day
is extended to / / is not extended. †
Signature
of Director Date / / Copies of extension sent to worker Date / /
(signature of person sending copy)
employer
Date / /
(signature of person sending copy)
4962 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 40
Form 40
[r. 52]
Workers’ Compensation and Injury Management Act 1981
Infringement notice
Serial No. ............... Date ……/….../…...
To: (1) …………………………………………………………………………... of: (2) …………………………………………………………………………… It is alleged that on ……/……/…… at or about (3) ……………………………. at (4) ……………………………………………………………………………. the alleged offender named above committed the following offence —
…………………………………………………………………………………. …………………………………………………………………………………. …………………………………………………………………………………. contrary to section (5) …………………… of the Workers’ compensation and Injury Management Act 1981.
The modified penalty for this offence is $ …………………………….If the alleged offender wishes to be prosecuted for the alleged offence in a court, the modified penalty should not be paid and no reply to this notice is required. The alleged offender may become liable to pay a fine and costs if court proceedings are taken against the alleged offender.
If the alleged offender does not wish to be prosecuted for the alleged offence in a court, the amount of the modified penalty may be paid within the period of 28 days after the giving of this notice. Payment may be made by either —
• posting this form and a cheque or money order, made payable to WorkCover Western Australia, for the amount of the modified penalty to the Chief Executive Officer, WorkCover WA, 2 Bedbrook Place, Shenton Park WA 6008; or
• delivering this form, and paying the amount of the modified 2 Bedbrook Place, Shenton Park WA 6008.
Name and title of authorised officer giving the notice:
……………………………………………………………………………….
28 October 2005 GOVERNMENT GAZETTE, WA 4963 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 40
Signature: …………………………………
*The following are authorised officers for the purposes of receiving payment of
modified penalties:…………………………………………………………………………………..
…………………………………………………………………………………..
(1) Name of alleged offender (2) Address of alleged offender (3) Time when offence allegedly committed (4) Place where offence allegedly committed (5) Section designation
Form 41
[r. 53]
Workers’ Compensation and Injury Management Act 1981
Withdrawal of infringement notice
Serial No. ............... Date ……/….../…...
To: (1) …………………………………………………………………………... of: (2) …………………………………………………………………………… Infringement notice No. ……………………dated ……/……/…… for the
alleged offence of ……………………………………………………………… …………………………………………………………………………………. contrary to section …………… of the Workers’ Compensation and Injury
Management Act 1981 has been withdrawn.The modified penalty of $ ………………
* has been paid and a refund is enclosed. * has not been paid and should not be paid. * Delete as appropriate
Name and title of authorised officer giving this notice:
………………………………………………………………………………….
Signature ……………………………………………………………………….
(1) Name of alleged offender given the infringement notice (2) Address of alleged offender ”.
4964 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 41
41. Appendices IV and V inserted
After Appendix III the following Appendices are inserted —
“ Appendix IV — Registered agents code of conduct
[r. 26]
1. Duties of registered agent
It is the duty of a registered agent —
(a) to comply with the provisions of the Act, any subsidiary legislation made under the Act and the conditions of registration; (b) not to engage in conduct which is illegal or dishonest or which may otherwise bring registered agents into disrepute or which is prejudicial to the administration of the workers’ compensation and injury management system; and (c) to be competent as a registered agent.
2. Integrity and diligence
(1) A registered agent must not attempt to further a client’s case
by unethical or dishonest means.(2) A registered agent must not knowingly assist or seek to
induce another person to breach this code of conduct.(3)
A registered agent must treat clients fairly and in good faith, giving due regard to a client’s position of dependence upon the agent, and the high degree of trust which a client is
entitled to place on the agent. (4) A registered agent must always be completely frank and
open with a client and with all others so far as the interests
of the client permit and must at all times give a client a
candid opinion on any matter in which the agent acts for that
client.
28 October 2005 GOVERNMENT GAZETTE, WA 4965 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 41
(5) A registered agent must take such action consistent with the
agent’s retainer as is necessary and reasonably available to
protect and advance a client’s interests.(6) A registered agent must at all times use his or her best
endeavours to complete work on behalf of a client as soon
as is reasonably possible, and if a registered agent accepts
instructions and it is, or becomes, apparent to the agent that
the work cannot be done within a reasonable time, the agent
must so inform the client.(7) A registered agent must not take unnecessary steps or do work in such a manner as to increase proper costs to the client. (8) If it is in the best interests of the client of a registered agent
to do so, the agent must endeavour to reach a solution by
settlement rather than commence or continue proceedings.3. Confidentiality
(1) A registered agent must strive to establish and maintain a
relationship of trust and confidence with clients.(2) A registered agent must impress upon a client that the agent
cannot adequately serve the client without knowing
everything that might be relevant to the client’s interests and
that the client should not withhold information that the
client might think is embarrassing or harmful to the client’s
interests.(3) A registered agent must not, without the client’s consent,
directly or indirectly reveal a client’s confidence, or use the
confidence in any way detrimental to the interests of that
client, or lend or reveal the contents of the confidence in any
brief or instructions to any person except to the extent —
(a) required by law, rules of court or court order; or (b)
necessary for replying to or defending any charge or complaint of criminal conduct or misconduct contrary to this code brought against the agent.
