Workers Compensation Regulation 2003 (NSW)
This Regulation is the Workers Compensation Regulation 2003.
This Regulation commences on 1 September 2003.
This Regulation replaces the Workers Compensation (General) Regulation 1995 and the Workers Compensation (Insurance Premiums) Regulation 1995 (which are repealed under section 10 (2) of the Subordinate Legislation Act 1989) and the Workers Compensation Transitional Regulation 1997 (which is repealed by this Regulation).
In this Regulation:
(a) an employer insured under a policy of insurance to which the insurance premiums order for the time being in force applies and whose basic tariff premium (within the meaning of that order) for that policy would exceed $50,000, if the period of insurance to which the premium relates were 12 months, or
(b) an employer insured under more than one policy of insurance to which the insurance premiums order for the time being in force applies and whose combined basic tariff premiums (within the meaning of that order) for those policies would exceed $50,000, if the period of insurance to which each premium relates were 12 months, or
(c) an employer who is self-insured, or
(d) an employer who is insured with a specialised insurer and who employs more than 20 workers.
Notes included in this Regulation (other than notes included in a form) do not form part of this Regulation.
A reference to a form in this Regulation is a reference to a form in Schedule 1.
Employments of the kinds set out in Column 2 of Schedule 2 are prescribed as employments to which section 19 (1) of the Act applies. A disease set out in Column 1 of Schedule 2 is prescribed as a disease that is related to the employment or, as the case may require, each of the employments, set out in Column 2 of that Schedule opposite the description of that disease.
For the purposes of section 19 (2) of the Act, any one of the results set out in Column 3 of Schedule 3, if obtained by means of the medical test the requirements of which are set out opposite that result in Column 2 of that Schedule, is a result prescribed in respect of the disease, the name of which appears opposite that result in Column 1 of that Schedule.
For the purposes of section 27 (b) of the Act, the maximum amount for which an employer is liable in respect of reasonable funeral expenses, if death results from an injury and the worker leaves no dependants, is:
(a) in the case of a funeral held before 1 February 1992—$2,700, or
(b) in the case of a funeral held on or after 1 February 1992 but before 1 July 2000—$4,000, or
(c) in the case of a funeral held on or after 1 July 2000 but before the date that the Bill for the Workers Compensation and Other Legislation Amendment Act 2004 was first introduced into Parliament—$4,400, or
(d) in the case of a funeral held on or after the date that the Bill for the Workers Compensation and Other Legislation Amendment Act 2004 was first introduced into Parliament in respect of a death that occurred before that date—$4,400.
Note— Section 27 (a) of, and clause 1 (1) of Part 18I of Schedule 6 to, the Act, as inserted by the Workers Compensation and Other Legislation Amendment Act 2004, provide a maximum amount for reasonable funeral expenses of $9,000 in relation to a death occurring after the date that the Bill for that Act was first introduced into Parliament.
This clause applies regardless of when the injury that caused the death of the worker concerned was received.
In this Part:
A reference in this Part to an amount of money specified in an award or to an amount of a rate per 5 days or week or a minimum weekly rate fixed by an award or a Part or Division of an award is a reference to the amount or minimum weekly rate that is for the time being specified in, or fixed by, the award, Part, Division or industrial agreement, as the case may be, as in force from time to time.
The Authority may by order published in the Gazette:
(a) declare a specified class or classes of workers to be a class of workers to which this clause applies, and
(b) specify the manner in which the current weekly wage rate of a worker of each such class is to be calculated for the purposes of section 42 (1) (c) of the Act.
Each class of workers to which this clause applies by virtue of an order of the Authority under this clause is prescribed for the purposes of section 42 (1) (c) and (5) (b) of the Act.
The manner specified in the order as the manner of calculating the current weekly wage rate of a class of workers is prescribed for the purposes of section 42 (1) (c) of the Act in respect of that class of workers.
While an order of the Authority in force under this clause applies to a class of workers, clauses 10 and 11 do not apply to that class of workers.
For the purposes of section 42 (1) (c) and (5) (b) of the Act, the following classes of workers are prescribed:
(a) shearers bound by the Pastoral Employees (State) Award under the State Act,
(b) shearers bound by the Pastoral Industry Award 1965 under the Federal Act.
For the purposes of section 42 (1) (c) of the Act, the formula prescribed in respect of each class of workers prescribed by subclause (1) is
Workers engaged in the meat processing industry whose employment is subject to an industrial instrument that provides for the payment of “overs” or a production loading under a tally, piecework or incentive system in respect of work performed in that industry are prescribed as a class of workers for the purposes of section 42 (1) (c) and (5) (b) of the Act.
In this clause:
For the purposes of section 42 (1) (c) of the Act, the formula prescribed for each worker of the class prescribed by subclause (1) is whichever of the following formulae is appropriate:
(a) except as provided by paragraphs (b), (c) and (d), the formula is:
(b) where the formula prescribed by paragraph (a) provides a greater rate for a particular week for the worker (being a worker whose employment is subject to an industrial instrument that provides for the payment of “overs” to the worker) than the rate of
per week, the formula is per week for that week for that worker, (c) where the formula prescribed by paragraph (a) provides a smaller rate for a particular week for the worker than the rate of
per week, the formula is per week for that week for that worker, (d) where the formula prescribed by whichever of paragraphs (a), (b) and (c) is appropriate provides a smaller rate for a particular week for the worker than any special rate (as referred to in subclause (4)) applicable to the worker for that week—the special rate applicable to the worker for that week.
A reference in subclause (3) (d) to a
In the application of the formulae prescribed by subclause (3) for the purpose of determining compensation payable in respect of a period of incapacity (consisting of a week or any part thereof) of a worker of the class prescribed by subclause (1):
(a) where that period consists of, or includes, Monday of that week and any other worker who is a co-worker of the injured worker worked on that Monday—the prescribed amount payable to that other worker for that Monday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Tuesday of that week and any other worker who is a co-worker of the injured worker worked on that Tuesday—the prescribed amount payable to that other worker for that Tuesday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Wednesday of that week and any other worker who is a co-worker of the injured worker worked on that Wednesday—the prescribed amount payable to that other worker for that Wednesday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Thursday of that week and any other worker who is a co-worker of the injured worker worked on that Thursday—the prescribed amount payable to that other worker for that Thursday, or
(b) in any other case—0.
(a) where that period consists of, or includes, Friday of that week and any other worker who is a co-worker of the injured worker worked on that Friday—the prescribed amount payable to that other worker for that Friday, or
(b) in any other case—0.
(a) the total number of days of that period on which other co-workers of the injured worker worked, or
(b) where there are no such days—0.
For the purposes of subclause (5), a worker is a
A reference in subclause (5) to the prescribed amount payable to a worker for a day on which the worker worked is a reference to the amount of money that the worker is entitled, under the industrial instrument by which the worker is bound, to be paid for that day’s work:
(a) exclusive of any amount that the worker is so entitled to be paid in respect of shift work or overtime or otherwise at penalty rates, and
(b) inclusive of any amount that the worker is so entitled to be paid in respect of “overs” or (subject to subclause (8)) in respect of production loading.
For the purposes only of subclause (7) (b), an amount a worker is entitled to be paid in respect of production loading for a day’s work is taken not to include:
(a) in the case of a worker for whom production loading is calculated by reference to weekly production, any amount in excess of one-fifth of the production loading that would be payable to the worker in respect of the week in which that day occurs if the workers (in relation to whose “overs” that production loading is calculated) completed during that week a number of “overs” that provided each of those workers with pay for that week that is equivalent to the amount of money calculated in accordance with the formula
, or (b) in the case of a worker for whom production loading is calculated by reference to daily production, any amount in excess of the production loading that would be payable to the worker in respect of that day if the workers (in relation to whose “overs” that production loading is calculated) completed during that day a number of “overs” that provided each of those workers with pay for that day that is equivalent to the amount of money calculated in accordance with the formula
,
in each case with
For the purposes of section 42 (1) (d) of the Act, and clause 7 (2) (b) of Part 4 of Schedule 6 to the Act, the prescribed rate in respect of a period specified in Column 1 of the Table to this clause is the rate specified in Column 2 of that Table opposite that period.
