Workers Compensation Legislation Amendment Act 2001 (NSW)
An Act to amend the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 to make further provision for claims procedures, dispute resolution, commutation, lump sum compensation and other matters; and for other purposes.
This Act is the Workers Compensation Legislation Amendment Act 2001.
This Act commences on a day or days to be appointed by proclamation.
A proclamation under this section may appoint a particular time on a day as the time for commencement on that day.
An amendment made by Schedule 3 (Amendments relating to lump sum compensation) cannot be commenced until guidelines have been made under section 376 of the Workplace Injury Management and Workers Compensation Act 1998 (as inserted by this Act) with respect to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.
Each Act specified in Schedules 1–6 is amended as set out in those Schedules.
(Section 3)
Workers Compensation Act 1987 No 70Omit “under section 51” from section 35 (3).
Omit “under section 51” from section 37 (6B).
Omit “under section 51” from section 40 (7).
Omit “under section 51” from section 45 (3).
Insert instead “under this Act”.
Omit the section.
Insert after Division 8 of Part 3:
In this Division:
A liability in respect of any of the following kinds of compensation under this Act or the former Act may be commuted to a lump sum as provided by this Division (and not otherwise):
(a) weekly payments of compensation,
(b) compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act or section 10 of the former Act.
Such a liability cannot be commuted to a lump sum by an order or award of the Commission (but this subsection does not affect the operation of section 87G).
A liability may be commuted to a lump sum with the agreement of the worker.
A commutation agreement must not be entered into unless (before the agreement is entered into):
(a) a legal practitioner instructed independently of the insurer and the employer has certified in writing that the legal practitioner has advised the worker on the full legal implications of the agreement, including implications with respect to any entitlement of the worker to compensation under this Act or to benefits under any other law (including a law of the Commonwealth), and
(b) the worker has confirmed in writing that the worker has been given and understands the advice referred to in paragraph (a).
A commutation agreement (including an agreement purporting to be a commutation agreement) is not subject to review or challenge in proceedings before the Commission or a court.
The worker has 14 days after entering into a commutation agreement in which to withdraw from the agreement by giving notice in writing to the insurer. Withdrawal from the agreement by the worker makes the agreement a nullity.
A liability cannot be commuted under this section if the worker is legally incapacitated because of the worker’s age or mental capacity.
Section 87G provides for the commutation of a liability when the worker is legally incapacitated.
A commutation agreement is of no effect unless and until it is registered as provided by this Part. Registration of the agreement removes the liability to which the agreement relates.
The amount payable under an agreement is payable within 7 days after the agreement is registered or within such longer period as the agreement may provide. Interest calculated at the rate prescribed by the regulations is payable on any amount due and unpaid. The amount payable under a commutation agreement and any interest payable on that amount is recoverable as a debt in a court of competent jurisdiction.
As part of a commutation agreement, a worker may agree that payment of a lump sum removes any liability to make a payment under Division 4 of Part 3 (or section 16 of the former Act) in respect of the injury concerned. This Division applies to the agreement for payment of that lump sum as if it were an agreement to commute the liability to pay that compensation to a lump sum. Payment of the lump sum removes any liability to which the agreement of the worker relates.
If a worker is legally incapacitated because of the worker’s age or mental capacity, a liability in respect of compensation may be commuted to a lump sum by determination by the Commission made having regard to:
(a) any dispute as to liability to pay compensation under this Act, and
(b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury, and
(c) the worker’s diminished ability to compete in an open labour market, and
(d) other benefits that the worker may be entitled to from any other source.
The Commission is not to determine a lump sum for the purposes of this section unless satisfied that the termination of liability concerned is in the best interests of the worker.
Payment of the lump sum to which a liability has been commuted under this section removes the liability.
A determination under this section may include a determination as to the payment of a lump sum to remove any liability to make a payment under Division 4 of Part 3 in respect of the injury concerned. Payment of that lump sum removes any liability to which the determination relates.
A party to a commutation agreement may apply to the Registrar for registration of the agreement by the Registrar.
Section 87F (6) provides that a commutation agreement is of no effect unless and until it is registered.
The Registrar must refuse to register a commutation agreement unless satisfied that the requirements of section 87F (2) have been complied with in respect of the agreement.
Before registering a commutation agreement, the Registrar may (on the application of a party to the agreement or of the Registrar’s own motion) refer the agreement for review by the Commission. The Registrar is not to register the agreement if the Commission recommends that the agreement not be registered.
The Commission reviewing a commutation agreement may recommend to the Registrar that the agreement not be registered if the Commission considers that the agreement is inaccurate or that the lump sum to which a liability has been commuted by the agreement is inadequate.
In reviewing a commutation agreement, the Commission may have regard to the following matters:
(a) any dispute as to liability to pay compensation under the Workers Compensation Acts,
(b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury,
(c) the worker’s diminished ability to compete in an open labour market,
(d) other benefits that the worker may be entitled to from any other source.
The registration of a commutation agreement may not be cancelled except within such period after the agreement is registered, and in such manner, as may be authorised by the regulations.
This section has effect despite section 234 of the 1998 Act (No contracting out).
This section does not prevent a commutation agreement containing provision as to the payment of costs.
If a liability in respect of compensation is only partially commuted under this Division, the balance of the compensation continues to be payable under and subject to this Act.
A lump sum may be paid to the Public Guardian for the benefit of the worker if:
(a) the worker agrees, in the case of a lump sum agreed to by the worker, or
(b) the Commission so orders, in the case of a lump sum determined by the Commission.
The annual report of the Authority is to include a statement as to trends in the commutation of liabilities under this Act.
Neither agreement as to the commutation of a payment to a lump sum nor payment of the sum payable under the agreement exempts the person by whom the payment is payable from any liability under this Act, except as provided by this Division.
This section does not affect the operation of section 51 in respect of a liability commuted under that section before the commencement of this section.
This section does not affect the operation of section 66A (Registration of agreements for compensation).
Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this Division or section 51, or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act), is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.
Omit the section. Insert instead:
Division 9 of Part 3 applies to the commutation of a liability under the Scheme.
