Workers' Compensation Reform Act 2004 (WA)

Western Australia

Workers’ Compensation Reform Act 2004

Western Australia

Workers’ Compensation Reform Act 2004

CONTENTS

Part 1 — Preliminary

1.	Short title	2
2.	Commencement	2
Part 2 — Amendments to the

Workers’ Compensation and

Rehabilitation Act 1981

3.	The Act amended	3
4.	Long title amended	3
5.	Section 1 amended	3
6.	Section 3 amended	4
7.	Section 4 amended	4
8.	Section 5 amended	4
9.	Section 7 amended	11
10.	Section 10A replaced	12

10A.

Working directors

11.	Section 12 amended	12
12.	Heading to Part III Division 1 replaced	13
Division 1 — Injury: general
13.	Section 22 amended	13
14.	Heading to Part III Division 2 replaced	13
Division 2 — Discontinued regime for lump sum

payments for specified injuries

15.	Section 24 amended	13
16.	Section 24A amended	14
17.	Section 24B amended	14

Workers’ Compensation Reform Act 2004

Contents

18.	Section 26 amended	15
19.	Section 28 amended	15
20.	Section 31 amended	15
21.	Part III Division 2A inserted	15
Division 2A — New regime for lump sum payments

for specified injuries

31A.	Application of Division	15
31B.	Degree of permanent impairment	16
31C.	Compensation for impairments mentioned
in Schedule 2	16
31D.	Schedule 2 impairment assessment	17
31E.	Lump sum compensation for noise
induced hearing loss	18
31F.	Lump sum compensation for AIDS	20
31G.	Subsequent injuries	21
31H.	Election under section 31C or 31E	22
31I.	Effect of election	23
31J.	Limit on compensation of worker electing	24
31K.	Compensation payable before election	25

22.	Heading to Part III Division 3 replaced	25
Division 3 — Injury: specified industrial diseases
23.	Section 32 amended	25
24.	Section 33 amended	25
25.	Section 34 amended	26
26.	Section 35 amended	26
27.	Section 37 amended	26
28.	Section 38 amended	26
29.	Section 39 amended	27
30.	Section 40 replaced	27

40. Interpretation of this Division in cases of

death without prior incapacity

31.	Section 41 amended	27
32.	Section 43 amended	28
33.	Section 44 amended	28
34.	Section 47 amended	28
35.	Section 48 amended	29
36.	Heading to Part III Division 4 replaced	29
Division 4 — Injury: specified losses of functions
37.	Section 49 replaced	30

49. Injury occurs when loss of function

renders worker less able to earn full

wages

38.	Section 53 amended	30
39.	Section 54 amended	30

Workers’ Compensation Reform Act 2004

Contents

40.	Section 57 amended	30
41.	Section 57A amended	31
42.	Section 57B amended	32
43.	Section 57BA inserted	33

57BA.

Notices under sections 57A and 57B

44.	Section 57C amended	36
45.	Section 58 amended	36
46.	Section 59 amended	37
47.	Section 60 amended	38
48.	Section 61 amended	38
49.	Section 62 amended	40
50.	Section 63 amended	41
51.	Section 64 amended	41
52.	Section 65 amended	42
53.	Section 66 amended	42
54.	Section 66A inserted	43

66A.

Additional medical examinations

55.	Section 67 amended	43
56.	Section 70 replaced	45

70.

Furnishing medical reports

57.	Section 71 amended	46
58.	Section 72 replaced by sections 72, 72A and 72B	46

72.	Suspension of payments during custody	46
72A.	Suspension or cessation of payments for
failure to undergo medical examination	47
72B.	Suspension or cessation of payments for
failure to participate in return to work
program	49

59.	Section 73 amended	50
60.	Section 74 amended	51
61.	Section 75 amended	51
62.	Section 76 amended	51
63.	Section 79 amended	53
64.	Section 80 amended	53
65.	Section 83 amended	53
66.	Section 84AB inserted	54

84AB.

Employer to notify worker and WorkCover

WA of intention to dismiss worker

67.	Part IIIA repealed	54
68.	Section 91 amended	54
69.	Section 92 amended	55
70.	Section 93 amended	55

Workers’ Compensation Reform Act 2004

Contents

71. Heading to Part IV Division 2 Subdivision 1

inserted

Subdivision 1 — Preliminary provisions

72.

Section 93A amended

73.

Section 93B amended

74. Heading to Part IV Division 2 Subdivision 2

inserted

Subdivision 2 — 1993 scheme

75.

Sections 93CA, 93CB and 93CC inserted

93CA.

Meaning of “AMA Guides” in this

Subdivision

93CB.	Limits on application of this Subdivision	57
93CC.	Application of this Subdivision	57

76.	Section 93D amended	58
77.	Section 93E amended	59
78.	Section 93G amended	59
79.	Part IV Division 2 Subdivision 3 inserted	59
Subdivision 3 — 2004 scheme

93H.	Terms used in this Subdivision	59
93I.	Application of this Subdivision	60
93J.	No damages for noise induced hearing
loss if not an injury	60
93K.	Restrictions on awarding, and amount of,
damages	60
93L.	Election to retain right to seek damages	63
93M.	Termination day	65
93N.	Special evaluation if condition has not
sufficiently stabilised	68
93O.	Employer to give worker notice of certain
things	69
93P.	How election may affect statutory
compensation	70
93Q.	Special provisions about HIV and AIDS	71
93R.	Special provisions about specified
industrial diseases	72
93S.	Regulations	74

80.	Part V heading replaced	75
Part V — WorkCover Western Australia Authority
81.	Section 94 amended	75
82.	Section 95 replaced	76

95.

WorkCover WA’s governing body

83.	Section 96 amended	78
84.	Section 97 amended	78
85.	Section 98 amended	79

Workers’ Compensation Reform Act 2004

Contents

86.	Section 99 amended	79
87.	Section 100 amended	79
88.	Section 100A amended	81
89.	Section 100B inserted	83

100B.

Disclosure of information

90.	Section 101 amended	83
91.	Section 101AA inserted	84

101AA.

Delegation by WorkCover WA

92.	Section 102 amended	84
93.	Section 103A amended	85
94.	Section 104 amended	85
95.	Part V Division 1AA inserted	86
Division 1AA — Personal interest

104AA.	Disclosure of interests	86
104AB.	Exclusion of interested member	86
104AC.	Resolution that section 104AB
inapplicable	87
104AD.	Quorum where section 104AB applies	87
104AE.	Minister may declare sections 104AB and
104AD inapplicable	87

96.	Part V Division 1A repealed	87
97.	Heading to Part V Division 3 amended	88
98.	Section 106 amended	88
99.	Section 109 amended	89
100.	Heading to Part V Division 4 amended	89
101.	Section 110 amended	89
102.	Section 111 amended	90
103.	Part VI repealed	90
104.	Part VII heading replaced	90
Part VII — Medical assessment and assessment for

specialised retraining programs

Division 1 — Medical assessment panels

105.	Section 145A amended	91
106.	Section 145C amended	91
107.	Section 145D amended	91
108.	Section 145E amended	92
109.	Part VII Divisions 2, 3 and 4 inserted	93
Division 2 — Assessing degree of impairment

146.	Degree of impairment	93
146A.	Evaluation of impairment generally	94
146B.	Evaluation for the purposes of Part III
Division 2A	94

Workers’ Compensation Reform Act 2004

Contents

146C.

Evaluation for purposes of Part IV

Division 2 Subdivision 3

146D.

Evaluation for the purposes of Part IXA

146E.

Evaluation for the purposes of clause 18A

146F.

Approved medical specialist

146G.

Powers of approved medical specialist

146H.

Outcome of assessment

146I.

Release of information relevant to

assessment

101

146J.

Decisions of approved medical specialist

101

Division 3 — Approved medical specialist panels

146K.	Panel to be constituted	102
146L.	Procedures	102
146M.	Failure to comply with requirement of
approved medical specialist panel	104
146N.	Assessment of impairment by approved
medical specialist panel	105
146O.	Outcome of assessment by approved
medical specialist panel	105
146P.	No assessment without unanimous
agreement	107
146Q.	Remuneration	107

Division 4 — WorkCover Guides

146R.

WorkCover Guides

107

110.	Part VII Division 5 inserted	108
Division 5 — Assessment for specialised

retraining programs

146S.	Register for panel membership	108
146T.	Panel to be constituted	108
146U.	Procedures	109
146V.	Assessments	110
146W.	Remuneration	112

111.	Part VIII heading amended	112
112.	Sections 147 to 150 repealed	112
113.	Section 151 amended	112
114.	Section 152 amended and transitional provision	112
115.	Section 153 amended	113
116.	Section 154 amended	113
117.	Sections 154A and 154AB inserted	114

154A.	Regulations for provision of information	114
154AB.	Special directions by Minister	114

118.	Part IX replaced	115
Part IX — Injury management

155.	Terms used in this Part	115
155A.	Code of practice (injury management)	115

Workers’ Compensation Reform Act 2004

Contents

155B.

Establishment of injury management

systems for employer’s workers

116

155C.

Establishment of return to work programs

for individual workers

116

155D.

Injury management: insurers’ obligations

117

156.

Approval of vocational rehabilitation

providers

118

156A.

Vocational rehabilitation services

119

156B.

Arbitrators’ powers in relation to return to

work programs

120

157.

Information about injury management

matters

121

157A.

Early identification of injuries that require,

or may require, management

121

157B.

Mediation and assistance

123

119.	Part IXA inserted	123
Part IXA — Specialised retraining programs

158.	Meaning of “retraining criteria”	123
158A.	Eligibility to participate in specialised
retraining programs	124
158B.	Final day for recording agreed matters,
referring disputed matters for
determination	126
158C.	Disputes as to degree of permanent whole
of person impairment	128
158D.	Disputes as to retraining criteria	129
158E.	Specialised retraining program
agreements	130
158F.	WorkCover WA to direct payments in
relation to specialised retraining programs	131
158G.	Obligations of employers, insurers	133
158H.	3 monthly reviews of performance,
payments under specialised retraining
programs	134
158I.	WorkCover WA may direct modification,
suspension, cessation of payments under
specialised retraining programs	134
158J.	Cessation of payments	135
158K.	Directions not open to challenge etc.	135
158L.	Other effects of participation in specialised
retraining program	136

120.	Section 160 amended	136
121.	Section 162 amended	137
122.	Section 164 amended	138
123.	Section 165 amended	138
124.	Section 168 amended	139
125.	Section 171 amended	139

Workers’ Compensation Reform Act 2004

Contents

126.	Section 174 amended	140
127.	Section 174AA inserted	141

174AA.

Recovery from responsible officers of

body corporate

141

128.

