Workers Compensation (General) Regulation 1995 (NSW)
This Regulation may be cited as the Workers Compensation (General) Regulation 1995.
This Regulation commences on 1 September 1995, except as provided by subclause (2).
Clause 75 commences on 1 July 1996.
In this Regulation:
Notes included in this Regulation are explanatory notes and do not form part of this Regulation.
A reference to a form in this Regulation is a reference to a form in Schedule 1.
Employments of the kinds set out in Column 2 of Schedule 2 are prescribed as employments to which section 19 (1) of the Act applies. A disease set out in Column 1 of Schedule 2 is prescribed as a disease that is related to the employment or, as the case may require, each of the employments, set out in Column 2 of that Schedule opposite the description of that disease.
For the purposes of section 19 (2) of the Act, any one of the results set out in Column 3 of Schedule 3, if obtained by means of the medical test the requirements of which are set out opposite that result in Column 2 of that Schedule, is a result prescribed in respect of the disease, the name of which appears opposite that result in Column 1 of that Schedule.
For the purposes of section 27 (b) of the Act, the maximum amount for which an employer is liable in respect of reasonable funeral expenses, if death results from an injury and the worker leaves no dependants, is:
(a) in the case of a funeral held before 1 February 1992—$2,700, or
(b) in the case of a funeral held on or after 1 February 1992 but before 1 July 2000—$4,000, or
(c) in any other case—$4,400.
This clause applies regardless of when the injury which caused the death of the worker concerned was received.
In this Part:
A reference:
(a) in clause 10 (2) to an amount of money specified in an award,
(b) in clause 11 (1) to an amount of a rate per 5 days or week or a minimum weekly rate fixed by an award or a Part or Division of an award,
is a reference to the amount or minimum weekly rate which is for the time being specified in, or fixed by, the award, Part, Division or industrial agreement, as the case may be, as in force from time to time.
The Authority may by order published in the Gazette:
(a) declare a specified class or classes of workers to be a class of workers to which this clause applies, and
(b) specify the manner in which the current weekly wage rate of a worker of each such class is to be calculated for the purposes of section 42 (1) (c) of the Act.
Each class of workers to which this clause applies by virtue of an order of the Authority under this clause is prescribed for the purposes of section 42 (1) (c) and (5) (b) of the Act.
The manner specified in the order as the manner of calculating the current weekly wage rate of a class of workers is prescribed for the purposes of section 42 (1) (c) of the Act in respect of that class of workers.
While an order of the Authority in force under this clause applies to a class of workers, clauses 10 and 11 do not apply to that class of workers.
For the purposes of section 42 (1) (c) and (5) (b) of the Act, the following classes of workers are prescribed:
(a) shearers bound by the Pastoral Employees (State) Award under the State Act,
(b) shearers bound by the Pastoral Industry Award 1965 under the Federal Act.
For the purposes of section 42 (1) (c) of the Act, the formula prescribed in respect of each class of workers prescribed by subclause (1) is A × 5 per week, where “A” is the amount of money specified in clause 14 (a) (i) of the award referred to in subclause (1) (b).
Workers engaged in the meat processing industry whose employment is subject to an industrial instrument that provides for the payment of “overs” or a production loading under a tally, piecework or incentive system in respect of work performed in that industry are prescribed as a class of workers for the purposes of section 42 (1) (c) and (5) (b) of the Act.
In this clause:
For the purposes of section 42 (1) (c) of the Act, the formula prescribed for each worker of the class prescribed by subclause (1) is whichever of the following formulae is appropriate:
(a) except as provided by paragraphs (b), (c) and (d), the formula is:
(b) where the formula prescribed by paragraph (a) provides a greater rate for a particular week for the worker (being a worker whose employment is subject to an industrial instrument that provides for the payment of “overs” to the worker) than the rate of C × 21/16 per week, the formula is C × 21/16 per week for that week for that worker, or
(c) where the formula prescribed by paragraph (a) provides a smaller rate for a particular week for the worker than the rate of C × 1 per week, the formula is C × 1 per week for that week for that worker, or
(d) where the formula prescribed by whichever of paragraphs (a), (b) and (c) is appropriate provides a smaller rate for a particular week for the worker than any special rate (as referred to in subclause (2A)) applicable to the worker for that week—the special rate applicable to the worker for that week.
A reference in subclause (2) (d) to a
In the application of the formulae prescribed by subclause (2) for the purpose of determining compensation payable in respect of a period of incapacity (consisting of a week or any part thereof) of a worker of the class prescribed by subclause (1):
(a) where that period consists of, or includes, Monday of that week and any other worker who is a co-worker of the injured worker worked on that Monday—the prescribed amount payable to that other worker for that Monday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Tuesday of that week and any other worker who is a co-worker of the injured worker worked on that Tuesday—the prescribed amount payable to that other worker for that Tuesday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Wednesday of that week and any other worker who is a co-worker of the injured worker worked on that Wednesday—the prescribed amount payable to that other worker for that Wednesday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Thursday of that week and any other worker who is a co-worker of the injured worker worked on that Thursday—the prescribed amount payable to that other worker for that Thursday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Friday of that week and any other worker who is a co-worker of the injured worker worked on that Friday—the prescribed amount payable to that other worker for that Friday, or
(b) in any other case—0.
(a) the total number of days of that period on which other co-workers of the injured worker worked, or
(b) where there are no such days—0.
For the purposes of subclause (3), a worker is a
A reference in subclause (3) to the prescribed amount payable to a worker for a day on which the worker worked is a reference to the amount of money that the worker is entitled, under the industrial instrument by which the worker is bound, to be paid for that day’s work:
(a) exclusive of any amount that the worker is so entitled to be paid in respect of shift work or overtime or otherwise at penalty rates, and
(b) inclusive of any amount that the worker is so entitled to be paid in respect of “overs” or (subject to subclause (5)) in respect of production loading.
For the purposes only of subclause (4) (b), an amount a worker is entitled to be paid in respect of production loading for a day’s work is taken not to include:
(a) in the case of a worker for whom production loading is calculated by reference to weekly production, any amount in excess of one fifth of the production loading that would be payable to the worker in respect of the week in which that day occurs if the workers (in relation to whose “overs” that production loading is calculated) completed during that week a number of “overs” that provided each of those workers with pay for that week that is equivalent to the amount of money calculated in accordance with the formula C × 21/16, or
(b) in the case of a worker for whom production loading is calculated by reference to daily production, any amount in excess of the production loading that would be payable to the worker in respect of that day if the workers (in relation to whose “overs” that production loading is calculated) completed during that day a number of “overs” that provided each of those workers with pay for that day that is equivalent to the amount of money calculated in accordance with the formula C/5 × 21/16,
in each case with
For the purposes of section 42 (1) (d) of the Act, and clause 7 (2) (b) of Part 4 of Schedule 6 to the Act, the prescribed rate in respect of a period specified in Column 1 of the Table to this clause is the rate specified in Column 2 of that Table opposite that period.
This clause applies only to workers who, before 1 February 1992, became entitled to receive weekly payments in respect of incapacity for work.
Table
Column 1 | Column 2 | |
Period | Amount per week | |
1 | On and after 1 October 1987 and before 1 April 1988 | $284.70 |
2 | On and after 1 April 1988 and before 1 October 1988 | $288.60 |
3 | On and after 1 October 1988 and before 1 April 1989 | $294.80 |
4 | On and after 1 April 1989 and before 1 October 1989 | $302.20 |
5 | On and after 1 October 1989 and before 1 April 1990 | $313.20 |
6 | On and after 1 April 1990 and before 1 October 1990 | $319.80 |
7 | On and after 1 October 1990 and before 1 April 1991 | $334.60 |
8 | On and after 1 April 1991 and before 1 October 1991 | $339.00 |
9 | On and after 1 October 1991 and before 1 April 1992 | $341.30 |
10 | On and after 1 April 1992 and before 1 October 1992 | $351.50 |
11 | On and after 1 October 1992 and before 1 April 1993 | $355.90 |
12 | On and after 1 April 1993 and before 1 October 1993 | $357.20 |
13 | On and after 1 October 1993 and before 1 April 1994 | $359.00 |
14 | On and after 1 April 1994 | $360.60 |
For the purposes of paragraph (b) of the definition of
Table
Column 1 | Column 2 |
Adjustment date | Latest index number |
1 April 1988 | 229.3 |
1 October 1988 | 234.2 |
1 April 1989 | 240.1 |
1 October 1989 | 248.8 |
1 April 1990 | 254.1 |
1 April 1998 | 146.4 |
1 October 1998 | 149.0 |
1 April 1999 | 151.6 |
1 October 1999 | 154.1 |
1 April 2000 | 156.6 |
1 October 2000 | 158.3 |
1 April 2001 | 161.9 |
1 October 2001 | 164.7 |
1 April 2002 | 167.6 |
1 October 2002 | 170.0 |
1 April 2003 | 172.9 |
A notice under section 38A (3) of the Act:
(a) may be based on the model form (if any) set out in the claims procedures referred to in section 38A (3) (d) of the Act, and
(b) may include additional information and explanatory matter to assist in the understanding of the notice, and
(c) may be varied or replaced by a further notice given to the worker in accordance with section 38A (3) of the Act.
