Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2010 (Qld)

Queensland Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Act No. 24 of 2010

Queensland Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Contents Part 1 1 2 Part 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Amendment of Workers’ Compensation and RehabilitationAct 2003 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Amendment of s 54 (Setting of premium). . . . . . . . . . . . . . . . . . . 8 Replacement of s 67 (Employer may insure against payment for the excess period) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 67 Employer may not insure against payment for the excess period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Amendment of s 86 (Reinsurance). . . . . . . . . . . . . . . . . . . . . . . . 9 Amendment of s 185 (Insurer to give notice of assessment of permanent impairment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Amendment of s 202 (Workers under 21) . . . . . . . . . . . . . . . . . . 10 Amendment of s 220 (Insurer’s responsibility for worker’s rehabilitation) ................................... 10 Amendment of s 221 (Authority’s responsibility for rehabilitation) 11 Amendment of s 231 (Worker must mitigate loss) . . . . . . . . . . . . 11 Amendment of s 233 (Definitions for ch 5) . . . . . . . . . . . . . . . . . . 11 Amendment of s 235A (Date of doctor’s consultation taken to be date of injury). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Amendment of s 238 (Worker with terminal condition). . . . . . . . . 12 Amendment of s 267 (Mitigation of loss) . . . . . . . . . . . . . . . . . . . 12 Amendment of s 290A (Exchange of material for compulsory conference). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Replacement of ss 292 and 292A . . . . . . . . . . . . . . . . . . . . . . . . 13

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Contents 292 Parties to make written final offers if claim not settled at compulsory conference . . . . . . . . . . . . . . . . . . . . . 13 18 Omission of ch 5, pt 8 (Structured settlements) . . . . . . . . . . . . . . 15 19 Omission of ch 5, pt 9 hdg (Particular matters affecting assessments of liability) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 20 Omission of s 306 (Absolute defences not reintroduced). . . . . . . 15 21 Insertion of new ch 5, pts 8 and 9 . . . . . . . . . . . . . . . . . . . . . . . . 15 Part 8 Civil liability Division 1 Interpretation 305 Definitions for pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 305A Provisions not to apply to particular injuries . . . . . . . . 16 Division 2 General standard of care 305B General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 305C Other principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Division 3 Causation 305D General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 305E Onus of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Division 4 Contributory negligence 305F Standard of care in relation to contributory negligence ........................... 18 305G Contributory negligence can defeat claim . . . . . . . . . 19 305I Meaning of obvious risk for s 305H . . . . . . . . . . . . . . 19 305J Presumption of contributory negligence if person who suffers injury is intoxicated . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Part 9 Assessment of damages Division 1 Interpretation 306 Definitions for pt 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 306A Provisions not to apply to particular injuries . . . . . . . . 21 Division 3 Assessment of damages Subdivision 2—Other provisions 306I Damages for loss of earnings. . . . . . . . . . . . . . . . . . . 22 306J When earnings can not be precisely calculated . . . . . 22 306L Discount rate to be applied in calculating the present value of future loss . . . . . . . . . . . . . . . . . . . . 23 306M Damages for loss of consortium or loss of servitium . 23 306N Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 306O Assessment by court of injury scale. . . . . . . . . . . . . . 24 Page 2 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Contents 306P Calculation of general damages. . . . . . . . . . . . . . . . . 25 Division 4 Structured settlements 306Q Definition for div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 306R Court required to inform parties of proposed award. . 26 306S Court may make consent order for structured settlement ............................ 26 306T Obligation of legal practitioners to provide advice . . . 26 306U Offer of structured settlement—legal costs . . . . . . . . 26 Division 5 Indexation provisions 306V Indexation of particular amounts . . . . . . . . . . . . . . . . 27 22 Amendment and relocation of s 307 (Contributory negligence) . . 28 23 Amendment and relocation of ch 5, pt 10 (No right to damages for particular services) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 24 Amendment and relocation of ch 5, pt 11 (Exemplary damages) 29 25 Amendment of s 311 (Principles about orders as to costs) . . . . . 30 26 Amendment of s 312 (Costs if written final offer by claimant) . . . 30 27 Amendment of s 313 (Costs if written offer by insurer) . . . . . . . . 30 28 Amendment of s 316 (Principles about orders as to costs) . . . . . 31 29 Insertion of new ch 5, pt 12, div 2A . . . . . . . . . . . . . . . . . . . . . . . 31 Division 2A Costs when offers made for a contribution claim 316A Principles about order as to costs . . . . . . . . . . . . . . . 31 30 Omission of s 317 (Application of div 3) . . . . . . . . . . . . . . . . . . . . 32 31 Amendment of s 318 (Costs if proceedings could have been brought in a lower court). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 32 Insertion of new ss 318A–318E . . . . . . . . . . . . . . . . . . . . . . . . . . 33 318A General application of costs provisions in part. . . . . . 33 318B Court may make an alternative order in particular circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 318C Costs order under div 2 for an interlocutory application ........................... 34 318D Order for costs if more than 1 person liable for the same costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 318E Order for costs if an entity was not a party at the compulsory conference . . . . . . . . . . . . . . . . . . . . . . . 34 33 Insertion of new ch 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Chapter 26 Transitional provisions for the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 2010 Act No. 24 Page 3

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Contents 34 Part 3 35 36 37 38 39 40 41 42 Page 4 663 Definitions for ch 26 . . . . . . . . . . . . . . . . . . . . . . . . . . 664 Existing excess period insurance protected . . . . . . . . 665 Reinsurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 Compensation on death of worker under 21 . . . . . . . 667 Responsibility for worker’s rehabilitation. . . . . . . . . . . 668 Provisions about conferences, offers and costs . . . . . 669 Provisions about, civil liability and assessment of damages ............................. 670 Amendment of regulations under Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010. . . . . . . . . . . . . . . . Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of Workers’CompensationandRehabilitationRegulation2003 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . Replacement of s 16 (Excess period—Act, s 65). . . . . . . . . . . . . 16 Excess period—Act, s 65 . . . . . . . . . . . . . . . . . . . . . . Omission of ss 17 and 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 77 (Appointment of actuarial arbiter). . . . . . . . . Insertion of new pt 7A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 7A Assessment of damages 112C Prescribed amount of damages for loss of consortium or loss of servitium—Act, s 306M . . . . . . 112D Rules for assessing injury scale value—Act, s 306O(1)(c)(i) ....................... 112E General damages calculation provisions—Act, s 306P .............................. 112F Prescribed amount of award for future loss—Act, s 306R .............................. Insertion of new pt 10, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 4 Provision for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 128 Excess period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new schs 8–13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Schedule 8 Matters to which court is to have regard in the application of schedule 9 Schedule 9 Ranges of injury scale values 35 35 35 35 36 36 37 37 38 39 39 40 40 40 40 41 41 41 41 42 42 42 42 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Contents Part 4 43 44 45 Part 5 46 Schedule Schedule 10 Matters relevant to PIRS assessment by medical expert Schedule 11 Psychiatric impairment rating scale Schedule 12 General damages calculation provisions Schedule 13 Dictionary Amendment of Workplace Health and Safety Act 1995 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new pt 3, div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 5 Effect of Act on civil liability 37A No civil cause of action based on contravention of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insertion of new pt 17, div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Division 7 Transitional provision for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 197 Retrospective extinguishing of statutory cause of action .............................. Other amendments Legislation amended in schedule . . . . . . . . . . . . . . . . . . . . . . . . . Legislation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Civil Liability Regulation 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . Workers’CompensationandRehabilitationAct2003 . . . . . . . . . Workers’CompensationandRehabilitationRegulation2003 . . . 225 225 225 225 225 226 227 227 227 233 2010 Act No. 24 Page 5

Queensland Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Act No. 24 of 2010 An Act to amend the Workers’ Compensation and Rehabilitation Act 2003, the Workers’ Compensation and Rehabilitation Regulation 2003, the Workplace Health and Safety Act 1995 and the Civil Liability Regulation 2003 for particular purposes [Assented to 17 June 2010]

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 1 Preliminary [s 1] The Parliament of Queensland enacts— Part 1 Preliminary 1 Short title This Act may be cited as the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 . 2 Commencement This Act, other than section 13, commences on 1 July 2010. Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 3 Act amended This part and the schedule amend the Workers’ Compensationand Rehabilitation Act 2003. 4 Amendment of s 54 (Setting of premium) (1) Section 54— insert— ‘(3A) Without limiting subsection (2), the gazette notice may state a method or rate that provides for a premium payable by an employer in the event that the employer’s premium rate repeatedly exceeds the relevant industry rate.’. (2) Section 54— Page 8 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 5] insert — ‘(10) In this section— employer’s premium rate means the premium rate calculated for the employer by using a formula that takes into account the number and cost of claims made against the employer’s policy during previous financial years. relevant industry rate , in relation to an employer, means the industry or business classification rate applying to the industry or business classification— (a) stated in the gazette notice under subsection (2) for the employer’s industry or business; or (b) as decided by Workcover under subsection (3)—for the industry or business that most closely describes the employer’s industry or business.’. 5 Replacement of s 67 (Employer may insure against payment for the excess period) Section 67— omit, insert — ‘67 Employer may not insure against payment for the excess period ‘An employer may not insure with WorkCover against the employer’s liability to pay for the excess period.’. 6 Amendment of s 86 (Reinsurance) (1) Section 86(2), ‘$1m’— omit , insert — ‘the set limit’. (2) Section 86(3), ‘The contract’— omit, insert — ‘The approved insurer’s liability under the contract’. 2010 Act No. 24 Page 9

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 7] (3) Section 86(6)— insert — ‘ set limit means an amount of $1m or more set by the Authority’s board on application in the approved form by the self-insurer.’. 7 Amendment of s 185 (Insurer to give notice of assessment of permanent impairment) Section 185(3)(c), ‘50%’— omit, insert— ‘30%’. 8 Amendment of s 202 (Workers under 21) Section 202(1)(b)— omit , insert — ‘(b) is survived by a parent ordinarily resident in Australia but left no dependants.’. 9 Amendment of s 220 (Insurer’s responsibility for worker’s rehabilitation) Section 220— insert — ‘(3) Subsection (4) applies if an injured worker is unable to return to work with the worker’s former employer when the entitlement of the worker to weekly payments of compensation under chapter 3, part 9 stops. ‘(4) The insurer must notify the Authority in the way decided by the Authority. ‘(5) In this section— former employer means any employer of the worker at or after the time the worker was injured.’. Page 10 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 10] 10 Amendment of s 221 (Authority’s responsibility for rehabilitation) (1) Section 221(a), after ‘rehabilitation’— insert — ‘and return to work’. (2) Section 221— insert — ‘(2) If the worker consents, the Authority must refer a worker for whom a notice has been given under section 220(4) to programs that may help return the worker to work. Examples of programs — vocational assessments, re-skilling or retraining, job placement, host employment ’. 11 Amendment of s 231 (Worker must mitigate loss) (1) Section 231(3)— renumber as section 231(4). (2) Section 231— insert — ‘(3) Without limiting subsection (2), a worker must satisfactorily participate in any return to work program or suitable duties arranged by the insurer or the Authority.’. 12 Amendment of s 233 (Definitions for ch 5) Section 233— insert — ‘ contribution claim means a claim for contribution or indemnity made against another person by an insurer who adds the person as a contributor under section 278A. offer , in relation to written final offers at a compulsory conference, includes a nil offer of settlement. 2010 Act No. 24 Page 11

