Workers' Compensation and Rehabilitation Amendment Regulations (No. 2) 2004 (WA)
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WESTERN 4895 AUSTRALIAN
GOVERNMENT
| ISSN 1448-949X |
PERTH, TUESDAY, 26 OCTOBER 2004 No. 185 SPECIAL PUBLISHED BY AUTHORITY JOHN A. STRIJK, GOVERNMENT PRINTER AT 3.45 PM
© STATE OF WESTERN AUSTRALIA
WORKERS’ COMPENSATION AND REHABILITATION
ACT 1981
_________
WORKERS’ COMPENSATION
AND REHABILITATION
AMENDMENT REGULATIONS
(NO. 2) 2004
26 October 2004 GOVERNMENT GAZETTE, WA 4897
Workers’ Compensation and Rehabilitation Act 1981
Workers’ Compensation and Rehabilitation
Amendment Regulations (No. 2) 2004
Made by the Governor in Executive Council.
1. Citation
These regulations may be cited as the Workers’ Compensation and Rehabilitation Amendment Regulations (No. 2) 2004.
2. Commencement
These regulations come into operation on the day on which the Workers’ Compensation (Common Law Proceedings) Act 2004 comes into operation, or the day of their publication in the
Gazette, whichever is the later.
3. The regulations amended
The amendments in these regulations are to the Workers’
Compensation and Rehabilitation Regulations 1982*.[* Reprinted as at 17 April 2003. For amendments to 20 October 2004 see Western Australian Legislation Information Tables for 2003, Table 4, p. 450, and Gazette 8 April 2004.]
4898 GOVERNMENT GAZETTE, WA 26 October 2004 Workers’ Compensation and Rehabilitation Amendment Regulations
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4. Regulation 13 inserted
Before regulation 14 the following regulation is inserted —“
13. Ascertaining amount for reimbursement
(section 154AC(1))
(1) The Commission may approve an application by an
employer for reimbursement under section 154AC(1)
of the Act.(2) The amount that the Commission is to reimburse to an approved applicant under section 154AC(1) of the Act is to be calculated by subtracting the estimated total cost from the actual total cost. (3) In this regulation —
“actual total cost”, in relation to an award of damages,means the total amount paid on a claim (including all compensation paid in accordance with the Act, any award of damages, legal expenses and
miscellaneous expenses associated with the claim,
to the extent that these apply) by the insurer or
self-insurer, as calculated in accordance with the
Insurer/Self-Insurer Electronic Data Specification
(Edition Q1), following an award of damages, as
submitted to, and approved and recorded by, the
Commission;
“estimated total cost”, in relation to an award of damages, means the insurer, or self-insurer’s, estimate of the total cost of the claim (including
the estimated compensation to be paid in
accordance with the Act, any award of damages,
legal expenses and miscellaneous expenses
associated with the claim to the extent that these
apply or are likely to apply), estimated in
26 October 2004 GOVERNMENT GAZETTE, WA 4899 Workers’ Compensation and Rehabilitation Amendment Regulations
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accordance with the Insurer/Self-Insurer Electronic creation of the May 2004 return file recorded by the Commission;
“Insurer/Self-Insurer Electronic Data Specification (Edition Q1)” means Edition Q1, Version 1.4.6 of the Insurer/Self-Insurer Electronic Data
Specification, published by the Commission on
29 July 2003 to standardise the information orreturn requested under section 103A of the Act.
”.
5. Regulation 19J amended
(1) Regulation 19J(1) is amended by deleting “A” and inserting
instead —“ Subject to regulations 19JA and 19JB, a ”. (2) Regulation 19J(3) is amended by deleting “A” and inserting
instead —“ Subject to regulations 19JA and 19JB, a ”.
6. Regulations 19JA and 19JB inserted
After regulation 19J the following regulations are inserted —“
19JA. Method of referral and notification when
section 93EA(3) of the Act applies
(1) A referral under section 93D(5) of the Act in
combination with section 93EA(3) of the Act (due to
the application of section 93EA(3) of the Act) is to be
made in the form of Appendix I Form 22A.(2)
When completing Form 22A, the worker is to nominate one, and only one, relevant level of disability in respect
4900 GOVERNMENT GAZETTE, WA 26 October 2004 Workers’ Compensation and Rehabilitation Amendment Regulations
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of which the referral is made, and provide details of the
medical evidence relied upon to support the referral.
(3) If section 93EA(3) of the Act applies because of a
referral that was made before 14 December 1999 and,
in that earlier referral —
(a)
the worker nominated both levels of disability on the same form; and
(b)
the worker is still seeking to nominate both levels of disability in the present referral,
the worker is to complete a separate Form 22A for each
of the previously nominated levels of disability.