Reminder copies of a notice under section 38A (3) of the Act may be given to the worker concerned from time to time.
A notice given to a worker in accordance with section 38A (3) of the Act is sufficient notice for any further period of unemployment in respect of the same injury.
In the case of any worker:
(a) who, before the commencement of Schedule 1 to the Workers Compensation Legislation (Amendment) Act 1994, was at the same time both partially incapacitated for work as the result of an injury and unemployed, and
(b) who is, as at or at any time after that commencement, both partially incapacitated for work as the result of that injury and unemployed,
the requirement under section 38A (2) (d) of the Act applies regardless of whether the worker has been notified in accordance with section 38A (3) of the Act.
The notice referred to in section 54 of the 1987 Act must:
(a) include a statement of the reason for the decision to discontinue payment, or reduce the amount, of weekly payments of compensation, and
(b) include a statement of the particulars that support the reason for the decision, including the required details for each report (if any) that is relied on to support that reason, and
(c) include a statement advising that the worker may request a copy of a report specified in the statement of particulars from the person paying compensation, and
(d) include a statement advising that the worker may request the person paying the compensation to review the decision and advising of the procedure for making such a request, and
(e) include a statement advising that if the worker disputes the discontinuation or reduction of weekly payments:
(i) in the case of a dispute about a claim that is an existing claim within the meaning of Chapter 7 of the 1998 Act, the worker may apply to the Compensation Court for determination of the dispute, or
(ii) in the case of a dispute about a claim that is a new claim within the meaning of Chapter 7 of the 1998 Act, the worker may refer the dispute to the Registrar for determination by the Commission, and
(f) include the address and fax number for the registrar of the Compensation Court or the Registrar of the Commission, as appropriate.
If:
(a) the notice referred to in section 54 relates to a reduction in the amount of weekly payments of compensation as a result of the application of section 40 of the 1987 Act, and
(b) the worker is not in receipt of earnings (or the compensation is otherwise calculated on the basis of the worker’s ability to earn after the injury, rather than on the worker’s actual earnings after the injury),
the notice must also include a statement of how the compensation (to be so reduced) has been calculated.
In this clause:
In this Part:
(a) a surgical class licence issued under the Private Hospitals and Day Procedure Centres Act 1988,
(b) an obstetric class licence issued under the Private Hospitals and Day Procedure Centres Act 1988,
(c) a medical program approved in writing by the Director-General of the Department of Health,
(d) a rehabilitation program approved in writing by that Director-General,
(e) a psychiatric program approved in writing by that Director-General.
(a) a surgical class licence issued under the Private Hospitals and Day Procedure Centres Act 1988,
(b) an obstetric class licence issued under the Private Hospitals and Day Procedure Centres Act 1988,
(c) a medical program approved in writing by the Director-General of the Department of Health,
(d) a rehabilitation program approved in writing by that Director-General,
(e) a psychiatric program approved in writing by that Director-General.
(a) a hospital outside New South Wales, or
(b) a hospital in New South Wales that is conducted by the Commonwealth.
For the avoidance of doubt, a day procedure centre is, for the purposes of this Part, a hospital (other than a public hospital).
In calculating the number of days of treatment at a hospital (other than a public hospital) for the purposes of this Part, the date of admission to such a hospital and the date of discharge from such a hospital are, if those days occur on different days, to be counted as one day and not as separate days.
For the purposes of section 62 (1) of the Act, the amount for which an employer is liable in respect of hospital treatment of a worker at a hospital (other than a public hospital) is to be calculated as follows:
(a) in respect of each day or part of a day that the worker is an in-patient of the hospital, being an in-patient:
(i) of a classification specified in Column 1 of the following Table, and
(ii) during a period of hospitalisation specified in Column 2 of the Table,
the amount specified in respect of the category of hospital (if any) in Column 3 of the Table opposite that classification and period:
Table
Column 1
Column 2
Column 3
Amount per day
Patient classification
Period of hospitalisation
Hospital category A
Hospital category B
Hospital category C
Hospital category D
$
$
$
$
Advanced surgical patient
1 to 14 days
440
415
—
415
Over 14 days
300
300
—
300
Surgical patient
1 to 14 days
415
395
—
395
Over 14 days
300
300
—
300
Psychiatric patient
1 to 42 days
395
365
310
365
43 to 65 days
305
275
255
275
Over 65 days
280
240
235
240
Rehabilitation patient
1 to 49 days
430
365
310
365
Over 49 days
315
270
250
270
Other patient (medical)
1 to 14 days
370
355
310
355
Over 14 days
300
260
250
260
(b) in respect of each day or part of a day that the worker is an in-patient of the hospital, being an in-patient:
(i) of a classification specified in Column 1 of the following Table, and
(ii) during a period of hospitalisation specified in Column 2 of the Table,
the amount specified in Column 3 of the Table opposite that classification and period:
Table
Column 1
Column 2
Column 3
Patient classification
Period of hospitalisation
Amount per day
$
Intensive care unit—level 1 patient
up to 5 days
1715
Intensive care unit—level 2 patient
up to 5 days
1190
(c) in respect of each day or part of a day that the worker is a day patient of the hospital, the amount specified in Column 2 of the following Table (under the relevant category of hospital opposite the same day benefit band (specified in Column 1 of the Table) applicable to the worker:
Table
Column 1
Column 2
Hospital category A
Hospital category B
Hospital category C
Hospital category D
Day procedure centre
$
$
$
$
$
Band 1
190
190
190
120
175
Band 2
220
220
220
120
205
Band 3
250
250
250
120
235
Band 4
280
280
280
120
265
(d) in respect of each treatment at a hospital category A, hospital category B, hospital category C or day procedure centre as an in-patient which necessitates the use of the hospital theatre—the amount specified in Column 2 of the following Table opposite the procedure benefit band applicable to that treatment specified in Column 1 of the Table:
Table
Column 1
Column 2
$
Band 1A
104
Band 1
187
Band 2
327
Band 3
395
Band 4
540
Band 5
795
Band 6
905
Band 7
1210
Band 8
1685
Band 9A
1750
Band 9
2230
Band 10
2640
Band 11
3125
Band 12
3380
Band 13
4095
(e) in respect of each treatment at a hospital category D as an in-patient which necessitates the use of the hospital theatre—the amount specified in Column 2 of the following Table opposite the period of that use specified in Column 1 of the Table:
Table
Column 1
Column 2
$
1–15 minutes
110
16–30 minutes
327
31–45 minutes
515
46–60 minutes
825
61–90 minutes
1535
91–120 minutes
2030
Over 120 minutes
2840
(f) in respect of each X-ray photograph of the worker taken at the hospital as an in-patient—the amount specified as the schedule fee in the current Commonwealth Medicare Benefits Schedule Book in respect of radiological services and computerised tomography.
In this Part:
An order under this clause may provide that a hospital is not a public hospital of a particular kind in respect of treatment provided to a specified class of patients.
For the purposes of section 62 (1) of the Act, the amount for which an employer is liable in respect of hospital treatment of a worker at a public hospital is, subject to subclause (2), the amount specified in the Table to this clause for the relevant classifications of public hospital and patient:
(a) in the case of an in-patient—for each day (or part of a day) that the worker is such a patient at the hospital, and
(b) in the case of an out-patient—for each occasion of service provided to the worker.
Table
Column 1 Patient classification | Column 2 Hospital classification | ||||
Metropolitan (referral) | Metropolitan (non-referral) | Non-metropolitan | Psychiatric | Other | |
$ | $ | $ | $ | $ | |
Critical care patient | 1605 | 930 | 740 | — | — |
In-patient (other than critical care patient) | 645 | 485 | 450 | 270 | 145 |
Out-patient | 70 | 55 | 45 | 45 | 45 |
For the purposes of section 62 (1) of the Act, the amount for which an employer is liable in respect of hospital treatment of a worker at a brain and spine special treatment centre at a public hospital is $550 for each day (or part of a day) that the worker is such a patient at the hospital.
For the purposes of section 64 (b) of the Act, the prescribed rate for which an employer is liable under section 60 (2) (a) or (b) of the Act in respect of travel by private motor vehicle associated with treatment or service is:
(a) in the case of travel before 1 July 2000—38 cents per kilometre, or
(b) in any other case—42 cents per kilometre.
This clause applies to travel undertaken after the commencement of this clause whether the injury was received by the worker concerned before or after the commencement of this clause.
In this Part,
For the purposes of the definition of
(a) functional education,
(b) monitoring a return to work program,
(c) work conditioning.
For the purposes of section 63A (3) (b) of the Act, the prescribed amount is $1,500, adjusted in accordance with Division 6 of Part 3 of the Act as if it were an adjustable amount for the purposes of that Division.