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 13] Example — An insurer may make a nil offer of settlement to a worker when it intends to allege fraud by the worker .’. 13 Amendment of s 235A (Date of doctor’s consultation taken to be date of injury) (1) Section 235A, heading, ‘doctor’s’— omit, insert — ‘ relevant health practitioner ’. (2) Section 235A(1), ‘doctor’— omit, insert — ‘relevant health practitioner’. (3) Section 235A— insert — ‘(4) In this section— relevant health practitioner means a doctor, nurse practitioner or dentist authorised under section 132 to issue a certificate under the section.’. 14 Amendment of s 238 (Worker with terminal condition) Section 238(2)(a), after ‘267(2)— insert — ‘or (3).’. 15 Amendment of s 267 (Mitigation of loss) (1) Section 267(3)— renumber as section 267(4). (2) Section 267— insert — Page 12 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 16] ‘(3) Without limiting subsection (2), a worker must satisfactorily participate in any return to work program or suitable duties arranged by the insurer or the Authority.’. 16 Amendment of s 290A (Exchange of material for compulsory conference) (1) Section 290A(3)(d)(iii), before ‘the amount of’— insert— ‘the claim is dismissed, the court makes no award of damages or’. (2) Section 290A(5)— omit . 17 Replacement of ss 292 and 292A Section 292 and 292A— omit, insert — ‘292 Parties to make written final offers if claim not settled at compulsory conference ‘(1) This section applies to the following (each a claim ) — (a) a claim made by the claimant against another party; (b) a contribution claim relating to the claim made by the claimant. ‘(2) If a claim is not settled at a compulsory conference, each party that has legal capacity to settle the claim must ensure that it makes a written final offer or written final offers at the conference to another or other parties at the conference that would dispose of the claim if the offer or offers were accepted. ‘(3) Any 2 or more parties may make a joint written final offer to another party. ‘(4) Before a joint written final offer is made, the parties making the offer must give the party to whom the offer is to be given 2010 Act No. 24 Page 13

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 17] sufficient notice of the fact that a joint written final offer will be made to enable the party to appropriately respond. ‘(5) Also, if more than 1 claim is the subject of the compulsory conference, a written final offer may be a consolidated written final offer for all the claims made by the claimant. ‘(6) A consolidated written final offer must cover all contribution claims relating to all the claims made by the claimant to the extent the party making the offer has legal capacity to settle the contribution claims. ‘(7) A consolidated written final offer must detail the portion of the offer applicable to each claim. ‘(8) A consolidated written final offer can only be accepted or rejected in full. ‘(9) A written final offer must remain open for 10 business days and proceedings must not be started while the offer remains open. ‘(10) If the claimant or insurer brings a proceeding in a court for a claim, the claimant or insurer must, at the start of the proceeding, file at the court a sealed envelope containing a copy of the claimant’s or insurer’s written final offer for the claim. ‘(11) A party to proceedings for a claim, other than the party who starts the proceedings, within 10 business days after being served with the legal process that starts the proceeding, must file at the court a sealed envelope containing a copy of the party’s written final offer for the claim. ‘(12) The court must not read an offer filed under subsection (10) or (11) until it has decided the claim relating to the offer. ‘(13) The court must have regard to the filed offer in making a decision about whether it should order that a party to whom an offer was given should pay all or part of— Page 14 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 18] (a) the costs of a party who made the offer; and (b) if the claim is a contribution claim—any costs the party who was given the offer is liable to pay to the claimant.’. 18 Omission of ch 5, pt 8 (Structured settlements) Chapter 5, part 8— omit . 19 Omission of ch 5, pt 9 hdg (Particular matters affecting assessments of liability) Chapter 5, part 9, heading— omit . 20 Omission of s 306 (Absolute defences not reintroduced) Section 306— omit . 21 Insertion of new ch 5, pts 8 and 9 After section 304— insert — ‘Part 8 Civil liability ‘Division 1 Interpretation ‘305 Definitions for pt 8 ‘In this part— duty means any duty giving rise to a claim for damages, including the following— (a) a duty of care in tort; 2010 Act No. 24 Page 15

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] (b) a duty of care under contract that is concurrent and coextensive with a duty of care in tort; (c) another duty under statute or otherwise that is concurrent with a duty of care mentioned in paragraph (a) or (b). duty of care means a duty to take reasonable care or to exercise reasonable skill (or both duties). ‘305A Provisions not to apply to particular injuries ‘(1) The provisions of this part other than division 4, do not apply in relation to deciding liability for injury if the injury resulting from the breach of duty is or includes— (a) an injury that is a dust-related condition; or (b) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke. ‘(2) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim. ‘Division 2 General standard of care ‘305B General principles ‘(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. ‘(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)— Page 16 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] (a) the probability that the injury would occur if care were not taken; (b) the likely seriousness of the injury; (c) the burden of taking precautions to avoid the risk of injury. ‘305C Other principles ‘In a proceeding relating to liability for a breach of duty— (a) the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and (b) the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk. ‘Division 3 Causation ‘305D General principles ‘(1) A decision that a breach of duty caused particular injury comprises the following elements— (a) the breach of duty was a necessary condition of the occurrence of the injury ( factual causation ); (b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused ( scope of liability ). 2010 Act No. 24 Page 17

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] ‘(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach. ‘(3) If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach— (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the worker after suffering the injury about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. ‘(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty. ‘305E Onus of proof ‘In deciding liability for a breach of a duty, the worker always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. ‘Division 4 Contributory negligence ‘305F Standard of care in relation to contributory negligence ‘(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the worker who sustained an injury has been guilty of Page 18 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] contributory negligence in failing to take precautions against the risk of that injury. ‘(2) For that purpose— (a) the standard of care required of the person who sustained an injury is that of a reasonable person in the position of that person; and (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time. ‘305G Contributory negligence can defeat claim ‘In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated. ‘305I Meaning of obvious risk for s 305H ‘(1) For section 305H, an obvious risk to a worker who sustains an injury is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the worker. ‘(2) Obvious risks include risks that are patent or a matter of common knowledge. ‘(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. ‘(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. ‘(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk. 2010 Act No. 24 Page 19

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] ‘305J Presumption of contributory negligence if person who suffers injury is intoxicated ‘(1) This section applies if a worker who sustained an injury was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged against the worker. ‘(2) Contributory negligence will, subject to this section, be presumed. ‘(3) The worker may only rebut the presumption by establishing on the balance of probabilities— (a) that the intoxication did not contribute to the breach of duty; or (b) that the intoxication was not self-induced. ‘(4) Unless the worker rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the worker would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case. ‘(5) If, in the case of a motor vehicle accident, the worker who sustained an injury was the driver of a motor vehicle involved in the accident and the evidence establishes— (a) that the concentration of alcohol in the worker’s blood was 150mg or more of alcohol in 100mL of blood; or (b) that the worker was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle; the minimum reduction prescribed by subsection (4) is increased to 50%. Page 20 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] ‘Part 9 Assessment of damages ‘Division 1 Interpretation ‘306 Definitions for pt 9 ‘In this part— future loss means all or any of the following— (a) future economic loss; (b) future general expenses; (c) future medical expenses. general damages means damages for all or any of the following— (a) pain and suffering; (b) loss of amenities of life; (c) loss of expectation of life; (d) disfigurement. loss of earnings means— (a) past economic loss due to loss of earnings or the deprivation or impairment of earning capacity; and (b) future economic loss due to loss of prospective earnings or the deprivation or impairment of prospective earning capacity. ‘306A Provisions not to apply to particular injuries ‘(1) The provisions of this part other than division 2, division 3, subdivision 1 and division 4 do not apply in relation to deciding awards of damages for injury if the injury resulting from the breach of duty is or includes— (a) an injury that is a dust-related condition; or 2010 Act No. 24 Page 21

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] (b) an injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke. ‘(2) To remove any doubt, it is declared that a breach of duty mentioned in subsection (1) includes a breach of duty giving rise to a dependency claim. ‘Division 3 Assessment of damages ‘Subdivision 2—Other provisions ‘306I Damages for loss of earnings ‘(1) In making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2). ‘(2) The limit is an amount equal to the present value of 3 times QOTE per week for each week of the period of loss of earnings. ‘(3) In this section— present value means the value when the award is made. ‘306J When earnings can not be precisely calculated ‘(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. ‘(2) The court may only award damages if it is satisfied that the worker has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters. ‘(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award. Page 22 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] ‘(4) The limitation mentioned in section 306I(2) applies to an award of damages under this section. ‘306L Discount rate to be applied in calculating the present value of future loss ‘(1) This section applies if— (a) a person is to be compensated for future loss; and (b) an actuarial multiplier is to be used to calculate the present value of future loss. ‘(2) A discount rate of 5% is to be applied in deciding the actuarial multiplier. ‘306M Damages for loss of consortium or loss of servitium ‘(1) A court must not award damages for loss of consortium or loss of servitium unless— (a) the injured worker died as a result of injuries sustained; or (b) general damages for the injured worker are assessed (before allowing for contributory negligence) at the amount prescribed under a regulation for this provision, or more. Note — Under section 306V, the Minister must make a recommendation about the amount to be prescribed. ‘(2) The court must not assess damages for loss of servitium above the limit fixed by subsection (3). ‘(3) The limit is 3 times QOTE per week. ‘(4) Section 10(3) does not apply to the reference to damages in subsection (1). 2010 Act No. 24 Page 23