4966 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
r. 41
(4) A registered agent’s duties under this clause towards a
particular client continue after the agent has ceased to act for
the client.4. Conflict of interest
(1) A registered agent must at all times make a full and frank
disclosure to a client of any conflict of interest that the
registered agent has or may have in any matter concerning
that client.(2) A registered agent must not act or continue to act on behalf of a client if to do so would or may give rise to a conflict of interest adverse to the client unless the client has been fully informed of the nature and implications of the conflict and consents to the registered agent acting or continuing to act on behalf of the client. (3) A registered agent must not give advice or guidance to a
person where the registered agent knows that the interests of
that person are in conflict or likely to be in conflict with the
interests of the agent’s client, other than advice to secure the
services of another representative.5. Proceedings
(1)
Subject to this code of conduct, a registered agent must provide advice and conduct each case and matter in the manner the agent considers most advantageous to the
agent’s client. (2) A registered agent must not knowingly deceive or mislead
the Commissioner, an officer of the DRD or any other
officer of WorkCover WA, a client or any other person
involved in a matter in respect of which the agent has been
retained.(3) A registered agent must at all times —
(a)
act with due courtesy to the Commissioner, officers of the DRD and other officers of WorkCover WA, legal practitioners, other registered agents, their own clients and other parties to the dispute;
28 October 2005 GOVERNMENT GAZETTE, WA 4967 Workers’ Compensation and Injury Management Amendment
Regulations (No. 2) 2005
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(b)
use his or her best endeavours to avoid unnecessary expense and waste of a dispute resolution authority’s time;
(c)
when so requested, inform the Director of the probable length of a proceeding;
(d)
inform the Director of the possibility of a settlement provided the agent can do so without revealing the existence or content of “without prejudice” communications; and
(e)
subject to this code of conduct, inform the Director of any development that affects the information already before a dispute resolution authority.
(4) In cross examination which goes to a matter in issue, a
registered agent may put questions suggesting fraud,
misconduct or the commission of an offence provided that
the agent is satisfied that the matters suggested are part of
the case of the agent’s client and the agent has no reason to
believe that they are only put forward for the purpose of
impugning the witness’s character.(5) Questions which affect the credibility of a witness by
attacking the witness’s character, but which are otherwise
not relevant to the actual inquiry, must not be put in cross
examination unless there are reasonable grounds to support
the imputation conveyed by such questions.6. Advertising
A registered agent must not engage in promotional conduct
or advertising about the agent’s skills, experience, fees or
results in a manner which is misleading or deceptive, or
likely to mislead or deceive.7. Withdrawal
(1) A registered agent must recognise that a client is entitled to
change representative at any time without giving a reason
and must take all reasonable steps to facilitate such a change
should a client so request.
4968 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
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r. 41
(2)
If a client engages another registered agent in a matter and that agent is of the opinion that the conduct of a preceding representative in the matter warrants the making of a
complaint, the agent must so advise the client. (3) A registered agent may withdraw from representing a
client —
(a) at any time and for any reason if withdrawal will cause no significant harm to the client’s interests and the client is fully informed of the consequences of withdrawal and voluntarily assents to it;
(b)
if the registered agent reasonably believes that continued engagement in the case or matter would be likely to have a seriously adverse effect upon the agent’s health;
(c)
if the client, without lawful excuse, refuses or fails to comply with a written agreement regarding fees or expenses;
(d)
if the client made material misrepresentations about the facts of the case or matter to the agent;
(e)
if the agent has an interest in any case or matter which the agent is concerned may be adverse to that of the client;
(f)
if such action is necessary to avoid the agent breaching this code of conduct; or
(g) if any other good cause exists.
(4) If a registered agent withdraws from representing a client
the agent must take reasonable care to avoid foreseeable
harm to the client including —
(a) giving due notice to the client; (b)
allowing reasonable time for the substitution of a new agent;
(c) cooperating with the new agent; and
28 October 2005 GOVERNMENT GAZETTE, WA 4969 Workers’ Compensation and Injury Management Amendment
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(d)
promptly turning over all papers and property and paying to the client any moneys to which the client is entitled.