A liability under the Scheme may not be commuted to a lump sum with the agreement of the worker unless the Authority:
(a) has given the employer notice of the proposed agreement and has given the employer a reasonable opportunity to make submissions to the Authority with respect to the matter, and
(b) has taken into account any submissions so made to the Authority.
Subsection (2) does not apply if the worker has been unable, after due search and inquiry, to identify the relevant employer.
In the case of commutation by determination of the Commission under section 87G (Commutation when worker legally incapacitated), the Commission may on the application of the employer, if the Commission thinks fit, refuse to make such a determination in respect of a liability under the Scheme.
The making of such an application by the employer in no way fetters the discretion of the Commission to make the determination, and a commutation made in consequence of the determination is binding on the employer whether or not the employer has made such an application.
The Authority may apply for registration of a commutation agreement under section 87H as a party to the agreement.
Omit “under section 51 if the person concerned were eligible to be paid a lump sum under that section” from section 151N (2).
Insert instead “under Division 9 of Part 3 if the person concerned were eligible to be paid a lump sum under that Division”.
Omit “under section 51” from section 221 (12).
Insert instead “under Division 9 of Part 3”.
Insert after Part 2 of Schedule 6:
This clause applies on and from the repeal of section 51 by the Workers Compensation Legislation Amendment Act 2001.
Division 9 (Commutation of compensation) of Part 3 applies to the commutation of a liability arising in respect of an injury received before or after the commencement of that Division.
This clause extends to apply to a case in which proceedings for a determination under section 51 are pending when that section is repealed.
A liability may be commuted under Division 9 of Part 3 even if the Compensation Court refused, before the repeal of section 51, to make a determination under that section or under section 14 of the 1926 Act.
Section 87F (Commutation by agreement) extends to an agreement made before the commencement of that section.
(Section 3)
Workers Compensation Act 1987 No 70Insert after section 192A (3):
The WorkCover Guidelines under the 1998 Act can make provision in connection with any matter in connection with which the claims manual can make provision.
Insert “the WorkCover Guidelines,” after “claims manual,”.
Insert after section 192A (4):
An insurer who fails to comply with a direction under subsection (4) is guilty of an offence.
Maximum penalty: 50 penalty units.
Insert after section 42A:
The Authority may provide assistance (
In particular the Authority may establish an advisory service to provide claims assistance.
The Authority may provide funds to fund the provision of claims assistance by organisations representing employers or employees, including by means of the establishment of an advisory service to provide claims assistance.
Funds may only be provided within a period of 1 year after the commencement of this section (
Before the Authority first provides any funds under this section, the Authority is to:
(a) advertise in a newspaper circulating in New South Wales for expressions of interest from organisations to provide claims assistance, and
(b) publish in the Gazette the name of each organisation to which the Authority intends to provide funds, the amount of funding to be provided and a description of the claims assistance that the organisation is to provide.
Within 1 month after the expiry of the initial period, a statement is to be laid before each House of Parliament setting out:
(a) the name of each organisation to which funds have been provided under this section, and
(b) the amount paid to each organisation, and
(c) a description of the claims assistance provided by the organisation.
Insert after section 45:
The Authority may by instrument in writing approve a person as an injury management consultant for the purposes of the Workers Compensation Acts.
Such an approval may be for a fixed or indefinite period and may be made subject to conditions.
The Authority may by instrument in writing revoke the approval of an injury management consultant for any breach of the conditions of the approval or for such other reason as the Authority thinks appropriate.
WorkCover Guidelines may provide for the functions of approved injury management consultants.
A person approved as an injury management consultant under this section is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as an approved injury management consultant.
An injury management consultant who is aggrieved by a decision of the Authority to revoke the consultant’s approval may apply to the Administrative Decisions Tribunal for a review of the decision.
Omit section 59 (c) and (d).
(Section 3)
Workers Compensation Act 1987 No 70Omit sections 65 and 66. Insert instead:
For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.
The Commission may, at any stage in proceedings on a claim for permanent impairment compensation or pain and suffering compensation, refer the matter for assessment of the degree of permanent impairment by an approved medical specialist.
No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury).
In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
Compensation payable under this Division in respect of permanent impairment that results from a primary psychological injury is not payable unless the degree of permanent impairment resulting from the primary psychological injury is greater than the degree of permanent impairment prescribed by the regulations for the purposes of this section.
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
In this section:
A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
The amount of the permanent impairment compensation that is payable is to be calculated as prescribed by the regulations, on the basis of the degree of permanent impairment that results from the injury.
Omit section 66A (1). Insert instead:
An agreement by a worker to receive an amount of permanent impairment compensation or pain and suffering compensation in respect of impairment may be registered by the Registrar. Once the agreement is registered the worker is not entitled to receive any additional compensation in respect of the impairment under an award of the Commission.
Omit “the Compensation Court”. Insert instead “the Commission”.
Omit the subsections. Insert instead:
Any party to an agreement may apply to the Registrar for registration of the agreement.
The Registrar may refuse to register an agreement if the Registrar considers that the agreement is inaccurate or that the agreed amount of compensation is inadequate.
The Registrar must refuse to register an agreement unless satisfied that the worker received independent legal advice about the agreement before the worker entered into the agreement.
Omit the subsection. Insert instead:
This section does not limit an award of additional compensation in accordance with this Part in respect of an increase in the degree of permanent impairment that occurs after the impairment to which an agreement relates.
Omit the subsection.
Omit the section. Insert instead:
When a worker agrees to receive an amount of permanent impairment compensation or pain and suffering compensation, the Commission is not to entertain proceedings for entry of an award to give effect to the agreement unless the proceedings also relate to some dispute in connection with the worker’s claim for compensation under this Act.
The regulations may prescribe exceptions to this section.
The regulations may make provision for or with respect to:
(a) requiring an application referring a matter to the Commission to be accompanied by evidence (in the form of a certificate or other information provided for by the regulations) that the proceedings are not prevented by this section from being entertained by the Commission, and
(b) preventing the acceptance for lodgment of an application not accompanied by any evidence required by the regulations to accompany it.
Omit section 67 (1), (1A) and (2). Insert instead:
A worker who receives an injury that results in a degree of permanent impairment greater than that prescribed by the regulations for the purposes of this section is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.
Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is greater than the degree of permanent impairment prescribed by the regulations for the purposes of that section.
Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.
Omit “loss or losses”. Insert instead “permanent impairment”.
Omit “the Compensation Court”. Insert instead “the Commission”.
Omit “loss”. Insert instead “permanent impairment”.
Omit section 67A (1). Insert instead:
For the purposes of the determination of the amount of pain and suffering compensation payable, HIV infection and AIDS are each considered to be a most extreme case, so that the maximum amount of pain and suffering compensation is payable.
For the purposes of the determination of the amount of permanent impairment compensation payable, HIV infection and AIDS are each considered to result in a degree of permanent impairment of 100%.
Omit the subsection. Insert instead:
Permanent impairment compensation and pain and suffering compensation are not payable in respect of permanent impairment that is HIV infection or AIDS if the impairment resulted from voluntary sexual activity or illicit drug use. This subsection does not limit the operation of section 14 (Conduct of worker etc).
Omit the section.
Omit the section.
Omit the section. Insert instead:
When determining the compensation payable in respect of permanent impairment for the purposes of the apportionment of liability under section 22, there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to an injury in respect of which liability is to be apportioned (but without affecting any deduction under that section for any proportion of the impairment that is due to any other injury or that is due to any pre-existing condition or abnormality).
When determining the compensation payable by an employer in a case in which section 15 applies (disease of such a nature as to be contracted by a gradual process), section 323 of the 1998 Act applies to that compensation subject to the following:
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the permanent impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a),
previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 15 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),(c) in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.
When determining the compensation payable by an employer in a case in which section 16 applies (an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease), section 323 of the 1998 Act applies to that compensation subject to the following:
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a),
previous relevant employment is employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration by a previous employer who is liable under section 16 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),(c) in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.
When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following:
(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,
(b) for the purposes of paragraph (a),
previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).
Omit the section.
Omit section 69A (1)–(4). Insert instead:
In assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing (the
The worker’s
The fact that compensation is not payable in respect of a loss of hearing because of this section does not prevent notice of injury being given or a claim being made in respect of that loss, and does not affect the operation of section 17 in respect of that loss (if and when the worker’s total hearing loss reaches 6%).
An example of the operation of this section is as follows (assume that all hearing losses mentioned are due to boilermakers deafness and that no other injury is involved):
(a) A worker suffers a hearing loss of 4% (the first hearing loss that the worker has suffered). No permanent impairment compensation is payable in respect of the loss because it is less than 6% and cannot be taken into account to assess the degree of permanent impairment, though notice of injury can be given or a claim can be made for the hearing loss.
(b) The worker suffers a further hearing loss of 4%, bringing the total loss to 8%. The total loss has now passed the 6% threshold and compensation is payable on the basis of the full 8%. Compensation in respect of the initial 4% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for that initial hearing loss.
(c) The worker suffers a further hearing loss of 5%. The worker is entitled in the usual way to compensation in respect of the 5% further loss because the 6% threshold has already been passed (the total loss is now 13%).
Omit “no compensation is payable under section 66”.
Insert instead “no permanent impairment compensation is payable”.
Omit “pay compensation under section 66 for a loss of hearing” from section 69B (1).
Insert instead “pay permanent impairment compensation in respect of a loss of hearing”.
Omit the section.
Omit the section. Insert instead:
The obtaining of a permanent impairment medical certificate and any examination required for the certificate are taken to be a medical or related treatment for the purposes of Division 3 if:
(a) the medical practitioner has completed such training as the Authority may require in respect of the assessment of the degree of permanent impairment as provided by this Act, and
(b) the worker has given the employer a copy of the certificate.
In this section:
(a) that a worker has received an injury resulting in permanent impairment, and
(b) the degree of permanent impairment (assessed as provided by this Act) resulting from the injury.
Omit the Table to Division 4 of Part 3.
Workplace Injury Management and Workers Compensation Act 1998 No 86Omit “compensation under section 66 or 67 of the 1987 Act” from section 111 (1).
Insert instead “permanent impairment compensation or pain and suffering compensation”.
Insert in alphabetical order in section 131 (1):
(a) a claim under section 66 of the 1987 Act (as in force at any time before the commencement of this definition) for loss of hearing, or
(b) a claim for permanent impairment compensation in respect of loss of hearing.
Omit paragraph (a) of the definition of
a hearing loss claim, and
Omit “claim under section 66 of the 1987 Act for loss of hearing” from section 134 (3).
Insert instead “hearing loss claim”.
Omit “subsequent claim for further loss of hearing”.
Insert instead “subsequent hearing loss claim in respect of further loss of hearing”.
Omit “claim under section 66 of the 1987 Act for loss of hearing” from section 135 (4).
Insert instead “hearing loss claim”.
Omit “subsequent claim for further loss of hearing”.
Insert instead “subsequent hearing loss claim in respect of further loss of hearing”.
(Section 3)
Workers Compensation Act 1987 No 70Insert as section 151D (1):
In the case of proceedings for damages in respect of an injury received on or after the commencement of this subsection (as inserted by the Workers Compensation Legislation Amendment Act 2001), time does not run for the purposes of this section from the time that a claim has been referred to the Commission for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
Insert at the end of Part 18:
Subject to this clause, the amendments made by the 2001 amending Act do not apply to or in respect of coal miners and this Act and the 1998 Act (and the regulations under those Acts) apply to and in respect of coal miners as if the 2001 amending Act had not been enacted.
Subclause (1) does not apply in respect of the amendments made by Schedule 2.2 [2] and [3] to the 2001 amending Act.
The regulations may make provision for or with respect to the following matters in connection with a claim for compensation in respect of an injury received by a coal miner:
(a) requiring or providing for the conciliation, mediation or other review of a claim, or any dispute in connection with a claim, before the commencement of court proceedings in connection with the claim or dispute,
(b) any matter for or in respect of which provision is made by Divisions 3–5 of Part 2 of Chapter 4 of the 1998 Act (whether or not provision so made is inconsistent with any provision of those Divisions),
(c) disapplying or modifying the application of any provision or provisions of Divisions 3–5 of Part 2 of Chapter 4 of the 1998 Act.