This clause applies only to workers who, before 1 February 1992, became entitled to receive weekly payments in respect of incapacity for work.
Table
Column 1 | Column 2 | |
Period | Amount per week | |
1 | On and after 1 October 1987 and before 1 April 1988 | $284.70 |
2 | On and after 1 April 1988 and before 1 October 1988 | $288.60 |
3 | On and after 1 October 1988 and before 1 April 1989 | $294.80 |
4 | On and after 1 April 1989 and before 1 October 1989 | $302.20 |
5 | On and after 1 October 1989 and before 1 April 1990 | $313.20 |
6 | On and after 1 April 1990 and before 1 October 1990 | $319.80 |
7 | On and after 1 October 1990 and before 1 April 1991 | $334.60 |
8 | On and after 1 April 1991 and before 1 October 1991 | $339.00 |
9 | On and after 1 October 1991 and before 1 April 1992 | $341.30 |
10 | On and after 1 April 1992 and before 1 October 1992 | $351.50 |
11 | On and after 1 October 1992 and before 1 April 1993 | $355.90 |
12 | On and after 1 April 1993 and before 1 October 1993 | $357.20 |
13 | On and after 1 October 1993 and before 1 April 1994 | $359.00 |
14 | On and after 1 April 1994 | $360.60 |
For the purposes of paragraph (b) of the definition of
Table
Column 1 | Column 2 |
Adjustment date | Latest index number |
1 April 1988 | 229.3 |
1 October 1988 | 234.2 |
1 April 1989 | 240.1 |
1 October 1989 | 248.8 |
1 April 1990 | 254.1 |
1 April 1998 | 146.4 |
1 October 1998 | 149.0 |
1 April 1999 | 151.6 |
1 October 1999 | 154.1 |
1 April 2000 | 156.6 |
1 October 2000 | 158.3 |
1 April 2001 | 161.9 |
1 October 2001 | 164.7 |
1 April 2002 | 167.6 |
1 October 2002 | 170.0 |
1 April 2003 | 172.9 |
1 October 2003 | 176.4 |
1 April 2004 | 179.6 |
1 October 2004 | 182.9 |
1 April 2005 | 185.8 |
1 October 2005 | 189.6 |
1 April 2006 | 193.5 |
1 October 2006 | 197.1 |
1 April 2007 | 200.9 |
1 October 2007 | 204.5 |
1 April 2008 | 208.5 |
1 October 2008 | 212.1 |
1 April 2009 | 216.4 |
1 October 2009 | 220.3 |
1 April 2010 | 224.5 |
1 October 2010 | 227.5 |
A notice under section 38A (3) of the Act:
(a) may be based on the model form (if any) set out in the claims procedures referred to in section 38A (3) (d) of the Act, and
(b) may include additional information and explanatory matter to assist in the understanding of the notice, and
(c) may be varied or replaced by a further notice given to the worker in accordance with section 38A (3) of the Act.
Reminder copies of a notice under section 38A (3) of the Act may be given to the worker concerned from time to time.
A notice given to a worker in accordance with section 38A (3) of the Act is sufficient notice for any further period of unemployment in respect of the same injury.
In the case of any worker:
(a) who, before the commencement of Schedule 1 to the Workers Compensation Legislation (Amendment) Act 1994, was at the same time both partially incapacitated for work as the result of an injury and unemployed, and
(b) who is, as at or at any time after that commencement, both partially incapacitated for work as the result of that injury and unemployed,
the requirement under section 38A (2) (d) of the Act applies regardless of whether the worker has been notified in accordance with section 38A (3) of the Act.
For the purposes of section 43 (2) of the 1987 Act, the period of 14 days is prescribed in relation to any request made on or after 1 November 2006.
The notice referred to in section 54 of the 1987 Act must include the following:
(a) a statement of the reason for the decision to discontinue payment, or reduce the amount, of weekly payments of compensation and of the issues relevant to the decision,
(b) a statement identifying all the reports and documents submitted by the worker in making the claim for weekly payment of compensation,
(c) a statement identifying all the reports of the type to which clause 37 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(d) a statement advising that a copy of a report required to be provided by the insurer under clause 37 (3) (except as provided by clause 37 (5) or (6)) accompanies the notice,
(e) a statement to the effect that the worker can request a review of the decision by the insurer,
(f) a statement to the effect that the matters that may be referred to the Commission or District Court are limited to matters specified as disputed in the notice, in a request for a further review of the decision or in a notice after a further review of the decision,
(g) advice as to the procedure for requesting a review of the decision,
(h) unless paragraph (i) applies, a statement to the effect that the worker can refer the dispute about the decision for determination by the Commission (in the case of a dispute about a matter other than a coal miner matter) or the District Court (in the case of a dispute about a coal miner matter),
(i) if the insurer has referred or proposes to refer the disputed discontinuation or reduction for determination by the Commission or District Court, a statement to that effect specifying the date of referral or proposed referral,
(j) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from a lawyer or from the WorkCover Claims Assistance Service,
(k) the street address and email address of the Registrar of the Commission or Registrar of the District Court, as appropriate.
If:
(a) the notice referred to in section 54 of the 1987 Act relates to a reduction in the amount of weekly payments of compensation as a result of the application of section 40 of the 1987 Act, and
(b) the worker is not in receipt of earnings (or the compensation is otherwise calculated on the basis of the worker’s ability to earn after the injury, rather than on the worker’s actual earnings after the injury),
the notice must also include a statement of how the compensation (to be so reduced) has been calculated.
(Repealed)
A return-to-work program required to be established by a category 1 employer must be established before the expiration of the period of 12 months after the employer becomes a category 1 employer.
A return-to-work program required to be established by a category 2 employer must be established before the expiration of the period of 12 months after the employer becomes a category 2 employer.
The Authority may, in a particular case, extend the period during which a return-to-work program is required to be established.
Section 52 (2) (b) of the 1998 Act requires a return-to-work program to be developed by an employer in consultation with workers of the employer and any industrial union of employees representing those workers.
An employer who fails to establish a return-to-work program under section 52 of the 1998 Act within the period required by this Regulation is guilty of an offence.
Maximum penalty:
(a) in the case of a category 2 employer, 5 penalty units,
(b) in the case of a category 1 employer, 20 penalty units.
The Authority may prepare (in accordance with the guidelines) standard return-to-work programs for category 2 employers generally or for different kinds of category 2 employers.
A category 2 employer who does not establish a separate return-to-work program in accordance with the 1998 Act may establish a return-to-work program by adopting a relevant standard return-to-work program prepared under this clause.
The Authority may include in a compensation claim form approved by the Authority under section 65 (1) (b) of the 1998 Act a copy of any standard return-to-work program prepared under this clause.
An employer is not to be regarded as having established a return-to-work program unless the program complies with the guidelines and any directions under or requirements of this Regulation.
A category 2 employer who adopts a relevant standard return-to-work program under clause 15C is to be regarded as having duly established a return-to-work program.
The Authority may give an employer directions in writing in connection with any return-to-work program established, or to be established, by the employer to ensure that the program complies with the guidelines.
The Authority is to review a direction given by it under this clause if the employer concerned requests a review but need not review any particular direction more than once.
A return-to-work program must, if the guidelines so require, nominate an accredited provider of rehabilitation services (or a list of such accredited providers) for the purposes of the program.
Consultation on the nomination of an accredited provider of rehabilitation services is to be carried out in such circumstances and in such manner as the guidelines may provide.
An employer who fails to display or notify a return-to-work program in accordance with section 52 (2) (c) of the 1998 Act at the places of work under the employer’s control is guilty of an offence.
Maximum penalty:
(a) in the case of a category 2 employer, 2 penalty units,
(b) in the case of a category 1 employer, 10 penalty units.