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] ‘306N Interest ‘(1) A court can not order the payment of interest on an award for general damages. ‘(2) Interest awarded on damages compensating past monetary loss— (a) must not be more than interest at the appropriate rate; and (b) must be related in an appropriate way to the period over which the loss was incurred. ‘(3) The appropriate rate is the rate for 10 year Treasury bonds published by the Reserve Bank of Australia under ‘Interest rates and yields—capital market’ as at the beginning of the quarter in which the award of interest is made. Example of calculation of interest for this section — Suppose that past monetary loss consists of medical expenses that have been incurred at a uniform rate over a particular period. The interest to be awarded would be calculated under the following formula— A = am/100 x p x 0.5 where— A is the amount of the award of interest. a is a percentage rate decided by the court subject to the limit fixed in subsection (2). m is the aggregate of the medical expenses. p is the period over which the medical expenses have been incurred (expressed in years). ‘306O Assessment by court of injury scale ‘(1) If general damages are to be awarded by a court in relation to an injury, the court must assess an injury scale value as follows— (a) the worker’s total general damages must be assigned a numerical value ( injury scale value ) on a scale running from 0 to 100; Page 24 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] (b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind; (c) in assessing the injury scale value, the court must— (i) assess the injury scale value under any rules provided under a regulation; and (ii) have regard to the injury scale values given to similar injuries in previous proceedings. ‘(2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value. ‘306P Calculation of general damages ‘(1) For an injury, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury was sustained. ‘(2) In this section— general damages calculation provisions , applying to a period, means the provisions prescribed for the period under a regulation. ‘Division 4 Structured settlements ‘306Q Definition for div 4 ‘In this division— structured settlement means an agreement providing for the payment of all or part of an award of damages in the form of periodic payments funded by an annuity or other agreed means. 2010 Act No. 24 Page 25

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] ‘306R Court required to inform parties of proposed award ‘(1) The purpose of this section is to enable the court to give the parties to a proceeding a reasonable opportunity to negotiate a structured settlement. ‘(2) A court that decides to make an award for future loss (not including interest) of more than the amount prescribed under a regulation for this section must first notify all the parties to the proceeding of the terms of the award it proposes to make. Note — Under section 306V, the Minister must make a recommendation about the amount to be prescribed. ‘306S Court may make consent order for structured settlement ‘A court may, on the application of the parties to a claim for damages, make an order approving of or in the terms of a structured settlement even though the payment of damages is not in the form of a lump sum award of damages. ‘306T Obligation of legal practitioners to provide advice ‘A lawyer engaged by the worker must advise the worker, in writing, about the following if the worker proposes to negotiate a settlement of a claim for damages— (a) the availability of structured settlements; (b) the desirability of the worker obtaining independent financial advice about structured settlements and lump sum settlements of the claim. ‘306U Offer of structured settlement—legal costs ‘(1) The Uniform Civil Procedure Rules 1999 , chapter 9, part 5 extends to an offer of compromise by way of a structured settlement on a claim for damages. ‘(2) In that case, the court is to have regard to the cost to the defendant of the proposed structured settlement as compared Page 26 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 21] to the lump sum payment of damages when deciding whether a reasonable offer of compromise has been made. ‘Division 5 Indexation provisions ‘306V Indexation of particular amounts ‘(1) The Minister must, on or before 1 July 2011 and on or before 1 July in each succeeding year, recommend to the Governor in Council the amounts that are to be prescribed under a regulation for or under the following provisions— (a) section 306M; (b) section 306P, definition general damages calculation provisions ; (c) section 306R. ‘(2) The amount recommended for or under the provision is to be the amount last prescribed under a regulation for or under the provision adjusted by the percentage change in QOTE over the 4 quarters preceding the date of the recommendation and rounded to the nearest ten dollar. ‘(3) However, if the percentage change in QOTE over the 4 quarters preceding the date of the recommendation would reduce the amount prescribed for or under the provision or result in no change to the amount, the Minister need not make a recommendation. ‘(4) If the percentage change in QOTE mentioned in subsection (2) is not available from the Australian Statistician, the Minister must advise the Governor in Council accordingly. ‘(5) If the Minister advises the Governor in Council of the unavailability of the percentage change under subsection (4), the amount prescribed for or under the provision is the amount decided by the Governor in Council. ‘(6) A regulation notified in the gazette after 1 July in a year and specifying a date that is before the date it is notified as the 2010 Act No. 24 Page 27

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 22] date from which the amount prescribed for the provision is to apply has effect from the specified date. ‘(7) Subsection (6) applies despite the StatutoryInstrumentsAct1992 , section 32. ‘(8) This section does not limit the power of the Governor in Council to amend the amount prescribed under a regulation for a limit.’. 22 Amendment and relocation of s 307 (Contributory negligence) (1) Section 307(1)(f)— renumber as section 307(1)(g). (2) Section 307(1)— insert — ‘(f) undertook an activity involving obvious risk or failed, at the material time, so far as was practicable, to take account of obvious risk; or’. (3) Section 307 — insert — ‘(3) Without limiting subsection (2), subsection (1)(f) does not limit the discretion of a court to make a finding of contributory negligence if the worker— (a) undertook an activity involving risk that was less than obvious; or (b) failed, at the material time, so far as was practicable, to take account of risk that was less than obvious.’. (4) Section 307— relocate and renumber as section 305H in chapter 5, part 8, division 4 (as inserted by section 21). Page 28 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 23] 23 Amendment and relocation of ch 5, pt 10 (No right to damages for particular services) (1) Part 10, heading, ‘Part 10’— omit, insert — ‘ Subdivision 1 ’. (2) Section 308, heading, ‘pt 10’— omit, insert — ‘ sdiv 1 ’. (3) Section 308, ‘part’— omit, insert — ‘subdivision’. (4) Section 308A, heading, ‘pt 10’— omit, insert — ‘ sdiv 1 ’. (5) Section 308A, ‘part’— omit, insert — ‘subdivision’. (6) Sections 308 to 308E— renumber as sections 306C to 306H . (7) Part 10, as amended by this section— relocate as chapter 5, part 9, division 3, subdivision 1. 24 Amendment and relocation of ch 5, pt 11 (Exemplary damages) (1) Chapter 5, part 11, heading, ‘Part 11’— omit, insert — ‘ Division 2 ’. (2) Section 309— 2010 Act No. 24 Page 29

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 25] renumber as section 306B. (3) Chapter 5, part 11, as amended by this section— relocate as chapter 5, part 9, division 2. 25 Amendment of s 311 (Principles about orders as to costs) Section 311, ‘has assessed’— omit, insert — ‘dismisses the claim, makes no award of damages or makes an award of’. 26 Amendment of s 312 (Costs if written final offer by claimant) (1) Section 312(1)(b)— omit, insert — ‘(b) the court later awards an amount of damages to the claimant that is equal to or more than the written final offer; and’. (2) Section (2), from ‘, unless’— omit, 27 Amendment of s 313 (Costs if written offer by insurer) (1) Section 313(1)(b)— omit, insert — ‘(b) the claim is dismissed, the court makes no award of damages or makes an award of damages that is equal to or less than the insurer’s written final offer; and’. (2) Section 313(2), from ‘unless’ to ‘the court’— omit, insert — ‘The court’. Page 30 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 28] 28 Amendment of s 316 (Principles about orders as to costs) (1) Section 316(2), ‘and the court later awards damages to the worker’— omit . (2) Section 316(2)(a), ‘if the amount of damages awarded’— omit, insert — ‘if the court later awards an amount of damages to the worker that’. (3) Section 316(2)(b), ‘the amount of damages awarded’— omit, insert — ‘the court later dismisses the worker’s claim, makes no award of damages or awards an amount of damages that’. (4) Section 316(3), ‘If the’— omit, insert — ‘If an’. (5) Section 316(4) to (6)— omit. 29 Insertion of new ch 5, pt 12, div 2A After section 316— insert — ‘Division 2A Costs when offers made for a contribution claim ‘316A Principles about order as to costs ‘(1) This section applies to the extent proceedings in a court relate to a contribution claim. ‘(2) Subsections (3) to (5) apply if the contributor or other party (including an insurer) made an offer that was not accepted. 2010 Act No. 24 Page 31

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 30] ‘(3) If the court later awards an amount of contribution that is equal to or more than the other party’s written final offer, the court must order the contributor to pay the other party’s costs on the indemnity basis from the day the written final offer was made. ‘(4) If the court later— (a) dismisses the contribution claim; or (b) makes no award for the contribution; or (c) makes an award of contribution of an amount that is equal to or less than the contributor’s written final offer; the court must order the other party to pay the contributor’s costs on the standard basis from the day the written final offer was made. ‘(5) If an award of contribution is less than the other party’s written final offer but more than the contributor’s written final offer, each party bears the party’s own costs. ‘(6) This section applies to a written final offer whether or not it is made as a separate offer or as part of a joint or consolidated offer. ‘(7) In this section— written final offer means a written final offer under section 292.’. 30 Omission of s 317 (Application of div 3) Section 317— omit . 31 Amendment of s 318 (Costs if proceedings could have been brought in a lower court) Section 318— insert — ‘(2) This section applies to all claimants.’. Page 32 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 32] 32 Insertion of new ss 318A–318E After section 318— insert — ‘318A General application of costs provisions in part ‘(1) A court may make no order about costs to which division 1, 2 or 2A applies except the orders for costs provided for in the division. ‘(2) Subsection (1) applies subject to this division. ‘318B Court may make an alternative order in particular circumstances ‘(1) Subsection (2) applies to an order for costs a court is required to make under the following sections (a prescribed order) — (a) section 312(2); (b) 313(2); (c) 316A(3) or (4). ‘(2) The court may make an order for costs other than the prescribed order if the party ordered to pay costs shows the other order is appropriate in the circumstances. ‘(3) Subsection (4) applies if an award of damages is affected by factors that were not reasonably foreseeable by a party at the time of making or failing to accept a written final offer. ‘(4) The court may, if satisfied that it is just to do so, make an order for costs under divisions 1, 2 or 2A as if the reference to a written final offer or a failure to accept a written final offer were a reference to a later offer made, or a failure to accept a later offer made, in the light of the factors that became apparent after the parties completed the exchange of written final offers. Example — A claimant’s medical condition suddenly and unexpectedly deteriorates after the date of the written final offers and the court makes a much higher award of damages than would have been reasonably expected at 2010 Act No. 24 Page 33