The prescribed amount applies in relation to occupational rehabilitation services in respect of injuries received before the commencement of this clause (or before any adjustment of that amount as referred to in subsection (1)) in the same way as it applies in relation to services in respect of injuries received after that commencement.
For the purposes of section 63A (4) of the Act, an insurer who is liable to indemnify an employer for any occupational rehabilitation service provided to or for the benefit of a worker is prescribed (in addition to the Authority) as a person who may direct that the employer is liable for a further amount to that prescribed by section 63A (3) of the Act.
An application under section 63A (4) of the Act:
(a) is to be in the form of a rehabilitation plan or in such other form (if any) as the Authority may approve, and
(b) is to contain such particulars as the Authority may determine.
An accredited provider is required to make an application under section 63A (4) as soon as practicable after the accredited provider becomes aware that the total cost of occupational rehabilitation services provided to or for the benefit of a worker in respect of an injury will, or is likely to, exceed the maximum amount prescribed by section 63A (3).
An accredited provider may, for the purpose of determining whether an application under section 63A (4) of the Act is necessary, request the relevant insurer (in writing) to supply details of any costs that have been claimed from the insurer in respect of occupational rehabilitation services previously provided by another provider in respect of the same injury.
If the insurer does not, within 14 days or such longer period as the Authority may determine, supply the accredited provider with those details, the provider need only make an application under section 63A (4) of the Act if the total cost of services provided by that provider to or for the benefit of the worker concerned will, or is likely to, exceed the maximum amount prescribed by section 63A (3) of the Act.
If an application under section 63A (4) of the Act is made to an insurer:
(a) the insurer may request further information from the applicant, and
(b) the insurer is, as far as practicable, to deal with the application within 7 days after receiving it or the further information (whichever is the later).
A direction by an insurer under section 63A (4) of the Act must be in accordance with the approved guidelines (if any) relating to such directions.
Any such direction may, subject to those approved guidelines:
(a) specify that an employer’s liability for a further amount to that prescribed by section 63A (3) of the Act is limited by reference to a maximum further amount for which the employer is liable for the proposed services (including, if appropriate, particular services) or to the nature, number or duration of those services, or both, or
(b) specify that the employer is liable for such amount as is reasonably appropriate, having regard to the reasonable necessity for the provision of the services concerned.
If a direction is given under section 63A (4) of the Act and the accredited provider concerned becomes aware that, because of a change of circumstances or otherwise, it is no longer necessary for the occupational rehabilitation service covered by the direction to be provided to or for the benefit of the worker, the provider is to cease providing the service and notify the Authority or the relevant insurer.
The Authority or an insurer may, subject to any approved guidelines, give a direction under section 63A (4) of the Act:
(a) that is subject to such conditions as may be specified in the direction, and
(b) by notice in writing given to the provider concerned, amend or revoke the conditions specified in any such direction or add to those conditions,
and any such amendment, revocation or addition takes effect on and from the time the notice is served on the provider concerned or from a later time specified in the notice.
The Authority or the insurer is to ensure that the employer concerned also receives a copy of the notice as soon as practicable after it takes effect.
If an insurer, after an application under section 63A (4) of the Act has been made to it:
(a) refuses to give a direction under section 63A (4) of the Act, or
(b) gives only part of any such direction applied for by or on behalf of the worker or the accredited provider concerned,
the insurer must refer the matter as soon as practicable to the Authority in such form and in such manner as the Authority may determine.
If an insurer gives a direction under section 63A (4) of the Act, the worker or accredited provider concerned may apply to the Authority for a review of the direction:
(a) if the worker or provider objects to a condition (or an amendment or revocation of a condition) that the insurer has attached or added to the direction, or
(b) if the insurer declines further liability on behalf of the relevant employer for any occupational rehabilitation service covered by a direction previously given by the insurer.
An application for review is required to be:
(a) made in such form, and
(b) accompanied by such information, and
(c) made in such manner,
as the Authority may determine.
The Authority may, in relation to a matter that has been referred to it or in relation to an application for a review under this clause:
(a) confirm the decision of the insurer, or
(b) confirm the decision with such modification as the Authority considers to be appropriate, or
(c) give a direction under section 63A (4) of the Act that the Authority considers to be appropriate.
The Authority is to notify in writing the relevant insurer, employer, accredited provider and worker of the outcome of its review.
The Authority may, after giving a direction under section 63A (4) of the Act, revoke (in whole or in part) the direction if it considers it appropriate to do so in the circumstances.
The Authority may suspend any such direction pending its decision on whether to revoke the direction.
The Authority is to give notice in writing to all parties of any such suspension or revocation (but may, in the case of suspension, give oral notice and confirm the notice later in writing).
If the Authority suspends or revokes a direction under section 63A (4) of the Act, the employer concerned ceases to be liable (subject to any order of the Compensation Court or the Commission) for any occupational rehabilitation services or class of service specified in the notice of suspension or revocation and to which the direction relates.
The suspension or revocation has effect in respect of services provided after the accredited provider concerned receives notice of the suspension or revocation or after such later time as may be specified in the notice.
The Authority must, before making a decision on:
(a) an application for a direction under section 63A (4) of the Act or a review of an insurer’s decision in respect of such an application, or
(b) whether to amend, revoke or add to the conditions to which any such direction is subject, or
(c) whether to suspend or revoke any such direction,
give any person who may be adversely affected by the decision a reasonable opportunity to make submissions to the Authority on the matter.
The payment of any amount in accordance with a direction by the Authority under section 63A (4) of the Act is not to be taken as an admission of liability.
In the case of a claim under the Uninsured Liability and Indemnity Scheme involving the provision of occupational rehabilitation services to or for the benefit of the worker concerned:
(a) any application for a direction under section 63A (4) of the Act may only be made to the Authority, and
(b) for the purpose of the definition of
occupational rehabilitation service in section 59 of the Act, services may be provided to or for the benefit of the worker by any person determined by the Authority to be suitable (as well as by a provider accredited under section 152 of the Act) and, in that case, references in this Part to an accredited provider are to be read as references to such a person.
If, in respect of an application under section 63A (4) of the Act, a self-insurer decides or refuses to pay a further amount to that prescribed by section 63A (3) of the Act:
(a) the decision is, for the purposes of this Part, taken to be a direction that the employer concerned is liable for that further amount, or
(b) the refusal is, for the purposes of this Part, taken to be a refusal to give a direction under section 63A (4) of the Act,
and for any such purposes, a reference in this Part to an insurer includes a reference to a self-insurer.
If proceedings are pending in the Compensation Court or the Commission, the Authority may, in relation to an application or a reference for review received by it under this Part which is connected with the proceedings:
(a) give a direction under section 63A (4) of the Act (unless the Court or the Commission otherwise orders), or
(b) decline to deal with the matter.
(Repealed)
Nothing in this Part (for example clause 30 (Review by the Authority)) prevents the Authority from giving its opinion on matters relating to the liability of an employer under the Act for particular occupational rehabilitation services.
If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process (including boilermaker’s deafness and any deafness of a similar origin):
(a) notice of injury is to be given by the worker under section 89 of the Act:
(i) if the worker is employed by an employer in an employment to the nature of which the injury is due to that employer, or
(ii) if the worker is not so employed to the last employer by whom the employer was employed in an employment to the nature of which the injury is due, and
(b) the notice must be in writing and be:
(i) in the form set out in Form 1, or
(ii) in any other form that contains at least the particulars required by Form 1 (though not necessarily in the same format as that Form).
Any forms issued by insurers and self-insurers for the giving of notice by workers of an injury referred to in subclause (1) must also contain such information (if any) as the Authority may from time to time approve and notify to insurers and self-insurers.
(Repealed)
The notice given to a claimant under section 74 of the 1998 Act must:
(a) include a statement of the particulars that support the reason for the decision, including the required details for each report (if any) on which the insurer relies to support that reason, and
(b) include a statement advising that the claimant may request a copy of a report specified in the statement of particulars from the insurer, and
(c) include a statement advising that the claimant may request the insurer to review the decision, and advising of the procedure for making such a request, and
(d) include a statement to the effect that:
(i) in the case of a dispute about a claim that is an existing claim within the meaning of Chapter 7 of the 1998 Act, the claimant may apply to the Compensation Court for determination of the dispute, or
(ii) in the case of a dispute about a claim that is a new claim within the meaning of Chapter 7 of the 1998 Act, the claimant may refer the dispute to the Registrar for determination by the Commission, and
(e) include the address and fax number for the registrar of the Court or the Registrar of the Commission, as appropriate.
Section 74 of the 1998 Act also requires the notice to include a statement of the reason the insurer disputes liability.
A person who fails to comply with section 74 of the 1998 Act in respect of a claim for compensation is guilty of an offence.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence of failing to comply with section 74 (2B) of the 1998 Act if it is established that the notice complied with guidelines issued by the Authority as to how the notice concerned was to be expressed.