A category 2 employer is not required to display or notify a return-to-work program at the places of work under the employer’s control:
(a) if the employer provides a copy of the program to any worker who requests a copy or who claims compensation for any injury, or
(b) if the employer makes other appropriate arrangements to ensure that workers have access to a copy of the program.
A category 1 employer must:
(a) employ a person to be a return-to-work co-ordinator for injured workers of the employer, being a person who has undergone such training as the guidelines may require, or
(b) engage a person in accordance with such arrangements as the guidelines may from time to time permit to be a return-to-work co-ordinator for injured workers of the employer.
Maximum penalty: 20 penalty units.
The following are examples of the arrangements that the guidelines can permit for the purposes of this clause:
(a) the engagement of a person under an arrangement with a person or organisation that provides return-to-work co-ordinators to employers,
(b) an arrangement under which a person is engaged on a shared basis by 2 or more employers.
The guidelines can require an employer to obtain the approval of the Authority before entering into an arrangement for the purposes of subclause (1) (b).
The guidelines can impose requirements with respect to the training, qualifications and experience of persons who may be engaged to be return-to-work co-ordinators under subclause (1) (b).
An employer’s return-to-work co-ordinator has such functions as may be specified in the guidelines.
For the purposes of section 52 (5) of the 1998 Act, a group of 2 or more employers may establish a single return-to-work program for the members of the group if:
(a) those employers have engaged a person to be a return-to-work co-ordinator for injured workers of those employers on a shared basis, and
(b) in the opinion of the Authority:
(i) those employers are engaged in the same business, or
(ii) those employers operate in the same locality, or
(iii) those employers satisfy any requirements of the guidelines imposed for the purposes of this paragraph, and
(c) in the opinion of the Authority, those employers have complied with all of the requirements of the guidelines with respect to the establishment of a single return-to-work program for groups of employers.
The guidelines can require employers to obtain the approval of the Authority for:
(a) the establishment of a single return-to-work program for a group of employers, and
(b) the terms of a single return-to-work program and any revisions or amendments to those terms.
The following classes of employers, to the extent indicated, are exempt from the requirement to establish a return-to-work program under section 52 of the 1998 Act and from clause 15I:
(a) employers (including bodies corporate for strata schemes or strata (leasehold) schemes) who employ domestic or similar workers otherwise than for the purposes of the employer’s trade or business (but only to the extent of the workers concerned),
(b) employers who hold owner-builders’ permits under the Home Building Act 1989 (but only to the extent of workers employed for the purposes of the work to which the permits relate),
(c) employers (being corporations) who only employ workers who are directors of the corporation,
(d) employers who only employ workers who are members of the employer’s family,
(e) employers who only employ workers who perform work while outside New South Wales,
(f) employers exempted in writing by the Authority (but only to the extent specified in the exemption).
In this Part,
For the purposes of the definition of
For the purposes of section 63A (3) (b) of the Act, the prescribed amount is $1,500, adjusted in accordance with Division 6 of Part 3 of the Act as if it were an adjustable amount for the purposes of that Division.
The prescribed amount applies in relation to occupational rehabilitation services in respect of injuries received before the commencement of this clause (or before any adjustment of that amount as referred to in subclause (1)) in the same way as it applies in relation to services in respect of injuries received after that commencement.
For the purposes of section 63A (4) of the Act, an insurer who is liable to indemnify an employer for any occupational rehabilitation service provided to or for the benefit of a worker is prescribed (in addition to the Authority) as a person who may direct that the employer is liable for a further amount to that prescribed by section 63A (3) of the Act.
An application under section 63A (4) of the Act:
(a) is to be in the form of a rehabilitation plan or in such other form (if any) as the Authority may approve, and
(b) is to contain such particulars as the Authority may determine.
An accredited provider is required to make an application under section 63A (4) as soon as practicable after the accredited provider becomes aware that the total cost of occupational rehabilitation services provided to or for the benefit of a worker in respect of an injury will, or is likely to, exceed the maximum amount prescribed by section 63A (3).
An accredited provider may, for the purpose of determining whether an application under section 63A (4) of the Act is necessary, request the relevant insurer (in writing) to supply details of any costs that have been claimed from the insurer in respect of occupational rehabilitation services previously provided by another provider in respect of the same injury.
If the insurer does not, within 14 days or such longer period as the Authority may determine, supply the accredited provider with those details, the provider need only make an application under section 63A (4) of the Act if the total cost of services provided by that provider to or for the benefit of the worker concerned will, or is likely to, exceed the maximum amount prescribed by section 63A (3) of the Act.
If an application under section 63A (4) of the Act is made to an insurer:
(a) the insurer may request further information from the applicant, and
(b) the insurer is, as far as practicable, to deal with the application within 7 days after receiving it or the further information (whichever is the later).
A direction by an insurer under section 63A (4) of the Act must be in accordance with the approved guidelines (if any) relating to such directions.
Any such direction may, subject to those approved guidelines:
(a) specify that an employer’s liability for a further amount to that prescribed by section 63A (3) of the Act is limited by reference to a maximum further amount for which the employer is liable for the proposed services (including, if appropriate, particular services) or to the nature, number or duration of those services, or both, or
(b) specify that the employer is liable for such amount as is reasonably appropriate, having regard to the reasonable necessity for the provision of the services concerned.
If a direction is given under section 63A (4) of the Act and the accredited provider concerned becomes aware that, because of a change of circumstances or otherwise, it is no longer necessary for the occupational rehabilitation service covered by the direction to be provided to or for the benefit of the worker, the provider is to cease providing the service and notify the Authority or the relevant insurer.
The Authority or an insurer may, subject to any approved guidelines, give a direction under section 63A (4) of the Act:
(a) that is subject to such conditions as may be specified in the direction, and
(b) by notice in writing given to the provider concerned, amend or revoke the conditions specified in any such direction or add to those conditions,
and any such amendment, revocation or addition takes effect on and from the time the notice is served on the provider concerned or from a later time specified in the notice.
The Authority or the insurer is to ensure that the employer concerned also receives a copy of the notice as soon as practicable after it takes effect.
If an insurer, after an application under section 63A (4) of the Act has been made to it:
(a) refuses to give a direction under section 63A (4) of the Act, or
(b) gives only part of any such direction applied for by or on behalf of the worker or the accredited provider concerned,
the insurer must refer the matter as soon as practicable to the Authority in such form and in such manner as the Authority may determine.
If an insurer gives a direction under section 63A (4) of the Act, the worker or accredited provider concerned may apply to the Authority for a review of the direction:
(a) if the worker or provider objects to a condition (or an amendment or revocation of a condition) that the insurer has attached or added to the direction, or
(b) if the insurer declines further liability on behalf of the relevant employer for any occupational rehabilitation service covered by a direction previously given by the insurer.
An application for review is required to be:
(a) made in such form, and
(b) accompanied by such information, and
(c) made in such manner,
as the Authority may determine.
The Authority may, in relation to a matter that has been referred to it or in relation to an application for a review under this clause:
(a) confirm the decision of the insurer, or
(b) confirm the decision with such modification as the Authority considers to be appropriate, or
(c) give a direction under section 63A (4) of the Act that the Authority considers to be appropriate.
The Authority is to notify in writing the relevant insurer, employer, accredited provider and worker of the outcome of its review.
The Authority may, after giving a direction under section 63A (4) of the Act, revoke (in whole or in part) the direction if it considers it appropriate to do so in the circumstances.
The Authority may suspend any such direction pending its decision on whether to revoke the direction.
The Authority is to give notice in writing to all parties of any such suspension or revocation (but may, in the case of suspension, give oral notice and confirm the notice later in writing).
If the Authority suspends or revokes a direction under section 63A (4) of the Act, the employer concerned ceases to be liable (subject to any order of the District Court or the Commission) for any occupational rehabilitation services or class of service specified in the notice of suspension or revocation and to which the direction relates.
The suspension or revocation has effect in respect of services provided after the accredited provider concerned receives notice of the suspension or revocation or after such later time as may be specified in the notice.