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 33] that time. In that case, the court may ignore the written final offers and award costs on the basis of later offers of settlement. ‘318C Costs order under div 2 for an interlocutory application ‘An order about costs for an interlocutory application may be made under division 2 only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties. ‘318D Order for costs if more than 1 person liable for the same costs ‘If more than 1 party in a proceeding for damages has a liability to pay the same costs under this part, or under this part and another law about costs, the court may apportion the costs payable by each party according to the proportion of liability of the parties and the justice of the case. ‘318E Order for costs if an entity was not a party at the compulsory conference ‘If an entity other than a defendant that participated in a compulsory conference is joined as a defendant in a proceedings for damages, the court may make an order about costs in favour of, or against, the entity according to the proportion of liability of the defendants and the justice of the case.’. 33 Insertion of new ch 26 After section 662— insert — Page 34 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 33] ‘Chapter 26 Transitional provisions for the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 ‘663 Definitions for ch 26 ‘In this chapter— amending Act means the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 . amending section means a section of the amending Act that amends this Act. new , in relation to a provision, means the provision as inserted or amended by the amending Act. old , in relation to a provision, means the provision as it existed before being amended or omitted by the amending Act. ‘664 Existing excess period insurance protected ‘New section 67 has no effect on a policy of insurance entered into under old section 67 but applies to all insurance entered with WorkCover after the commencement of new section 67. ‘665 Reinsurance ‘New section 86 applies to any reinsurance that happens after the commencement of amending section 6. ‘666 Compensation on death of worker under 21 ‘New section 202(1)(b) only applies if a worker dies as a result of an injury sustained after the commencement of amending section 8. 2010 Act No. 24 Page 35

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 33] ‘667 Responsibility for worker’s rehabilitation ‘New sections 220 and 221 have effect in relation to any injured worker from the commencement of amending sections 9 and 10. ‘668 Provisions about conferences, offers and costs ‘(1) This section applies for the application of each provision as amended or inserted by a relevant amending section in relation to a claim made by a claimant and in existence immediately before the commencement of the relevant amending section. ‘(2) The provision as amended or inserted has effect in relation to the claim if, before the commencement of the relevant amending section— (a) the claimant has not started proceedings in a court for the claim; and (b) the compulsory conference required under chapter 5, part 6 has not been held. ‘(3) In this section— relevant amending section means— (a) section 17; or (b) section 25; or (c) section 26; or (d) section 27; or (e) section 28; or (f) section 29; or (g) section 32. Page 36 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 33] ‘669 Provisions about, civil liability and assessment of damages ‘(1) Subsection (2) applies in relation to the following provisions— (a) provisions inserted by section 21; (b) new section 305H(1)(f) and (3) inserted by section 22. ‘(2) The provisions only apply in relation to— (a) an injury sustained by a worker after the commencement of the provisions; or (b) an injury sustained by a worker before the commencement of the provisions if— (i) the injury is a latent onset injury diagnosed after the commencement of the provisions; or (ii) the injury is— (A) an injury to which section 235A applies; and (B) the worker first consulted a relevant health practitioner after the commencement of the provision.’. ‘(3) To remove any doubt, it is declared that subsection (2) does not affect a provision that is, or to the extent that it is, only renumbered and relocated into part 8 or part 9 by the amending Act. ‘(4) In this section— relevant health practitioner means a relevant health practitioner as defined under section 235A. ‘670 Amendment of regulations under Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 ‘The amendment of the Workers’CompensationandRehabilitationRegulation2003 or the CivilLiabilityRegulation 2003 under the amending Act does not affect the 2010 Act No. 24 Page 37

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 2 Amendment of Workers’ Compensation and Rehabilitation Act 2003 [s 34] power of the Governor in Council to further amend the regulation or to repeal it.’. 34 Amendment of sch 6 (Dictionary) (1) Schedule 6, definition contribution claim — omit . (2) Schedule 6— insert — ‘ contribution claim , for chapter 5, see section 233. contributory negligence see the LawReformAct1995 , section 10. dependency claim means a claim in relation to a fatal injury brought on behalf of a deceased’s dependants or estate. dust-related condition see the CivilLiabilityAct2003 , schedule 2. duty , for chapter 5, part 8, see section 305. duty of care , for chapter 5, part 8, see section 305. future loss for chapter 5, part 9, see section 306. general damages , for chapter 5, part 9, see section 306. injury scale value see section 306O. intoxicated , in relation to a person, means that the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired. loss of earnings for chapter 5, part 9, see section 306. obvious risk , for section 305H, see section 305I. offer , for chapter 5, see section 233. structured settlement , for chapter 5, part 9, division 4, see section 306Q.’. Page 38 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 35] Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 35 Regulation amended This part and the schedule amend the Workers’ Compensationand Rehabilitation Regulation 2003 . 36 Amendment of s 3 (Definitions) (1) Section 3, definitions AMA guide and ophthalmologists guide — omit . (2) Section 3— insert— ‘ AMA 4 means the ‘Guides to the Evaluation of Permanent Impairment’ (4th edition) published by the American Medical Association. injured worker means a worker who sustained an injury. ophthalmologists guide means the publication ‘Percentage Incapacity—A Guide for Members’ published by the Royal Australian College of Ophthalmologists in 1992. Editor’s note — The ophthalmologists guide is available on the Authority’s website at < and a copy may be obtained at the Authority’s office at 347 Ann Street, Brisbane.’. (3) Section 3, definition further premium , paragraph (g), after ‘Act’— insert— ‘as in force immediately before the commencement of the Workers’CompensationandRehabilitationandOtherLegislation Amendment Act 2010 , section 36’. (4) Section 3, definition lower extremity , ‘guide’ — 2010 Act No. 24 Page 39

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 37] omit , insert— ‘4’. (5) Section 3, definition upper extremity , ‘guide’— omit , insert— ‘4’. (6) Section 3, definitions— relocate to schedule 13, as inserted by section 42. (7) Section 3, ‘In this regulation—’— omit , insert— ‘Schedule 13 defines particular words used in this regulation.’. 37 Replacement of s 16 (Excess period—Act, s 65) Section 16— omit , insert— ‘16 Excess period—Act, s 65 ‘For section 65(2) of the Act, the amount prescribed is the lesser of the following— (a) QOTE; (b) the amount of weekly compensation payable to a worker under chapter 3, part 9 of the Act.’. 38 Omission of ss 17 and 18 Sections 17 and 18— omit . 39 Amendment of s 77 (Appointment of actuarial arbiter) Section 77(1)(c), from ‘Queensland’— omit, insert— ‘Association of Self Insured Employers of Queensland.’. Page 40 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 40] 40 Insertion of new pt 7A After part 7— insert— ‘Part 7A Assessment of damages ‘112C Prescribed amount of damages for loss of consortium or loss of servitium—Act, s 306M ‘For section 306M(1)(b) of the Act, the amount prescribed for an injury sustained on or after 1 July 2010 is $35340. ‘112D Rules for assessing injury scale value—Act, s 306O(1)(c)(i) ‘(1) This section and schedules 8 to 11 provide the rules under which a court must assess the injury scale value for an injury. ‘(2) Schedule 9 provides the ranges of injury scale values for particular injuries that the court is to consider in assessing the injury scale value for those injuries. ‘(3) For an injury not mentioned in schedule 9, a court, in assessing an injury scale value for the injury, may have regard to the ranges prescribed in schedule 9 for other injuries. ‘(4) Schedule 8 provides matters to which a court is to have regard in the application of schedule 9. ‘(5) Schedule 11 provides the psychiatric impairment rating scale that may be used with schedule 9. ‘(6) Schedule 10 provides matters relevant to the application of schedule 11 and requirements with which a medical expert must comply in assessing a PIRS rating for a mental disorder of an injured worker. ‘112E General damages calculation provisions—Act, s 306P ‘(1) This section applies section 306P of the Act. 2010 Act No. 24 Page 41

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 41] ‘(2) Schedule 12 is prescribed as the general damages calculation provisions for an injury sustained on or after 1 July 2010. ‘112F Prescribed amount of award for future loss—Act, s 306R ‘For section 306R of the Act, the amount prescribed for an injury sustained on or after 1 July 2010 is $117800.’. 41 Insertion of new pt 10, div 4 Part 10— insert— ‘Division 4 Provision for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 ‘128 Excess period ‘Section 16, as in force immediately before the commencement of this section, continues to apply in relation to an injury sustained by a worker before 1 July 2010 as if the Workers’CompensationandRehabilitationandOtherLegislationAmendmentAct2010 , section 37 had not been enacted.’. 42 Insertion of new schs 8–13 After schedule 7— insert— Page 42 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Schedule 8 Matters to which court is to have regard in the application of schedule 9 section 112D(1) ‘Part 1 Objectives of schedule 9 (Ranges of injury scale values) ‘1 Objectives of sch 9 ‘The objectives of schedule 9 include promoting— (a) consistency between assessments of general damages awarded by courts for similar injuries; and (b) similar assessments of general damages awarded by courts for different types of injury that have a similar level of adverse impact on an injured worker. Notes — • Under the Act, section 306O(1), if general damages are to be awarded by a court in relation to an injury sustained on or after 1 July 2010, the court must assess an injury scale value as follows— • the injured worker’s total general damages must be assigned a numerical value ( injury scale value ) on a scale running from 0 to 100—the Act, section 306O(1)(a) • the scale reflects 100 equal graduations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind—the Act, section 306O(1)(b) • in assessing the injury scale value, the court must— • assess the injury scale value under any rules provided under a regulation; and • have regard to the injury scale values given to similar injuries in previous proceedings—the Act, section 306O(1)(c). 2010 Act No. 24 Page 43

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • Under the Act, section 306O(2), if a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under the Act, section 306O(1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value. ‘Part 2 How to use schedule 9 ‘Division 1 Injury ‘2 Injury mentioned in sch 9 ‘(1) In assessing the injury scale value ( ISV ) for an injury mentioned in the injury column of schedule 9, a court must consider the range of injury scale values stated in schedule 9 for the injury. ‘(2) The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured worker. ‘3 Multiple injuries ‘(1) Subject to section 9, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury of the multiple injuries. ‘(2) To reflect the level of adverse impact of multiple injuries on an injured worker, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only. Note — This section acknowledges that— • the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured worker; and Page 44 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high. ‘4 Multiple injuries and maximum dominant ISV inadequate ‘(1) This section applies if a court considers the level of adverse impact of multiple injuries on an injured worker is so severe that the maximum dominant ISV is inadequate to reflect the level of impact. ‘(2) To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV. ‘(3) However, the ISV for the multiple injuries— (a) must not be more than 100; and Note — Under the Act, section 306O(1)(a), an ISV is assessed on a scale running from 0 to 100. (b) should rarely be more than 25% higher than the maximum dominant ISV. ‘(4) If the increase is more than 25% of the maximum dominant ISV, the court must give detailed written reasons for the increase. ‘(5) In this section— maximum dominant ISV , in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries. ‘5 Adverse psychological reaction ‘(1) This section applies if a court is assessing an ISV where an injured worker has an adverse psychological reaction to a physical injury. ‘(2) The court must treat the adverse psychological reaction merely as a feature of the injury. 2010 Act No. 24 Page 45