In this clause:
Insert after Part 18B of Schedule 6:
In this Part:
The Workers Compensation Acts apply to and in respect of an existing claim as if Schedules 2–6 to the 2001 amending Act had not been enacted.
This clause is subject to this Part and to any regulations under this Schedule.
The amendments made by Schedule 3 to the 2001 amending Act do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except for the amendments to section 66A (subject to such modifications to that section as may be prescribed by the regulations, for the purposes of the application of those amendments in respect of such an injury).
There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the 2001 amending Act) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.
A
No contribution or payment of apportioned share in respect of compensation under Division 4 of Part 3 (as amended by the 2001 amending Act) is required under section 15, 16, 17 or 22 to the extent that the employment or injury in respect of which contribution or payment would otherwise be required relates to a previously non-compensable impairment.
In the case of a new claim in respect of an injury received before the commencement of the amendments made by Schedule 3 to the 2001 amending Act, compensation under Division 4 of Part 3 (as in force before the commencement of this clause) may not be awarded by the Commission if there is an impairment dispute unless the dispute has been assessed by an approved medical specialist under Part 7 of Chapter 7 of the 1998 Act.
An opinion certified in a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned.
For the purposes of this clause, Part 7 of Chapter 7 of the 1998 Act extends (with such modifications as may be prescribed by the regulations) to the assessment of an impairment dispute as if it were a medical dispute under that Part.
In this clause,
The regulations may make provision for or with respect to requiring a class or classes of existing claims to be treated as new claims for the purposes of the Workers Compensation Acts.
Those claims (
Regulations under this clause may include provisions of a savings or transitional nature consequent on the operation of any such regulations.
The power to make regulations under subclause (3) extends to authorise the making of regulations whereby provisions of the Workers Compensation Acts are taken to be amended in the manner set forth in the regulations.
The provisions of the Workers Compensation Acts apply to and in respect of a transferred claim as a new claim subject to the following modifications:
(a) an order or award of the Compensation Court in respect of the claim is taken to be an order or award of the Commission,
(b) such other modifications as may be prescribed by the regulations.
Sections 67 and 68 of the 1998 Act continue to apply as in force before their repeal to and in respect of a statement made by a person before their repeal.
Sections 259–264 of the 1998 Act extend to the making of a claim after the commencement of those sections even if the claim is an existing claim.
A judge of the Compensation Court who is appointed as a judge of the District Court is to have seniority, rank and precedence as a judge of the District Court as if the date of his or her commission as a judge of the District Court were the date of his or her commission as a judge of the Compensation Court.
Insert at the end of clause 1 (1):
Workers Compensation Legislation Amendment Act 2001
Omit the definition of
Insert in alphabetical order:
Insert after section 30 (1) (d):
to provide advice to the Minister on proposals for WorkCover Guidelines and regulations under the workers compensation legislation,
Insert after section 30 (1):
Before a WorkCover Guideline, or a regulation (whether made under this Act or the 1987 Act) is published in the Gazette, a copy of the Guideline or the regulation must be provided to the Council.
Insert after section 35 (2) (e):
the costs of operation of the Commission including the remuneration (and allowances) of the members and of the staff of the Commission, and the remuneration of approved medical specialists,
Insert before section 61:
Sections 61–64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).
Chapter 7 (New claims procedures) provides for notice of injury and making of claims in all other cases.
Omit the sections.
Insert before section 76:
This Division applies only in respect of existing claims.
Conciliation is not applicable to new claims. See Chapter 7 (New claims procedures).
Insert before section 92:
This Division applies only in respect of existing claims.
Chapter 7 (New claims procedures) provides for weekly payments in the case of new claims.
Insert before section 101:
This Division applies only in respect of existing claims.
Chapter 7 (New claims procedure) provides for restrictions on commencing court proceedings in the case of new claims.
Omit the heading to Division 6 of Part 2 of Chapter 4. Insert instead:
Omit the section. Insert instead:
Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act in respect of any new claim.
The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the assessment of a work injury damages claim under Part 6 of Chapter 7.
Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all matters arising under this Act (except Part 5 of the 1987 Act) in respect of any existing claim.
References in this Act to the Commission are, for the purposes of giving effect to subsection (3), to be read as references to the Compensation Court to the extent that the reference is in respect of an existing claim.
Provision is made in the 1987 Act for regulations to require existing claims to be treated as new claims (
Insert before section 112:
Sections 112–116 apply only in respect of existing claims.
Chapter 7 (New claims procedures) provides for costs in respect of new claims.
Insert before section 119:
Sections 121–124 and 128–130 apply only in respect of existing claims.
Insert after section 235B:
A person must not make a statement knowing that it is false or misleading in a material particular:
(a) in a claim made by the person, or
(b) in a medical certificate or other document that relates to a claim, or
(c) when furnishing information to any person concerning a claim or likely claim (whether the information is furnished by the person who makes or is entitled to make the claim or not).
Maximum penalty: 500 penalty units or imprisonment for 2 years, or both.
This section does not apply to statements:
(a) made in documents filed, or information furnished, in proceedings before a court, or
(b) made in the course of giving evidence on oath before the Commission, or
(c) made in any document or information in any case in which the person who made the statement did not know that the document or information was to be given, served or furnished in connection with a claim.
This section applies to a statement even though it has been verified by statutory declaration.
This section applies to a payment to a person, purportedly made pursuant to an obligation arising under this Act, to which the person is not entitled under this Act. Such a payment is referred to in this section as an
If the Authority is satisfied that a person has received an overpayment as a result or partly as a result of an act that constitutes a contravention of section 235A or 235C (whether or not the person has been proceeded against or convicted for an offence in respect of the contravention), the Authority may order the person to refund the amount of the overpayment to the person who made the payment.
Any such refund may, in accordance with the terms of the Authority’s order, be deducted from future payments of compensation, but not if it is payable under an award of the Commission.
An order under this section is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.
This section does not limit any other right of recovery that a person may have against another person in respect of any overpayment to that other person.
A person against whom an order is made under this section may apply for a review of the order by the Commission.
Insert after section 248:
The Independent Pricing and Regulatory Tribunal is to conduct a review of the amendments made by the Workers Compensation Legislation Amendment Act 2001 to determine whether the policy objectives of those amendments remain valid and whether the terms of the Workers Compensation Acts remain appropriate for securing those objectives.