Sections 174AB and 174AC inserted

142

174AB.

WorkCover WA may exercise rights of

employer

142

174AC.

WorkCover WA’s right of subrogation

143

129.	Part XA inserted	144
Part XA — Infringement notices and

modified penalties

175E.	Definitions	144
175F.	Authorised officers	144
175G.	Giving of notice	145
175H.	Content of notice	145
175I.	Extension of time	146
175J.	Withdrawal of notice	146
175K.	Benefit of paying modified penalty	146
175L.	No admission implied by payment	147
175M.	Application of penalties collected	147

130.	Part XI replaced by Parts XI to XVIII	147
Part XI — Dispute resolution
Division 1 — General

176.	Exclusive jurisdiction	147
177.	Evidence of communication between
worker and injury management officer	148

Division 2 — Requirements before

commencing proceeding

178.	Notice of injury and claim	148
179.	Service of notice of injury	149
180.	Provision of certain documents before
commencement of proceeding	152

Division 3 — Proceedings before an arbitrator

181.	Arbitrators to determine disputes	154
182.	Who is to be given a copy of an
application	154
183.	Information exchange between parties	155
184.	Interim assessment and minor claims	157
185.	Arbitrator to attempt conciliation	157
186.	Arbitrator may review decision	157
187.	Decisions of arbitrator	158

Division 4 — Practice and procedure

188.	Practice and procedure, generally	158
189.	Relief or redress not restricted to claim	159
190.	Directions	159

Workers’ Compensation Reform Act 2004

Contents

191.	Dependants	159
192.	Arbitrator may regard illegal contracts of
employment as valid	160
193.	Power of arbitrator to require information	160
194.	Arbitrator may provide documents,
material and information to party	161
195.	Representation	162
196.	Arbitrator may appoint guardian	163
197.	Interpreters and assistants	163
198.	Electronic hearings and proceedings
without hearings	164
199.	Hearings to be held in private	165
200.	Notice of hearings	165
201.	Expert or professional assistance	165
202.	Summoning witnesses	166
203.	Powers relating to witnesses	166
204.	Privilege against self-incrimination	166
205.	Legal professional privilege in relation to
medical reports	167
206.	Other claims of privilege	168
207.	Oaths and affirmations	168
208.	Authorising person to take evidence	168
209.	Dealing with things produced	169
210.	Referral of medical dispute for
assessment	169

Division 5 — Decisions

Subdivision 1 — General provisions

211.	Decisions generally	170
212.	Conditional and ancillary orders and
directions	170
213.	Form and content of decision and reasons	170
214.	Validity of decision	172
215.	When decision has effect	172
216.	Correcting mistakes	172

Subdivision 2 — Particular orders

217.	Order as to total liability	172
218.	Order relating to payment of
compensation in respect of persons under
legal disability or who are dependants	174

Subdivision 3 — Enforcement of decisions

219.

Enforcement of decisions

175

Division 6 — Miscellaneous

220. Evidence not admissible in common law

proceedings

176

221.

Payment of compensation awarded

176

222.

Interest before order for payment

176

223.

Interest after order for payment

177

Workers’ Compensation Reform Act 2004

Contents

224. Interest on agreed payment of lump sum

compensation

177

225.

Regulations may exclude interest

178

Part XII — Interim orders and minor claims

Division 1 — Preliminary

226.	Interpretation	178
227.	Exercise of functions under this Part	178
228.	Provisions of Part XI apply	179
229.	Arbitrator may direct that matter be dealt
with under Part XI	179
230.	DRD Rules apply	179

Division 2 — Interim payment orders

231.	Application for interim payment order	180
232.	Orders for interim weekly payments	181
233.	Orders for interim payment of statutory
expenses	182
234.	Limits on interim payment orders	182
235.	Effect of interim payment order	183
236.	Recovery of payments	183
237.	Revocation of interim payment order	184

Division 3 — Interim suspension or reduction orders

238.	Interim suspension or reduction order	184
239.	Effect of Part XI determination on the same matter as a matter determined under this Division	185
240.	Revocation of interim suspension or
reduction order	186

Division 4 — Expedited determination of minor

claims

241. Application for determination of minor

claim

187

242.

Limits on minor claims orders

189

243.

No recovery of compensation

190

244.

Production of documents

190

Part XIII — Questions of law and appeals

245.	Application of Part XI	190
246.	Reference of question of law to
Commissioner	191
247.	Appeal against decision of arbitrator	191
248.	Commencing appeal	193
249.	Commissioner hearing to be held in public	193
250.	Effect of decision against which appeal
made	194
251.	Commissioner may state case	194
252.	Indemnity as to costs	194
253.	Decisions of Commissioner	195

Workers’ Compensation Reform Act 2004

Contents

254.

Appeal against decision of Commissioner

195

Part XIV — Offences

255.	Failing to comply with decision	196
256.	Failing to comply with summons	197
257.	Failing to give evidence as required	197
258.	Giving false or misleading information	198
259.	Misbehaviour and other conduct	198
260.	Contempt of Commissioner	199

Part XV — Costs

Division 1 — General

261.	Terms used in this Part	199
262.	Costs to which this Part applies	200
263.	This Part prevails over Legal Practice
Act 2003	200

Division 2 — Costs of parties in proceedings and

costs of proceedings

264. Costs to be determined by dispute

resolution authority

201

265. Costs unreasonably incurred by

representative

202

266.

Agent’s costs

202

267.

Appeal costs

203

268.

Regulations for assessment of costs

203

Division 3 — Maximum costs

269.	Costs Committee	204
270.	Constitution and procedure of Costs
Committee	204
271.	Costs determination	205
272.	Consultation	206
273.	Approval and publication of determination	206
274.	Effect of costs determination	207
275.	Agreement as to costs	207
276.	Division does not apply to Part IV
proceedings	207

Part XVI — Registered agents

277.

Who may register as an agent

207

Part XVII — The Dispute Resolution Directorate

Division 1 — Establishment and objectives

278.	DRD established	209
279.	Main objectives of the DRD	209
280.	DRD’s constitution	210

Division 2 — Commissioner

281.	Appointment of Commissioner	210
282.	Terms and conditions of service	210

Workers’ Compensation Reform Act 2004

Contents

283.	Declaration of inability to act	211
284.	Acting appointment	211
285.	Functions of Commissioner	212

Division 3 — Arbitrators

286.	Arbitrators	212
287.	Control and direction of arbitrators	213

Division 4 — Director Dispute Resolution and staff

288.	Director Dispute Resolution	213
289.	Functions and responsibilities of Director	213
290.	Delegation by Director	214
291.	Staff of DRD	214

Part XVIII — Regulations, rules and practice notes

292.	Regulations	215
293.	DRD Rules	217
294.	Practice notes	219

131.

Section 177A inserted

220

177A.

Delegation by chief executive officer

220

132.	Section 180 amended	220
133.	Section 180A inserted	221

180A.

District Court to provide information to

WorkCover WA

221

134.	Section 183 amended	221
135.	Section 184 repealed and sections 184 to 187
inserted instead	221

184.	Protection from liability	221
185.	Immunity	222
186.	Protection for compliance with this Act	223
187.	Proceedings for defamation not to lie	223

136.	Section 188A repealed	224
137.	Sections 188B and 188C inserted	224

188B.	Who can take proceedings for offences	224
188C.	Time limit for taking proceedings	224

138.	Section 192 amended	224
139.	Section 192A amended	225
140.	Section 198 repealed	225
141.	Schedule 1 amended	225

1. Death — dependants wholly dependent —

notional residual entitlement

225

1A.

Death — dependants wholly dependent —

child’s allowance

226

1B.

Death — dependants wholly dependent —

notional residual entitlement or child’s

allowance

227

1C.

Determination of entitlement under

clause 1B

228

Workers’ Compensation Reform Act 2004

Contents

18B.	Final day for clause 18A(1b) application	238
18C.	Dispute as to degree of permanent whole
of person impairment	240
18D.	Interim payment of additional expenses	241

142.	Schedule 2 amended	241
Schedule 2 — Table of compensation payable
143.	Schedule 5 amended	244
144.	Schedule 7 amended	244

Reference to medical assessment panel

244

145.	Schedule 8 inserted	245
Schedule 8 — Terms and conditions of service

of Commissioner

1.	Tenure of Commissioner’s office	245
2.	Vacating office prematurely	245
3.	Commissioner’s status as District Court
Judge	246
4.	Completion of matters	246

146.	References to a disability changed to an injury	247
147.	References to disability changed to injury	248
148.	Other references to disabilities changed to injuries	250
149.	References to dispute resolution body changed to
arbitrator	250
150.	References to Commission changed to WorkCover
WA	251
151.	References to Commission changed to WorkCover
WA’s governing body	252
152.	References to Executive Director changed to chief
executive officer	253
153.	References to Committee changed to WorkCover
WA	253
154.	Renumbering of provisions of the Act	253
Part 3 — Consequential amendments

to other Acts

155.	Acts Amendment (ICWA) Act 1996	256
156.	Blood Donation (Limitation of Liability) Act 1985	256
157.	Constitution Acts Amendment Act 1899	256
158.	Employers Indemnity Policies (Premium Rates)
Act 1990	257
159.	Employers’ Indemnity Supplementation Fund
Act 1980	257

Workers’ Compensation Reform Act 2004

Contents

38B.

WorkCover WA may advise Insurance

Commission

259

160.	Financial Administration and Audit Act 1985	260
161.	Hospitals and Health Services Act 1927	260
162.	Law Reporting Act 1981	261
163.	Legal Practice Act 2003	261
164.	Limitation Act 1935	262
165.	Local Government Act 1995	262
166.	Miner’s Phthisis Act 1922	263
167.	Police Assistance Compensation Act 1964	264
168.	Public Sector Management Act 1994	264
169.	Sentencing Act 1995	265
170.	Waterfront Workers (Compensation for Asbestos
Related Diseases) Act 1986	265
171.	Workers’ Compensation and Rehabilitation (Acts
of Terrorism) Act 2001	267
172.	Workers’ Compensation and Rehabilitation
Amendment Act 1993	268
173.	Workers' Compensation (Common Law
Proceedings) Act 2004	268
174.	Workers’ Compensation and Rehabilitation
Act 1981 replaced with Workers’ Compensation
and Injury Management Act 1981	269
175.	Workers’ Compensation Act 1912 etc. replaced
with Workers’ Compensation and Injury
Management Act 1981	271
Part 4 — Transitional provisions
Division 1 — General
176.	Interpretation	272
177.	Application of Interpretation Act 1984	272
178.	Transitional regulations	272
179.	Power to amend subsidiary regulations	273
Division 2 — Transitional provisions relating to

statutory entitlements

180. Section 217 of the Workers’ Compensation and

Injury Management Act 1981

274

181. Transitional provisions — amendments to

Schedule 1

274

Workers’ Compensation Reform Act 2004

Contents

Division 3 — Transitional provisions relating to

dispute resolution

182.	Interpretation	276
183.	Conciliation and review	277
184.	Compensation magistrate’s court	278
185.	Existing summonses and warrants	279
186.	Director of Conciliation and Review	279
187.	Records	280
188.	Deemed eligibility for approval as Director or
arbitrator	281
Division 4 — Transitional provisions relating to

Part VIII amendments

189.