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘6 Mental disorder ‘(1) This section applies if— (a) a court is assessing an ISV; and (b) a PIRS rating for a mental disorder of an injured worker is relevant under schedule 9. ‘(2) The PIRS rating for the mental disorder of the injured worker is the PIRS rating accepted by the court. ‘(3) A PIRS rating is capable of being accepted by the court only if it is— (a) assessed by a medical expert as required under schedules 10 and 11; and (b) provided to the court in a PIRS report as required under schedule 10, section 12. ‘7 Aggravation of pre-existing condition ‘(1) This section applies if an injured worker has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV. ‘(2) In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury. ‘Division 2 Other matters ‘8 Court must have regard to particular provisions of sch 9 ‘(1) In addition to providing ranges of ISVs for particular injuries, schedule 9 sets out provisions relevant to using schedule 9 to assess an ISV for particular injuries. Examples of relevant provisions — • examples of the injury Page 46 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • examples of factors affecting ISV assessment • comments about appropriate level of ISV ‘(2) In assessing an ISV, a court must have regard to those provisions to the extent they are relevant in a particular case. ‘(3) The fact that schedule 9 provides examples of factors affecting an ISV assessment is not intended to discourage a court from having regard to other factors it considers are relevant in a particular case. ‘9 Court may have regard to other matters ‘In assessing an ISV, a court may have regard to other matters to the extent they are relevant in a particular case. Examples of other matters — • the injured worker’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life • the effects of a pre-existing condition of the injured worker • difficulties in life likely to have emerged for the injured worker whether or not the injury happened • in assessing an ISV for multiple injuries, the range for, and other provisions of schedule 9 in relation to, an injury other than the dominant injury of the multiple injuries ‘10 Whole person impairment ‘The extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV. ‘11 Medical report stating whole person impairment percentage ‘If a medical report states a whole person impairment percentage, it must state how the percentage is calculated, including— (a) the clinical findings; and 2010 Act No. 24 Page 47

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] (b) how the impairment is calculated; and (c) if the percentage is based on criteria provided under AMA 5— (i) the provisions of AMA 5 setting out the criteria; and (ii) if a range of percentages is available under AMA 5 for an injury of the type being assessed—the reason for assessing the injury at the selected point in the range. Notes — 1 It is not a function of a doctor to identify— (a) the item in schedule 9 to which an injury belongs; or (b) the appropriate ISV for an injury. 2 A medical report tended in evidence in a proceeding for a claim for personal injury damages must comply with the UniformCivilProcedure Rules 1999 , chapter 11, part 5. ‘12 Greater weight to assessments based on AMA 5 ‘(1) This section does not apply to a medical assessment of scarring or of a mental disorder. ‘(2) In assessing an ISV, a court must give greater weight to a medical assessment of a whole person impairment percentage based on the criteria for the assessment of whole person impairment provided under AMA 5 than to a medical assessment of a whole person impairment percentage not based on the criteria. ‘13 Greater weight to assessments of PIRS rating ‘In assessing an ISV, a court must give greater weight to a PIRS report provided as required under schedule 10 than to another medical assessment of the permanent impairment caused by a mental disorder. Page 48 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘14 ISV must be a whole number ‘An ISV assessed by a court must be a whole number. Note — Under the Act, section 306O(1)(a), an ISV is assessed on a scale running from 0 to 100. 2010 Act No. 24 Page 49

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Schedule 9 Ranges of injury scale values section 112D(1) Item Injury no. Other provisions Range of injury scale values (ISVs) Part 1 Central nervous system and head injuries 1 Quadriplegia 75 to 100 Examples of factors affecting ISV assessment • Presence and extent of pain • Extent of any residual movement • Degree of insight • Adverse psychological reaction • Level of function and pre-existing function • Degree of independence • Ability to participate in daily activities, including employment • Presence and extent of secondary medical complications Page 50 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Comment about appropriate level of ISV An ISV at or near the top of the range will be appropriate only if the injured worker has assisted ventilation, full insight, extreme physical limitation and gross impairment of ability to communicate. 2 Paraplegia 60 to 80 Examples of factors affecting ISV assessment • Presence and extent of pain • Extent of any residual movement • Adverse psychological reaction • Level of function and pre-existing function • Degree of independence • Ability to participate in daily activities, including employment • Loss of reproductive or sexual function • Bowel or bladder incontinence • Presence and extent of secondary medical complications 2010 Act No. 24 Page 51

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] 3 Hemiplegia or severe paralysis of more than 1 limb Comment for item 3 Incomplete paralysis causing whole person impairment of less than 40% must be assessed under part 6 if it is the only injury or the dominant injury of multiple injuries. Examples of factors affecting ISV assessment for item 3 The same examples apply as for item 2 4 Monoplegia Comment See items 5, 6 and 7 and part 6. 5 Extreme brain injury Comment The injury will involve major trauma to the brain with severe permanent impairment. 5.1 Substantial insight remaining 71 to 100 Comment about appropriate level of ISV for item 5.1 • An ISV at or near the top of the range will be appropriate only if the injured worker needs full-time nursing care and has the following— Page 52 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • substantial insight despite gross disturbance of brain function • significant physical limitation and destruction of pre-existing lifestyle • epileptic seizures • double incontinence • little or no language function • little or no meaningful response to environment. • An injured worker with an injury for which an ISV at or near the top of the range is appropriate may have some ability to follow basic commands, recovery of eye opening, return of postural reflex movement and return to pre-existing sleep patterns. Examples of factors affecting ISV assessment for item 5.1 • Degree of insight • Life expectancy • Extent of bodily impairment 5.2 Substantially reduced insight Comment for items 5.2.1 and 5.2.2 • The injured worker will have major trauma to the brain with severe permanent impairment. 2010 Act No. 24 Page 53

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] 5.2.1 5.2.2 5.3 • The injured worker’s insight of his or her condition may change. • Insight may be impaired in the degree, or continuity of, appreciation of the injured worker’s condition. Examples of factors affecting ISV assessment for items 5.2.1 and 5.2.2 The same examples apply as for an item 5.1 injury, but reducing levels of insight progressively reduce the level of suffering and the appropriate level of ISV. The injured worker will have partial or complete insight (as evidenced by appropriate responses to physical or emotional stimuli) for not more than half of the person’s waking hours. 36 to 70 The injured worker will have infrequent periods of partial insight and will show unreliable, rare or limited responses to physical or emotional stimuli. 16 to 35 Grossly reduced insight 10 to 15 Comment for item 5.3 The injured worker will be in a persistent vegetative state and have little or no insight. Page 54 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Comment about appropriate level of ISV for item 5.3 If some minor awareness of loss remains, an ISV at or near the top of the range may be appropriate. 6 Serious brain injury 56 to 70 Comment The injured worker will be very seriously disabled. Example of the injury Serious brain damage causing— (a) physical impairment, for example, limb paralysis; or (b) cognitive impairment with marked impairment of intellect and personality Examples of factors affecting ISV assessment • Degree of insight • Life expectancy • Extent of physical limitations • Extent of cognitive limitations • Extent of sensory limitation, for example, limitation of hearing or sense of taste or smell • Level of function and pre-existing function • Degree of independence • Ability to communicate 2010 Act No. 24 Page 55

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • Behavioural or psychological changes • Epilepsy or a high risk of epilepsy • Presence of and extent of secondary medical complications Comment about appropriate level of ISV An ISV at or near the top of the range will be appropriate only if the injured worker substantially depends on others and needs substantial professional and other care. 7 Moderate brain injury Comment 21 to 55 The injured worker will be seriously disabled, but the degree of the injured worker’s dependence on others, although still present, is lower than for an item 6 injury. Examples of factors affecting ISV assessment • Degree of insight • Life expectancy • Extent of physical limitations • Extent of cognitive limitations • Extent of sensory limitation, for example, limitation of hearing or sense of taste or smell Page 56 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • Level of function and pre-existing function • Degree of independence • Ability to communicate • Behavioural or psychological changes • Epilepsy or a high risk of epilepsy • Presence of, and extent of, secondary medical complications Comment about appropriate level of ISV • An ISV of 21 to 25 will be appropriate if there is reduced concentration and memory, or reduced mood control, and either or both— • reduced capacity for employment • a noticeable interference with lifestyle and leisure. • An ISV of 26 to 40 will be appropriate if there is an increased risk of epilepsy and either or both— • a moderate cognitive impairment • loss of, or greatly reduced capacity for, employment. 2010 Act No. 24 Page 57

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • An ISV of 41 to 55 will be appropriate if there is no capacity for employment, and 1 or more of the following— • moderate to severe cognitive impairment • marked personality change • dramatic effect on speech, sight or other senses • epilepsy or a high risk of epilepsy. 8 Minor brain injury 6 to 20 Comment The injured worker will make a good recovery and be able to take part in normal social life and to return to work. There may be minor problems persisting that prevent a restoration of normal function. Examples of factors affecting ISV assessment • Severity of any physical injury causing the brain damage, having regard to— (a) any medical assessment made immediately after the injury was caused, for example, CT or MRI scans, an ambulance officer’s assessment or hospital emergency unit assessment; and Page 58 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] 2010 Act No. 24 (b) any post-traumatic amnesia. • Extent of any ongoing, and possibly permanent, disability • Extent of any personality change • Depression • Degree of insight • Life expectancy • Extent of physical limitations • Extent of cognitive limitations • Extent of sensory limitation, for example, limitation of hearing or sense of taste or smell • Level of function and pre-existing function • Degree of independence • Ability to communicate • Behavioural or psychological changes • Epilepsy or a high risk of epilepsy • Presence of, and extent of, secondary medical complications Comment about appropriate level of ISV An ISV at or near the top of the range will be appropriate if the injured worker has— Page 59

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • an increased risk of epilepsy; and • ongoing reduced concentration and memory, or reduced mood control, that does not significantly interfere with the person’s ability to take part in normal social life or return to work. 9 Minor head Injury, other than an injury mentioned in part 3 Comment 0 to 5 Brain damage, if any, is minimal. Examples of the injury • Uncomplicated skull fracture • Concussion with transitory loss of consciousness and no residual effects Examples of factors affecting ISV assessment • Severity of any physical injury causing brain damage • Length of time to recover from any symptoms • Extent of ongoing symptoms • Presence, or absence of, headaches Page 60 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Part 2 Comment about appropriate level of ISV • An ISV at or near the bottom of the range will be appropriate for an injury from which the injured worker fully recovers within a few weeks. • An ISV at or near the top of the range will be appropriate if there is an uncomplicated skull fracture and there are associated concussive symptoms of dizziness, headache and memory loss persisting for less than 6 months. Mental disorders General comment for items 10 to 13 This part includes references to ratings on the psychiatric impairment rating scale set out in schedule 11 ( PIRS ratings ). A PIRS rating is capable of being accepted by a court only if it is assessed by a medical expert as required under schedules 10 and 11 and provided to the court in a PIRS report. Examples of factors affecting ISV assessment for items 10 to 13 • PIRS rating • Degree of insight • Age and life expectancy 2010 Act No. 24 Page 61