(4) A notification under section 93EA(5)(a) and (b)(i) of
the Act is to be given in the form of Appendix I
Form 23A.(5) The Director is to include a copy of any medical
evidence that was produced and that complies with
section 93D(6) of the Act, when giving notification
under subregulation (4).(6) A notification under section 93D(8) of the Act that
relates to a referral under section 93D(5) of the Act,
due to the application of section 93EA(3) of the Act, is
to be made in the form of Appendix I Form 23A.(7) A notification under section 93EA(5)(b)(ii) of the Act
is to be given in writing.
19JB. Method of referral and notification when
section 93EB(3) of the Act applies
(1) A referral under section 93D(5) of the Act in
combination with section 93EB(3) of the Act (due to
the application of section 93EB(3) of the Act) is to be
made in the form of Appendix I Form 22B.
26 October 2004 GOVERNMENT GAZETTE, WA 4901 Workers’ Compensation and Rehabilitation Amendment Regulations
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(2)
When completing Form 22B, the worker is to nominate one, and only one, relevant level of disability in respect of which the referral is made, and provide details of the medical evidence relied upon to support the referral.
(3) If section 93EB(3) of the Act applies because of a
referral that was made before 14 December 1999 and,
in that earlier referral —
(a)
the worker nominated both levels of disability on the same form; and
(b)
the worker is still seeking to nominate both levels of disability in the present referral,
the worker is to complete a separate Form 22B for each
of the previously nominated levels of disability.
(4) A notification under section 93EB(5)(a) and (b)(i) of
the Act is to be given in the form of Appendix I
Form 23B.(5) The Director is to include a copy of any medical
evidence that was produced and that complies with
section 93D(6) of the Act, when giving notification
under subregulation (4).(6) A notification under section 93D(8) of the Act that
relates to a referral under section 93D(5) of the Act,
due to the application of section 93EB(3) of the Act, is
to be made in the form of Appendix I Form 23B.(7) A notification under section 93EB(5)(b)(ii) of the Act
is to be given in writing.”.
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7. Appendix I amended
(1) Appendix I is amended after Form 22 by inserting the following
forms —
“
Form 22A
[r. 19JA]
Workers’ Compensation and Rehabilitation Act 1981
REFERRAL OF QUESTION OF DEGREE OF DISABILITY
[Made by the worker under sections 93D(5) and 93EA(3) of the Act,
due to the application of section 93EA(3)]
Worker’s details
Surname Other names
Date of birth Sex Occupation Address Postcode
Telephone no.
Employer’s details
Name
Address
Postcode
Telephone no. WorkCover no. (if known) Contact person Title Telephone no.
26 October 2004 GOVERNMENT GAZETTE, WA 4903 Workers’ Compensation and Rehabilitation Amendment Regulations
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Insurer’s details
Name
Address
Postcode
Date weekly payments commenced (if Claim no. (if known) applicable) Contact person Telephone no. Disability details Description of disability referral in the circumstances set out in section 93EA(1) of the Act.
Date disability occurred Date weekly payments commenced Degree of disability as assessed Relevant level of disability (see s. 93E(3) of the Act) by medical practitioner Nominate only one relevant level of disability
❏ not less than 30% ❏ not less than 16% Note: The nominated level of disability must relate to the same level of disability as was nominated in the original referral. If the original referral was pre 14 December 1999 and both levels were nominated, the nominated level should be one of those levels, and a further Form 22A may be used for the other level, if required.
Tick if the worker and the employer cannot agree on whether the degree of
disability is not less than the relevant level ❏
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The action taken by or on behalf of the worker to obtain the employer’s agreement
The following information should be included with this referral —
If, on or before 30 September 2001, you sought to refer a question to the
Director under section 93D(5) of the Act, and in order to satisfy section 93D(6)
of the Act you produced to the Director anything that, even though it may not
have constituted evidence of the kind required by that subsection, was accepted
by the Director as evidence of that kind, then a copy of the Form 22 that was
referred to and accepted by the Director should be attached. ❐
❐❐ ❐ If, based on a failure to satisfy the requirements of section 93D(6), a review officer did not deal with the substance of the question referred to above, a copy of the review officer’s decision should be attached; ❐
❐❐ ❐
or
If, based on a failure to satisfy the requirements of section 93D(6), a court set aside or quashed a decision of a review officer that dealt with the substance of the question referred to in the first paragraph above, a copy of the court
decision should be attached. ❐
❐❐ ❐ The following details must be completed regarding the medical evidence relied upon in support of this referral —
Name of Medical Practitioner/s Date of medical report/s
Note: Under section 93EA(4)(c) of the Act, this form is to be accompanied by a copy of the medical evidence that complies with section 93D(6) of the Act, unless the worker satisfies the Director that the complying evidence has already been produced.