Transitional provisions for Part VIII amendments

281

Western Australia

Workers’ Compensation Reform Act 2004

No. 42 of 2004

An Act to —

•	amend the Workers’ Compensation and Rehabilitation Act 1981;
•	enact transitional provisions; and
•	make consequential amendments to various Acts.

[Assented to 9 November 2004]

The Parliament of Western Australia enacts as follows:

Workers’ Compensation Reform Act 2004

Part 1	Preliminary
s. 1

Part 1 — Preliminary

1. Short title

This Act may be cited as the Workers’ Compensation Reform

Act 2004.

2. Commencement

(1)

This Act comes into operation on a day to be fixed by

proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 3

Part 2 — Amendments to the Workers’ Compensation

and Rehabilitation Act 1981

3. The Act amended

The amendments in this Part are to the Workers’ Compensation

and Rehabilitation Act 1981*.

[* Reprinted as at 14 September 2001.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 438-9.]

4. Long title amended

The long title is amended as follows:

(a)	suffering disability by accident or disease in the course

by deleting “for and the rehabilitation of workers “

for, and the management of, employment-related injuries,

”;

(b)	by deleting “establish a Workers' Compensation and Rehabilitation Commission” and inserting instead — “

provide for the WorkCover Western

Australia Authority

”;

(c)	by deleting “dispute resolution bodies” and inserting instead —

“ a Dispute Resolution Directorate ”.

5. Section 1 amended

Section 1 is amended by deleting “Rehabilitation” and inserting

instead —

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 6

“ Injury Management ”.

6. Section 3 amended

Section 3 is amended as follows:

(a)	by deleting paragraph (b) and inserting the following paragraphs instead —

“

(b)

to make provision for the management of workers’ injuries in a manner that is directed at enabling injured workers to return to work;

(ba)

to make provision for specialised retraining

programs for certain injured workers;

”;

(b)	in paragraph (d) by deleting “bodies” and inserting instead —

“ authorities ”.

7. Section 4 amended

(1)	Section 4(2)(a)(v) is amended by inserting after “injuries” —
“ and impairments from injury ”.
(2)	Section 4(2)(b) is amended by deleting “rehabilitation” and inserting instead —
“ the injury management ”.

8. Section 5 amended

(1)

Section 5(1) is amended by deleting the definitions of

“approved rehabilitation provider”, “Commission”,

“Committee”, “compensation magistrate’s court”, “conciliation

officer”, “Directorate”, “disability”, “disabled from earning full

wages”, “dispute resolution body”, “Executive Director”,

“rehabilitation”, “review officer”, “the Chairman of the

Commission” and “vocational rehabilitation”.

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 8

(2)	Section 5(1) is amended by inserting the following definitions in the appropriate alphabetical positions — “

“approved medical specialist” means a person for the

time being designated under section 146F as an

approved medical specialist;

“approved medical specialist panel” means an

approved medical specialist panel constituted

under Part VII Division 3;

“approved vocational rehabilitation provider”

means a person approved under section 156 as a

vocational rehabilitation provider;

“arbitrator” means an officer of WorkCover WA

approved under section 286(2) as an arbitrator;

“chief executive officer” means the person appointed under the Public Sector Management Act 1994 to the office of chief executive officer of WorkCover

WA and includes a person appointed to act in the place and during the absence of the chief executive officer while that person is so acting;

“Commissioner” means the Commissioner appointed under section 281;

“decision” includes an order, award, direction or

determination;

“dispute resolution authority” means the Director, an arbitrator or the Commissioner;

“DRD” means the Dispute Resolution Directorate

established under section 278;

“DRD Rules” means the rules made under

section 293;

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 8

“injury” means —

(a)

a personal injury by accident arising out of the worker is acting under the employer’s instructions;

(b)	a disease because of which an injury occurs under section 32 or 33;
(c)	a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
(d)

the recurrence, aggravation, or acceleration employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or

(e)	a loss of function that occurs in the circumstances mentioned in section 49,

but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the

matter is mentioned in paragraph (a) or (b) of that

subsection and is unreasonable and harsh on the

part of the employer;

“injury management” means the management of

workers’ injuries in a manner that is directed at

enabling injured workers to return to work;

“medical report” includes a medical opinion;

“NRE amount” means —

(a)	in relation to any financial year ending on or before 30 June 2005, the prescribed amount in relation to that financial year;

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(b)	in relation to the financial year ending on 30 June 2006, $200 000;
(c)	in relation to any subsequent financial year, the nearest whole number of dollars to —

(i)

NRE amount for the preceding

financial year by the percentage by

which the amount that the Australian

Statistician published as the Wages

Cost Index, ordinary time hourly rates

of pay (excluding bonuses) for

Western Australia (“WCI”) varied

between the second-last December

quarter before the financial year

commenced and the last December

the amount obtained by varying the commenced; or

(ii) if the calculation under subparagraph (i) cannot be performed in relation to a financial year because the WCI for a

relevant quarter was not published, the amount obtained by varying the NRE amount for the preceding

financial year in accordance with the

regulations,

with an amount that is 50 cents more than a whole

number of dollars being rounded off to the next

highest whole number of dollars;

“officer of the DRD” refers to —

(a)	the Director;
(b)	an arbitrator; and
(c)	any other officer of WorkCover WA made available under section 291;

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“participate”, in relation to a return to work program established under section 155C(1), means to participate in the program in a cooperative manner including attending appointments as required under the program;
“registered agent” means a person registered under regulations made under section 277;
“return to work”, in relation to a worker who has suffered an injury compensable under this Act, means —

(a)	the worker holding or returning to the position held by the worker immediately before the injury occurred, if it is reasonably practical for the employer who employed the worker at the time the injury occurred to provide that position to the worker; or
(b)	if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position —

(i) for which the worker is qualified; and

(ii) that the worker is capable of performing,

whether with the employer who employed the

worker at the time the injury occurred, or another

employer;

“specialised retraining assessment panel” means a

specialised retraining assessment panel constituted

under Part VII Division 5;

“specialised retraining program” means a program directed at enabling a worker to return to work by assisting the worker to undertake formal

vocational training or study through technical or tertiary training courses of no longer than 3 years duration;

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“the Chairman of WorkCover WA” means the

person appointed to the office of Chairman of person appointed to act in the place and during the absence of the Chairman while that person is so acting;

“vocational rehabilitation”, in relation to a worker

who has suffered an injury compensable under this prescribed services, according to the worker’s assessed needs, for the purpose of enabling the worker to return to work;

“WorkCover Guides” means the directions published by WorkCover WA under section 146R;

“WorkCover WA” means the WorkCover Western Australia Authority referred to in section 94;

”.

(3)	Section 5(1) is amended as follows:

(a)	in the definition of “child’s allowance” by deleting “in clause 1(2), (3), and (4)”;
(b)	in the definition of “chiropractor” by deleting “and who is approved by the Commission to practise chiropractic for the purposes of this Act”;
(c)	by deleting the definition of “Director” and inserting instead —

“

“Director” means the officer of WorkCover WA approved under section 288(2) as the Director Dispute Resolution;

”;

(d)	in the definition of “General Fund” by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”;

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(e)	by deleting the definition of “industrial award” and inserting instead —

“

“industrial award” means —

(a)	order or General Order) made by The Western Australian Industrial Relations

an award or order (including an enterprise Act 1979;

(b)	an industrial agreement as defined in the Industrial Relations Act 1979;
(c)	an award under the Coal Industry Tribunal of Western Australia Act 1992; or
(d)	an award or certified agreement, as those terms are defined in the Workplace Relations Act 1996 of the Commonwealth,

as the relevant employment requires;

”;

(f)	in the definition of “medical assessment panel” by inserting after “Part VII” —

“ Division 1 ”;

(g)	in the definition of “notional residual entitlement” —

(i) in paragraph (a) by deleting “that disability;” and inserting instead —

“

the injury or impairment resulting from the

injury;

”;

and

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(ii) by deleting paragraph (b) and inserting instead —

“

(b)	the NRE amount as at the date of the worker’s death, less the amount of any weekly payments made, the amount of any lump sum paid in redemption of weekly payments, and the amount of any sum paid under Schedule 2, for the injury suffered by the worker or impairment resulting from the injury,

”;

(h)	in the definition of “relevant employment” in paragraph (b) and (e) by deleting, in each case, “disabling”;

(i) in the definition of “Trust Fund” by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”.

(4)	Before section 5(4) the following subsection is inserted —

“

(3)	A reference in this Act to a “personal injury by accident” is a reference to an injury of a kind referred to in paragraph (a) of the definition of “injury” in subsection (1).

”.

(5)

Section 5(4) and 5(5) are amended by deleting “disability”, in

each case, and inserting instead —

“ “injury” ”.

9. Section 7 amended

Section 7(2) is amended by deleting “industrial agreement or”.

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10. Section 10A replaced

Section 10A is repealed and the following section is inserted

instead —

“

10A.	Working directors

(1)	Despite anything in section 5, and except as provided in subsection (2), a person who is a director of a company is, to the extent that the person executes work for or on behalf of the company, taken not to be a worker within the meaning of this Act.

(2) If —

(a)

a company contracts with another person (in the execution of work by or under the company, being work which is for the purpose of the principal’s trade or business; and

(b)	a director of the company executes any of that work for or on behalf of the company,

then, to the extent that the director executes the work, the director is taken to be a worker and the principal is taken to be the employer of the director.

(3)	Section 175 does not apply in respect of a director referred to in subsection (2).

”.

11. Section 12 amended

Section 12(1) is amended by deleting “disabled” and inserting

instead —

“ injured ”.

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12. Heading to Part III Division 1 replaced

The heading to Part III Division 1 is deleted and the following

heading is inserted instead —

“

Division 1 — Injury: general

”.

13. Section 22 amended

Section 22 is amended by deleting “disability shall be

disallowed unless the disability results in death or serious and

permanent disablement.” and inserting instead —

“

injury shall be disallowed unless the injury has serious

and permanent effects or results in death.

”.

14. Heading to Part III Division 2 replaced

The heading to Part III Division 2 is deleted and the following

heading is inserted instead —

“

Division 2 — Discontinued regime for lump sum

payments for specified injuries

”.