The Authority must, before making a decision on:
(a) an application for a direction under section 63A (4) of the Act or a review of an insurer’s decision in respect of such an application, or
(b) whether to amend, revoke or add to the conditions to which any such direction is subject, or
(c) whether to suspend or revoke any such direction,
give any person who may be adversely affected by the decision a reasonable opportunity to make submissions to the Authority on the matter.
The payment of any amount in accordance with a direction by the Authority under section 63A (4) of the Act is not to be taken as an admission of liability.
In the case of a claim under Division 6 of Part 4 of the Act involving the provision of occupational rehabilitation services to or for the benefit of the worker concerned:
(a) any application for a direction under section 63A (4) of the Act may only be made to the Authority, and
(b) for the purpose of the definition of
occupational rehabilitation service in section 59 of the Act, services may be provided to or for the benefit of the worker by any person determined by the Authority to be suitable (as well as by a provider accredited under section 152 of the Act) and, in that case, references in this Part to an accredited provider are to be read as references to such a person.
If, in respect of an application under section 63A (4) of the Act, a self-insurer decides or refuses to pay a further amount to that prescribed by section 63A (3) of the Act:
(a) the decision is, for the purposes of this Part, taken to be a direction that the employer concerned is liable for that further amount, or
(b) the refusal is, for the purposes of this Part, taken to be a refusal to give a direction under section 63A (4) of the Act,
and for any such purposes, a reference in this Part to an insurer includes a reference to a self-insurer.
If proceedings are pending in the District Court or the Commission, the Authority may, in relation to an application or a reference for review received by it under this Part that is connected with the proceedings:
(a) give a direction under section 63A (4) of the Act (unless the Court or the Commission otherwise orders), or
(b) decline to deal with the matter.
Nothing in this Part (for example clause 24 (Review by the Authority)) prevents the Authority from giving its opinion on matters relating to the liability of an employer under the Act for particular occupational rehabilitation services.
A person may apply to the Authority for a certificate of accreditation.
Two or more persons jointly providing, or intending to jointly provide, rehabilitation services may (but are not required to) apply for a joint certificate of accreditation.
An application must:
(a) be in the form approved by the Authority, and
(b) contain such particulars and be accompanied by such documents as may be required by that form, and
(c) be accompanied by such fee as the Authority may determine.
The Authority is to determine an application for a certificate of accreditation:
(a) by granting a certificate to the applicant in the applicant’s name, or, if there is more than one applicant, in their joint names, or
(b) by refusing to grant a certificate.
In determining an application for a certificate of accreditation, the Authority is to have regard to:
(a) the application, and
(b) in relation to the applicant or each applicant (if more than one):
(i) if the applicant is a natural person—the desirability of granting individual accreditation to natural persons, and
(ii) the capacity of the applicant to comply with the standards for rehabilitation providers, and
(iii) any information supplied by a trade union or employer organisation relating to the applicant’s provision of rehabilitation services, and
(iv) any complaint lodged with the Authority against the applicant by a client of the applicant, and
(v) information procured in the course of any interviews with or examination of premises used by the applicant, and
(vi) verification of any references supplied by the applicant, and
(c) any relevant information relating to workers compensation costs and statistics concerning the return to work of injured workers, and
(d) such other matters as the Authority thinks fit.
The Authority must not grant a certificate unless:
(a) in the case of an application by a natural person or natural persons—the Authority is of the opinion that the applicant or each applicant is a fit and proper person to hold a certificate and is of or above the age of 18 years, and
(b) in the case of an application by a corporation:
(i) the Authority is of the opinion that the corporation is a fit and proper person to hold a certificate, and
(ii) each director of the corporation would, if the application had been made by the director, be a fit and proper person to be granted a certificate.
A person may be granted a certificate of accreditation in respect of one or more of the following classes of accreditation:
(a) a provider of services related to return to work with the pre-injury employer,
(b) a provider of services related to return to work with a different employer,
(c) a provider of specialist occupational rehabilitation services.
A certificate is to be in the form approved by the Authority and is to specify:
(a) the name of the person or, in the case of a joint certificate, the names of the persons to whom the certificate is granted, and
(b) the class or classes of accreditation for which the certificate is granted.
It is a condition of every certificate of accreditation that the holder of the certificate must comply with the standards and conditions for rehabilitation providers which are appropriate for the class or classes of accreditation for which the certificate is granted, being standards of which the holder has been notified.
A certificate may be granted subject to such other conditions as may be specified in the certificate.
The Authority may, by notice in writing served on the holder of a certificate, amend or revoke the conditions specified in the certificate or add to those conditions.
Any such amendment, revocation or addition takes effect on and from a date specified in the Authority’s notice, being a date at least 7 days after the notice is served on the holder of the certificate.
The Authority may amend a certificate:
(a) on the application of a person who does not hold a certificate and proposes to provide a rehabilitation service jointly with the holder of a certificate, by adding the name of the person as a joint holder of the certificate, or
(b) on the application of a joint holder of a certificate who ceases to provide rehabilitation services, by deleting the person’s name from the certificate, or
(c) on the application of a holder of a certificate, by amending the specification of the class or classes of accreditation for which the certificate is granted.
An application under this clause must:
(a) be in the form approved by the Authority, and
(b) contain such particulars and be accompanied by such documents as may be specified in that form, and
(c) be accompanied by such fee as the Authority may determine.
The Authority is to determine an application under this clause:
(a) by granting the application and amending the certificate accordingly, or
(b) by refusing the application.
If an application referred to in subclause (1) (a) is granted and the certificate is amended by specifying in the certificate the name of the person concerned, that person is taken to be a person to whom the certificate is granted.
If the Authority refuses to grant or amend a certificate of accreditation, the Authority must as soon as practicable cause notice of the refusal to be served on the applicant.
In the case of a joint application, it is a sufficient compliance with subclause (1) if the notice of refusal is served on any one of the applicants.
The Authority is taken to have refused to grant or amend a certificate (and is taken to have notified the applicant accordingly) if the Authority does not give a decision on an application within 4 months after the date of lodgment of the application.
A certificate of accreditation remains in force, unless sooner cancelled or surrendered, for such period as may be determined by the Authority and specified in the certificate.
A certificate may be renewed from time to time by the grant of a further certificate.
A holder of a certificate of accreditation may surrender it by delivering it to the Authority with notice in writing that the certificate is surrendered.
If the Authority is satisfied that a certificate of accreditation has been lost or destroyed, the Authority may, on payment of such fee as the Authority may determine, issue a duplicate certificate.
The Authority is to cause a register of certificates of accreditation to be kept, in such form as the Authority determines, and is to cause to be recorded in the register in respect of each certificate:
(a) the matters which by this Regulation are required to be specified in the certificate, and
(b) particulars of any amendment of the certificate, and
(c) particulars of any cancellation, suspension or surrender of the certificate, and
(d) such other matters as the Authority thinks fit.
The Authority may cause to be made such alterations of the register as are necessary to ensure that the register is an accurate record.
The register may be inspected by any person at the office of the Authority during the Authority’s usual office hours and copies of all or any part of the register may be taken on payment of such fee as the Authority may determine.
A person must not, in or in connection with an application for a certificate of accreditation or amendment of such a certificate, make any statement which the person knows to be false or misleading in a material particular.
Maximum penalty: 20 penalty units.
The Authority may cancel or suspend a certificate of accreditation if the Authority is satisfied:
(a) that the holder of the certificate has made a statement in or in connection with an application for the certificate or amendment of the certificate that the holder knows to be false or misleading in a material particular, or
(b) that the holder of the certificate has contravened a condition of the certificate, or
(c) that the holder of the certificate has been convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more, or
(d) that the holder of the certificate, not being a corporation, has become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with creditors or made an assignment of remuneration for their benefit, or
(e) that the holder of the certificate, being a corporation:
(i) is in the course of being wound up, or
(ii) is under administration, or
(iii) is a corporation in respect of the property of which a receiver or manager (or other controller within the meaning of the Corporations Act 2001 of the Commonwealth) has been appointed, or
(iv) has entered into a compromise or arrangement with its creditors, or
(f) that the holder of the certificate has not provided rehabilitation services for a continuous period of 3 months or more, or
(g) that the holder of the certificate is for any other reason not a fit and proper person to hold a certificate, or
(h) in the case of a holder of a certificate, being a corporation—that any director of the corporation:
(i) has been convicted of an offence referred to in paragraph (c), or
(ii) for any other reason would not be a fit and proper person to hold a certificate, if the certificate were held by the person.