In this clause:
For the purposes of section 231 (1) of the 1998 Act:
(a) the summary of the requirements of that Act with regard to the giving of notice of injuries and the making of claims is to be in the form of an approved form, and
(b) the other information required to be posted up in accordance with that section is the other information contained in the approved form.
Any form approved for the time being by the Authority is an
An approved form that ceases to be an approved form (as a result of the amendment or substitution of a form approved by the Authority) continues to be an approved form for the purposes of a notice posted up under section 231 of the 1998 Act that was in that form immediately before it ceased to be an approved form, but only until the earlier of:
(a) the renewal or replacement of the notice, or
(b) 12 months after the form ceases to be an approved form.
A notice posted up under section 231 of the 1998 Act that, immediately before the commencement of this subclause (as inserted by the Workers Compensation (General) Amendment (Savings, Transitional and Other Matters) Regulation 2001), was in the form of Form 2 of Schedule 1 (as in force immediately before its repeal by that Regulation) continues to be in the form of an approved form for the purposes of section 231 until 30 June 2002.
(Repealed)
The register of injuries required to be kept under section 90 of the Act is to be a book with entries in the form set out in Form 3.
The particulars to be entered in the register of injuries are the particulars required to complete Form 3.
A worker may request an insurer to supply the worker with a copy of a report obtained by the insurer and specified in a notice to the worker under section 54 ((Notice required before termination or reduction of payment of weekly compensation) of the 1987 Act or a notice under section 74 (Insurers to give notice and reasons when liability disputed) of the 1998 Act.
An insurer who receives a request for a copy of such a report must, within 10 days after receiving the request, supply the worker (or a legal practitioner or agent acting on behalf of the worker) with a copy of the report.
A worker may also request from the employer or insurer under clause 43A a copy of a medical opinion or report obtained by the employer, or a medical report relating to treatment of the worker on a disputed claim under section 126 of the 1998 Act.
If the insurer is of the opinion that supplying the worker with a copy of a medical report would pose a serious threat to the life or health of the worker or any other person, the insurer may instead supply the medical report to a medical practitioner nominated by the worker for that purpose.
For the purposes of section 297 (3) (e) of the 1998 Act, it is not to be presumed that an interim payment direction for weekly payments of compensation is warranted in circumstances where the insurer has given the worker notice under section 74 of the 1998 Act (Insurers to give notice and reasons when liability disputed).
A worker must not, under section 129 of the Act, be required to submit himself or herself for examination by a medical practitioner otherwise than at reasonable hours.
After a period of 1 month has elapsed from the date on which the first payment of compensation was made to a worker who is receiving weekly payments of compensation or, if the first payment was made pursuant to an award, from the date of the award, the worker must not, under section 129 of the Act, be required to submit himself or herself for examination by a medical practitioner except at the following intervals:
(a) once a week during the second month, and
(b) once a month during the third, fourth, fifth and sixth months, and
(c) thereafter once in every 2 months.
Where, after the second month, an application has been made for review of the weekly payment of compensation, the worker may be required, pending and for the purposes of the determination of the application, to submit himself or herself for 1 additional examination.
Subclauses (2) and (3) do not apply to any examination by a medical practitioner made for the purposes of the determination of a claim for compensation under section 66 or 67 of the Act for 12 weeks after the claim is duly made or during an adjournment of court proceedings in respect of the claim under section 106E (3) or 106FC (5) of the Act or section 102 (6) of the 1998 Act.
A worker may request the employer or insurer to supply the worker with a copy of a medical opinion or report furnished to the employer or insurer under section 119 (Medical examination of workers at direction of employer) of the 1998 Act and specified in a notice to the worker under section 54 (Notice required before termination or reduction of payment of weekly compensation) of the 1987 Act or a notice under section 74 (Insurers to give notice and reasons when liability disputed) of the 1998 Act.
An employer or insurer who receives a request for a copy of such a report must, within 10 days after receiving the request, supply the worker (or a legal practitioner or agent acting on behalf of the worker) with a copy of the report.
A worker may also request from the insurer under clause 42A a copy of other reports obtained by the insurer, or a medical report relating to treatment of the worker on a disputed claim under section 126 of the 1998 Act.
If the employer or insurer is of the opinion that supplying the worker with a copy of a medical opinion or report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the medical report to a medical practitioner nominated by the worker for that purpose.
In the application of section 131 of the Act for the purposes of section 131 (7) of the Act, section 131 (2) of the Act is to be construed as requiring any applications to be made jointly by the worker and the employer.
This clause applies only in respect of existing claims and existing claim matters within the meaning of Chapter 7 of the 1998 Act.
(Repealed)
In this Part:
(Repealed)
In any proceedings on a claim:
(a) only one medical report in any particular specialty may be admitted on behalf of a party to the proceedings, and
(b) a medical report in a specialty may not be admitted on behalf of a party to the proceedings if another medical report in that specialty has already been admitted on behalf of the party in any other proceedings on the claim or in proceedings on a related claim.
Despite subclause (1) (b), a medical report in a specialty may be admitted in proceedings even if another medical report in that specialty has already been admitted in other proceedings on the claim or a related claim if:
(a) the medical report to be admitted is a permissible update (under clause 51G) of the medical report already admitted in the other proceedings, or
(b) the proceedings are lump sum compensation proceedings and the other proceedings were not lump sum compensation proceedings, but only so as to allow the admission of a medical report provided by the same medical practitioner who provided the medical report already admitted in the other proceedings.
The medical report allowed to be admitted under subclause (2) (b) can however be provided by another medical practitioner if the medical practitioner who provided the medical report already admitted in the other proceedings has ceased (permanently or temporarily) to practise in the specialty concerned.
Subclause (2) operates only as an exception to subclause (1) (b) and does not affect the requirement under subclause (1) (a) that only one medical report in a particular specialty may be admitted in proceedings on behalf of a party.
For the purposes of this clause, a medical report in more than one specialty is to be regarded as a medical report in each of those specialties.
In this clause:
(Repealed)
A medical report (
(a) more than 6 months after the original report was provided, or
(b) because there has been a further material change in the worker’s condition.
The update report must have been provided by the medical practitioner who provided the original report except when that medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the update report can be provided by another medical practitioner.
The update report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the permissible update.
A party to proceedings on a claim is not entitled to be paid for or recover the cost of obtaining a medical report in connection with the claim unless the report:
(a) has been admitted in those proceedings on behalf of the party, or
(b) is a claims management phase report (as provided by subclause (2)).
The following medical reports are
(a) a medical certificate that accompanies a claim for weekly payments of compensation,
(a1) a medical certificate that accompanies an initial notification of injury,
(b) any medical report provided by a medical practitioner as part of and in the course of treatment of the injured worker by the medical practitioner,
(c) any medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to a requirement of the employer in accordance with section 119 of the 1998 Act.
In this clause:
(a) a reference to a claim includes an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b) a reference to proceedings on a claim includes proceedings in respect of the payment of provisional weekly payments of compensation under that Part.
This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.
This Part does not apply in respect of:
(a) a medical report provided in respect of the examination of an injured worker by a medical panel or medical referee in connection with an existing claim, or
(b) a medical report provided for the purposes of section 121 of the 1998 Act in connection with an existing claim by an approved medical specialist under that section, or
(c) a medical report provided by an approved medical specialist under Part 7 of Chapter 7 (Medical assessment) of the 1998 Act in respect of the assessment of a new claim.
In this clause:
This Part applies only in respect of proceedings commenced after the commencement of this Part. In its application in respect of those proceedings, this Part extends to medical reports obtained before the commencement of this Part (subject to subclause (2)).
Clause 51H (Restrictions on recovery of cost of medical reports) does not apply in respect of a medical report that was obtained before the commencement of this Part, or that was obtained after that commencement as a result of an appointment made before that commencement.
Clauses 51F and 51G (as amended by the Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation 2003) extend to proceedings on a new claim or new claim matter commenced before the commencement of that Regulation, but:
(a) do not affect the use of a report in evidence in proceedings if the report was admitted in the proceedings before the commencement of the amendment, and
(b) do not prevent the recovery of costs under Schedule 6 for more than one report in a specialty that was obtained before that commencement, or as a result of an appointment made before that commencement.
In this clause,
For the purposes of section 159 of the Act, a policy of insurance (except one to which subclause (2) applies):
(a) must contain the provisions specified in Form 4, and
(b) may contain any other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
A policy of insurance issued or renewed before 31 December 1995 must contain the provisions that were specified in Form 7 in the Workers Compensation (General) Regulation 1987 immediately before its repeal, except that:
(a) the words “independently of this Act (being a liability under a law of New South Wales)” in the third paragraph of the Form are to be deleted and the words “independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country)” are to be inserted instead, and
(b) such a policy may contain other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
A policy of insurance deemed to be held by an employer under section 158 of the Act must contain the provisions specified in Form 4 in respect of domestic or similar workers, subject to the omission of any reference to the payment of premiums for the policy and the making of a proposal in relation to the policy.