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] 10 Extreme mental disorder 11 Serious mental disorder • Pain and suffering • Loss of amenities of life • Likelihood difficulties would have emerged in any event • If there is extreme psychological trauma, for example, intense helplessness or horror, the immediate adverse psychological reaction 41 to 65 Example of the injury A mental disorder with a PIRS rating between 31% and 100% Comment about appropriate level of ISV Despite a very high PIRS rating, an ISV at or near the bottom of the range may be appropriate if the injured worker has reduced insight. 11 to 40 Example of the injury A mental disorder with a PIRS rating between 11% and 30% Page 62 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] 12 Moderate mental disorder 13 Minor mental disorder Part 3 2 to 10 Comment There is generally only moderate impairment. Example of the injury A mental disorder with a PIRS rating between 4% and 10% 0 to 1 Comment For many persons who have suffered the injury there will be little or no impact on their lives. Example of the injury A mental disorder with a PIRS rating between 0% and 3% Facial injuries Division 1 Skeletal injuries of the facial area Examples of factors affecting ISV assessment for items 14 to 22 • Extent of skeletal or functional damage • Degree of cosmetic damage or disfigurement • Adverse psychological reaction 2010 Act No. 24 Page 63

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • Availability of cosmetic repair 14 Extreme facial injury 26 to 45 Comment The injury will involve severe traumatic injury to the face requiring substantial reconstructive surgery. Examples of the injury • A Le Fort I fracture or Le Fort II fracture if the degree of incapacity and disfigurement after reconstructive surgery will be very severe • A Le Fort III fracture causing incapacity in daily activities Additional example of factor affecting ISV assessment The extent of any neurological impairment or effect on the airway Note — Le Fort I fracture, Le Fort II fracture and Le Fort III fracture are defined in schedule 13 (Dictionary). 15 Serious facial injury 14 to 25 Comment The injury will involve serious traumatic injury to the face requiring reconstructive surgery that is not substantial. Page 64 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Part 8 • A single noticeable scar, or several superficial scars, to 1 or both of the legs, arms or hands, with some minor cosmetic damage. Burn injuries General comment • The ISV for a burn injury must be assessed having regard to the item of this schedule that— (a) relates to the part of the body affected by the burn injury; and (b) is for an injury that has a similar level of adverse impact to the burn injury. • Burns to the face must be assessed under part 3, division 3. • In burns cases, the ISV for an injury to a part of the body causing functional impairment will generally be at or near the top of the range for an injury to that part of the body. • In serious burns cases, the effects of scarring are more comprehensive and less able to be remedied than the effects of scarring from other causes. 2010 Act No. 24 Page 195

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Part 9 155 Extreme injury affecting head hair 156 Serious injury affecting head hair Page 196 Injuries affecting hair 11 to 15 Example of the injury Total permanent loss of head hair 4 to 10 Example of the injury Damage to head hair, caused by, for example, defective waving or tinting, if— (a) the physical effect of the damage is— (i) dermatitis; or (ii) tingling or burning of the scalp, causing dry, brittle hair that breaks off or falls out, or both; and (b) the physical effect leads to depression, loss of confidence and inhibited social life Comment about appropriate level of ISV An ISV in the upper half of the range will be appropriate if— (a) thinning continues and prospects of regrowth are poor; or 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] (b) there is a partial loss of areas of hair and regrowth is slow. 157 Moderate injury affecting head hair or loss of body hair Examples of the injury • Hair that has been pulled out leaving bald patches • The same example applies as for item 156 but with fewer or only moderate symptoms Example of factor affecting ISV assessment Length of time before regrowth 0 to 3 Part 10 Dermatitis 158 Extreme dermatitis 159 Serious dermatitis Examples of the injury Permanent dermatitis having a severe effect on employment and domestic capability, with some mental disorder Example of the injury Dermatitis that— (a) lasts for years or indefinitely; and 11 to 20 8 to 10 2010 Act No. 24 Page 197

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] 160 Moderate dermatitis 161 Minor dermatitis (b) involves cracking and soreness; and (c) affects employment and domestic capability; and (d) causes marked adverse psychological reaction Example of the injury Dermatitis lasting for a significant period, but settling with treatment or a change of personal conduct, or both Examples of the injury Itching, skin irritation or a rash, alone or in combination, that resolves with treatment within a few months of the start of treatment 3 to 7 0 to 2 Page 198 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Schedule 10 Matters relevant to PIRS assessment by medical expert section 112D(1) ‘Part 1 Explanation of the PIRS ‘1 PIRS rates permanent impairment caused by mental disorder ‘The PIRS set out in schedule 11 rates permanent impairment caused by a mental disorder. Note — PIRS ratings are referred to in schedule 9, part 2. A PIRS rating is capable of being accepted by a court under schedule 8, section 6 only if it is— (a) assessed by a medical expert as required under this schedule and schedule 11; and (b) provided to the court in a PIRS report as required under section 12. ‘2 Areas of functional impairment ‘(1) The PIRS consists of 6 scales, each of which rates permanent impairment in an area of function. ‘(2) Each scale has 5 classes of impairment, ranging from little or no impairment to total impairment. 2010 Act No. 24 Page 199

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Part 2 Assessment of PIRS rating ‘3 Medical expert must comply with requirements ‘(1) A medical expert must comply with this schedule and schedule 11 in assessing a PIRS rating for a mental disorder of an injured worker. ‘(2) The medical expert may give an assessment only if the medical expert has examined the injured worker. ‘4 How to assess a PIRS rating ‘(1) To assess a PIRS rating for a mental disorder of an injured worker, a medical expert must follow the steps set out in this section. Note — Section 8 provides an example completed worksheet that could be used to assess a PIRS rating. ‘(2) Step 1—for each area of functional impairment set out in the PIRS, the medical expert must— (a) decide which level of impairment set out in the PIRS describes the level of impairment caused by the mental disorder of the injured worker; and (b) read off from the PIRS the class, for example, class 1, that corresponds to the level that has been decided. ‘(3) In deciding which level to choose for an area of functional impairment, the medical expert— (a) must have regard to— (i) the examples of indicators of the level of impairment set out in the PIRS for the area to the extent they are relevant in a particular case; and (ii) all factors the medical expert considers relevant to the injured worker’s level of impairment, including, for example, the injured worker’s age Page 200 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] and pre-existing functional capacity for the area; and (b) may have regard to the range of percentages of impairment set out in the PIRS for the area as a guide to the level of impairment. Note — The examples of impairment set out in the PIRS assume a full pre-existing functional capacity for the area which may not be appropriate in a particular case. ‘(4) Step 2—the medical expert must list the class number of the 6 classes read off under step 1 in ascending order. ‘(5) Step 3—the medical expert must work out the median of the class numbers (the median class score ) under section 6. ‘(6) Step 4—the medical expert must work out the total of the class numbers (the total class score ) by adding together all of the class numbers. ‘(7) Step 5—from the conversion table in section 7, the medical expert must read off the percentage impairment, that corresponds to the particular median class score when found in conjunction with the particular total class score. ‘(8) Subject to section 5, the percentage impairment is the PIRS rating assessed by the medical expert for the mental disorder of the injured worker. ‘5 Assessment if pre-existing mental disorder ‘(1) If an injured worker has a pre-existing mental disorder, a medical expert must— (a) work out a percentage impairment for the pre-existing mental disorder at the time immediately before the injury using the steps set out in section 4 (the pre-injury rating ); and (b) work out a percentage impairment for the current mental disorder using the steps set out in section 4 (the post-injury rating ); and 2010 Act No. 24 Page 201

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] (c) subtract the pre-injury rating from the post-injury rating. ‘(2) The remaining percentage impairment is the PIRS rating assessed by the medical expert for the mental disorder of the injured worker. Editor’s note — See also section 11 (Pre-existing mental disorder). ‘6 How to work out a median class score ‘(1) A median class score is the number that would fall at the middle point between the third class number and the fourth class number if all the class numbers are listed in ascending order. ‘(2) If the median class score under subsection (1) is not a whole number, the median class score must be rounded up to the nearest whole number. Note — A median class score, as opposed to a mean class score or average class score, has the advantage of not being too influenced by 1 extreme score. ‘7 Conversion table ‘This section sets out the conversion table for use under section 4. Page 202 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Conversion table for percentage impairment Median class score 12345 6 0% 7 0% 8 1% 9 1% 4% 10 2% 5% 11 2% 5% 12 2% 6% 13 3% 7% 11% 14 3% 7% 13% 15 8% 15% 16 9% 17% 17 9% 19% 31% 18 10% 22% 34% 19 24% 37% 20 26% 41% 21 28% 44% 61% 22 30% 47% 65% 23 50% 70% 24 54% 74% 25 57% 78% 26 60% 83% 27 87% 28 91% 29 96% 30 100% Total class score 2010 Act No. 24 Page 203

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘8 Example worksheet ‘This section sets out an example of a completed worksheet that could be used to assess a PIRS rating for a mental disorder. Area of functional impairment Class 1 Self care and personal hygiene 1 2 Social and recreational activities 2 3 Travel 3 4 Social functioning 5 5 Concentration, persistence and pace 5 6 Adaptation 5 List of class numbers in ascending order: 1235 55 Median class score (using section 6): 4 Total class score: 21 Percentage impairment (using conversion table in section 7): 44% PIRS rating (if no pre-existing mental disorder): 44% ‘Part 3 Particular cases ‘9 Refusal of treatment ‘(1) This section applies if an injured worker refuses treatment that could lead to a significant improvement in the level of permanent impairment caused by a mental disorder of the injured worker. ‘(2) Despite the injured worker’s refusal of treatment, a medical expert may assess a PIRS rating for the mental disorder of the injured worker. Page 204 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘(3) The refusal of treatment must not affect the medical expert’s assessment of the PIRS rating. ‘(4) The medical expert must note the refusal of treatment in the PIRS report and state in the report the likely effect of treatment and any reasons known to the medical expert for the refusal of treatment. ‘(5) Subsection (6) applies if a PIRS report given to a court states that the injured worker refuses treatment that could lead to a significant improvement in the level of permanent impairment caused by the mental disorder of the injured worker. ‘(6) The court may, in assessing the ISV for an injury or multiple injuries of the injured worker, take into account the refusal of treatment and the matters stated in the PIRS report under subsection (4). ‘(7) In this section— PIRS report means a report under section 12. ‘10 Cognitive impairment ‘If a medical expert assessing a PIRS rating for a mental disorder of an injured worker suspects the injured worker has a cognitive impairment, the medical expert must take into account the following factors— (a) the relevant medical history of the injured worker; (b) any medical treatment, and progress towards rehabilitation, for the cognitive impairment; (c) any results of radiological scans, including CT and MRI scans, electroencephalograms and psychometric tests made available to the medical expert. ‘11 Pre-existing mental disorder ‘If a medical expert assessing a PIRS rating for a mental disorder of an injured worker considers the injured worker had a pre-existing mental disorder, the medical expert must— 2010 Act No. 24 Page 205