The grounds referred to in subclause (1) (except paragraph (f)) are taken to exist:
(a) in the case of a joint certificate—if those grounds apply to any holder of that certificate, or
(b) in the case of 2 or more certificates held by persons providing rehabilitation services in partnership—if those grounds apply to any holder of any of those certificates.
Before cancelling or suspending a certificate, the Authority must give the holder of the certificate an opportunity to show cause why the certificate should not be cancelled or suspended on such grounds as are notified to the holder.
The cancellation or suspension of a certificate does not take effect until notice in writing of the cancellation or suspension has been served on the holder of the certificate.
A person must not falsely hold himself or herself out as being the holder of a certificate of accreditation.
Maximum penalty: 20 penalty units.
For the purposes of section 44 (2) of the 1998 Act, notification to an insurer or the Authority by an employer that a worker has received a workplace injury must be given in any of the following ways:
(a) by electronic communication (using a mode of electronic communication approved by the insurer or the Authority) providing the information requested by the insurer or the Authority,
(b) in writing by completing a notification form approved for the purpose by the insurer or the Authority and sending the completed form to the insurer or the Authority by post or facsimile transmission at the address or facsimile number indicated on the form, or by completing and lodging the form in person at an office of the insurer or the Authority,
(c) by telephone to the insurer or the Authority, giving such information as may be requested of the caller.
For the purposes of section 44 (3) of the 1998 Act, an insurer who has been given notice by an employer under section 44 (2) of that Act that a worker has received a workplace injury must forward that notice to the Authority using a mode of electronic communication approved by the Authority.
An employer who gives a notification under section 44 (2) of the 1998 Act must make and keep for at least 5 years after the notification is given:
(a) a record of the date, time, place and nature of the injury to which the notification relates, and
(b) a record of the date on which and the way in which the notification was given, and
(c) a record of any acknowledgement (such as a receipt number) given to the employer by the insurer or the Authority as evidence of receipt of the notification.
An entry in the register of injuries kept under section 63 of the 1998 Act is a sufficient record of an injury for the purposes of this clause. The record of an acknowledgement of the notification can also be made and kept as part of the register of injuries.
An employer must make the records kept under subclause (3) available for inspection by an authorised officer or authorised employee representative in accordance with a request by the authorised officer or authorised employee representative, and in any event no later than 7 days after the date of the request.
In this clause:
Maximum penalty: 20 penalty units.
A person who fails to comply with section 44 (2) of the 1998 Act is guilty of an offence.
Maximum penalty: 20 penalty units.
If an injury is a loss, or further loss, of hearing that is of such a nature as to be caused by a gradual process (including boilermaker’s deafness and any deafness of a similar origin):
(a) notice of injury is to be given by the worker under section 62 of the 1998 Act:
(i) if the worker is employed by an employer in an employment to the nature of which the injury is due to that employer, or
(ii) if the worker is not so employed to the last employer by whom the employer was employed in an employment to the nature of which the injury is due, and
(b) the notice must be in writing and be:
(i) in the form set out in Form 1, or
(ii) in any other form that contains at least the particulars required by Form 1 (though not necessarily in the same format as that Form).
Any forms issued by insurers and self-insurers for the giving of notice by workers of an injury referred to in subclause (1) must also contain such information (if any) as the Authority may from time to time approve and notify to insurers and self-insurers.
The notice given to a claimant under section 74 of the 1998 Act must contain the following:
(a) in relation to a coal miner matter:
(i) a statement to the effect that the worker can refer the dispute for determination by the District Court, and
(ii) if the insurer has referred or proposes to refer the dispute for determination by the District Court, a statement to that effect specifying the date of referral or proposed referral, and
(iii) a statement to the effect that the matters that may be referred to the District Court are limited to matters notified in the notice, in a notice after a further review in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, except with the leave of the District Court,
(b) in relation to a work injury damages dispute:
(i) a statement to the effect that, before a claimant can commence court proceedings, the claimant must firstly serve a pre-filing statement (in accordance with section 315 of the 1998 Act) on the defendant and secondly refer the claim to the Commission for mediation (in accordance with section 318A of the 1998 Act), and
(ii) a statement to the effect that the claimant is not entitled to raise matters in court proceedings that are materially different from those contained in the pre-filing statement, except with the leave of the court,
(c) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation,
(d) a statement identifying all the reports of the type to which clause 37 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(e) a statement advising that a copy of a report required to be provided by the insurer under clause 37 (3) (except as provided by clause 37 (5) or (6)) accompanies the notice,
(f) advice as to the procedure for requesting a review of the decision,
(g) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from a lawyer or from the WorkCover Claims Assistance Service,
(h) the street address and the email address of the Registrar of the Commission or the Registrar of the District Court, as appropriate.
Section 74 of the 1998 Act requires the notice to also include the following:
(a) a statement of the reason the insurer disputes liability and of the issues relevant to the decision,
(b) a statement to the effect that the worker can request a review of the claim by the insurer,
(c) a statement to the effect that the worker can refer the dispute for determination by the Commission,
(d) if the insurer has referred or proposes to refer the dispute for determination by the Commission, a statement to that effect specifying the date of referral or proposed referral,
(e) a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review,
(f) a statement to the effect that the worker can also seek advice or assistance from the worker’s trade union organisation or from a lawyer.
A person who fails to comply with section 74 of the 1998 Act in respect of a claim for compensation is guilty of an offence.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence of failing to comply with section 74 (2B) of the 1998 Act if it is established that the notice complied with guidelines issued by the Authority as to how the notice concerned was to be expressed.
(Repealed)
For the purposes of section 231 (1) of the 1998 Act:
(a) the summary of the requirements of that Act with regard to the giving of notice of injuries and the making of claims is to be in the form of an approved form, and
(b) the other information required to be posted up in accordance with that section is the other information contained in the approved form.
Any form approved for the time being by the Authority is an
An approved form that ceases to be an approved form (as a result of the amendment or substitution of a form approved by the Authority) continues to be an approved form for the purposes of a notice posted up under section 231 of the 1998 Act that was in that form immediately before it ceased to be an approved form, but only until the earlier of:
(a) the renewal or replacement of the notice, or
(b) 12 months after the form ceases to be an approved form.
The register of injuries required to be kept under section 63 of the 1998 Act is to be a book with entries in the form set out in Form 2.
The particulars to be entered in the register of injuries are the particulars required to complete Form 2.
This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession:
(a) medical reports, including medical reports provided pursuant to section 119 of the 1998 Act (Medical examination of workers at direction of employer),
(b) medical certificates,
(c) clinical notes,
(d) investigators’ reports,
(e) occupational rehabilitation providers’ reports,
(f) health service providers’ reports,
(g) reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act,
(h) reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made,
(i) wage details required to be supplied under section 43 (2) of the 1987 Act where a decision has been made to decline payment of, or reduce the amount of, weekly benefits, but only if such details have not already been supplied to the worker.
This clause applies to the following decisions of an employer or insurer relating to an injured worker:
(a) a decision to dispute liability in respect of a claim, or any aspect of a claim (in circumstances requiring the insurer to give the worker a notice and reasons under section 74 of the 1998 Act),
(b) a decision to discontinue payment, or to reduce the amount of weekly benefits (in circumstances requiring the insurer to give the worker a notice of intention under section 54 of the 1987 Act),
(c) a decision on the review under section 287A of the 1998 Act of a decision described in paragraph (a) or (b) that confirms the original decision.
If an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under section 74 of the 1998 Act, section 54 of the 1987 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 15 (1) (c) or 34 (1) (d).