15. Section 24 amended

(1)	After the heading to section 24 the following subsection is inserted —

“

(1)

In this section —

“amendment day” means the day on which section 21

of the Workers’ Compensation Reform Act 2004

comes into operation.

”.

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(2)	Section 24 is amended as follows:

(a)	by inserting before “Notwithstanding” the subsection designation “(2)”;
(b)	by inserting after “column 1 of ” —

“ Part 1 of ”;

(c)	by deleting “thereof ” and inserting instead —

“ of that Part ”.

(3)	At the end of section 24 the following subsections are inserted —

“

(3)

This Division does not apply if the compensable personal injury by accident occurs on or after the amendment day.

(4)

This Division does not apply in relation to noise

induced hearing loss shown on or after the amendment

day by an audiometric test under Schedule 7 clause 4.

”.

16. Section 24A amended

Section 24A(1) is amended by inserting before “the table” in

both places where it occurs —

“ Part 1 of ”.

17. Section 24B amended

(1)

Section 24B(1)(b) is amended by deleting “Directorate” and

inserting instead —

“ Director ”.

(2)

Section 24B(5) is amended as follows:

(a)	by deleting “Part IIIA” in the first place where it occurs and inserting instead —

“ Part XI ”;

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(b)	by deleting “in this Division or Part IIIA”.

18. Section 26 amended

Section 26(1) is amended by inserting after “column 1 of ” —

“ Part 1 of ”.

19. Section 28 amended

Section 28 is amended by inserting after “18,” —

“ 18A ”.

20. Section 31 amended

Section 31 is amended by inserting after “application of ” —

“ Part 1 of ”.

21. Part III Division 2A inserted

After section 31 the following Division is inserted —

“

Division 2A — New regime for lump sum payments for

specified injuries

31A.	Application of Division

(1)	In this section —
“amendment day” means the day on which section 21 of the Workers’ Compensation Reform Act 2004 comes into operation.
(2)	This Division does not apply in respect of a compensable personal injury by accident that occurs before the amendment day.
(3)	This Division does not apply in relation to noise induced hearing loss shown before the amendment day by an audiometric test under Schedule 7 clause 4.

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31B.	Degree of permanent impairment
In this Division —
“degree of permanent impairment” means —

(a)	except as provided in paragraph (b), the degree of permanent impairment of a part or faculty of the body, evaluated as described in sections 146A and 146B;
(b)	in the case of scarring referred to in item 80 or 81 of Schedule 2, the degree of permanent whole of person impairment, evaluated as described in sections 146A and 146B,

resulting from the injury or injuries arising from a

single accident.

31C.	Compensation for impairments mentioned in Schedule 2

(1)

Despite Schedule 1, in respect of a permanent

impairment from a compensable personal injury by

accident, if the worker so elects during the lifetime of

the worker as provided by section 31H in respect of an

impairment mentioned in column 1 of Part 2 of the

table in Schedule 2, the compensation payable for the

impairment is, subject to subsection (2) and the

provisions of this Act relating to Schedule 2, to be the

percentage ratio of the prescribed amount indicated in

column 2 of that Part.

(2)

Except as provided in sections 31E and 31F(3), the

compensation payable for each such impairment from

injury is to be in accordance with the percentage ratio

of the prescribed amount indicated in column 2 of

Part 2 of the table in Schedule 2 in respect of such an

impairment at the date of the accident by which that

injury was caused to the worker, irrespective of when

the worker so elects.

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31D.	Schedule 2 impairment assessment

(1)	In subsection (2) —
“full amount”, in relation to an injury, means the

amount payable under this Division if the degree

of permanent impairment resulting from the injury

is 100%.

(2)	If compensation is payable under section 31C but the degree of permanent impairment from the injury of the worker is less than 100%, a percentage of the full amount equal to the degree of permanent impairment is to be awarded in lieu of the full amount.

(3) If —

(a)	there is not agreement between an employer and a worker as to the degree of permanent impairment of the worker; and
(b)	the worker has a certificate of an approved medical specialist given under section 146H indicating that the worker has not less than the degree of permanent impairment alleged by the worker,

the worker may apply to have the question as to the

degree of permanent impairment arising from the

injury concerned determined by an arbitrator.

(4)	An arbitrator to whom an application to determine a question is made under subsection (3) may —

(a)	determine the degree of permanent impairment; or
(b)	refer the question as to the degree of permanent impairment for assessment by an approved medical specialist panel and make a determination as to the degree of permanent impairment according to that assessment.

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(5)

If a determination is made that the worker’s degree of

permanent impairment arising from the injury

concerned is not less than that alleged by the worker,

the arbitrator may order the employer to pay all or any

of the costs connected with the dispute, including any

costs connected with referral to an approved medical

specialist panel.

31E.	Lump sum compensation for noise induced hearing loss

(1)

Subject to Schedule 7 and this section, a worker

suffering from noise induced hearing loss is entitled to

compensation for that loss under item 44 of Part 2 of

the table in Schedule 2 if the worker so elects as

provided by section 31H.

(2)

The compensation payable for noise induced hearing

loss is to be, subject to the provisions of this Act

relating to Schedule 2, in accordance with the

percentage ratio of the prescribed amount indicated in

column 2 of Part 2 of the table in Schedule 2 in respect

of item 44 at the date of the audiometric test under

Schedule 7 that showed that a loss or diminution of the

worker’s hearing had been incurred, irrespective of

when the worker so elects.

(3)

A worker is entitled to compensation under this section

only in respect of noise induced hearing loss incurred

after 1 March 1991 and —

(a)	in respect of the worker’s first election under this section (if the worker has not made a successful first election under section 24A), where that noise induced hearing loss is at least a 10% loss of hearing; and
(b)	in respect of a subsequent election by the worker under this section after a successful first

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election under section 24A or paragraph (a) of

this section —

(i) where that noise induced hearing loss is at least a further 5% loss of hearing; or

(ii) where the worker has reached the age of 65 years or on the worker’s retirement from work before that age, where that noise induced hearing loss is assessed under Schedule 7 as any further percentage of loss of hearing.

(4)	Nothing in subsection (3) operates to stop a worker who —

(a)	has retired from work before attaining the age of 65 years;
(b)

from making an election under subsection (3)(b) in

respect of further loss of hearing.

has made a successful election under this section; and

(c)	subsequently returns to work,

(5)

A worker is not entitled to compensation under this

section in respect of noise induced hearing loss

incurred after the worker has attained the age of

65 years.

(6)

In subsection (3), loss of hearing means percentage loss

of hearing calculated in accordance with the National

Acoustic Laboratory Tables prescribed by the

regulations.

(7)

Schedule 7 applies and noise induced hearing loss is to

be ascertained and measured for the purposes of this

section in accordance with that Schedule.

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31F.	Lump sum compensation for AIDS

(1)	In this section and in the table in Schedule 2 —
“AIDS” means acquired immune deficiency syndrome;
“HIV” means human immunodeficiency virus;
“prohibited drug” has the meaning given to that term by the Misuse of Drugs Act 1981 section 3.
(2)	Subject to this section, for the purposes of this Division —

(a)

the infection of a worker by HIV by accident arising out of or in the course of employment, or whilst the worker is acting under the

employer’s instructions, is taken to be a

personal injury by accident; and

(b)

if that worker subsequently contracts AIDS, the contracting of AIDS —

(i) is taken to be a compensable personal injury by accident;

(ii) is taken to result in a degree of permanent impairment of 100%; and

(iii) is taken to have occurred on the date on which the worker contracted the HIV infection referred to in paragraph (a).

(3)

Despite section 31C the compensation payable for the

contracting of AIDS in the circumstances set out in

subsection (2) is 100% of the prescribed amount at the

date on which a certificate is given by a medical

practitioner that the worker has contracted AIDS.

(4)

The regulations may make provision for methods of

deciding for the purposes of this section whether a

worker is HIV infected or has contracted AIDS.

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(5)	Sections 31C(2) and 31D do not apply to an impairment that is AIDS.
(6)	A worker is not entitled to compensation under this Division in respect of an impairment that is AIDS if the impairment resulted from the unlawful use of any prohibited drug or from voluntary sexual activity.
(7)	Subsection (6) does not limit the operation of section 22.
(8)	A worker is not entitled to compensation under this Division in respect of an impairment that is AIDS if the accident by which the worker became HIV infected occurred on a day before the coming into operation of section 21 of the Workers’ Compensation Reform Act 2004.

31G.	Subsequent injuries

(1)

In this section —

“impairment” includes a loss of full and efficient use

of a part or faculty of the body to which the

provisions of Division 2 apply.

(2) When —

(a)

by a compensable personal injury by accident, a impairment of any part or faculty of the body referred to in column 1 of the table in Schedule 2; and

(b)	by a subsequent compensable personal injury by accident the worker suffers further permanent impairment of that part or faculty of the body,

the compensation payable under the provisions of the

table in Schedule 2 and this Division in respect of each

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such subsequent injury is to be proportionate to any

increase (resulting from that subsequent injury) in the

degree of permanent impairment, and the compensation

payable is to be calculated at the rates applicable at the

time of occurrence of each subsequent injury.

(3)

Where a worker has received compensation payable

under the provisions of the table in Schedule 2 and

Division 2 or this Division in respect of an impairment

of a part of the body or a faculty for a degree of

permanent impairment of 100%, whether in one

payment for a degree of permanent impairment of

100% or in several payments, each of which has been

made for a degree of permanent impairment of less

than 100%, then and in such case, the worker is not

entitled to any further payment under the provisions of

that table and this Division in respect of that

impairment.

31H.	Election under section 31C or 31E

(1)	A worker elects under this section for the purposes of section 31C or 31E when —

(a)	the worker signs a form of election prescribed by the regulations containing particulars prescribed by the regulations in respect of the impairment or loss; and
(b)	that form of election is filed with the Director, and a copy of it is served by or on behalf of the worker on the employer.

(2)	A worker can elect for the purposes of section 31C only if —

(a)	the worker and the worker’s employer agree as to the worker’s degree of permanent impairment resulting from the injury concerned; or

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(b)	section 31D(4) in respect of the worker’s degree of permanent impairment resulting from the injury concerned or the worker has a certificate given for the purposes of

a determination has been made under AIDS.

(3)

In the case of an election for the purposes of

section 31E, the employer on whom the copy of the

form of election is served is to be the employer who

last employed the worker in employment to the nature

of which noise induced hearing loss is due.