Pursuant to section 158 (7) of the Act, the definition of
For the purposes of section 160 of the Act, a small business employer, in relation to a policy of insurance, is an employer who is liable under the policy to pay premiums not exceeding $3,000.
The amount of premiums payable is to be determined by reference to the amount of the basic tariff premium (within the meaning of the relevant insurance premiums order) at the time the insurer first demands a premium for the policy, assuming the period of insurance to which the premium relates to be 12 months (whether or not that period of insurance is in fact 12 months).
A weekly compensation claim made in respect of a worker who receives an injury in the circumstances referred to in section 11 (Recess claims) of the Act is prescribed for the purposes of section 160 (8) of the Act.
There is an amnesty for a contravention of section 155 of the Act by a person who satisfies the condition of the amnesty during the amnesty period, such that the person is not liable to be prosecuted for an offence under that section in respect of a contravention that occurred before the person satisfied that condition and is not liable to recovery under section 156 of the Act in respect of a contravention that occurred before the person satisfied that condition. The amnesty period is the period of 3 months that begins on the commencement of this clause.
The condition of the amnesty is that the person obtains any policy of insurance that the person is at the time required to obtain under section 155 of the Act.
The amnesty applies only to a person who is contravening section 155 of the Act at the commencement of this clause.
The amnesty does not prevent a person being prosecuted for an offence under section 155 of the Act if:
(a) proceedings for the offence were commenced before the person satisfied the condition of the amnesty, or
(b) proceedings for recovery under section 156 of the Act in respect of the contravention with which the offence is concerned were commenced before the person satisfied the condition of the amnesty, or
(c) an uninsured liability claim was made against the person (as provided by subclause (6)) before the person satisfied the condition of the amnesty, even if that uninsured liability claim does not relate to the prosecution concerned.
The amnesty does not prevent recovery from a person under section 156 of the Act if:
(a) proceedings for recovery were commenced before the person satisfied the condition of the amnesty, or
(b) proceedings for an offence under section 155 of the Act in respect of the contravention with which recovery is concerned were commenced before the person satisfied the condition of the amnesty, or
(c) an uninsured liability claim was made against the person (as provided by subclause (6)) before the person satisfied the condition of the amnesty, even if that uninsured liability claim does not relate to the recovery proceedings concerned.
An uninsured liability claim is considered to have been made against a person if a claim has been made under section 140 of the Act, or proceedings have been commenced in the Compensation Court, against the person in respect of a claim for compensation under the Act in respect of an injury to a worker, and the person:
(a) in contravention of the Act had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the person’s liability under the Act as employer in respect of the injured worker at the relevant time, and
(b) was not a self-insurer at that relevant time.
When the amnesty applies in respect of a contravention by a corporation, the amnesty extends in respect of that contravention to a person who is a director of the corporation or concerned in the management of the corporation.
An employer who requests an insurer to provide a certificate of currency with respect to a policy of insurance must provide the insurer with a statement in a form approved by the Authority that contains a reasonable estimate of the wages that will be payable during the current period of insurance to workers employed by the employer.
An insurer may refuse to issue the requested certificate of currency until the employer complies with this clause.
A contract for the carrying out of work on a farm on which a farmer engages in a farming operation is exempt from the operation of section 175B of the 1987 Act if the farmer is the principal contractor and the work is an aspect of the work of the farming operation (and is not an aspect of the work of any other business undertaking of the farmer).
In this clause:
In this Part:
For the purposes of this Part, a financial year:
(a) includes the period after 4 pm on the day preceding the first day of the financial year, and
(b) does not include the period after 4 pm on the last day of the financial year.
For the purposes of the contribution payable by an insurer under section 220 of the Act for a financial year, premium income (as defined in section 3 (1) of the Act) does not include any part of such a premium which is attributable to:
(a) the application of an excess surcharge factor (as defined in the insurance premiums order in force in respect of that financial year), or
(b) a dust diseases contribution (as so defined), or
(c) a premiums adjustment contribution (as so defined).
For the purposes of section 220 (2) of the Act, the prescribed percentage of the premium income of an insurer for a financial year specified in Column 1 of the Table to this clause is the percentage specified in Column 2 of that Table opposite that year.
Table
Column 1 | Column 2 | |
Financial Year | Percentage of premium income | |
1 | Financial year commencing 1 July 1987 | 8.5 per cent |
2 | Financial year commencing 1 July 1988 | 10.5 per cent |
3 | Financial year commencing 1 July 1989 | 5 per cent |
4 | Financial year commencing 1 July 1990: | |
| 5 per cent | |
| NIL | |
5 | Financial years commencing 1 July 1991 and 1 July 1992 | 7 per cent |
6 | Financial years commencing 1 July 1993 and 1 July 1994 | 4 per cent |
7 | Financial year commencing 1 July 1995 and any subsequent financial year | NIL |
The prescribed contribution payable by an insurer under section 220 of the Act in relation to a financial year is to be paid:
(a) except as provided by paragraph (b)—in respect of premium income received during any quarter of a financial year (whether during or after the financial year in relation to which the contribution is payable), within 15 days after the end of that quarter, or
(b) at such other times as may be determined by the Authority and notified to insurers.
In this Part:
For the purposes of the contribution payable by an insurer under section 261 of the Act for a financial year, premium income (as defined in section 3 (1) of the Act) does not include any part of such a premium which is attributable to the application of an excess surcharge factor or a dust diseases contribution in the calculation of the premium.
The prescribed circumstances referred to in the definition of
The amount defined as deemed premium income in section 258 of the Act in relation to the contribution payable by a self-insurer for any period during a financial year does not include:
(a) any amount attributable to the application of any factor other than the basic tariff premium that would have been payable as referred to in that definition in respect of that period, and
(b) any amount attributable to any GST that would have been payable in relation to the premiums on policies of insurance that the self-insurer would otherwise have been required to obtain under the Act had the self-insurer not been a self-insurer.
Subclause (2) does not apply to any financial year to which clause 62 applies.
This clause applies to any financial year determined by the Authority and notified in the Gazette before the commencement of that financial year as a financial year to which this clause applies.
When this clause applies to a financial year, the amount defined as deemed premium income in section 258 of the Act in relation to the contribution payable by a self-insurer for any period during that financial year:
(a) does not include any amount attributable to the application of an excess surcharge factor or a dust diseases contribution, and
(b) includes any amount attributable to the application of the experience adjustment factor, but only if the self-insurer has been a self-insurer (or insured with an insurer) for at least 2 years immediately before the commencement of that period.
For the purposes of clause 17 of Schedule 1 to the Act, it is declared that persons within a class specified in Column 2 of Schedule 4 to this Regulation are ministers of religion of the religious body or organisation specified opposite the class in Column 1 of Schedule 4 and the employer of those persons is the person specified opposite the class in Column 3 of Schedule 4.
In this Part:
Expressions used in this Part have the same meanings as in Division 4 of Part 7 of the Act.
For the purposes of the contributions payable by an insurer into the Fund for a financial year, premium income (as defined in section 3 (1) of the Act) does not include any part of such a premium which is attributable to:
(a) the application of an excess surcharge factor (as defined in the insurance premiums order in force in respect of that financial year), or
(b) a dust diseases contribution (as so defined), or
(c) a premiums adjustment contribution (as so defined).
For the purposes of section 208 (2) of the Act, the percentage of the premium income of a licensed insurer for a financial year specified in Column 1 of the Table to this subclause (being the contribution payable into the Fund) is the percentage specified in Column 2 of that Table opposite that year.
Table
Column 1 | Column 2 |
Financial year | Percentage of premium income |
Financial year commencing 1 July 1989 | NIL |
Financial year commencing 1 July 1990 and any subsequent financial year | NIL |
If a percentage is prescribed by this clause during a financial year, the new percentage does not apply to premium income received in respect of policies of insurance issued or renewed to take effect before the new percentage is so prescribed.
The contribution payable by an insurer into the Fund under section 208 of the Act must, in respect of premium income received in any calendar month, be paid within 15 working days after the end of that month.
Expressions used in this Part have the same meanings as in Division 7 of Part 7 of the Act.
For the purposes of section 228 (1) of the Act, the financial year commencing 1 July 1989 and any subsequent financial year are prescribed.
The contribution payable by an insurer under section 228 of the Act in respect of any financial year is payable:
(a) except as provided by paragraph (b), in quarterly instalments (each being equal to one-fourth of the contribution payable) due on the last day of each quarter of the financial year, or
(b) in such other instalments and within such other time as may be determined by the Authority and specified in a notice to the insurer.
If the Authority has determined an amount under section 228 (1) of the Act in respect of a financial year, it may subsequently determine under that provision a further amount to be contributed to the Guarantee Fund in respect of that year, being an amount which it considers is necessary:
(a) to satisfy, during that financial year, claims, judgments and awards arising from or relating to policies of insurance issued by insolvent insurers, and
(b) to provide for the payment of any other amounts to be paid under Division 7 of Part 7 of the Act from the Guarantee Fund during that financial year.