The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision.
If the employer or insurer is of the opinion that supplying a worker with a copy of a report would pose a serious threat to the life or health of the worker or any other person, the employer or insurer may instead supply the report:
(a) in the case of a medical report, medical certificate or clinical notes—to a medical practitioner nominated by the worker for that purpose, or
(b) in any other case—to a legal practitioner representing the worker.
If, on the application of an employer or insurer, the Authority is satisfied that supplying the worker with a copy of the report would pose a serious threat to the life or health of the worker or any other person and that supplying the report as provided by this clause would not be appropriate, the Authority may:
(a) direct that the report be supplied to such other persons as the Authority considers appropriate, or
(b) make such other directions as the Authority thinks fit.
For the purposes of section 297 (3) (e) of the 1998 Act, it is not to be presumed that an interim payment direction for weekly payments of compensation is warranted in circumstances where the insurer has given the worker notice under section 74 of the 1998 Act (Insurers to give notice and reasons when liability disputed).
(Repealed)
In the application of section 122 of the 1998 Act for the purposes of section 122 (12) of the 1998 Act, section 122 (2) of the 1998 Act is to be construed as requiring any applications to be made jointly by the worker and the employer.
This clause applies only in respect of the following:
(a) existing claims, and existing claim matters, within the meaning of Chapter 7 of the 1998 Act,
(b) coal miner matters.
In this Part:
In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
In this clause:
(a) means a report from a specialist medical practitioner who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.
Despite clauses 43 and 43A, a medical report other than the original report (
(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information, and
(b) it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report.
A supplementary report can be provided as an addendum to the original report and in such a case the original report together with that addendum constitute the report referred to in clauses 43 and 43A.
A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.
A forensic medical report must be disclosed to an approved medical specialist in connection with a claim or a work injury damages threshold dispute if any of the following occurs:
(a) the report was admitted in proceedings on the claim or dispute,
(b) no decision has been made as to whether or not the report is to be admitted, and:
(i) the report was the report nominated by the claimant or respondent as the report that the claimant or respondent concerned would introduce into evidence in proceedings on the claim, or
(ii) the report was the sole report in the particular specialty concerned that was lodged in relation to the claim by the claimant or respondent, as the case may be,
(c) the approved medical specialist calls for the production of the report under section 324 (1) (b) of the 1998 Act.
A forensic medical report is not to be disclosed to an approved medical specialist in connection with a claim or a work injury damages threshold dispute otherwise than in accordance with this clause.
Nothing in this clause permits more than one forensic medical report of the type referred to in clause 43 to be disclosed to an approved medical specialist on behalf of a party to proceedings.
In this clause:
(a) means a report from a specialist who has not treated the worker and has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of a claim or dispute, and
(b) includes a medical report provided by a medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act.
(Repealed)
A party to proceedings on a claim is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless:
(a) the report has been admitted into those proceedings on behalf of the party, or
(b) the report has been disclosed to an approved medical specialist.
A party to a claim where no proceedings have been taken is not entitled to be paid for or recover the cost of a medical report in connection with the claim unless the report has been served on another party, and:
(a) the report would be admissible in proceedings on behalf of the party, or
(b) the report could be disclosed to an approved medical specialist.
In this clause:
(a) a reference to a claim includes a reference to an initial notification of injury (as defined in Part 3 of Chapter 7 of the 1998 Act), and
(b) a reference to proceedings on a claim includes a reference to proceedings in respect of the payment of provisional weekly payments of compensation under the 1998 Act.
In this clause:
This Part does not affect any entitlement of an injured worker to be paid for or recover the cost of obtaining medical treatment.
This Part does not apply in respect of:
(a) a medical report provided in respect of the examination of an injured worker by a medical panel or medical referee in connection with an existing claim, or
(b) a medical report provided for the purposes of section 121 of the 1998 Act in connection with an existing claim by an approved medical specialist under that section, or
(c) a medical report provided by an approved medical specialist under Part 7 of Chapter 7 (Medical assessment) of the 1998 Act in respect of the assessment of a new claim.
In this clause:
This Part applies only in respect of proceedings commenced on or after 23 February 2001. In its application in respect of those proceedings, this Part extends to medical reports obtained before that date (subject to subclause (2)).
Clause 45 (Restrictions on recovery of cost of medical reports) does not apply in respect of a medical report that was obtained before 23 February 2001, or that was obtained on or after that date as a result of an appointment made before that date.
Clauses 43 and 44 extend to proceedings on a new claim or new claim matter commenced before 28 February 2003, but:
(a) do not affect the use of a report in evidence in proceedings if the report was admitted in the proceedings before that date, and
(b) do not prevent the recovery of costs under Schedule 6 for more than one report in a specialty that was obtained before that date, or as a result of an appointment made before that date.
In this clause,
In this clause:
The amendments made to this Part by the amending Regulation do not affect the use of a medical report in evidence in proceedings or as part of disclosure to an approved medical specialist where the report relates to an application lodged with the Registrar prior to 1 November 2006.
The amendments made to this Part by the amending Regulation apply to all claims or work injury damages threshold disputes lodged with the Registrar on and from 1 November 2006.
Despite subclause (3), where the medical examination to which the relevant medical report relates occurred before 1 November 2006, this Part, as in force immediately before 1 November 2006, continues to apply in respect of the report if the report:
(a) formed part of an application lodged with the Registrar prior to 1 December 2006, or
(b) formed part of a reply filed in respect of such an application within 21 days of the application being lodged.
Despite subclause (3), clause 45, as in force immediately before 1 November 2006, applies in respect of a medical report where the medical examination to which the report relates occurred before 1 November 2006 and either:
(a) the claim to which the report relates was resolved on or after 1 November 2006 without referral to the Registrar for determination by the Commission, or
(b) the application to which the report relates, or referral of the dispute for determination by the Commission to which the report relates, was lodged with the Registrar before 1 December 2006, except where there was a discontinuance of proceedings (without the consent of both parties) on or after 1 November 2006.
The amount of $175 is prescribed as the administration fee payable under section 155AA (5) of the Act.
The Nominal Insurer may serve a notice in writing on an employer to whom section 155AA (5) of the Act applies notifying the employer that the administration fee referred to in that subsection is due and payable.
The administration fee referred to in subclause (2) must be paid by the employer within one month of the service of the notice.
A late payment fee calculated at the interest rate referred to in section 22 of the Taxation Administration Act 1996 is payable if an administration fee is not paid within the one month period referred to in subclause (3).
The Authority may waive payment (either in full or in part) of an administration fee or late payment fee payable under section 155AA of the Act.
The Nominal Insurer is to pay any administration fees and late payment fees it has received under section 155AA of the Act into the Insurance Fund. Administration fees paid into the Insurance Fund are to be treated as premiums payable under policies of insurance.
For the purposes of section 159 of the Act, a policy of insurance (except one to which subclause (2) applies):
(a) must contain the provisions specified in Form 3, and
(b) may contain any other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
A policy of insurance issued or renewed so as to take effect before 31 December 1995 must contain the provisions that were specified in Form 7 in the Workers Compensation (General) Regulation 1987 immediately before its repeal, except that:
(a) the words “independently of this Act (being a liability under a law of New South Wales)” in the third paragraph of the Form are to be deleted and the words “independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country)” are to be inserted instead, and
(b) such a policy may contain other provisions, but only if those provisions have been agreed on by the insurer and employer concerned and approved by the Authority.
(Repealed)
(Repealed)
A weekly compensation claim made in respect of a worker who receives an injury in the circumstances referred to in section 11 (Recess claims) of the Act is prescribed for the purposes of section 160 (8) of the Act.
Exempt employer policies (within the meaning of section 155AA of the Act) are exempt from section 160 of the Act.
An employer who requests an insurer to provide a certificate of currency with respect to a policy of insurance must provide the insurer with a statement in a form approved by the Authority that contains a reasonable estimate of the wages that will be payable during the current period of insurance to workers employed by the employer.