The review is to be undertaken as soon as possible after the period of 12 months from the date of assent to the Workers Compensation Legislation Amendment Act 2001, and the Independent Pricing and Regulatory Tribunal is to use its best endeavours to ensure that it is completed by 31 December 2002.
Within 1 month of the completion of the review, the Independent Pricing and Regulatory Tribunal is to:
(a) cause a statement setting out the results of the review to be provided to the Minister to be laid before each House of Parliament, and
(b) give a copy of the review to the Council.
The Council is to cause a statement setting out its views, if any, on the review to be provided to the Minister to be laid before each House of Parliament within 1 month after the Council receives the copy of the review.
If a House of Parliament is not sitting when a statement is sought to be laid before the House, the statement is to be presented to the Clerk of the House concerned.
The statement:
(a) on presentation and for all purposes is taken to have been laid before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if printed by authority of the Clerk, is for all purposes taken to be a statement published by or under the authority of the House, and
(d) is to be recorded:
(i) in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day on the House after receipt of the statement by the Clerk.
Insert as Chapter 7:
In this Chapter:
(a) a claim for compensation made before the commencement of this section or a claim that is related to such a claim (whether or not the related claim is made before the commencement of this section), or
(b) a claim for work injury damages made in respect of an injury received before the commencement of this section or in respect of the death of a worker resulting from or caused by such an injury.
Part 18C of Schedule 6 to the 1987 Act provides for the transfer of existing claims, so that the claims transferred will be treated as new claims.
(a) an injury to the worker caused by the negligence or other tort of the employer, or
(b) the death of the worker resulting from or caused by an injury caused by the negligence or other tort of the employer,
whether the damages are recoverable in an action for tort or breach of contract or in any other action, but does not include motor accident damages.
In the definition of
(a) a person who is vicariously liable for the acts of the employer, and
(b) a person for whose acts the employer is vicariously liable.
A claim served on an insurer in accordance with the WorkCover Guidelines or forwarded to an insurer by the employer is taken to have been made on the insurer (and to have been so made when it was made on the employer).
Except as otherwise specifically provided in this Chapter, this Chapter applies to and in respect of new claims only.
Part 18C of Schedule 6 to the 1987 Act provides for the transfer of existing claims, so that the claims transferred will be treated as new claims.
This Division applies only in respect of injuries received after the commencement of this section.
Words and expressions used in this Part have the same meaning as in Part 5 (Common law remedies) of the 1987 Act.
Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
Each of the following constitutes special circumstances:
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Authority in accordance with this Act.
In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances:
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Occupational Health and Safety Act 2000,
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.
A notice of injury must state:
(a) the name and address of the person injured, and
(b) the cause of the injury (in ordinary language), and
(c) the date on which the injury happened.
A notice of injury may be given orally or in writing.
If there is more than one employer, a notice of injury may be given to any one of those employers.
A notice of injury is taken to have been given to an employer:
(a) if it is given to any person designated for the purpose by the employer, or
(b) if it is given to any person under whose supervision the worker is employed.
A written notice of injury may be served by delivering it to, or by sending it by post to, the residence or any place of business of the person on whom it is to be served.
If the regulations so require (and despite anything to the contrary in this section), a notice of injury must be given in the manner, and contain the particulars, prescribed by the regulations.
A register of injuries must be kept in some readily accessible place at every mine, quarry, construction site, factory, workshop, office or shop.
A worker employed at any such mine, quarry, construction site, factory, workshop, office or shop, or any person acting on the worker’s behalf, may enter in the register of injuries particulars of any injury received by the worker.
The regulations may prescribe the form of a register of injuries and the particulars to be entered in the register.
If particulars of an injury are duly entered in a register of injuries as soon as possible after an injury happened, the entry is sufficient notice of the injury for the purposes of this Act.
If subsection (1) is contravened, the manager of the mine or quarry, or the occupier of the construction site, factory, workshop, office or shop, is guilty of an offence.
Maximum penalty: 50 penalty units.
The provisions of this Part apply with respect to:
(a) the giving of notice of incapacity resulting from injury that happens after the worker leaves the employment in which the worker was at the time of the injury, and
(b) the giving of notice of any medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service to which Division 3 of Part 3 of the 1987 Act applies, and
(c) the giving of notice of any damage to property to which Division 5 of Part 3 of the 1987 Act applies,
in the same way as those provisions apply to notice of injury.
The particulars required to be given in any such notice are (subject to the regulations) reasonable particulars of the incapacity, of the treatment or service or of the damage to property.
A person must not make a statement in a notice given by the person under this Division knowing that the statement is false or misleading in a material particular.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
This Division applies to the making of a claim after the commencement of this section (even if the injury concerned was received before the commencement of this section).
However, this Division does not apply to the making of a claim for work injury damages if court proceedings to recover the work injury damages concerned were commenced before the commencement of this section.
A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.
Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.
Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made.
All claims for permanent impairment compensation or pain and suffering compensation in respect of an injury must, as far as practicable, be made at the same time.
A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of proceedings) unless there is a good reason for the claim being made later.
An employer (not being a self-insurer) who receives a claim or any other documentation in respect of a claim must, within 7 days after receiving the claim or documentation, forward it to the employer’s insurer.
Maximum penalty: 50 penalty units.
An employer who receives a request from the employer’s insurer for specified information in respect of a claim or notified injury, or documentation in respect of a claim or notified injury, must, within 7 days after receipt of the request, furnish the insurer with such of the specified information or documentation as is in the employer’s possession or reasonably obtainable by the employer.
Maximum penalty: 50 penalty units.
An employer who has received compensation money under this Act from an insurer must, as soon as practicable, pay the money to the person entitled to the compensation.
Maximum penalty: 50 penalty units.
A person is not guilty of an offence for a failure to comply with a provision of this section if there was a reasonable excuse for that failure.
In this section:
This Division applies in respect of the initial notification of an injury after the commencement of this section (even if the injury concerned was received before the commencement of this section).
In this Part,
Provisional weekly payments of compensation by an insurer are to commence within 7 days after initial notification to the insurer of an injury to a worker, unless the insurer has a reasonable excuse for not commencing those weekly payments.