26 October 2004 GOVERNMENT GAZETTE, WA 4905 Workers’ Compensation and Rehabilitation Amendment Regulations
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Signature
of worker Date / / Lodging this form
This form should be lodged with —Director, Conciliation and Review Directorate
WorkCover WA
Perth, Western Australia
Form 22B
[r. 19JB]
Workers’ Compensation and Rehabilitation Act 1981
REFERRAL OF QUESTION OF DEGREE OF DISABILITY
[Made by the worker under sections 93D(5) and 93EB(3) of the Act,
due to the application of section 93EB(3)]
Worker’s details
Surname Other names
Date of birth Sex Occupation Address Postcode
Telephone no.
Employer’s details
Name
Address
Postcode
Telephone no. WorkCover no. (if known) Contact person
4906 GOVERNMENT GAZETTE, WA 26 October 2004 Workers’ Compensation and Rehabilitation Amendment Regulations
(No. 2) 2004
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Title Telephone no. Insurer’s details Name Address Postcode
Date weekly payments commenced (if Claim no. (if known) applicable) Contact person Telephone no. Disability details Description of disability referral in the circumstances set out in section 93EB(1) of the Act.
Date disability occurred Date weekly payments commenced Degree of disability as assessed Relevant level of disability (see s. 93E(3) of the Act) by medical practitioner Nominate only one relevant level of disability
❏ not less than 30% ❏ not less than 16% Note: The nominated level of disability must relate to the same level of disability as was nominated in the original referral. If the original referral was pre 14 December 1999 and both levels were nominated, the nominated level should be one of those levels, and a further Form 22B may be used for the other level, if required.
Tick if the worker and the employer cannot agree on whether the degree of
disability is not less than the relevant level ❏ The action taken by or on behalf of the worker to obtain the employer’s agreement
26 October 2004 GOVERNMENT GAZETTE, WA 4907 Workers’ Compensation and Rehabilitation Amendment Regulations
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The following information should be included with this referral —
If, before the commencement of section 10 of the Workers’ Compensation (Common Law Proceedings) Act 2004, you sought to refer a question to the Director under section 93D(5) of the Act, then a copy of the Form 22 that was
referred to and accepted by the Director should be attached. ❐
❐❐ ❐ If, on or after 4 December 2003, on the basis that Part IV Division 2 as in force before it was amended by section 32 of the Workers’ Compensation and Rehabilitation Amendment Act 1999 applied to proceedings for the awarding of damages concerned, a review officer did not deal with the substance of the question referred to above, a copy of the review officer’s decision should be attached;
❐
❐❐ ❐
or
If, on or after 4 December 2003, on the basis that Part IV Division 2 as in force
before it was amended by section 32 of the Workers’ Compensation and
Rehabilitation Amendment Act 1999 applied to proceedings for the awarding of damages concerned, a court set aside or quashed a decision of a review officer that dealt with the substance of the question referred to in the first paragraph
above, a copy of the court decision should be attached. ❐
❐❐ ❐ The following details must be completed regarding the medical evidence relied upon in support of this referral —
Name of Medical Practitioner/s Date of medical report/s
Note: Under section 93EB(4)(c) of the Act, this form is to be accompanied by a copy of the medical evidence that complies with section 93D(6) of the Act, unless the worker satisfies the Director that the complying evidence has already been produced.
4908 GOVERNMENT GAZETTE, WA 26 October 2004 Workers’ Compensation and Rehabilitation Amendment Regulations
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Signature
of worker Date / / Lodging this form
This form should be lodged with —Director, Conciliation and Review Directorate
WorkCover WA
Perth, Western Australia
”.
(2) Appendix I is amended after Form 23 by inserting the following
forms —
“
Form 23A
[r. 19JA]
Workers’ Compensation and Rehabilitation Act 1981
NOTICE OF REFERRAL OF QUESTION OF DEGREE OF DISABILITY
[Notice given under section 93EA(5)(a) and (b)(i) of the Act,
where section 93EA(3) applied]
Worker’s details
Surname Other names Address Postcode
Telephone no. Occupation Employer’s details Name Address Postcode
Telephone no. WorkCover no. (if known)
26 October 2004 GOVERNMENT GAZETTE, WA 4909 Workers’ Compensation and Rehabilitation Amendment Regulations
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Disability details
Description of disability
Date disability occurred
Degree of disability as assessed Relevant level of disability by medical practitioner
❏ not less than 30% ❏ not less than 16% Question referred The question of whether the worker’s degree of disability is or is not less than the relevant level has been referred to the Director, Conciliation and Review Directorate, for consideration under section 93D(5), due to the application of section 93EA(3).
Medical evidence
Accompanying this notice is a copy of the medical evidence produced by the worker that complies with section 93D(6) of the Act.