(4)

Where a worker makes an election under subsection (1)

for the purposes of section 31E, this Division and

Part XI apply as if the noise induced hearing loss in

respect of which the election was made were a

compensable personal injury by accident arising out of

or in the course of the worker’s employment, and for

that purpose a reference to the time or date of a

personal accident by injury is, in respect of

compensable noise induced hearing loss, to be

construed as a reference to the date of the audiometric

test under Schedule 7 that showed that a loss or

diminution of the worker’s hearing had been incurred.

31I.	Effect of election

(1)	A form of election referred to in section 31H(1) is not binding upon a worker unless the Director is satisfied that it contains a statement in clear terms of the effect the election will have on the worker’s future
entitlements to compensation under this Act.
(2)	If not satisfied in accordance with subsection (1), the Director is to, within 7 days of so determining, notify the employer and the worker accordingly.

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(3)	Subject to this Act, a worker who elects as provided by section 31H(1) is entitled to continue to receive any weekly payments of compensation to which the worker is entitled until —

(a)	an agreement with respect to the election is registered under section 76; or
(b)	an order of an arbitrator is made with respect to the amount of compensation payable under the election,

whichever is the sooner.

(4)

Sections 31C and 31E do not limit the amount of

compensation that is payable to a worker for any period

of incapacity resulting from the impairments or losses

referred to in those sections unless the worker elects

under section 31H and an agreement is registered or an

order of an arbitrator is made with respect to the

amount of compensation payable pursuant to the

election.

31J.	Limit on compensation of worker electing

(1)	A worker who elects under section 31H is not in any case (including the case of a worker suffering by the same accident more than one of the impairments
mentioned in Schedule 2) entitled to more than the prescribed amount, in addition to payment of such expenses as are provided for in clauses 9, 17, 18, 18A
and 19.
(2)	Clauses 9, 17, 18, 18A and 19 are by this section made applicable to each worker entitled to compensation under this Division until that worker elects under section 31H and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.

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31K.	Compensation payable before election
Subject to section 31J, when a worker elects under section 31H, any amount of compensation that was payable to the worker for any period of incapacity resulting from the injuries referred to in section 31C or
31E and occurring before the worker so elects and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation
payable pursuant to the election is not to be deducted from the amount payable in accordance with the table in Schedule 2.

”.

22. Heading to Part III Division 3 replaced

The heading to Part III Division 3 is deleted and the following

heading is inserted instead —

“

Division 3 — Injury: specified industrial diseases

”.

23. Section 32 amended

Section 32 is amended as follows:

(a)	by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”;

(b)	by deleting “the disablement” and inserting instead —

“ being so rendered ”.

24. Section 33 amended

Section 33 is amended as follows:

(a)	by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”;

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(b)	by deleting “the disablement” and inserting instead —

“ being so rendered ”.

25. Section 34 amended

Section 34 is amended as follows:

(a)	by deleting “becomes disabled from earning” and inserting instead —

“ is rendered less able to earn ”;

(b)	by deleting “disabled” and inserting instead —

“ rendered ”.

26. Section 35 amended

Section 35 is amended as follows:

(a)	by deleting “becomes disabled from earning” and inserting instead —

“ is rendered less able to earn ”;

(b)	by deleting “disabled” and inserting instead —

“ rendered ”.

27. Section 37 amended

Section 37 is amended by deleting “in a compensation

magistrate’s court” and inserting instead —

“ before an arbitrator ”.

28. Section 38 amended

(1)

Section 38(1)(b) is amended by deleting “disabled from

earning” and inserting instead —

“ less able to earn ”.

(2)

Section 38(1)(c) is amended by deleting “cause impairment of

his” and inserting instead —

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“ adversely affect the worker’s ”.

(3)	Section 38(1)(d) is amended by deleting “disablement” and inserting instead — “ being less able to earn full wages, ”.

29. Section 39 amended

Section 39 is amended as follows:

(a)	by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”;

(b)	by deleting “disablement” and inserting instead —

“ being so rendered ”.

30. Section 40 replaced

Section 40 is repealed and the following section is inserted

instead —

“

40. Interpretation of this Division in cases of death without prior incapacity

A reference in this Division to the date on which, or

time at which, a worker was rendered less able to earn

full wages is, in the case of a death of a worker who

was not rendered less able to earn full wages before the

worker died, a reference to the date of the worker’s

death.

”.

31. Section 41 amended

(1)	Section 41(2) is amended by deleting “of disablement,” and inserting instead —

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“

on which the worker was rendered less able to earn full

wages,

”.

(2)	Section 41(4) is amended by deleting “of disablement,” and inserting instead — “

on which the worker was rendered less able to earn full

wages,

”.

32. Section 43 amended

Section 43 is amended by deleting “disablement” and inserting

instead —

“ occurrence of the injury ”.

33. Section 44 amended

Section 44 is amended by deleting “disablement” and inserting

instead —

“

date on which the worker was rendered less able to

earn full wages

”.

34. Section 47 amended

Section 47 is amended as follows:

(a)	by deleting “of a worker’s disablement within the meaning of ” and inserting instead —

“

at which a worker was rendered less able to earn full

wages as mentioned in

”;

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(b)	in paragraph (b) by deleting “disabled” and inserting instead —

“ so rendered ”;

(c)	in paragraph (d) by deleting “disabled” and inserting instead —

“ rendered ”;

(d)	in the final phrase by deleting “disabled” and inserting instead —

“ so rendered ”;

(e)	by deleting “that disablement” and inserting instead —

“ being so rendered ”.

35. Section 48 amended

Section 48(1) is amended as follows:

(a)	by deleting “the Executive Director” and inserting instead —

“ WorkCover WA ”;

(b)	by deleting “the disablement began.” and inserting instead —

“

at which the worker was rendered less able to earn full

wages.

”.

36. Heading to Part III Division 4 replaced

The heading to Part III Division 4 is deleted and the following

heading is inserted instead —

“

Division 4 — Injury: specified losses of functions

”.

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37. Section 49 replaced

Section 49 is repealed and the following section is inserted

instead —

“

49. Injury occurs when loss of function renders worker less able to earn full wages

Where a worker is rendered less able to earn full wages by reason of suffering from a loss of function described in column 1 of Schedule 4 and the loss of function is

due to the nature of any employment in which the

worker was employed at any time within 3 years before

the date on which the worker is rendered less able to

earn full wages, an injury, being that loss of function,

occurs and this Act applies to such an injury subject to

this Division.

”.

38. Section 53 amended

Section 53 is amended by deleting “disablement” and inserting

instead —

“ occurrence of the injury ”.

39. Section 54 amended

Section 54 is amended by deleting “disablement” and inserting

instead —

“

date on which the worker is rendered less able to earn

full wages

”.

40. Section 57 amended

Section 57 is amended as follows:

(a)	by inserting after “18,” —

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“ 18A ”;

(b)	by deleting “clause 17(1)” and inserting instead —

“ clauses 17(1) and 18A(1c) ”.

41. Section 57A amended

(1)	Section 57A(3) is repealed and the following subsection is inserted instead —

“

(3)	Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —

(a)	give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed;
(b)	subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)	give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.

Penalty: $1 000.

”.

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 42

(2)	Section 57A is amended at the foot of subsection (4) by inserting —
“ Penalty: $1 000. ”.
(3)	Section 57A(5) is amended by deleting “to the Directorate”.
(4)	Section 57A(6) is amended as follows:

(a)	by deleting “the Directorate may” and inserting instead —

“ an arbitrator may ”;

(b)	by deleting “by the Directorate”.

(5)

Section 57A(7)(b) is amended by deleting “the Directorate” and

inserting instead —

“ an arbitrator ”.

42. Section 57B amended

(1)	Section 57B(2) is repealed and the following subsection is inserted instead —

“

(2)	In the circumstances mentioned in subsection (1), an employer must, before the expiration of 17 days after those circumstances arose —

(a)	if liability to make the weekly payments claimed is accepted, subject to subsection (6), make the first of those weekly payments;
(b)	subject to section 75, give the worker notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or
(c)	give the Director and the worker notice, in accordance with section 57BA and the regulations, that a decision as to whether or not

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 43

liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this

subsection.

Penalty: $1 000.

”.

(2)	Section 57B is amended as follows:

(a)	at the foot of subsection (2b) by inserting —

“ Penalty: $1 000. ”;

(b)	at the foot of subsection (3) by inserting —

“ Penalty: $1 000. ”.

(3)	Section 57B(4) is amended by deleting “to the Directorate”.
(4)	Section 57B(5) is amended as follows:

(a)	by deleting “the Directorate may” and inserting instead —

“ an arbitrator may ”;

(b)	by deleting “by the Directorate”.

(5)

Section 57B(6)(b) is amended by deleting “the Directorate” and

inserting instead —

“ an arbitrator ”.

43. Section 57BA inserted

After section 57B the following section is inserted —

“

57BA.

Notices under sections 57A and 57B

(1)

A notice under section 57A or 57B is to be expressed

in plain language.

(2)

The regulations may make provision —

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 43

(a)	as to information to be included in or to accompany a notice under section 57A or 57B; and
(b)	requiring information included in or accompanying a notice under section 57A or 57B to be given to WorkCover WA or other persons prescribed by the regulations.

(3)	A notice under section 57A(3)(b) or 57B(2)(b) is to be in or to the effect of the form prescribed by the regulations and is to contain a statement of —

(a)	the reason the person giving the notice disputes liability;
(b)	the provisions of this Act on which the person giving the notice relies to dispute liability.

(4)	A notice under section 57A(3)(b) or 57B(2)(b) is to also include —

(a)	a statement to the effect that the worker can apply for resolution of the dispute under this Act;
(b)	a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, a legal practitioner or

a registered agent; and

(c)	such other information as the regulations may prescribe or, subject to the regulations, as WorkCover WA may from time to time approve and notify to insurers and, in the case of information required in a notice under section 57B(2)(b), to employers.

(5)	A statement in a notice under section 57A(3)(b) or 57B(2)(b) is given —

(a)	in the case of a notice under section 57A(3)(b), subject to the insurer not being prejudiced in

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 43

any subsequent proceedings relating to the

claim by any information included in the

statement; and

(b)	in the case of a notice under section 57B(2)(b), subject to the employer, or the insurer if the insurer subsequently agrees to indemnify the employer, not being prejudiced in any subsequent proceedings relating to the claim by any information included in the statement.

(6)	A notice under section 57A(3)(c) or 57B(2)(c) is to —

(a)	be in or to the effect of the form prescribed by the regulations;
(b)	include a statement as to the reasons why a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by section 57A(3) or 57B(2), as the case requires, and —

(i) if a reason is that the person giving the notice requires further medical information, a statement as to the nature and substance of the medical information and whether or not the person giving the notice requires any written authority from the worker for that purpose;

(ii) if a reason is that the person giving the notice requires further information as to the worker’s weekly earnings, a statement as to the nature and substance of the information required; and

(iii) any other particulars required by the person giving the notice to make the decision;

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 44

and

(c)	include such other information as the regulations may prescribe.