Section 228 of the Act applies to and in respect of the payment of any such further contribution.
The Authority is to determine the amount under section 228 (1) of the Act on the basis that money advanced to the Guarantee Fund from the Premiums Adjustment Fund under section 224D of the Act is to be repaid during the financial year in which the money was advanced to the Guarantee Fund.
However, if the Authority:
(a) under section 224 (4) of the Act dispenses with the repayment of money so advanced, or
(b) determines that it is not to be repaid during that financial year, it may reduce the contributions of eligible insurers to the Guarantee Fund by such proportion as it considers appropriate.
In this clause,
For the purpose of determining the amount of any contribution (or further contribution) to the Guarantee Fund, the Authority is entitled to rely on an estimate determined by it of the amount required to be contributed by insurers to the WorkCover Authority Fund.
If the Authority determines that any change in that estimate is appropriate, it is to re-determine the contributions (or further contributions) of insurers to the Guarantee Fund, and the relevant amounts become payable by, or repayable to, insurers.
For the purposes of section 246 of the 1998 Act:
(a) each of the following offences is declared to be a penalty notice offence:
(i) an offence created by a provision of the 1987 Act specified in Column 1 of Part 1 of Schedule 5,
(ii) an offence created by a provision of the 1998 Act specified in Column 1 of Part 2 of Schedule 5,
(iii) an offence created by a provision of the Workers Compensation (General) Regulation 1995 specified in Column 1 of Part 3 of Schedule 5,
(iv) an offence created by a provision of the Workers Compensation (Insurance Premiums) Regulation 1995 specified in Column 1 of Part 4 of Schedule 5,
(b) the prescribed penalty for such an offence is the amount specified opposite it in Column 3 of Schedule 5, and
(c) the following persons are declared to be authorised officers:
(i) each officer of the Authority authorised by the Authority for the purposes of section 246 of the 1998 Act,
(ii) each inspector appointed under section 31 of the Occupational Health and Safety Act 1983,
(iii) each officer of the Authority authorised by the Authority for the purposes of section 238 of the 1998 Act.
For the purposes of section 145B of the Justices Act 1902, the prescribed expression for an offence created by a provision specified in Column 1 of Schedule 5 is:
(a) the expression specified opposite it in Column 2 of that Schedule, or
(b) if a choice of words is indicated in that expression, the words remaining after the omission of the words irrelevant to the offence.
For the purposes of any proceedings for an offence created by a provision specified in Column 1 of Schedule 5, the prescribed expression for the offence is taken to relate to the offence created by the provision as the provision was in force when the offence is alleged to have been committed.
The amendment or repeal of a prescribed expression does not affect the validity of any information, complaint, summons, warrant, notice, order or other document in which the expression is used and any such document continues to have effect as if that expression had not been amended or repealed.
Subclause (3) applies to any information, complaint, summons, warrant, notice, order or other document (whether issued, given or made before or after the amendment or repeal) that relates to an offence alleged to have been committed before the amendment or repeal.
Expressions used in this Part have the same meaning as in Division 8 of Part 2 of Chapter 4 of the 1998 Act. An
Each of the following activities is considered to constitute acting as agent for a person in relation to a claim:
(a) advising the person with respect to the making of a claim,
(b) assisting the person to complete or prepare, or completing or preparing on behalf of the person, any form, correspondence or other document concerning a claim,
(c) making arrangements for any test or medical examination to determine the person’s entitlement to compensation,
(d) arranging referral of the person to a lawyer for the performance of legal work in connection with a claim.
A reference to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made).
In this Part:
(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or
(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or
(c) broadcast by radio or television, or
(d) display on an Internet website or otherwise publicly disseminate by means of the Internet, or
(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or
(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or
(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.
A lawyer or agent must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:
(a) work injury,
(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury,
(c) a
work injury service (that is, any service provided by a lawyer or agent that relates to recovery of money, or any entitlement to recover money, in respect of work injury).
Maximum penalty: 200 penalty units.
A contravention of this clause can also be a contravention of Part 14 of the Legal Profession Regulation 2002. A contravention of that Part by a lawyer constitutes professional misconduct.
This Part does not prevent the publication of an advertisement that advertises a lawyer or agent as being a specialist or offering specialist services, but only if the advertisement is published by means of:
(a) an entry in a practitioner directory that states only the name and contact details of the lawyer or agent and any area of practice or specialty of the lawyer or agent, or
(b) a sign displayed at a place of business of the lawyer or agent that states only the name and contact details of the lawyer or agent and any specialty of the lawyer or agent, or
(c) an advertisement on an Internet website operated by the lawyer or agent the publication of which would be prevented under this Part solely because it refers to work injury or work injury services in a statement of specialty of the lawyer or agent.
In this clause:
This Part does not prevent the publication of any advertisement:
(a) to any person who is already a client of the lawyer or agent (and to no other person), or
(b) to any person on the premises of a place of business of the lawyer or agent, but only if the advertisement cannot be seen from outside those premises, or
(c) in accordance with any order by a court, or
(d) pursuant to a disclosure made by a lawyer under Division 2 of Part 11 of the Legal Profession Act 1987, or
(e) to the extent that it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or
(f) to the extent that it relates only to legal education and is published to members of the legal profession by a person in the ordinary course of the person’s business or functions as a provider of legal education, or
(iii) the insurer makes a reasonable offer of settlement (in the case of a claim for compensation under section 66 or 67 of the 1987 Act),
(iv) the insurer denies liability in respect of the claim by serving a notice under section 74 of the 1998 Act,
—the cost set out in Column 3 of Part 2A of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(c) Certain activities or events on behalf of insurer until dispute referred or order sought For an activity or event carried out on behalf of an insurer in any of the following circumstances (other than for an activity or event covered by paragraph (d) of this clause and Part 3 of the table):
(i) the insurer fails to determine a claim as and when required by the 1987 Act,
(ii) the insurer fails to commence weekly payments of compensation or discontinues or reduces weekly payments of compensation,
(iii) in the case of a claim for compensation under section 66 or 67 of the 1987 Act, the insurer makes a reasonable offer of settlement on the claim,
(iv) the insurer denies liability in respect of the claim by serving a notice under section 74 of the 1998 Act,
—the cost set out in Column 3 of Part 2B of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(d) Certain applications for expedited assessment For an activity or event carried out on behalf of a claimant or insurer in any of the following circumstances:
(i) the insurer fails to determine a claim for medical expenses involving less than $5000,
(ii) the insurer fails to commence weekly payments of compensation where less than 12 weeks’ compensation is sought by the claimant and an interim payment order is made by the Registrar (whether or not the interim payment order was sought by a party to the claim),
—the cost set out in Column 3 of Part 3 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(d1) Election by claimant to transfer claim to Commission under clause 93A For an activity or event carried out on behalf of a claimant in making an election under clause 93A of this Regulation to transfer the claim to the Commission—the cost set out in Column 3 of Part 4A of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(e) Referral of dispute to determination of the dispute For an activity or event carried out on behalf of a claimant or insurer from the time of referral of a dispute to the Commission to determination of the dispute by the Commission constituted by an Arbitrator—the cost set out in Column 3 of Part 4 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(f) Appeal to a Medical Appeal Panel for dispute about degree of permanent impairment For an activity or event carried out on behalf of a claimant or insurer in respect of an appeal to a Medical Appeal Panel involving a medical dispute as to the degree of permanent impairment of the injured worker—the cost set out in Column 3 of Part 5 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(g) Referral of a question of law to President For an activity or event carried out on behalf of a claimant or insurer in respect of the referral of a question of law to the Commission constituted by the President—the cost set out in Column 3 of Part 6 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(h) Registration of agreement under sec 66A of 1987 Act or a commutation agreement For an activity or event carried out on behalf of a claimant or insurer in respect of the registration of an agreement under section 66A of the 1987 Act or a commutation agreement—the cost set out in Column 3 of Part 7 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(i) Appeals to Presidential member For an activity or event carried out on behalf of a claimant or insurer in respect of an appeal to the Commission constituted by a Presidential Member—the cost set out in Column 3 of Part 8 of the table opposite that activity or event up to the maximum total costs for that activity or event set out in Column 4 of the table.
(j) Any other substantive proceedings before the Commission For an activity or event carried out in respect of any other proceedings before the Commission involving the determination of substantive legal issues (including applications for review of existing orders, disputes relating to suitable duties, and disputes relating to apportionment)—the costs set out in Column 3 of Part 9 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
(k) Other costs For an activity or event described in Column 2 of Part 10 of the table—the cost set out in Column 3 of Part 10 of the table opposite that activity or event up to the maximum total costs for that type of activity or event set out in Column 4 of the table.
This clause is subject to this Schedule.