A person does not have a reasonable excuse for not commencing those weekly payments unless the person has an excuse that the WorkCover Guidelines provide is a reasonable excuse.
The payment of provisional weekly payments of compensation under this section is on the basis of the provisional acceptance of liability by the insurer for a period of up to 12 weeks determined by the insurer having regard to the nature of the injury and the period of incapacity.
The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.
An insurer who fails to commence weekly payments of compensation as required by this section is guilty of an offence.
Maximum penalty: 50 penalty units.
If an insurer does not commence weekly payments of compensation because the insurer has a reasonable excuse for not doing so, the insurer must within 7 days after receiving the early notification of injury give the worker notice in writing that the insurer has a reasonable excuse for not commencing weekly payments of compensation and include in that notice:
(a) details of that reasonable excuse, and
(b) a statement that the worker is entitled to make a claim for compensation and that the claim will be determined within 21 days, and
(c) details of how that claim can be made.
Maximum penalty: 50 penalty units.
As soon as practicable after an insurer commences weekly payments of compensation under this Division, the insurer must give the worker a notice in writing notifying the worker that:
(a) weekly payments of compensation to the worker have commenced on the basis of provisional acceptance of liability by the insurer, and
(b) the payment of weekly payments of compensation to the worker will continue for a period (up to a maximum of 12 weeks) determined by the insurer having regard to the nature of the injury and the period of incapacity, and
(c) the insurer will develop an injury management plan for the worker (if required to do so by Chapter 3), and
(d) the worker is entitled to make a claim for compensation (and include details of how that claim can be made).
An insurer who commences weekly payments of compensation under this Division may require the worker to provide the insurer with:
(a) a medical certificate certifying as to the worker’s incapacity for work, and
(b) a form of authority signed by the worker authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the worker in connection with the injury to give the insurer information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the injury.
The insurer may discontinue weekly payments of compensation under this Division if the worker fails to comply with a requirement under this section within 7 days after it is communicated to the worker by the insurer.
An obligation of an insurer to make weekly payments of compensation pursuant to the provisional acceptance of liability under this Division ceases if the insurer disputes liability to make those payments.
Section 74 requires notice of a dispute to be given.
Otherwise, a liability to make weekly payments of compensation pursuant to the acceptance of liability on a provisional basis under this Division is not affected by the making of a claim for compensation.
If an insurer pays any compensation under this Division and another insurer or another employer accepts liability to pay compensation to the worker in respect of the injury concerned, the insurer is entitled to recover the compensation so paid as a debt from that other insurer or other employer.
Any amount so recoverable is taken to have been payable by the other insurer or other employer as compensation to the injured worker.
Section 160 (Recovery of excess from employer) of the 1987 Act and section 152 of this Act apply to and in respect of the payment of provisional weekly payments of compensation under this Division as if the payment were payable under a weekly compensation claim as referred to in those sections.
Within 21 days after a claim for weekly payments is made the person on whom the claim is made must determine the claim by:
(a) accepting liability and commencing weekly payments, or
(b) disputing liability.
Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given.
An insurer can accept liability for weekly payments on a provisional basis for a period of up to 12 weeks determined by the insurer having regard to the nature of the injury and the period of incapacity.
The acceptance of liability on a provisional basis operates to extend the period within which the claim must be determined until the end of the period for which liability has been accepted on a provisional basis.
This allows the insurer more time to determine liability while providing for the commencement of weekly payments on the basis of the provisional acceptance of liability.
Liability cannot be accepted on a provisional basis under this section if the insurer is already making weekly payments on the basis of the provisional acceptance of liability under Division 1 when the claim for weekly payments is made.
The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.
An employer is not required to determine a claim as provided by this section if:
(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and
(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.
A claim forwarded to the insurer is taken to have been made on the insurer.
If the claim for weekly payments is the first notification that an insurer has received of the injury to the worker, section 267 (Duty to commence weekly payments following initial notification of injury) applies to require the commencement of provisional weekly payments of compensation within 7 days after the claim is made.
The provisional acceptance of liability pursuant to the commencement of provisional weekly payments of compensation under that section operates to extend the period within which the claim must be determined for the purposes of this Division until the end of the period for which liability has been provisionally accepted.
This allows the insurer more time to determine liability while providing for the commencement of weekly payments on the basis of the provisional acceptance of liability.
If an insurer is already making provisional weekly payments when the claim for weekly payments is made (on the basis of the provisional acceptance of liability before the claim was made), the period within which liability for weekly payments must be determined is extended to the end of the period for which liability has been provisionally accepted.
If the period for which liability has been provisionally accepted ends before the end of the period within which liability for weekly payments must be determined, the insurer may continue to make weekly payments on the basis of the provisional acceptance of liability until the end of that period.
Section 160 (Recovery of excess from employer) of the 1987 Act and section 152 of this Act apply to and in respect of the payment of provisional weekly payments of compensation under this Division as if the payment were payable under a weekly compensation claim as referred to in those sections.
This Division does not prevent the acceptance of liability and the commencement of weekly payments before the end of the provisional liability period.
Within 21 days after a claim for medical expenses compensation is made the person on whom the claim is made must determine the claim by accepting or disputing liability.
Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given.
An employer is not required to determine a claim as provided by this section if:
(a) the employer has duly forwarded the claim to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and
(b) the employer has complied with all reasonable requests of the insurer with respect to the claim.
A claim forwarded to the insurer is taken to have been made on the insurer.
An insurer can accept liability for medical expenses compensation on the basis of the provisional acceptance of liability for an amount of up to $5,000 or such other amount as may be specified by the WorkCover Guidelines.
The acceptance of liability on a provisional basis does not constitute an admission of liability by the employer or insurer under this Act or independently of this Act.
The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by:
(a) accepting liability and making a reasonable offer of settlement to the claimant, or
(b) disputing liability.
A claim must be so determined:
(a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or
(b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim,
whichever is the later.
Section 283 makes failure to comply with this section an offence. Section 74 requires notice of a dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.
An offer of settlement is to specify an amount of compensation or damages or a manner of determining an amount of compensation or damages.
Omit “the Court considers”. Insert instead “the Commission considers”.