An insurer may refuse to issue the requested certificate of currency until the employer complies with this clause.
For the purposes of the definition of
This clause applies only in relation to a certificate of currency issued on or after the commencement of this clause.
Any work carried out before 1 July 2004 under a contract for the carrying out of work on a farm on which a farmer engages in a farming operation is exempt from the operation of section 175B of the 1987 Act if the farmer is the principal contractor and the work is an aspect of the work of the farming operation (and is not an aspect of the work of any other business undertaking of the farmer).
In this clause:
The following employers are excluded from the operation of Division 2A (Grouping of employers for insurance purposes) of Part 7 of the Act:
(a) an employer who is insured with a specialised insurer,
(b) an employer who is insured where the policy of insurance relates only to private household domestic workers.
When one or more subsidiaries of the holder of a licence as a self-insurer under the 1987 Act is endorsed on the licence, each of those endorsed subsidiaries and the licence holder are
The holder of a licence as a group self-insurer may for the purposes of this Part, by notice in writing to the Authority from time to time, designate any one or more of the group self-insurers covered by the licence as
Except where otherwise expressly provided, this Part provides for the modification of provisions of Chapter 3 of the 1998 Act in their application to the following self-insurers:
(a) a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme,
(b) a group self-insurer for whom there is a designated insurer.
Sections 43, 44, 45, 47, 52 and 57 of the 1998 Act are to be read as if:
(a) a reference to
insurer were, in the case of a self-insurer who is a Government employer covered for the time being by the Government’s managed fund scheme, a reference to the Self Insurance Corporation, and(b) a reference to
insurer were, in the case of a self-insurer for whom there is a designated insurer, a reference to that designated insurer, and(c) the Self Insurance Corporation were the insurer of each employer who is a Government employer covered for the time being by the Government’s managed fund scheme, and
(d) the designated insurer for a group self-insurer were the insurer of the group self-insurer.
A reference in sections 50 and 58 of the 1998 Act to
(a) to the Self Insurance Corporation, when the insurer is a Government employer covered for the time being by the Government’s managed fund scheme, and
(b) when the insurer is a group self-insurer for whom there is a designated insurer, to that designated insurer.
The following modifications are to be made to the 1998 Act:
(a) section 43 (3)—omit “This subsection does not apply to a self-insurer.”,
(b) section 43 (4)—omit “(except when the insurer is a self-insurer)”,
(c) section 43 (5)—omit “This subsection does not apply when the employer is a self-insurer.”,
(d) omit section 44 (4),
(e) section 45 (2)—omit “(except when the insurer is a self-insurer)”,
(f) section 45 (5)—omit “This subsection does not apply when the insurer is a self-insurer.”,
(g) omit section 46 (3).
Section 45 (1) of the 1998 Act is replaced with the following subsection:
When it appears that a workplace injury is a significant injury, an injury management plan must be established for the injured worker by:
(a) if the self-insurer who is or may be liable to pay compensation to the injured worker is a Government employer covered for the time being by the Government’s managed fund scheme—the Self Insurance Corporation, or
(b) if the insurer who is or may be liable to pay compensation to the injured worker is a group self-insurer for whom there is a designated insurer—that designated insurer.
A reference in section 55 of the 1998 Act to
It is a condition of a licence as a self-insurer that the holder of the licence must ensure that any subsidiary of the holder endorsed on the licence complies with the subsidiary’s obligations under Chapter 3 of the 1998 Act.
In this Part:
For the purposes of this Part, a financial year:
(a) includes the period after 4 pm on the day preceding the first day of the financial year, and
(b) does not include the period after 4 pm on the last day of the financial year.
For the purposes of the contribution payable by an insurer under section 220 of the Act for a financial year, premium income (as defined in section 3 (1) of the Act) does not include any part of such a premium which is attributable to:
(a) the application of an excess surcharge factor (as defined in the insurance premiums order in force in respect of that financial year), or
(b) a dust diseases contribution (as so defined), or
(c) a premiums adjustment contribution (as so defined).
For the purposes of section 220 (2) of the Act, the prescribed percentage of the premium income of an insurer for a financial year specified in Column 1 of the Table to this clause is the percentage specified in Column 2 of that Table opposite that year.
Table
Column 1 | Column 2 | |
Financial Year | Percentage of premium income | |
1 | Financial year commencing 1 July 1987 | 8.5 per cent |
2 | Financial year commencing 1 July 1988 | 10.5 per cent |
3 | Financial year commencing 1 July 1989 | 5 per cent |
4 | Financial year commencing 1 July 1990: | |
| 5 per cent | |
| NIL | |
5 | Financial years commencing 1 July 1991 and 1 July 1992 | 7 per cent |
6 | Financial years commencing 1 July 1993 and 1 July 1994 |
The purpose of this subclause is to make it clear that the successive use of the word “other” in Table 1 does not result in successive narrowing of the terms used.
Despite clause 3 (2) of the Workers Compensation Regulation 2003, notes included in this Schedule form part of this Regulation.
This Schedule is to be read and applied in its entirety, and accordingly this Schedule applies in relation to costs in accordance with:
(a) the descriptions contained in Tables 1 to 4, and
(b) the notes in Part B, and
(c) Parts A and C.
This Schedule prescribes the maximum costs recoverable in respect of work carried out to achieve the resolution types described in Tables 2 and 3 for:
(a) resolving claims and disputes before an application is accepted by the Registrar for registration, or
(b) resolving disputes after an application is accepted by the Registrar for registration.
The maximum amount of costs for the resolution of a claim or dispute as described in Table 2 are the amounts set out in:
• column 1 or 2 of Table 1 for the claimant, and
• column 3 or 4 of Table 1 for the insurer,
for the applicable phase.
However:
(a) that maximum amount may be decreased by an amount already received under an entitlement from Table 3 in circumstances specified in that Table, and
(b) that maximum amount may be increased by an entitlement under Table 4 in circumstances specified in that Table.
The maximum amount of costs for the resolution of a claim or dispute as described in Table 3 are the amounts set out in that Table.
The maximum amount of costs for an additional legal service or other factor in respect of a resolution as described in items 1–5 of Table 4 is up to the amount or percentage of costs set out in:
• columns 1 and 3 of items 1–4 of Table 4 for the claimant, and
• columns 2 and 4 of items 1–4 of Table 4 for the insurer, and
• column 5 of item 5 of Table 4 for the claimant, and
• column 6 of item 5 of Table 4 for the insurer.
Accordingly and for the avoidance of doubt:
(a) an entitlement to costs under item 1, 2 or 3 of Table 4 as certified by the Commission or the Registrar may be added to the costs recoverable under item B, D, E or F of Table 1, and
(b) an entitlement to a percentage increase in costs ascertained under item 4 or 5 of Table 4 and as certified by the Commission or the Registrar applies to increase the costs claimable under item D, E or F of Table 1, and
(c) an entitlement to costs under item 1, 2 or 3 of Table 4 as certified by the Commission or the Registrar is recoverable by an insurer in respect of a resolution referred to in item B of Table 1 even though no costs may be recoverable by the insurer under that item.
The maximum costs for an additional legal service or other factor as described in items 6 and 7 of Table 4 are up to the percentage applicable for the claimant and insurer as specified.
Accordingly and for the avoidance of doubt, an entitlement to a percentage increase in costs ascertained under items 6 and 7 of Table 4 applies to increase the costs claimable under items A to F of Table 1.
Except as referred to in subclause (3) (c), costs specified in Table 4 are recoverable only if costs as described in Table 1 are also recoverable.
Costs specified in clause 4 of this Part are recoverable only on resolution of the claim or dispute concerned.