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] (a) make appropriate enquiry into the pre-existing mental disorder; and (b) consider any psychiatric or psychological reports made available to the medical expert. ‘Part 4 Report of PIRS rating ‘12 Court to be given PIRS report ‘(1) This section applies if a party to a proceeding wants a court to accept a PIRS rating assessed by a medical expert for a mental disorder of an injured worker. ‘(2) The party must give the court a written report from the medical expert stating the following matters— (a) the mental disorder diagnosed by the medical expert; (b) the PIRS rating assessed by the medical expert for the mental disorder of the injured worker; (c) how the PIRS rating is assessed, including— (i) for each area of functional impairment set out in the PIRS— (A) the relevant clinical findings; and (B) the level of impairment set out in the PIRS that the medical expert decided described the level of impairment caused by the mental disorder of the injured worker; and (C) the class set out in the PIRS that corresponds to the level that was decided; and (ii) the median class score and total class score worked out under section 4; and (iii) if the injured worker had a pre-existing mental disorder, the information mentioned in Page 206 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] subparagraphs (i) and (ii) in relation to the pre-injury rating and the post-injury rating as defined under section 5; (d) details of any cognitive impairment of the injured worker. 2010 Act No. 24 Page 207

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Schedule 11 Psychiatric impairment rating scale section 112D(1) Area of functional impairment: self care and personal hygiene Class Level of impairment Class 1 Class 2 Little or no impairment Mild impairment Class 3 Moderate impairment Examples of indicators of level of impairment Note— These must be had regard to under schedule 10, section 4(3)(a)(i). Percentage impairment ranges Note— These may be had regard to under schedule 10, section 4(3)(b). 0 to 3% 4 to 10% • can live independently • looks after himself or herself adequately, although may look unkempt occasionally • sometimes misses a meal or relies on take-away food 11 to 30% • can not live independently without regular support • needs prompting to shower daily and wear clean clothes • does not prepare own meals • frequently misses meals Page 208 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • if living independently, a family member or community nurse visits, or needs to visit, 2 to 3 times a week to ensure a minimum level of hygiene and nutrition Class 4 Severe impairment 31 to 60% • needs supervised residential care • if unsupervised, may accidentally or deliberately hurt himself or herself Class 5 Totally impaired more than 60% • needs assistance with basic functions, for example, feeding or toileting Area of functional impairment: social and recreational activities Class Level of impairment Class 1 Little or no impairment Examples of indicators of level of impairment Note— These must be had regard to under schedule 10, section 4(3)(a)(i). Percentage impairment ranges Note— These may be had regard to under schedule 10, section 4(3)(b). 0 to 3% 2010 Act No. 24 Page 209

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • regularly goes to cinemas, restaurants or other recreational venues • belongs to clubs or associations and is actively involved in them Class 2 Mild impairment 4 to 10% • occasionally goes to social events without needing a support person, but does not become actively involved, for example, by dancing or cheering a team Class 3 Moderate impairment 11 to 30% • rarely goes to social events, and usually only when prompted by family or a friend • does not become involved in social events • will not go out without a support person • remains quiet and withdrawn Class 4 Severe impairment 31 to 60% • never leaves own residence • tolerates the company of a family member or close friend Page 210 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Class 5 Totally impaired • will go to a different room or garden when a person, other than a family member or close friend, comes to visit someone at own residence more than 60% • can not tolerate living with anybody • extremely uncomfortable when visited by a close family member Area of functional impairment: travel Class Level of impairment Class 1 Little or no impairment Class 2 Mild impairment Examples of indicators of level of impairment Note— These must be had regard to under schedule 10, section 4(3)(a)(i). Percentage impairment ranges Note— These may be had regard to under schedule 10, section 4(3)(b). 0 to 3% • can travel to new environments without supervision 4 to 10% 2010 Act No. 24 Page 211

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • can travel without a support person, but only in a familiar area, for example, to go to the local shops or visit a neighbour Class 3 Moderate impairment 11 to 30% • can not travel away from own residence without a support person • there may be problems resulting from excessive anxiety or cognitive impairment Class 4 Severe impairment 31 to 60% • finds it extremely uncomfortable to leave his or her own residence even with a trusted person Class 5 Totally impaired more than 60% • can not be left unsupervised, even at own residence • may require 2 or more persons to supervise him or her when travelling Page 212 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Area of functional impairment: social functioning Class Level of impairment Class 1 Little or no impairment Class 2 Mild impairment Class 3 Moderate impairment Examples of indicators of level of impairment Note— These must be had regard to under schedule 10, section 4(3)(a)(i). Percentage impairment ranges Note— These may be had regard to under schedule 10, section 4(3)(b). 0 to 3% • has no difficulty in forming and sustaining relationships, for example, with a spouse or close friend lasting years 4 to 10% • existing relationships are strained • tension and arguments between the injured worker and a spouse or close family member • some friendships are lost 11 to 30% • established relationships are severely strained, as is shown by periods of separation or domestic violence 2010 Act No. 24 Page 213

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] • if the injured worker has children, then a spouse, family members or community services are providing most of the care for the children Class 4 Severe impairment 31 to 60% • can not form or sustain long term relationships • pre-existing relationships, for example, with a spouse or close friend, have ended • can not care for dependents, for example, child dependents (if any) or an elderly parent Class 5 Totally impaired more than 60% • can not function within society • lives away from populated areas • actively avoids social contact Page 214 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Area of functional impairment: concentration, persistence and pace Class Level of impairment Class 1 Little or no impairment Class 2 Mild impairment Examples of indicators of level of impairment Note— These must be had regard to under schedule 10, section 4(3)(a)(i). Percentage impairment ranges Note— These may be had regard to under schedule 10, section 4(3)(b). 0 to 3% • can complete a TAFE or university course within a normal time frame 4 to 10% • can undertake a basic or standard retraining course at a slower pace • can focus on intellectually demanding tasks for up to 30 minutes, then may feel fatigued or develop headaches 2010 Act No. 24 Page 215

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Class 3 Moderate impairment 11 to 30% • can not read more than newspaper articles • finds it difficult to follow complex instructions, for example, operating manuals or building plans • can not make significant repairs to motor vehicle or type long documents • can not follow a pattern for making clothes or tapestry or knitting Class 4 Severe impairment 31 to 60% • able only to read a few lines before losing concentration • has difficulty in following simple instructions • impaired concentration is obvious even during brief conversation • can not live alone or needs regular assistance from family members or community services Class 5 Totally impaired more than 60% • needs constant supervision and assistance within an institutional environment Page 216 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Area of functional impairment: adaptation Note — This area of functional impairment deals with employability. Class Level of impairment Class 1 Little or no impairment Examples of indicators of level of impairment Note— These must be had regard to under schedule 10, section 4(3)(a)(i). Percentage impairment ranges Note— These may be had regard to under schedule 10, section 4(3)(b). 0 to 3% • can work full time in the position in which the injured worker worked immediately before the injury (the pre-injury position ) • the injured worker’s duties at work and performance of the duties are consistent with the worker’s education and training • can cope with the normal demands of the job 2010 Act No. 24 Page 217

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Class 2 Mild impairment 4 to 10% • can work in the pre-injury position, but for no more than 20 hours a week, for example, because the injured worker is no longer happy to work with particular persons • can work full time in a different position where performance of the relevant duties requires the use of comparable skill and intellect to that required to perform the duties of the pre-injury position Class 3 Moderate impairment 11 to 30% • can not work at all in the pre-injury position • only able to work less than 20 hours a week in a different position where performance of the relevant duties requires less skill or is otherwise less demanding, for example, less stressful Class 4 Severe impairment 31 to 60% • can not work more than 1 or 2 days at a time • works less than 20 hours a fortnight • the pace at which work is done is reduced Page 218 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] Class 5 Totally impaired • attendance at work is erratic more than 60% • needs constant supervision and assistance within an institutional environment 2010 Act No. 24 Page 219

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Schedule 12 General damages calculation provisions section 112E ‘ General damages calculation provision—1 July 2010 ‘The general damages must be calculated for an injury sustained on or after 1 July 2010 as follows— (a) if the injury scale value of the injury is assessed as 5 or less—by multiplying the injury scale value by $1180; (b) if the injury scale value of the injury is assessed as 10 or less but more than 5—by adding to $5900 an amount calculated by multiplying the number by which the injury scale value exceeds 5 by $1410; (c) if the injury scale value of the injury is assessed as 15 or less but more than 10—by adding to $12950 an amount calculated by multiplying the number by which the injury scale value exceeds 10 by $1650; (d) if the injury scale value of the injury is assessed as 20 or less but more than 15—by adding to $21200 an amount calculated by multiplying the number by which the injury scale value exceeds 15 by $1880; (e) if the injury scale value of the injury is assessed as 25 or less but more than 20—by adding to $30600 an amount calculated by multiplying the number by which the injury scale value exceeds 20 by $2120; (f) if the injury scale value of the injury is assessed as 30 or less but more than 25—by adding to $41200 an amount calculated by multiplying the number by which the injury scale value exceeds 25 by $2360; (g) if the injury scale value of the injury is assessed as 35 or less but more than 30—by adding to $53000 an amount calculated by multiplying the number by which the injury scale value exceeds 30 by $2590; Page 220 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] (h) if the injury scale value of the injury is assessed as 40 or less but more than 35—by adding to $65950 an amount calculated by multiplying the number by which the injury scale value exceeds 35 by $2830; (i) if the injury scale value of the injury is assessed as 50 or less but more than 40—by adding to $80100 an amount calculated by multiplying the number by which the injury scale value exceeds 40 by $3040; (j) if the injury scale value of the injury is assessed as 60 or less but more than 50—by adding to $110500 an amount calculated by multiplying the number by which the injury scale value exceeds 50 by $3250; (k) if the injury scale value of the injury is assessed as 70 or less but more than 60—by adding to $143000 an amount calculated by multiplying the number by which the injury scale value exceeds 60 by $3460; (l) if the injury scale value of the injury is assessed as 80 or less but more than 70—by adding to $177600 an amount calculated by multiplying the number by which the injury scale value exceeds 70 by $3680; (m) if the injury scale value of the injury is assessed as 90 or less but more than 80—by adding to $214400 an amount calculated by multiplying the number by which the injury scale value exceeds 80 by $3890; (n) if the injury scale value of the injury is assessed as 100 or less but more than 90—by adding to $253300 an amount calculated by multiplying the number by which the injury scale value exceeds 90 by $4120. 2010 Act No. 24 Page 221