Omit “the Compensation Court’s order”.
Insert instead “the Commission’s order”.
Omit the subsection. Insert instead:
This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.
Omit “the Compensation Court may make such orders as it”.
Insert instead “the Commission may make such orders as the Commission”.
Omit “any order that it is satisfied the Compensation Court could make”.
Insert instead “any order that it is satisfied the Commission could make”.
Omit “an award of the Compensation Court”.
Insert instead “an award of the Commission”.
Omit section 61 (4A). Insert instead:
If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of medical or related treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.
Omit section 62 (6A). Insert instead:
If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.
Omit section 63 (2A). Insert instead:
If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of ambulance services for the worker, such an allowance may be awarded by the Commission. If no such proceedings are before the Commission, such an allowance may be awarded by the Authority on application made in respect of the worker from time to time.
Omit “any order of the Compensation Court” from section 63A (4).
Insert instead “any order of the Commission”.
Omit section 76 (3). Insert instead:
If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, damage to an item referred to in section 74 (1) (b), such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.
Omit section 77 (3). Insert instead:
If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, damage to the worker’s clothing, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.
Omit section 83 (6). Insert instead:
The Commission may authorise the payment of compensation in a particular case in such other manner as the Commission thinks fit.
Omit “unless the Compensation Court otherwise orders” from section 85 (1) (b).
Insert instead “unless the Commission otherwise orders”.
Omit “the Compensation Court directs”.
Insert instead “the Commission directs”.
Omit “the Compensation Court orders”.
Insert instead “the Commission orders”.
Omit “The Compensation Court may”.
Insert instead “The Commission may”.
Omit the section. Insert instead:
Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1):
(a) to the person who is entitled to the compensation, or
(b) to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.
Any such payment is to be made in the manner authorised by the Commission.
Omit “an award of the Compensation Court” from section 87B (5).
Insert instead “an award of the Commission”.
Omit section 143 (4).
Omit “apply to the Compensation Court” from section 144 (1).
Insert instead “apply to the Commission”.
Omit the subsection. Insert instead:
The Commission may hear and determine any such application and may make such orders in relation to the application as the Commission thinks fit.
Omit “apply to the Compensation Court” from section 145 (3).
Insert instead “apply to the Commission”.
Omit the subsection. Insert instead:
The Commission may hear any such application and may:
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
Omit the subsection. Insert instead:
An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.
Omit “an order of the Compensation Court” from section 145A (2).
Insert instead “an order of the Commission”.
Omit “The Compensation Court may adjourn” from section 147 (2).
Insert instead “The Commission may adjourn”.
Omit “by order of the Compensation Court”.
Insert instead “by order of the Commission”.
Omit the subsection. Insert instead:
In any proceedings before the Commission under this Division, the Authority or its representative (being a barrister, solicitor, officer of the Authority or other person) may appear before the Commission and exercise in respect of any matters and questions arising out of the application the same powers, rights and authorities as an employer may exercise in respect of a claim between a worker and an employer under this Act.
Insert after section 151A (3) (a):
by referring a claim for those damages for assessment under Part 6 of Chapter 7 of the 1998 Act (in which case the person ceases to be entitled to recover permanent loss compensation in respect of the injury), or
Omit the paragraph. Insert instead:
by commencing proceedings in the Commission to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).
Omit “Compensation Court” wherever occurring.
Insert instead “Commission”.
Omit “by the Compensation Court” from section 151Z (1) (f).
Insert instead “by the Commission”.
Omit “The Compensation Court may” from section 162 (1).
Insert instead “The Commission may”.
Omit “Where the Compensation Court makes a declaration under subsection (1), the Compensation Court may make an award”.
Insert instead “Where the Commission makes a declaration under subsection (1), the Commission may make an award”.
Workplace Injury Management and Workers Compensation Act 1998 No 86Omit the definitions of
Omit “court proceedings” wherever occurring from section 71 (3).
Insert instead “proceedings before the Commission”.
Omit “before a conciliator or the Compensation Court” from section 73 (3) (b).
Insert instead “before the Commission”.
Omit “conciliation by a conciliator” wherever occurring from section 74 (2) (b) and (c).
Insert instead “determination by the Commission”.
Omit “A Judge or commissioner of the Compensation Court or a conciliator may make a report” from section 75 (1).
Insert instead “The Registrar or another member of the Commission may make a report”.
Omit “proceedings before the Compensation Court”.
Insert instead “proceedings before the Commission”.
Omit “proceedings before the Compensation Court” from section 106 (1).
Insert instead “proceedings before the Commission”.
Omit “applied to the Compensation Court” from section 107 (1).
Insert instead “applied to the Commission”.
Omit “or the rules of the Compensation Court”.
Omit section 108 (2) and (3). Insert instead:
Where this section applies, the Commission may:
(a) if the Commission is satisfied that compensation is payable (but is not yet able to finally determine that compensation is payable, the amount of the compensation, the appropriate apportionment of liability for the compensation or the person liable to pay the compensation), make such interim awards as the Commission thinks fit:
(i) for compensation by an insurer or self-insurer, or
(ii) for indemnity by an insurer, or
(iii) for payment under the Uninsured Liability and Indemnity Scheme,
and make such interim orders as the Commission thinks fit for contribution on the part of an insurer, employer or principal or other person or under the Uninsured Liability and Indemnity Scheme, and
(b) make such final awards and orders as the Commission thinks fit with respect to any of the matters the subject of an interim award or order under paragraph (a), and
(c) if the Commission makes a final award or order, make such orders as the Commission thinks fit with respect to adjustments to be made between persons against whom orders have been made under paragraphs (a) and (b) or between any such persons and the Uninsured Liability and Indemnity Scheme.
If the Commission subsequently determines that a person is not liable under this Act to make the payments of compensation that have been paid in accordance with an interim award, the worker or other person who received those payments is not required to refund those payments unless the Commission:
(a) is satisfied that the claim for compensation was wholly or partly fraudulent or made without proper justification, and
(b) orders the worker or other person to refund those payments or a specified part of those payments.
Omit section 109 (1). Insert instead:
In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
Omit the paragraph. Insert instead:
on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
Omit section 110 (1). Insert instead:
Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Commission as is from time to time unpaid.