In the event that more than one claim is made in respect of a particular injury, or more than one dispute arises in respect of a claim, the maximum total costs for a type of activity or event in respect of the injury, regardless of how many times the activity or event is carried out, is the maximum set out in Column 4 of the table in relation to that type of activity or event.
Subclause (1) does not apply if:
(a) a period of more than 12 months has elapsed between the making of the first claim in respect of the injury and the making of a subsequent claim (and the same applies to each claim subsequent to that claim), or
(b) a period of more than 12 months has elapsed between the notification of the first dispute in respect of the claim and the notification of a subsequent dispute (and the same applies to each dispute subsequent to that dispute), or
(c) the Commission or the Registrar orders that the claims or disputes are to be treated as separate claims or disputes for the purposes of the calculation or assessment of costs.
The Registrar may, on application, order that subclause (1) does not apply to costs incurred in respect of a claim or dispute if satisfied that the need for the costs to be incurred could not have been foreseen at the time that costs for the type of activity or event concerned were first incurred in connection with the injury.
No costs are payable or recoverable in respect of an application for the purpose of subclause (3).
Costs specified in a Part of the table (other than Part 2A, 2B or 10) are payable only for an activity or event that is carried out in the period commencing when the first activity or event specified in that Part is commenced and concluding on either the completion of the last activity or event specified in that Part or finalisation of the matter (whichever occurs first).
Costs specified in Part 2A or 2B of the table are payable only for an activity or event that is carried out in the period commencing when the first activity or event specified in that Part is commenced and concluding on:
(a) the referral of a dispute in respect of the claim to the Commission, or the seeking of an order from the Commission, or
(b) the completion of the last activity or event specified in that Part, or
(c) finalisation of the matter,
whichever occurs first.
If costs specified in Part 3 of the table are payable in relation to a matter, costs specified in Parts 2A, 2B and 4 of the table are payable only in respect of the matter if the matter is subsequently referred for determination after the conduct of an expedited assessment by the Registrar.
Costs specified in Item 10.01 in the table are payable no more than once in respect of any claim.
Costs specified in Item 10.02 or 10.03 in the table may be payable more than once in respect of any claim.
For the purpose of calculating costs for travelling referred to in Item 10.02 of the table:
(a) costs payable in respect of travel are to be calculated separately for each separate instance of travel (with each separate journey constituting a separate instance of travel), and
(b) travel to a place to attend at proceedings before the Commission constitutes a separate journey to the return journey from that place (whether or not the travel results from any adjournment of proceedings), and
(c) no costs are payable for any distance travelled in excess of the distance of the shortest practicable route (depending on the mode of travel used), and
(d) if travel is undertaken for the purpose of attending at proceedings in respect of more than one claim, the costs for travelling are to be apportioned equally among the claims in respect of which the travel was undertaken.
If attendance at proceedings before the Commission is in respect of more than one claim, any costs of accommodation in relation to the proceedings, as referred to in Item 10.03 of the table, are to be apportioned equally among the claims concerned.
If more than one insurer (or any combination of insurers) is a party to a claim or a dispute or other matter in relation to a claim, the maximum costs in respect of the matter are the total of the following:
(a) the costs for the matter calculated in accordance with the table,
(b) 50% of that amount per party (other than the party who made the claim),
and payment of the costs is to be shared equally among the insurers who are parties to the matter.
Clause 105 provides that in Part 23 (Costs) and Schedules 6 and 7, the term
If an hourly rate is specified for an activity or event in the table, the maximum amount of costs set out for that activity or event is to be calculated to the nearest quarter hour.
The Commission or the Registrar may determine, for the purposes of clause 1 (2) (j), whether a particular activity or event is in respect of a substantive legal issue.
Despite any other provision of this Schedule, if a medical dispute or a dispute about weekly payments of compensation is finalised by an agreement for payment of an amount less than $1,000, or an award for payment of an amount less than $1,000, the maximum amount of costs for the dispute is $200.
An agent who is not an agent within the definition of
Nothing in this clause prevents an agent who is a legal practitioner from being entitled to be paid or recover any costs.
Nothing in this Schedule prevents the recovery, as a disbursement, of the fee or charge set for any of the following reports, certificates or searches by the agency concerned in a claim in respect of a particular injury:
(a) a report from a coroner, the NSW Police or the Roads and Traffic Authority relevant to the claim,
(b) a land title search from Land and Property Information NSW relevant to the claim,
(c) a certificate from the Registry of Births, Deaths and Marriages relevant to the claim.
Compensation Costs Table
Column 1 Item No | Column 2 Activity or event | Column 3 Maximum amount for individual activity/event | Column 4 Maximum total for type of activity/ event |
1.01 | Obtaining and reviewing medical reports Part 13A of this Regulation limits the circumstances in which more than 1 medical report in a particular specialty can be admitted in proceedings, and also limits the recovery of the cost of obtaining medical reports that are not admitted in proceedings. Clause 106 (e) of this Regulation provides that costs covered by Part 23 do not include fees for reports from health service providers. | If the matter is finalised by the payment of compensation to the claimant—$150 per report for the first 2 medical reports, $100 per report for subsequent medical reports If the matter is not finalised by the payment of compensation—nil | $600 |
If the matter is not finalised by the payment of compensation—nil | |||
1.02 | Lodging claim with insurer if the insurer has not already made an offer of settlement | If the matter is finalised by the payment of compensation to the claimant—$100 | $100 |
If the matter is not finalised by the payment of compensation—nil | |||
2.01 | Obtaining instructions from client | $250 per hour | $500 |
2.02 | Obtaining medical or other reports from insurer or requesting further information | $20 per request | $40 (for any party) |
2.03 | Referring insurer’s reports to a medical specialist or the claimant’s nominated treating doctor for review | $20 per referral | $40 |
2.04 | Obtaining and reviewing medical reports (other than where Item 1.01 applies) Part 13A of this Regulation limits the circumstances in which more than 1 medical report in a particular specialty can be admitted in proceedings, and also limits the recovery of the cost of obtaining medical reports that are not admitted in proceedings. Clause 106 (e) of this Regulation provides that costs covered by Part 23 do not include fees for reports from health service providers. | $150 per report for the first 2 medical reports, $100 per report for subsequent medical reports and $75 per report for a report supplementing a medical report (up to 2 such supplementary reports) | $600 |
2.04A | Where a claim cannot be brought without a witness statement, preparing witness statements | $100 per hour | $150 |
2.05 | Briefing a factual investigator or other investigator to obtain evidence other than witness statements (not including the investigator’s fee) | $100 | $100 |
2.06 | Requesting a review of the claim from the insurer, prior to referral of the matter to the Commission | $250 per hour | $500 |
2.07 | Agreeing terms of settlement with the insurer following a review of the claim by the insurer for a dispute (not being a claim for compensation under section 66 or 67 of the 1987 Act) | $300 | $300 |
2.08 | Agreeing terms of settlement with the insurer in the case of a claim for compensation under section 66 or 67 of the 1987 Act following a review of the claim by the insurer | $750 | $750 |
2.09 | Obtaining instructions from client where the claimant seeks a review of the insurer’s determination of the claim | $250 per hour | $500 |
2.10 | Referring a further report provided by claimant for review | $20 per referral | $40 |
2.11 | Obtaining and reviewing medical reports Part 13A of this Regulation limits the circumstances in which more than 1 medical report in a particular specialty can be admitted in proceedings, and also limits the recovery of the cost of obtaining medical reports that are not admitted in proceedings. Clause 106 (e) of this Regulation provides that costs covered by Part 23 do not include fees for reports from health service providers. | $150 per report for the first 2 medical reports, $100 per report for subsequent medical reports and $75 per report for a report supplementing a medical report (up to 2 such supplementary reports) | $600 |
2.11A | Where a claim cannot be defended without a witness statement, preparing witness statements | $100 per hour | $150 |
2.12 | Briefing a factual investigator or other investigator to obtain surveillance information or other evidence other than witness statements (not including the investigator’s fee) | $100 | $100 |
2.13 | Providing advice to the insurer in relation to the review of the insurer’s determination of the claim sought by the claimant | $250 per hour | $500 |
2.14 | Agreeing terms of settlement with the claimant following a review of the insurer’s determination of the claim for a dispute (not being a claim for compensation under section 66 or 67 of the 1987 Act) | $300 | $300 |
2.15 | Agreeing terms of settlement with the claimant in the case of a claim for compensation under section 66 or 67 of the 1987 Act following a review of the insurer’s determination of the claim | $750 | $750 |
3.01 | Applying for expedited assessment to the Commission | If the application results in the making of an interim payment order—$200 (claimant’s legal practitioner or agent only) | $200 (claimant’s legal practitioner or agent only) |