”.

44. Section 57C amended

Section 57C is amended as follows:

(a)	at the foot of subsection (2) by inserting —

“ Penalty: $1 000. ”;

(b)	at the foot of subsection (3) by inserting —

“ Penalty: $1 000. ”;

(c)	at the foot of subsection (4) by inserting —

“ Penalty: $1 000. ”;

(d)	at the foot of subsection (5) by deleting the penalty provision.

45. Section 58 amended

(1)

Section 58(1) is amended by deleting “the Directorate” and

inserting instead —

“ an arbitrator ”.

(2)

Section 58(2) is amended by deleting “the Directorate” and

inserting instead —

“ an arbitrator ”.

(3)

Section 58(2a) is amended as follows:

(a)	by deleting “the Directorate may order” and inserting instead —

“ the Director may order ”;

(b)	by deleting “for the Directorate to hear” and inserting instead —

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 46

“ for an arbitrator to hear ”.

(4)	Section 58(3) is amended as follows:

(a)

by deleting “for the Directorate to hear” and inserting “ for an arbitrator to hear ”;

(b)	by deleting “the Directorate may hear” and inserting instead —

“ an arbitrator may hear ”.

(5)	Section 58(5) is amended as follows:

(a)	by deleting “Directorate shall satisfy itself as to all the evidence before it whereupon the Directorate” and inserting instead —

“

arbitrator is to satisfy himself as to all the evidence

before him and

”;

(b)	in paragraph (a) by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”;

(c)	in paragraph (b) by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”.

(6)

Section 58(6) is amended by deleting “by the Directorate” and

inserting instead —

“ by an arbitrator ”.

46. Section 59 amended

Section 59(10) is amended by deleting “to the Directorate for an

order” and inserting instead —

“ for an order of an arbitrator ”.

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 47

47. Section 60 amended

(1)

Section 60(1) is amended by deleting “to the Directorate at any

time for an order” and inserting instead —

“ at any time for an order of an arbitrator ”.

(2)

Section 60(2) is amended as follows:

(a)	by deleting “the Directorate that” and inserting instead —

“ an arbitrator that ”;

(b)	by deleting “the Directorate may” and inserting instead —

“ the arbitrator may ”;

(c)	by deleting “the Directorate directs” and inserting instead —

“ the arbitrator directs ”;

(d)	by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”.

48. Section 61 amended

(1)	Section 61(1) is amended as follows:

(a)	by deleting “order of the Directorate” and inserting instead —

“ order of an arbitrator ”;

(b)	by deleting “to the Directorate”.

(2)	After section 61(2) the following subsection is inserted —

“

(2a)	If a person is required to give notice under subsection (1) and —

(a)	fails to give the notice within the period referred to in that subsection; or

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 48

(b)	gives a notice that does not comply with subsection (2),

the person commits an offence.

Penalty: $2 000.

”.

(3)	Section 61(3) is amended as follows:

(a)	by deleting “as the Directorate” and inserting instead —

“ as an arbitrator ”;

(b)	by deleting “to the Directorate for an order” and inserting instead —

“ for an order of an arbitrator ”.

(4)	Section 61(4) is amended as follows:

(a)	by deleting “the Directorate” and inserting instead —

“ an arbitrator ”;

(b)	in paragraphs (a) and (c) by deleting “it” and inserting instead —

“ the arbitrator ”.

(5)	After section 61(4) the following subsection is inserted —

“

(4aa)

A reference in subsection (1), (3) or (4) to the employer

is, where the employer is insured against liability to

pay compensation under this Act, a reference to the

employer’s insurer.

”.

(6)	Section 61(4a) is amended as follows:

(a)	by deleting “the Directorate” and inserting instead —

“ an arbitrator ”;

(b)	by deleting paragraph (a) and the “and” after it and inserting instead —

Workers’ Compensation Reform Act 2004

Part 2

Amendments to the Workers’ Compensation and

Rehabilitation Act 1981

s. 49

“

(a)	may, where the case requires, take into account whether —

(i) a return to work program has been established for the worker under section 155C(1);

(ii) the establishment, content and

implementation of the return to work

program are in accordance with the code

as defined in section 155; and

(iii) the worker has participated in the return to work program,

and for the purposes of determining the

application accordingly treat the worker’s

incapacity as being of such degree as the

arbitrator sees fit; and

”.

(7)	Section 61(7) is amended as follows:

(a)	in paragraph (ba) by inserting after “93E(8)” —

“ or 93P(2)(b) ”;

(b)	in paragraph (c) by deleting “64, 65,”.

49. Section 62 amended

(1)	Section 62(1) is amended as follows:

(a)	by deleting “the Directorate at the request” and inserting instead —

“ an arbitrator on an application ”;

(b)	by deleting “as the Directorate” and inserting instead —

“ as the arbitrator ”.

(2)	After section 62(1) the following subsection is inserted —

Workers’ Compensation Reform Act 2004

Amendments to the Workers’ Compensation and

Part 2

Rehabilitation Act 1981

s. 50

“

(2)	An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.

”.

50. Section 63 amended

Section 63 is amended by deleting “the Directorate” and

inserting instead —

“ an arbitrator ”.

51. Section 64 amended

(1)

Section 64(1) is amended by deleting “, and, if he, without

reasonable excuse, proof of which is on him, refuses to submit

himself to such an examination, or in any way obstructs it, his

right to compensation, and to take or prosecute any proceeding

under this Act shall be suspended until such an examination has

taken place, and shall cease unless he submits himself for

examination within one month after being required to do so”.

(2)

Section 64(2) is repealed and the following subsections are

inserted instead —

161. Hospitals and Health Services Act 1927

(1)

The amendments is this section are to the Hospitals and Health

Services Act 1927*.

[* Reprinted as at 15 October 1999.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 178.]

(2)

Section 31A(2) is amended by deleting “a personal injury by

accident for which he is entitled to compensation under the

provisions of the Workers’ Compensation Act 1912, the

provisions of that Act apply to the fees for the hospital service

granted in or by the hospital in respect of the personal injury.”

and inserting instead —

“

an injury for which the member is entitled to

compensation under the provisions of the Workers’

Compensation and Injury Management Act 1981, the

provisions of that Act apply to the fees for the hospital

service granted in or by the hospital in respect of the

injury.

”.

Workers’ Compensation Reform Act 2004

Consequential amendments to other Acts	Part 3
s. 162

162. Law Reporting Act 1981

(1)

The amendments in this section are to the Law Reporting

Act 1981*.

[* Reprinted as at 15 November 2002.]

(2)

Section 2 is amended by deleting the definition of “court” and

inserting instead —

“

“court” includes the Commissioner within the

meaning of the Workers’ Compensation and Injury

Management Act 1981;

”.

(3)	Section 7(2)(b) is amended by deleting “or the Chairman of the Workers’ Compensation Board or the Supplementary Workers’ Compensation Board”.

163. Legal Practice Act 2003

(1)	The amendments in this section are to the Legal Practice Act 2003*.
[* Act No. 64 of 2003.]
(2)	Section 210(2)(b)(v) is deleted.
(3)	After section 210(2) the following subsection is inserted —

“

(2a)	A declaration is not to be made under subsection (5) in respect of a dispute resolution authority within the meaning of the Workers’ Compensation and Injury Management Act 1981.

”.

Workers’ Compensation Reform Act 2004

Part 3	Consequential amendments to other Acts
s. 164

164. Limitation Act 1935

(1)	The amendments in this section are to the Limitation Act 1935*.
[* Reprint 3 as at 14 March 2003.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 216.]

(2)

Section 38A(8a)(a) is amended by deleting “a disability” and

inserting instead —

“ an injury ”.

165. Local Government Act 1995

(1)

The amendments in this section are to the Local Government

Act 1995*.

[* Reprinted as at 18 February 2000.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 228.]

(2)	Section 5.49(1) is amended as follows:

(a)	by deleting the definition of “Commission”;
(b)	by deleting the definition of “WCR Act” and inserting instead —

“

“WCIM Act” means the Workers’ Compensation and Injury Management Act 1981.

”;

(c)	by inserting in the appropriate alphabetical position the following definition —

“

“WorkCover WA” has the same meaning as it has in the WCIM Act.

”.

Workers’ Compensation Reform Act 2004

Consequential amendments to other Acts	Part 3
s. 166

(3)	Section 5.49(4) is amended by deleting “the Commission” and inserting instead —
“ WorkCover WA ”.
(4)	The provisions that are set out in the Table to this section are amended in each case by deleting “WCR Act” and inserting instead —
“ WCIM Act ”.

Table

s. 5.49(2)	s. 5.49(6)
s. 5.49(3)	s. 5.49(7)
s. 5.49(5)

166. Miner’s Phthisis Act 1922

(1)	The amendments in this section are to the Miner’s Phthisis Act 1922*.
[* Reprint 1 as at 14 March 2003.]
(2)	Section 9(4c) is amended by deleting “section 7 of the Workers’ Compensation Act 1912-1924” and inserting instead —
“

the Workers’ Compensation and Injury Management

Act 1981

”.

(3)

Section 9(4d) is amended by deleting “accident within the

meaning of section 7 of the Workers’ Compensation

Act 1912-1924” and inserting instead —

“

injury as defined by the Workers’ Compensation and

Injury Management Act 1981 section 5(1)

”.

Workers’ Compensation Reform Act 2004

Part 3	Consequential amendments to other Acts
s. 167

167. Police Assistance Compensation Act 1964

(1)	The amendments in this section are to the Police Assistance Compensation Act 1964*.
[* Reprinted as at 1 November 2002.]
(2)	Section 5(1) is amended by deleting “personal” and inserting instead —
“ an ”.
(3)	Section 5(2)(b) is amended as follows:

(a)	by deleting “personal” where it first occurs;
(b)	in subparagraph (ii) by deleting “personal injury by accident arising out of or” and inserting instead —

“ injury ”.

(4)

Section 5(3)(a) is amended by deleting “personal”.

(5)

Section 6 is amended by deleting “referred for conciliation

under Part IIIA of the Workers’ Compensation and

Rehabilitation Act 1981 and is to be dealt with under that Act”

and inserting instead —

“

dealt with under the Workers’ Compensation and

Injury Management Act 1981

”.

168. Public Sector Management Act 1994

(1)

The amendments in this section are to the Public Sector

Management Act 1994*.

[* Reprinted as at 9 February 2001.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 314.]

Workers’ Compensation Reform Act 2004

Consequential amendments to other Acts	Part 3
s. 169

(2)	Schedule 2 item 65 is deleted and the following item is inserted instead —

“

65 WorkCover Western Australia Authority referred to in the Workers’ Compensation and Injury Management Act 1981 section 94

”.