(5) If a registered agent withdraws from representing a client the agent must give written notice of the withdrawal to the Director and other parties to the proceeding. 8. Fees
(1) A registered agent must before commencing to act for a
client inform the client in writing of the maximum costs the
registered agent can charge and the basis for calculation of
the costs of the agent.(2) Upon receiving the advice the client must sign an
acknowledgment of the information.(3) During the course of a retainer, a registered agent must
promptly advise the client of any circumstances likely to
have a substantial effect on the amount, or basis of
calculation, of such costs or any disbursements.(4) A registered agent must issue appropriate receipts for
services provided to a client.(5) A registered agent must not charge more than is reasonable
for his or her services, having regard to the complexity of
the matter, the time and skill involved, and any costs
determination published under section 273 of the Act.9. Records
(1) A registered agent must keep adequate records of —
(a) moneys received on behalf of clients; (b) disbursement made on behalf of clients; and (c) time spent on cases.
(2) Records kept under this clause must be available for
inspection by WorkCover WA.
4970 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
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10. Trust moneys
A registered agent must not hold for or on behalf of a client
or other party any moneys in trust without the written
authorisation of that person.11. Costs
(1) A registered agent must not, in the course of his or her
business give, or agree to give, an allowance in the nature of
an introduction fee or spotter’s fee to any person for
introducing business to him or her and must not receive any
similar allowance from any person for introducing or
recommending clients to that person.(2) A registered agent must, as soon as practicable after being
requested by a client, render a bill of costs covering all work
performed for the client to which the request relates.Appendix V — Prescribed offences and
modified penalties
[r. 50, 51]
Item Section Description of offence Modified
of Act penalty
1. 57A(3) Failing to provide notice ……………….. $200.00 2. 57A(4) Failing to cause notification to be accompanied by means for conveying information in machine-readable form .... $200.00 3. 57B(2) Failing to make first weekly payment or give notice ……………………………… $200.00 4. 57B(2b) Failing to notify WorkCover WA of having declined to indemnify employer …. $200.00 5. 57B(3) Failing to cause notification to be accompanied by means for conveying information in machine-readable form .... $200.00 6. 57C(2) Failing to notify WorkCover WA after weekly payments commenced …………. $200.00
28 October 2005 GOVERNMENT GAZETTE, WA 4971 Workers’ Compensation and Injury Management Amendment
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Item Section Description of offence Modified
of Act penalty
7. 57C(4) Failing to notify WorkCover WA of
discontinuance of weekly payments ...…. $200.00 8. 61(2a)(a) Failing to give notice of intention to
discontinue or reduce weekly payments …. $400.00 9. 61(2a)(b) Failing to give notice that complies with
section 61(2) of the Act………………... $400.00 10. 70(2) Failing to furnish worker with copy of
report …………………………………… $400.00 11. 75(2) Giving notice contrary to section 75(1) of
the Act ………………………………...... $200.00 12. 103A(2) Furnishing WorkCover WA with false
information or return …………………… $400.00 13. 109(3)
Failing to pay contribution or instalment … $400.00 14. 109(4b) Failing to send particulars to
WorkCover WA ………………………... $400.00 15. 109(6) Failing to send return or statutory
declaration to WorkCover WA ………… $400.00 16. 152 Charging a premium rate loading of more
than 75% without permission ………….. $200.00 17. 155D(3) Failing to take reasonable action to discharge and comply with employer’s
obligations ……………………………… $400.00 18. 160(3) Failing to insure employer for full amount
of liability to pay compensation …………. $400.00 19. 160(3a) Failing to notify employer of cancellation
of insurance …………………………….. $200.00 20. 160(5)
Declining to indemnify employer ...……. $400.00 21. 162(1a) Issuing or renewing policy in respect of
certain industrial diseases ……………… $200.00 22. 165(5) Failing to give securities to State as
directed by Minister ……………………. $200.00
4972 GOVERNMENT GAZETTE, WA 28 October 2005 Workers’ Compensation and Injury Management Amendment
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Item Section Description of offence Modified
of Act penalty
23. 171(1) Failing to transmit to WorkCover WA statements and means for conveying
information in machine-readable form .... $200.00 24. 180(5) Failing to comply with request to provide
copy of relevant document .…………….. $200.00 ”.
By Command of the Governor,
M. C. WAUCHOPE, Clerk of the Executive Council. ———————————
!200500200GG!
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