If the application does not result in the making of an interim payment order—nil | |||
4.01 | Lodging any of the following with the Commission:
| $300 | $300 |
4.02 | Service of material in relation to Item 4.01 on the other parties to the dispute | $40 for the first party, then $20 for each additional party | $100 |
4.03 | Requesting the Commission to give directions for the production of documents | $60 for the initial direction, then $40 for each additional direction | $220 |
4.03A | Serving a direction by the Commission for the production of documents | $40 per person served, regardless of the number of directions served on the person | $200 |
4.03B | Paying conduct money to person served with direction for the production of documents (being money to meet reasonable expenses of compliance with the direction) | $40 per person served with direction, regardless of the number of directions served on the person | $200 |
4.04 | Lodging an objection to a request for a direction for the production of documents | $60 per objection | $120 |
4.05 | Reviewing documentation produced under a direction of the Commission, exchanging information with the other parties and obtaining further instructions from client | $250 per hour | $500 |
4.06 | Applying for an order for the attendance of witnesses at proceedings before the Commission | $60 for the initial order, then $40 for each additional order | $140 |
4.07 | Applying to refer a matter to an approved medical specialist, or responding to such an application (including costs associated with agreeing on the approved medical specialist and review of the report by the approved medical specialist). | $100 | $100 |
4.08 | Preparing for a conference (including providing advice to client) | $250 per hour | $500 |
4.08A | Preparing for a conference (including providing advice to client) in addition to costs provided for by Item 4.08, but only where the matter is settled and terms of settlement are filed in the Commission at least 2 working days before preliminary teleconference is set down to be held | $250 per hour | $250 |
4.09 | Attending and participating in a conference with an Arbitrator (other than an arbitration hearing or where Item 4.10 applies) | $250 per hour | $1000 |
4.10 | Attending and participating in a conference with an Arbitrator where the Arbitrator determines that the matter is complex and the matter proceeds directly to arbitration | $250 per hour | $1500 |
4.11 | Attending and participating in an arbitration hearing (other than where Item 4.10 applies, and subject in the case of a claim for compensation under section 66 or 67 of the 1987 Act to any Rules of the Commission relating to offers of compromise or settlement) | $250 | $250 |
4.12 | Reporting to the client on the outcome of a conference or arbitration (including finalising the applicant’s matter with the Health Insurance Commission or Centrelink (or both)) | $190 | $190 |
4.13 | All work associated with the lodgment of the election | $500 | $500 |
5.01 | Lodgment of appeal and preparation for appeal, or preparation of a response to such an appeal | If the result of the appeal is more favourable to the applicant for appeal—$100 (applicant’s legal practitioner or agent only) | $100 |
If the result of the appeal is not more favourable to the applicant for appeal—nil (applicant’s legal practitioner or agent only) | |||
For the respondent’s legal practitioner or agent—$100 | $100 | ||
5.02 | Attendance at a Medical Appeal Panel hearing | If the result of the appeal is more favourable to the applicant for appeal—$200 per hour (applicant’s legal practitioner or agent only) | $400 |
If the result of the appeal is not more favourable to the applicant for appeal—nil (applicant’s legal practitioner or agent only) | |||
For the respondent’s legal practitioner or agent—$200 per hour | $400 | ||
6.01 | Obtaining advice from counsel and making an application including written submissions, or preparing a response to such an application including written submissions and obtaining advice from counsel (including counsel’s fee for advice) | If the President grants leave to appeal—$600 (applicant’s legal practitioner or agent only) | $600 |
If the President does not grant leave to appeal—nil (applicant’s legal practitioner or agent only) | |||
For the respondent’s legal practitioner or agent—$600 | $600 | ||
6.02 | Attending at proceedings before the Commission constituted by the President without counsel present | $250 per hour | $500 |
6.03 | Attending at proceedings before the Commission constituted by the President with counsel present (including counsel’s fee for attendance) | $125 per hour for legal practitioner (other than counsel) or agent | $250 |
$300 per hour for counsel | $600 | ||
7.01 | All work associated with registration of an agreement under section 66A of the 1987 Act | $120 | $120 |
7.02 | All work associated with registration of a commutation agreement | $250 | $250 |
8.01 | Lodging application or response to such an application including written submissions | $320 | $320 |
8.02 | Obtaining the advice of counsel (including counsel’s fee for advice) | $500 | $500 |
8.03 | Attending at proceedings before the Commission constituted by the President or Deputy President without counsel present | $250 per hour | $500 |
8.04 | Attending at proceedings before the Commission constituted by the President or Deputy President with counsel present (including counsel’s fee for attendance) | $125 per hour for legal practitioner (other than counsel) or agent | $250 |
$300 per hour for counsel | $600 | ||
9.01 | Conduct of any other proceedings before the Commission involving the determination of substantive legal issues, including preparatory work | $250 per hour | $625 |
10.01 | All work associated with instructing an agent to act on the claim or a matter relating to the claim | $250 per hour | $187.50 |
10.02 | Travelling for the purpose of attending at proceedings before the Commission for the purpose of an activity or event referred to in Item 4.09, 4.10, 4.11, 5.02, 6.02, 6.03, 8.03, 8.04 or 9.01 (not including attendance at a teleconference) | $0.59 per km (except the first 50 kms) | No maximum |
10.03 | Costs of accommodation incurred when attending at proceedings before the Commission for the purpose of an activity or event referred to in Item 4.09, 4.10, 4.11, 5.02, 6.02, 6.03, 8.03, 8.04 or 9.01 (not including attendance at a teleconference) where the place of attendance is more than 50 kms from the practitioner’s usual place of practice | $120 for each night’s accommodation | No maximum |
(Clause 110)
The maximum costs for legal services provided for a stage of a claim for work injury damages set out in Column 1 of the Work Injury Costs Table A to this clause are the costs set out in Column 2 opposite that stage.
However, if a legal practitioner was first retained in the matter after a certificate as to mediation was issued under section 318B of the 1998 Act (or, if the matter is not referred to mediation because the insurer wholly denies liability, or the insurer has failed to respond to the pre-filing statement, after the service of the pre-filing statement of claim), the maximum costs are those set out in the Work Injury Costs Table B to this clause.
Costs may be charged for more than one stage described in this Schedule.
Other than stage 1 in the Work Injury Costs Table B to this clause, each stage specifies the maximum costs payable for all legal services provided in the period commencing on the occurrence of one specified event and concluding on either the occurrence of another specified event or settlement of the matter (whichever occurs first).
Work Injury Costs Table A
Column 1 Stage | Column 2 Costs | |
1 | From the acceptance of the retainer to the preparation and service of a claim under section 260 of the 1998 Act (including the provision of all relevant particulars under 281 of that Act) |
|
2 | From service of the claim under section 260 of the 1998 Act to the preparation and service of the pre-filing statement of claim under section 315 of that Act |
|
3 | If:
—from service of the pre-filing statement to finalisation of the matter | In addition to the $500 specified for stages 1 and 2 (if chargeable):
|
4 | If the matter is referred to mediation and settlement occurs after the issue of a certificate as to the mediation under section 318B of the 1998 Act but without the commencement of court proceedings—from service of the pre-filing statement to finalisation of the matter | The total of the following:
|
5 | If the matter is referred to mediation and is finalised after the commencement of court proceedings (whether by way of settlement or an award of damages)—from service of the pre-filing statement to finalisation of the matter | The total of the following:
|
6 | If the matter is not referred to mediation and the matter is finalised after the commencement of court proceedings (whether by way of settlement or an award of damages)—from service of the pre-filing statement to finalisation of the matter | The total of the following:
|
Work Injury Costs Table B
Column 1 Stage | Column 2 Costs | |
1 | Advice on the certificate as to mediation (if the matter is referred to mediation) | $250 |
2 | From the giving of advice on the certificate of mediation (or, if the matter is not referred to mediation, from acceptance of the retainer) to finalisation of the matter by settlement or award of damages. | In addition to the $250 specified for stage 1 (if chargeable):
|
Maximum costs for legal services provided in a claim for work injury damages may include (in addition to the costs for legal services referred to in clause 1) the costs set out in the Other Work Injury Costs Table to this clause.
However, an amount for the fees for senior counsel, or for more than one advocate, are not to be included unless the court so orders.
Other Work Injury Costs Table
Nature of costs | Maximum costs | |
1 | Costs associated with a dispute under Part 6 of Chapter 7 of the 1998 Act as to whether the degree of permanent impairment of an injured worker is sufficient for an award of damages (including costs associated with referring the dispute for assessment by an approved medical specialist under Part 7 of that Chapter) | $500 |
2 | Costs associated with a dispute under section 317 of the 1998 Act as to whether a pre-filing statement is defective | $200 |
3 | Cost of representation at a mediation under section 318A of the 1998 Act: | |
| $400 | |
| up to $125 per hour (or part of an hour) in excess of 2 hours | |
4 | If the matter was referred to mediation and counsel advised before mediation about settlement: | |
| $500 (separate to the daily rate below) | |
| $1,500 | |
| $2,200 | |
If the matter was not referred to mediation: | ||
| $1,500 | |
| $2,200 |
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