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ‘Schedule 13 Dictionary section 3 ‘ adverse psychological reaction does not include a mental disorder. AMA 5 means the ‘Guides to the Evaluation of Permanent Impairment’ (5th edition) published by the American Medical Association. ankylosis means fixation of a joint in a specific position. digestive system — (a) means the organs and other parts of the body forming the alimentary tract, and includes the tongue, throat and abdominal wall; but (b) does not include an organ or other part of the body mentioned in the injury column of schedule 9. dominant injury , of multiple injuries, means— (a) if the highest range for 2 or more of the injuries of the multiple injuries is the same—the injury of those injuries selected as the dominant injury by a court assessing an ISV; or (b) otherwise—the injury of the multiple injuries having the highest range. Note— The selection as a dominant injury of a particular injury from 2 or more injuries having the same highest range will not affect the outcome of the court’s assessment of an ISV for the multiple injuries. DSM 4 means the 4th edition of the Diagnostic and Statistical Manual of Mental Disorders, Text Revision (DSM-IV-TR) published by the American Psychiatric Association in 2000. highest range means the range of ISVs having the highest maximum ISV. Page 222 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] ISV means injury scale value. Le Fort I fracture means a horizontal segmented fracture of the alveolar process of the maxilla. Le Fort II fracture means a unilateral or bilateral fracture of the maxilla— (a) in which the body of the maxilla is separated from the facial skeleton and pyramidal in shape; and (b) that may extend through the body of the maxilla down the midline of the hard palate, through the floor of the orbit and into the nasal cavity. Le Fort III fracture means a fracture in which the entire maxilla and 1 or more facial bones are completely separated from the brain case. medical expert , for an assessment of a PIRS rating, means a person— (a) who is appropriately qualified to perform the assessment, including a psychologist, neuropsychologist or psychiatrist; and (b) who has had appropriate training in the use of the PIRS. mental disorder means a mental disorder recognised under DSM 4. PIRS means the psychiatric impairment rating scale set out in schedule 11. PIRS rating , for a mental disorder, means a rating on the PIRS for the permanent impairment caused by the mental disorder. pre-existing , in relation to an injury, means existing at the time immediately before the injury. range , in relation to an ISV for an injury, means the range of ISVs for the injury set out in schedule 9. whole person impairment , in relation to an injury, means an estimate, expressed as a percentage, of the impact of a permanent impairment caused by the injury on the injured 2010 Act No. 24 Page 223

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 3 Amendment of Workers’ Compensation and Rehabilitation Regulation 2003 [s 42] worker’s overall ability to perform activities of daily living other than employment.’. Page 224 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 4 Amendment of Workplace Health and Safety Act 1995 [s 43] Part 4 Amendment of Workplace Health and Safety Act 1995 43 Act amended This part amends the Workplace Health and Safety Act 1995 . 44 Insertion of new pt 3, div 5 Part 3— insert — ‘Division 5 Effect of Act on civil liability ‘37A No civil cause of action based on contravention of Act ‘No provision of this Act creates a civil cause of action based on a contravention of the provision.’. 45 Insertion of new pt 17, div 7 Part 17— insert — ‘Division 7 Transitional provision for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 ‘197 Retrospective extinguishing of statutory cause of action ‘Section 37A has effect to extinguish without compensation any right to take action based on a civil cause of action arising from— 2010 Act No. 24 Page 225

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Part 5 Other amendments [s 46] (a) a contravention of a provision of this Act that happens after the commencement of section 37A; and (b) a contravention of a provision of this Act, whether as originally enacted or as amended since its original enactment, that happened before the commencement of section 37A, if— (i) proceedings for the action have not started before the commencement of section 37A; or (ii) proceedings for the action started after 8 August 2008 but the trial in the proceedings has not started before the commencement of section 37A.’. Part 5 Other amendments 46 Legislation amended in schedule (1) The schedule amends the legislation it mentions. (2) However, subsection (1) does not apply in relation to particular legislation if another provision of this regulation states that the schedule amends the particular legislation. Page 226 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule Schedule Legislation amended sections 3, 35 and 46 Civil Liability Regulation 2003 1 Sections 5A(a) and (b), 6A(2) and (3) and 6B(a) and (b), ‘and from’— omit , insert— ‘or after’. 2 Schedule 6A, items 1 and 2, ‘and from’— omit , insert— ‘or after’. Workers’ Compensation and Rehabilitation Act 2003 1 Section 21(1)(c) and (2), ‘work-related’— omit , insert— ‘work related’. 2 Section 21(3), ‘workrelated’— omit , insert— ‘work related’. 3 Section 28(a)(ii), (iii) and (iv), ‘and’— omit , insert— ‘or’. 2010 Act No. 24 Page 227

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 4 Section 76(1)(a), from ‘paragraph (c))’— omit, insert— ‘subsection (1)(c)) or 72 (other than subsection (1)(d)); and’. 5 Section 128D(5), definition member of the family , paragraph (a)(ii), (iii) and (iv), ‘and’— omit , insert— ‘or’. 6 Section 132(3)(a)(ii), ‘protocol.’— omit, insert— ‘protocol; and’. 7 Section 140(1)(a), after ‘$200000;’— insert— ‘and’. 8 Section 169(1)(a), after ‘18’— insert— ‘years’. 9 Section 189(2)(a), after ‘10,’— insert— ‘237(3),’. 10 Section 195, definition student , after ‘21’— insert— ‘years’. Page 228 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 11 Section 200(3) and Editor’s note— omit . 12 Section 201(3)(a)— omit . 13 Section 201(3)(b) and (c)— renumber as section 201(3)(a) and (b). 14 Section 237(1)(a)(ii)(B), (b), (c)(ii) and (d), at the end, ‘or’— omit. 15 Chapter 5, part 2, division 3, subdivision 2, heading, ‘s 237(1)(a)(i)’— omit , insert— ‘ section 237(1)(a)(i) ’. 16 Sections 242 and 244, heading, ‘subdiv’— omit, insert— ‘ sdiv ’. 17 Chapter 5, part 2, division 3, subdivision 3, heading, ‘s 237(1)(a)(ii)’— omit, insert— ‘ section 237(1)(a)(ii) ’. 18 Section 279(1)(a)(i) and (ii), at the end, ‘or’— omit , insert— ‘and’. 2010 Act No. 24 Page 229

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 19 Section 283(1)(b), ‘medical condition’— omit , insert— ‘injury’. 20 Section 290A(2)(e), ‘section 290A(3)’— omit , insert— ‘subsection (3)’. 21 Section 322(2), definition a State’s legislation about damages for a work related injury , paragraph (a), at the end, ‘and’— omit, insert— ‘or’. 22 Section 338(b), ‘to monitor’— omit, insert— ‘monitoring’. 23 Section 392(2), ‘has dealings with a person’— omit , insert— ‘(the first person ) has dealings with another person (the second person )’. 24 Section 392(2)(a), ‘the person’— omit , insert— ‘the first person’. 25 Section 456, ‘equivalent’— omit , insert— ‘equivalents’. Page 230 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 26 Section 456(3), definition ‘tax equivalents manual’, ‘155’— omit , insert— ‘129’. 27 Section 499, definition relevant document , paragraph (b), from ‘ WorkCover ’— omit , insert— ‘repealed WorkCover Queensland Act 1996 , section 270 before 1 July 2001;’. 28 Section 550(1)(a), after ‘receives’— insert— ‘the notice of’. 29 Section 553, heading— omit , insert— ‘553 Application of Uniform Civil Procedure Rules 1999 and Industrial Relations (Tribunals) Rules 2000’. 30 Section 578(7)(b), ‘subsection (8)’— omit , insert— ‘subsection (6)’. 31 Section 578(9), after ‘misdemeanour;’— insert— ‘or’. 32 Section 610, ‘section 613’— omit, insert— ‘section 316’. 2010 Act No. 24 Page 231

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 33 Chapter 22, second occurrence— renumber as chapter 23. 34 Section 655, second occurrence— renumber as section 656. 35 Schedule 6, definitions amount payable , authorised auditor , claimant, contributor’s response , deemed levy , employs 30 or more workers, payable amount and worker — omit . 36 Schedule 6— insert— ‘ amount , for chapter 3, part 1A, see section 107A. amount payable — (a) generally, means an amount due and payable; and (b) for an amount payable under an industrial instrument, see section 107B. claimant — (a) generally, means a person who lodges an application for compensation; and (b) for chapter 5, see section 233. Industrial Act , for chapter 3, part 1A, see section 107A. member of the family , of a deceased worker, see section 28. worker — (a) generally, see section 11; and (b) for chapter 5, see section 233.’. Page 232 2010 Act No. 24

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 37 Schedule 6, definition group training organisation , after ‘ organisation ’, first mention— insert— ‘, for schedules 2 and 3,’. Workers’ Compensation and Rehabilitation Regulation 2003 1 Section 30, heading, ‘subdivs’— omit , insert — ‘ sdivs ’. 2 Section 86, heading, ‘Doctor’s certificate’— omit , insert— ‘ Certificate given by dentist, doctor or nurse practitioner ’. 3 Section 86(1), ‘doctor’s’— omit . 4 Section 86(2) to (4), ‘doctor’— omit , insert— ‘dentist, doctor or nurse practitioner’. 5 Section 87, heading, ‘doctor’— omit , insert— ‘ dentist, doctor or nurse practitioner ’. 2010 Act No. 24 Page 233

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Schedule 6 Section 87(1), ‘doctor’— omit , insert— ‘person by whom the certificate is required to be given under section 132 of the Act’. 7 Sections 92 and 93, ‘the AMA guide’— omit , insert— ‘AMA 4’. 8 Section 119(1)(a), from ‘book’, first mention to ‘employees’— omit , insert — ‘record and the employee register’. 9 Part 10, divisions 1 to 3, heading, ‘Transitional provisions’— omit , insert— ‘ Provisions ’. 10 Schedule 2, parts 1, 2 and 4, item 3, ‘the AMA guide’— omit , insert— ‘AMA 4’. 11 Schedule 2, part 6, item 2, ‘the AMA guide’— omit , insert— ‘AMA 4’. 12 Schedule 5A, heading, ‘section 3’— omit , insert— ‘schedule 13’. Page 234 2010 Act No. 24

© State of Queensland 2010