Director’s opinion
In accordance with section 93EA(5)(a) and (b)(i) of the Act, it is my opinion that —
(a) evidence complying with section 93D(6) has been produced and in all
other respects the referral is properly made; and ❐ (b)
the referral is accepted. ❐ In accordance with section 93EA(5)(b)(i) of the Act, notification is also given that the following
provisions may apply —Section 93E(6a)
Note: Section 93E(6a) provides that, despite section 93E(5), and even though
section 93E(6) does not apply if the Director gives the worker notice under
section 93EA(5)(b)(i) that this subsection applies, an election can be made within
14 days after the Director subsequently gives the worker notice in writing that an
agreement or determination of the question has been recorded. This only applies if the
worker is required to make an election under section 93E(3)(b) of the Act (i.e. the
worker has an agreed or determined degree of disability of not less than 16% but less
than 30%).
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Section 93EC
Note: If —
(a) under section 93EA(5)(b)(i), the Director notifies a worker that the referral of a question relating to disability is accepted and that this section applies; and (b) the time limited by any written law for the commencement of an action seeking damages in respect of the disability — (i) has elapsed before the day on which the Director notifies the worker (the “notification day”); or
(ii) is due to elapse on the notification day or before the expiry of a period of 2 years after the notification day,
an action seeking damages in respect of the disability may, despite that written law,
be commenced at any time before the expiry of a period of 2 years after thenotification day.
Objection
If you (the employer) consider the worker’s degree of disability is less than the relevant level, you worker’s degree of disability is not less than the relevant level.
should complete the bottom section of this form and return it to the Director within 21 days of
receiving this notice.
Signature
of Director Date / / Employer’s objection Employer’s assessment of degree of disability Signature of employer Date / /
26 October 2004 GOVERNMENT GAZETTE, WA 4911 Workers’ Compensation and Rehabilitation Amendment Regulations
(No. 2) 2004
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Form 23B
[r. 19JB]
Workers’ Compensation and Rehabilitation Act 1981
NOTICE OF REFERRAL OF QUESTION OF DEGREE OF DISABILITY
[Notice given under section 93EB(5)(a) and (b)(i) of the Act,
where section 93EB(3) applied]
Worker’s details
Surname Other names Address Postcode
Telephone no. Occupation Employer’s details Name Address Postcode
Telephone no. WorkCover no. (if known) Disability details Description of disability Date disability occurred Degree of disability as assessed Relevant level of disability by medical practitioner
❏ not less than 30% ❏ not less than 16%
4912 GOVERNMENT GAZETTE, WA 26 October 2004 Workers’ Compensation and Rehabilitation Amendment Regulations
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Question referred
The question of whether the worker’s degree of disability is or is not less than the relevant level has been referred to the Director, Conciliation and Review Directorate, for consideration under section 93D(5), due to the application of section 93EB(3).
Medical evidence
Accompanying this notice is a copy of the medical evidence produced by the worker that complies with section 93D(6) of the Act.
Director’s opinion
In accordance with section 93EB(5)(a) and (b)(i) of the Act, it is my opinion that —
(a) evidence complying with section 93D(6) has been produced and in all
other respects the referral is properly made; and ❐ (b)
the referral is accepted. ❐ In accordance with section 93EB(5)(b)(i) of the Act, notification is also given that the following
provisions may apply —Section 93E(6a)
Note: Section 93E(6a) provides that, despite section 93E(5), and even though
section 93E(6) does not apply if the Director gives the worker notice under
section 93EB(5)(b)(i) that this subsection applies, an election can be made within
14 days after the Director subsequently gives the worker notice in writing that an
agreement or determination of the question has been recorded. This only applies if the
worker is required to make an election under section 93E(3)(b) of the Act (i.e. the
worker has an agreed or determined degree of disability of not less than 16% but lessthan 30%).
Section 93EC
Note: If —
(a) under section 93EB(5)(b)(i), the Director notifies a worker that the referral of a question relating to disability is accepted and that this section applies; and (b) the time limited by any written law for the commencement of an action seeking damages in respect of the disability — (i) has elapsed before the day on which the Director notifies the worker (the “notification day”); or
(ii) is due to elapse on the notification day or before the expiry of a period of 2 years after the notification day,
an action seeking damages in respect of the disability may, despite that written law,
be commenced at any time before the expiry of a period of 2 years after the
notification day.
26 October 2004 GOVERNMENT GAZETTE, WA 4913 Workers’ Compensation and Rehabilitation Amendment Regulations
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Objection
If you (the employer) consider the worker’s degree of disability is less than the relevant level, you worker’s degree of disability is not less than the relevant level.
should complete the bottom section of this form and return it to the Director within 21 days of
receiving this notice.
Signature
of Director Date / / Employer’s objection Employer’s assessment of degree of disability Signature of employer Date / / ”.
By Command of the Governor,
M. C. WAUCHOPE, Clerk of the Executive Council.
26 October 2004 GOVERNMENT GAZETTE, WA 4914
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