169. Sentencing Act 1995

(1)	The amendments in this section are to the Sentencing Act 1995*.
[* Reprint 3 as at 10 October 2003.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 349.]

(2)	Schedule 1 is amended by deleting “Workers’ Compensation and Rehabilitation General Fund.” and inserting instead — “

Workers’ Compensation and Injury Management General

Fund.

”.

170. Waterfront Workers (Compensation for Asbestos Related Diseases) Act 1986

(1)

The amendments in this section are to the Waterfront Workers

(Compensation for Asbestos Related Diseases) Act 1986*.

[* Reprinted as at 12 April 2002.]

(2)

Section 3 is amended as follows:

(a)	by deleting the definitions of “Commission” and “compensation magistrate’s court”;
(b)	by deleting the full stop at the end of the definition of “waterfront worker” and inserting instead a semicolon;

Workers’ Compensation Reform Act 2004

Part 3	Consequential amendments to other Acts
s. 170

(c)	by inserting in the appropriate alphabetical positions the following definitions —

“

“arbitrator” has the same meaning as it has in the

Compensation Act;

“WorkCover WA” has the same meaning as it has in the Compensation Act.

”.

(3)	Section 4(1) is amended by deleting “disability” in both places where it occurs and inserting instead —
“ injury ”.
(4)	Section 4(2) is amended by deleting ““relevant disability”” and inserting instead —
“ “relevant injury” ”.
(5)	Section 7 is amended as follows:

(a)	by deleting “a disability” and inserting instead —

“ an injury ”;

(b)	by deleting “that disability” and inserting instead —

“ that injury ”.

(6)	Section 9(1) is amended by deleting “to a compensation magistrate’s court” and inserting instead — “

, in accordance with the Workers’ Compensation and

Injury Management Act 1981, to an arbitrator

”.

(7)	Section 9(3) is amended as follows:

(a)	by deleting “A compensation magistrate’s court” and inserting instead —

“ An arbitrator ”;

Workers’ Compensation Reform Act 2004

Consequential amendments to other Acts	Part 3
s. 171

(b)	by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”.

(8)	Section 9(4) is amended by deleting “the court” and inserting instead —
“ the arbitrator ”.
(9)	Section 10(1) is amended by deleting “Part IIIA” and inserting instead —
“ Part XI ”.

(10)

The Act is amended by deleting “The Commission” or “the

Commission” in each place where it occurs that is specified in

the Table to this subsection and inserting instead —

“ WorkCover WA ”.

Table

s. 8(1) and (2)

s. 9(1) (in 4 places)

s. 11(2), (3) (in 3 places), (4) (in 3 places), (5), (6) (in both places),

(7), (8), and (9) (in 3 places)

171. Workers’ Compensation and Rehabilitation (Acts of Terrorism) Act 2001

(1)

The amendments in this section are to the Workers’

Compensation and Rehabilitation (Acts of Terrorism)

Act 2001*.

[* Act No. 40 of 2001.

For subsequent amendments see Western Australian

Legislation Information Tables for 2003, Table 1, p. 436.]

(2)	Section 1 is amended by deleting “Rehabilitation” and inserting instead —

Workers’ Compensation Reform Act 2004

Part 3	Consequential amendments to other Acts
s. 172

“ Injury Management ”.

(3)	Section 8(1)(c) is amended by deleting “a disability” and inserting instead —
“ an injury ”.
(4)	The Act is amended by deleting “The Commission” or “the Commission” in each place where it occurs that is specified in the Table to this subsection and inserting instead —
“ WorkCover WA ”.

Table

s. 4(1) and (2)	s. 8(3) and (4)
s. 5	s. 9(3)(b)
s. 7(1) (in both places)

172. Workers’ Compensation and Rehabilitation Amendment Act 1993

(1)	The amendments in this section are to the Workers’ Compensation and Rehabilitation Amendment Act 1993*.
[* Act No. 48 of 1993.]
(2)	The Act is amended by deleting “The Commission” or “the Commission” in each place where it occurs that is specified in the Table to this subsection and inserting instead —
“ WorkCover WA ”.

Table

s. 6(1), (2), (3), and (4)	s. 8
s. 7(1) and (2)	s. 16

173. Workers' Compensation (Common Law Proceedings) Act 2004

(1)	The amendments in this section are to the Workers’ Compensation (Common Law Proceedings) Act 2004*.

Workers’ Compensation Reform Act 2004

Consequential amendments to other Acts	Part 3
s. 174

[* Act No. 35 of 2004.]

(2)

The Act is amended by deleting “Workers’ Compensation and

Rehabilitation Act 1981” in each place where it occurs that is

specified in the Table to this subsection and inserting instead —

“ Workers’ Compensation and Injury Management Act 1981 ”.

Table

s. 3(b)	s. 6(2)(c)
s. 4(2)

(3)	Section 7(5) is amended by deleting “Executive Director” and inserting instead —
“ chief executive officer ”.
(4)	Section 7(6) is amended by deleting “Executive Director” in both places where it occurs and inserting instead —
“ chief executive officer ”.

174.

Workers’ Compensation and Rehabilitation Act 1981 replaced Act 1981

The provisions of written laws that are set out in the Table to this section are amended in each case by deleting “Workers’ Compensation and Rehabilitation Act 1981” and inserting

instead —

“

Workers’ Compensation and Injury Management

Act 1981

”.

Table

Written law	Provisions
Blood Donation (Limitation of	s. 3A(1) and (2)
Liability) Act 1985

Workers’ Compensation Reform Act 2004

Part 3	Consequential amendments to other Acts
s. 174

Bush Fires Act 1954	s. 37(2), (2)(b), (3), (4), (6), (8), and (9)
Civil Liability Act 2002	s. 3A(1) Table item 3
Credit Act 1984	s. 9
Employers Indemnity Policies	s. 3 (3 places), 4(1) and (2), 5, 6
(Premium Rates) Act 1990
Employers’ Indemnity	s. 3 in the definitions of

Supplementation Fund Act 1980

“employer”, “employer’s

policy”, “insurer” and

“self-insurer”, 4, 6A(1) and (3),

16(2), 19(1)(a), 19(2)(a), and

19(5)

Insurance Commission of	s. 6(b), 7(3), 44
Western Australia Act 1986
Limitation Act 1935	s. 38A(8a)(a)
Motor Vehicle (Third Party	s. 3C(7)
Insurance) Act 1943
Protective Custody Act 2000	s. 27(9)
Sentence Administration	s. 81(1) and (2), 100(a)
Act 2003
Sentencing Act 1995	Sch. 1
Stamp Act 1921	Second Sch. it. 16
State Superannuation	s. 74
(Transitional and Consequential
Provisions) Act 2000
Strata Titles Act 1985	s. 55(1)(a)
Supreme Court Act 1935	s. 126(1)(a)
Taxation Administration	s. 114(3)(f)
Act 2003
Waterfront Workers	s. 3 in the definition of

(Compensation for Asbestos	“Compensation Act”
Related Diseases) Act 1986

Workers’ Compensation and

long title, s. 3(1) and (2), 4(3), 6,

Rehabilitation (Acts of	7(1) and (2), and 8(1)(c)
Terrorism) Act 2001

Workers’ Compensation Reform Act 2004

Consequential amendments to other Acts	Part 3
s. 175

Young Offenders Act 1994

s. 62

175. Workers’ Compensation Act 1912 etc. replaced with Workers’ Compensation and Injury Management Act 1981

The provisions of written laws that are set out in the Table to this section are amended in each case by deleting “Workers’ Compensation Act 1912” or “Workers’ Compensation Act” and

inserting instead —

“

Workers’ Compensation and Injury Management

Act 1981

”.

Table

Written law

Provisions

Agriculture Protection Board

s. 25

Act 1950

Consumer Affairs Act 1971

s.	4(1) in the definition of “services”

Dental Act 1939

s. 51C(1)

Law Reform (Contributory

s. 3 in the definition of

Negligence and Tortfeasors’

“Workers’ Compensation”, 6(1)

Contribution) Act 1947

(in both places), 6(2) (in both

places)

Police Assistance Compensation	s. 4 and 5(2)(b)
Act 1964
Public Trustee Act 1941	s. 37(3)(a)
Small Claims Tribunals	s. 4(1) in the definition of
Act 1974	“services”

Workers’ Compensation Reform Act 2004

Part 4	Transitional provisions
Division 1	General
s. 176
Part 4 — Transitional provisions

Division 1 — General

176. Interpretation

In this Division unless the contrary intention appears —

“principal Act” means the Workers’ Compensation and

Rehabilitation Act 1981 as in force immediately before the coming into operation of the provision in which the term is used;

“amended Act” means the Workers’ Compensation and Injury Management Act 1981 as in force immediately after the coming into operation of the provision in which the term is used.

177. Application of Interpretation Act 1984

The provisions of this Part do not prejudice or affect the

application of the Interpretation Act 1984 to and in relation to

the repeals effected by this Act.

178. Transitional regulations

(1)

If this Act does not provide sufficiently for a matter or issue of a

transitional nature that arises as a result of the amendments

effected by this Act, the Governor may make regulations

prescribing all matters that are required, necessary or convenient

to be prescribed for providing for the matter or issue.

(2)

If in the opinion of the Minister an anomaly arises in the

carrying out of any provision —

(a)	of this Act; or
(b)	of the Interpretation Act 1984 as it applies to the amendments made by this Act,

the Governor may by regulations —

(c)	modify that provision to remove that anomaly; and

Workers’ Compensation Reform Act 2004

Transitional provisions

Part 4

General

Division 1

s. 179

(d)	make such provision as is necessary or expedient to carry out the intention of that provision.

(3)

If regulations made under subsection (1) or (2) provide that a

state of affairs specified or described in the regulations is to be

taken to have existed, or not to have existed, on and from a day

that is earlier than the day on which the regulations are

published in the Gazette but not earlier than the commencement

day, the regulations have effect according to their terms.

(4)

If regulations contain a provision referred to in subsection (3),

the provision does not operate so as —

(a)	to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the day of publication of those regulations; or
(b)	to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of

those regulations.

179. Power to amend subsidiary regulations

(1)

The Governor, on the recommendation of the Minister, may make subsidiary legislation amending subsidiary legislation made under any Act.

(2)

The Minister may make a recommendation under subsection (1) only if the Minister considers that each amendment proposed to be made by subsidiary legislation is necessary or desirable as a consequence of the enactment of this Act.

(3)

Nothing in this section prevents subsidiary legislation from

being amended in accordance with the Act under which it was

made.