Omit “the Court”. Insert instead “the Commission”.
Omit “the Court”. Insert instead “the Commission”.
Omit “the Compensation Court” from section 111 (1).
Insert instead “the Commission”.
Omit “proceedings before the Compensation Court” from section 117 (1).
Insert instead “proceedings before the Commission”.
Omit the subsection.
Omit “proceedings on such a dispute before a conciliator or the Compensation Court” from section 119 (6) (b).
Insert instead “proceedings on such a dispute before the Commission”.
Omit section 120 (1). Insert instead:
The Commission or the Authority may, at any time or from time to time, require any worker:
(a) who claims compensation under this Act, or
(b) who is in receipt of weekly payments of compensation under this Act,
to submit himself or herself for examination by an approved medical specialist on a date and at a place arranged by the Registrar.
Omit section 125 (2). Insert instead:
A worker required to submit himself or herself for examination by an approved medical specialist is not entitled to recover any amount if:
(a) the matter was referred on the application of the worker, and
(b) the Commission finds that the application was unreasonable or unnecessary.
Omit the subsection.
Omit the section. Insert instead:
A medical report is admissible in proceedings before the Commission.
Subsection (1) is subject to any provision of the regulations relating to the giving of notice of the admission of the medical report.
Subsection (1) is also subject to any provision of the regulations relating to the number of medical reports that may be admitted in connection with a claim or any aspect of a claim.
A medical practitioner whose medical report is admissible under subsection (1) may be required, in accordance with the regulations, to attend and be cross-examined on the contents of the report.
In proceedings relating to the making of an interim award, a medical practitioner whose medical report is admissible in evidence under subsection (1) may not be required to attend and be cross-examined on the contents of the report without the leave of the Commission given in any case where the Commission is satisfied there is a real issue as to whether the worker is entitled to receive compensation from any of the parties.
In this section,
Omit “or by proceedings in the Compensation Court” from section 134 (4).
Omit “or by proceedings in the Compensation Court” from section 135 (5).
Insert “or Commission” after “court” wherever occurring in section 136 (3).
Omit “or 116 (5)” from section 137 (2) (a). Insert instead “or 343 (4)”.
Omit “or 116 (5)” from section 138 (2) (a). Insert instead “or 343 (4)”.
Omit “or 116 (5)” from section 139 (2) (a). Insert instead “or 343 (4)”.
Omit “or 116 (5)” wherever occurring. Insert instead “or 343 (4)”.
Omit “court proceedings” from section 141 (1).
Insert instead “proceedings before the Commission”.
Omit “The Compensation Court” from section 154 (1).
Insert instead “The Commission”.
Omit “Where the Compensation Court makes a declaration under subsection (1), the Compensation Court may make an award of compensation”.
Insert instead “Where the Commission makes a declaration under subsection (1), the Commission may make an award of compensation”.
Omit section 223 (4).
Omit “apply to the Compensation Court” from section 224 (1).
Insert instead “apply to the Commission”.
Omit the subsection. Insert instead:
The Commission may determine any such application and may make such orders in relation to the application as the Commission thinks fit.
Omit “apply to the Compensation Court” from section 225 (3).
Insert instead “apply to the Commission”.
Omit the subsection. Insert instead:
The Commission may:
(a) make such determination in relation to the application, and
(b) make such awards and orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
Omit the subsection. Insert instead:
An order by the Commission that the Authority is to be reimbursed by a person named in the determination concerned may be enforced under section 362.
Omit “an order of the Compensation Court” from section 226 (2).
Insert instead “an order of the Commission”.
Omit the section. Insert instead:
Division 9 of Part 3 of the 1987 Act applies to the commutation of a liability under the Scheme.
A liability under the Scheme may not be commuted to a lump sum with the agreement of the worker unless the Authority:
(a) has given the employer notice of the proposed agreement and has given the employer a reasonable opportunity to make submissions to the Authority with respect to the matter, and
(b) has taken into account any submissions so made to the Authority.
Subsection (2) does not apply if the worker has been unable, after due search and inquiry, to identify the relevant employer.
In the case of commutation by determination of the Commission under section 87G (Commutation where worker legally incapacitated) of the 1987 Act, the Commission may on the application of the employer, if the Commission thinks fit, refuse to make such a determination in respect of a liability under the Scheme.
The making of such an application by the employer in no way fetters the discretion of the Commission to make the determination, and a commutation made in consequence of the determination is binding on the employer whether or not the employer has made such an application.
The Authority may apply for registration of a commutation agreement under section 87H of the 1987 Act as a party to the agreement.
Omit “The Compensation Court may adjourn” from section 228 (2).
Insert instead “The Commission may adjourn”.
Omit “by order of the Compensation Court”.
Insert instead “by order of the Commission”.
Omit “At any hearing of an application to the Compensation Court under this Part, the Authority or its representative (being a barrister, solicitor, officer of the Authority or other person) may appear before the Compensation Court”.
Insert instead “Where an application is made to the Commission under this Part, the Authority or its representative (being a barrister, solicitor, officer of the Authority or other person) may appear before the Commission”.
Insert “or the Registrar” after “the Compensation Court Registry” in section 239 (1) (b).
Insert “or kept in the custody or control of the Registrar” after “available at the Compensation Court Registry”.
Omit “The Registrar of the Compensation Court is”.
Insert instead “The Registrar of the Compensation Court and the Registrar of the Commission are”.
Omit the subsection. Insert instead:
The Commission may, in respect of any information obtained by the Authority from the Registrar under this section, order that the information is not to be used in any proceedings, or any specified proceedings, before the Commission.
Insert “or by the Registrar of the Commission” after “the Compensation Court Registry”.
Omit “the Compensation Court determines the claim” from section 247 (3) (b).
Insert instead “the Commission determines the claim”.
Omit “the Compensation Court determines” wherever occurring from clauses 3 (5), 4 (3), 5 (2) and 15 (4) of Schedule 1.
Insert instead “the Commission determines”.
Omit “the Compensation Court considers” wherever occurring.
Insert instead “the Commission considers”.
Omit the Schedule.
Workers Compensation Legislation Amendment Act 2000 No 87Omit “and conciliation” from the definition of
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