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Division 2 — Transitional provisions relating to

statutory entitlements

180. Section 217 of the Workers’ Compensation and Injury Management Act 1981

(1)

Despite the enactment of section 217 of the amended Act, if,

before the day on which section 130 of this Act comes into

operation the total weekly payments by way of compensation

payable under Schedule 1 clause 7 of the principal Act for that

disability have reached the prescribed amount within the

meaning of that Act, the total liability of the employer of a

worker under section 217 of the amended Act in respect of that

disability or incapacity is not to exceed the lesser of the amounts

set out in section 84E(3)(a) and (b) of the principal Act as in

force immediately before the coming into operation of

section 130 of this Act.

(2)

If, after the coming into operation of section 130 of this Act, a

claim for damages in respect of an incapacity that has been

settled by agreement independently of the principal Act is

disapproved under section 92 of the amended Act, section 217

of the amended Act applies in respect of the total liability of the

employer of the worker.

181. Transitional provisions — amendments to Schedule 1

(1)

Where the death of a worker occurred before the coming into operation of section 141(1) of this Act, Schedule 1 clause 1 of the principal Act as in force immediately before the coming into

operation of section 141(1) of this Act applies in relation to the compensation entitlements of the worker as if section 141(1) of this Act had not been enacted.

(2)

Amount Aa as determined under Schedule 1 clause 11 of the

amended Act as amended by subsections (9) and (12) of

section 141 of this Act applies in relation to all weekly

payments payable on or after the coming into operation of those

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subsections, but no weekly payments payable before those

subsections come into operation are affected by the amendments

effected by those subsections.

(3)

Schedule 1 clause 11(3) of the amended Act as amended by

section 141(10) of this Act does not apply in relation to weekly

earnings of a worker who, before the coming into operation of

section 141(10) of this Act, has received 4 weekly payments of

compensation, and Schedule 1 clause 11(3) of the principal Act

applies in respect of those weekly earnings as if the amendment

had not been enacted.

(4)

Schedule 1 clause 11(4) of the amended Act as amended by

section 141(11) of this Act does not apply in relation to weekly

earnings of a worker who, before the coming into operation of

section 141(11) of this Act, has received 4 weekly payments of

compensation, and Schedule 1 clause 11(4) of the principal Act

applies in respect of those weekly earnings as if the amendment

had not been enacted.

(5)

Schedule 1 clause 18A of the amended Act as amended by

section 141 of this Act does not apply to compensation payable

to a worker if, before the coming into operation of

section 141(16) of this Act —

(a)	an election by the worker under section 93E(3)(b) of the principal Act in respect of the disability has been registered;
(b)	an order for redemption of the liability for incapacity has been made under section 67(4) of the principal Act or any order for settlement or redemption of the liability has been made under Part IIIA of that Act;
(c)	an agreement in respect of the whole of the liability for incapacity or as to the amount of compensation payable for the incapacity has been registered under Part III

Division 7 of the principal Act; or

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(d)	the worker’s claim for damages in respect of the injury or incapacity has been settled by agreement independently of the principal Act.

(6)	Subsection (5)(d) does not apply if, after the coming into operation of section 141(16) of this Act, the settlement is disapproved under section 92 of the amended Act.
Division 3 — Transitional provisions relating to

dispute resolution

182. Interpretation

(1)	In this Division —
“commencement day” means the day on which section 130 of this Act comes into operation;
“Director Dispute Resolution” has the meaning given to
“Director” in the amended Act; “Director of Conciliation and Review” has the meaning given

to “Director” in the principal Act;

“pending proceeding” means —

(a)	any matter the conciliation, review or other determination of which has been sought but not commenced before a dispute resolution body; or
(b)	any matter that has been partly or fully heard or otherwise dealt with before, but not determined by, a dispute resolution body.

(2)	The following expressions have the same meaning in this Division as they had in the principal Act before it was amended by this Act —

(a)	“compensation magistrate’s court”;
(b)	“conciliation officer”;
(c)	“dispute resolution body”;
(d)	“review officer”.

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(3)	Unless the contrary intention appears, words and expressions used in this Part have the same meaning as they have in the amended Act.

183. Conciliation and review

(1)

A pending proceeding referred for conciliation under Part IIIA

Division 2 of the principal Act, referred for review under

Part IIIA Division 3 of that Act or otherwise referred to a

conciliation officer or a review officer for determination under

that Act or the subject of an application to a conciliation officer

or a review officer under that Act —

(a)	is, on and from the commencement day, taken to be a proceeding pending before an arbitrator; and
(b)	is to be heard and determined by an arbitrator as if the referral or application were an application made under the amended Act.

(2)	A dispute resolution authority to whom a pending proceeding is transferred under this section may —

(a)	receive in evidence any transcript of evidence in a proceeding before a dispute resolution body relating to that matter; and
(b)	adopt, as the dispute resolution authority thinks fit, any finding or decision of a dispute resolution body relating to that matter.

(3)

The Director Dispute Resolution may give directions for the

purpose of dealing with issues arising when the amended Act

confers on a dispute resolution authority jurisdiction to deal

with a matter that, before that jurisdiction was conferred, was

dealt with by a dispute resolution body.

(4)

Directions given under subsection (3) may modify the

provisions of the amended Act, or the rules or regulations made

under that Act, to such extent as is necessary or expedient to

apply any of the general principles described in this section in a

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proceeding of a particular kind and to ensure a smooth transfer

of proceedings from dispute resolution bodies to dispute

resolution authorities.

(5)

On and from the commencement day, anything ordered,

decided, or otherwise done by a conciliation officer or review

officer in respect of a matter under the amended Act before the

commencement day becomes of the same effect as if, and

enforceable as if, it were ordered, decided or done by an

arbitrator under the provisions of the amended Act authorising

an arbitrator to order, decide, or do corresponding things after

the commencement day.

184. Compensation magistrate’s court

(1)

A matter referred to a compensation magistrate’s court under

section 84ZM of the principal Act, but which the court has not

commenced to hear before the commencement day, is to be

transferred to the Commissioner and is to be dealt with by the

Commissioner as if it had been referred under section 246(1) of

that Act as amended by this Act.

(2)

On and from the commencement day —

(a)	any pending proceeding before a compensation magistrate’s court; and
(b)	any matter that has been determined by a review officer and —

(i) would have been appealable to a compensation magistrate’s court had the law in force immediately before the commencement day continued to apply; or

(ii) was the subject of an appeal to a compensation magistrate’s court that was not determined before the commencement day,

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is to continue to be dealt with and determined as if the law in

force immediately before the commencement day had continued

in force.

(3)

The principal Act as in force before the commencement day continues to apply to the extent that is necessary to enable a compensation magistrate’s court to continue to deal with and

determine a matter under this section and to enable appeals to be

dealt with and implemented.

(4)

Anything ordered, decided or otherwise done by a compensation

magistrate’s court under this section or before the

commencement day is to be given effect and enforced, and is

subject to appeal and may be dealt with on appeal, as if the

principal Act as in force before the commencement day

continued to apply.

185. Existing summonses and warrants

(1)

If immediately before the commencement day a summons or

other process issued by a review officer under Part IIIA of the

principal Act is in force, then on the commencement day the

summons, warrant or other process is to be taken to be a

summons or other process issued under Part XI of the amended

Act.

(2)

If immediately before the commencement day a summons

issued by a review officer under Part IIIA of the principal Act is

in force and requires the person to attend before, or to produce

documents to, a review officer, then on the commencement day

the summons is to be taken to require the person to attend

before, or produce the documents to, an arbitrator at the place

specified in the summons.

186. Director of Conciliation and Review

(1)

In this section —

“former function” means a function of the Director Dispute

Resolution that is substantially similar to a function that

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before the commencement day was performed by the

Director of Conciliation and Review.

(2)	On the commencement day —

(a)	any matter involved in the performance of a former function is to be transferred to the Director Dispute Resolution;
(b)	any application, referral or other thing made, or otherwise directed or given to the Director of Conciliation and Review to do with the performance of the former function becomes of the same effect as if it had been referred or given to the Director Dispute Resolution to be dealt with under the amended Act; and
(c)	anything decided, or otherwise done by the Director of Conciliation and Review in the performance of a former function becomes of the same effect as if, and enforceable as if, it were decided, or done by the Director Dispute Resolution under the provisions authorising the Director Dispute Resolution to decide, or do corresponding things after the commencement day.

(3)

For the purposes of subsection (1), section 183(2), (3) and (4)

apply as if a reference in that section to a dispute resolution

body includes a reference to the Director of Conciliation and

Review and a reference in that section to a pending proceeding

includes a reference to a matter referred to in subsection (1).

187. Records

(1)

All records of a dispute resolution body relating to a matter that is transferred to a dispute resolution authority under section 183 of this Act, and all records of the Director of Conciliation and

Review, are to be given to the Director Dispute Resolution.

(2)

A compensation magistrate’s court is to cause the Director

Dispute Resolution to be given —

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(a)	a record of anything referred to in section 184 that the compensation magistrate’s court orders, decides, or otherwise does; and
(b)	all records relating to a matter that is transferred, or that the compensation magistrate’s court finishes dealing with, under section 184.

188. Deemed eligibility for approval as Director or arbitrator

(1)	The person who, immediately before the coming into operation of section 130 of the Workers’ Compensation Reform Act 2004, was the Director of Conciliation and Review is taken to be
eligible for approval under section 288(3) of the amended Act as the Director Dispute Resolution.
(2)	An officer of WorkCover WA who, immediately before the coming into operation of section 130 of the Workers’ Compensation Reform Act 2004, was a review officer is taken to be eligible for approval under section 286(3) of the amended Act as an arbitrator.
(3)	Subsection (2) does not apply to a person seconded to, or acting in, the office of a review officer immediately before the coming into operation of section 130 of the Workers’ Compensation
Reform Act 2004.
Division 4 — Transitional provisions relating to

Part VIII amendments

189. Transitional provisions for Part VIII amendments

(1)

When the Part VIII amendments come into operation (the

“commencement time”), any effect that anything done before

the commencement time by the former Committee would have

had if those amendments had not been made continues as if the

corresponding thing had been done by WorkCover WA.

(2)

In subsection (1) —

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“WorkCover WA” has the meaning given to that term by the

Workers’ Compensation and Injury Management Act 1981;

“corresponding thing” means anything done by

WorkCover WA after the commencement of the same effect after the commencement as what was done by the former Committee would have had if the Part VIII amendments had not been made;

“former Committee” means the Premium Rates Committee

under the Workers’ Compensation and Rehabilitation Act 1981 as in force before the commencement of the Part VIII amendments;

“Part VIII amendments” means the amendments that

sections 104 to 117 and 150 to 153 make to Part VIII of the

Workers’ Compensation and Rehabilitation Act 1981.