An exception to the standard method of determining the appropriate Table 1 costs for a claimant and an insurer based upon the meaning of “resolved” under clause 2 of this Part and the types of resolutions set out in Table 2 applies, where:
(a) a claimant has made an application to the Commission to resolve a dispute about permanent impairment and pain and suffering pursuant to sections 66 and 67 of the 1987 Act, and
(b) the section 67 claim has been substantiated by:
(i) a report, from a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guidelines, to the effect that the claimant has sustained 10% or more whole person impairment where:
• the injury was sustained on or after 1 January 2002, and
• that report has been served on the insurer, or
(ii) a medical report to the effect that the claimant has sustained a loss or losses of 10% or more of the maximum amount referred to in section 66 (1) of the 1987 Act where:
• the injury was sustained before 1 January 2002, and
• that report has been served on the insurer, and
(c) the medical assessment certificate issued by an approved medical specialist or a Medical Appeal Panel is to the effect that the degree of whole person impairment of the claimant is below 10% or the loss or losses are not 10% or more of the maximum amount referred to in section 66 (1) of the 1987 Act.
In a case to which subclause (1) applies:
(a) the claimant is entitled to maximum costs in the amount of $4,000, and
(b) the insurer is entitled to maximum costs in the amount of $1,875.
The deduction in respect of an advice to an insurer under item F of Table 3 applies to this costs provision.
Costs specified in Table 3 as “Special Resolution Types” are recoverable only:
(a) on resolution of the dispute in respect of items A, B and C of that Table, or
(b) on registration of the agreement with the Commission in respect of item D of that Table, or
(c) when an existing decision of the insurer has been varied as a consequence of a legal service, where it was reasonable to carry out that service in respect of item E of that Table, or
(d) when written advice has been provided to the insurer in respect of item F of that Table, or
(e) when independent legal advice has been given to a claimant in respect of a complying agreement proposed by an insurer in respect of item G of that Table.
The costs referred to in subclause (1) are not payable or recoverable in conjunction with any other items in this Schedule (with the exception of disbursements under Part C or disbursements specified in clause 82 of the Workers Compensation Regulation 2003) with the result that:
(a) if costs have been recovered in respect of item A, B or C of Table 3 and costs subsequently become recoverable under Table 1 in respect of a resolution that relates to the same issue, the entitlement to costs under Table 1 is to be reduced by any payment already made in respect of item A, B or C of Table 3, and
(b) if costs have been recovered in respect of item E of Table 3 and costs subsequently become payable under Table 1 in respect of a resolution that relates to the same issue, the entitlement to costs under Table 1 is to be reduced by any payment made in respect of item E of Table 3, and
(c) if costs have been recovered in respect of item F of Table 3 and costs subsequently become payable under Table 1 in respect of a claim or dispute relating to the issue addressed in the written advice, the entitlement to costs under Table 1 is to be reduced by any payment made in respect of item F of Table 3 (but the maximum reduction is the amount paid for the first such advice), and
(d) if costs have been recovered in respect of item G of Table 3 and costs subsequently become payable under Table 1 in respect of a claim or dispute relating to the issue addressed in the complying agreement, the entitlement to costs under Table 1 is to be reduced by a payment made in respect of item G of Table 3.
Subclause (2) (c) does not apply where:
(a) payment was for advice given on issues that are not in dispute and thus are not part of the Table 1 resolution, in which case there is to be no deduction, or
(b) a period of more than 12 months has elapsed between the giving of the advice and the Table 1 resolution, or
(c) the Registrar, on application, determines that the need for the costs to be incurred for the Table 1 resolution could not have been foreseen at the time that costs for the advice were first incurred.
No costs are payable or recoverable in respect of an application for the purposes of paragraph (c).
Subclause (2) (d) does not apply where a period of more than 12 months has elapsed between the giving of the advice in respect of the complying agreement and the Table 1 resolution.
Subject to clause 7 of this Part, where the resolution includes more than one resolution type in Table 2, or includes resolution types in Tables 2 and 3, the following provisions apply:
(a) in relation to a claimant:
(i) if all resolutions fall within column 1 of Table 1, the single highest amount claimable for a resolution is payable, once only, or
(ii) if all resolutions fall within column 2 of Table 1, the single highest amount claimable for a resolution is payable, once only, or
(iii) if resolutions fall within both columns 1 and 2 of Table 1, the single highest amount claimable for a resolution is payable, once only, or
(iv) if resolutions fall within both Tables 1 and 3, the single highest amount claimable for a resolution is payable, once only,
(b) in relation to an insurer:
(i) if all resolutions fall within column 3 of Table 1, the single highest amount claimable for a resolution is payable, once only, or
(ii) if all resolutions fall within column 4 of Table 1, the single highest amount claimable for a resolution is payable, once only, or
(iii) if resolutions fall within both columns 3 and 4 of Table 1, the single highest amount claimable for a resolution is payable, once only, or
(iv) if resolutions fall within both Tables 1 and 3, the single highest amount claimable for a resolution is payable, once only.
Where subclause (1) applies and additional legal services or other factors set out in Table 4 are also claimable, the Table 4 items are payable up to the highest rate claimable, once only.
If more than one claim or dispute is resolved in respect of a particular injury, the maximum costs recoverable, regardless of how many resolution types there are, is the maximum as set out in clause 8 of this Part.
Subclause (1) does not apply if:
(a) a period of more than 12 months has elapsed between each successive resolution in respect of the injury, or
(b) the Commission or the Registrar, on application, orders that the resolutions are to be treated as separate resolutions for the purposes of the calculation or assessment of costs.
No costs are payable or recoverable in respect of an application for the purposes of paragraph (b).
The costs allowed under:
(a) Table 1 in column 1, 2, 3 or 4 for each type of general resolution, and
(b) Table 3 for each type of special resolution, and
(c) Table 4 for additional legal services or other factors,
cover all work performed in the course of the claim, dispute, legal service or factor. This includes but is not limited to conferences, seeking a review of the claim, completing all necessary preparation and documentation, appearances and advocacy, executing and lodging settlement documents, reviewing the determination of the Commission and concluding attendances.
If Table 3 or 4 or Part C sets an upper limit for the maximum payable by way of any costs, the maximum payable is to be an amount determined, within the range from and including nil to and including the upper limit, by reference to:
(a) any applicable practice direction or Registrar’s guideline, and
(b) subject to paragraph (a), the nature and extent of the service performed.
Where the Commission or the Registrar issues a determination in respect of a resolution type in Table 2, following the initial teleconference and before any further attendances, the costs in relation to that resolution fall within item D of Table 1.
For the purposes of Table 3, the Commission or the Registrar may order declaring that a particular proceeding is in respect of the resolution of “other proceedings” as referred to in item C of that Table.
Costs are not recoverable under item A of Table 1 in respect of independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer, if the only service provided to the claimant relates to the giving of that advice.
Costs are not recoverable under item G of Table 3 in respect of independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer, unless the only service provided to the claimant relates to the giving of that advice.
Section 66A (6) of the 1987 Act provides that nothing in section 66A prevents a complying agreement from containing provision as to the payment of costs. Accordingly, a complying agreement may provide for the payment of costs, but the maximum recoverable is subject to Part B.
Country or interstate loadings (including travel and accommodation expenses) are payable in accordance with clause 3 or 4 (as relevant) of Schedule 1 to the Motor Accidents Compensation Regulation 2005, and the provisions of those clauses apply, with any necessary modifications and with any modifications contained in a practice direction or Registrar’s guideline, for that purpose.
No amount is recoverable for costs by an agent who is not an agent as defined in section 356 (6) of the 1998 Act, with the result that the agent is not entitled to be paid or recover any amount for the service or matter concerned.
Nothing in this clause prevents an agent who is a legal practitioner from being entitled to be paid or recover any costs.
Nothing in the Workers Compensation Regulation 2003 (including this Schedule) prevents the recovery, as a disbursement, of the fee or charge set for any of the following reports, certificates, searches or services by the agency concerned in a claim in respect of a particular injury:
(a) a report from a coroner, the NSW Police Force or the Roads and Traffic Authority relevant to the claim,
(b) a land title search from Land and Property Information NSW relevant to the claim,
(c) a certificate from the Registry of Births, Deaths and Marriages relevant to the claim,
(d) an application under the Government Information (Public Access) Act 2009 relevant to the claim,
(e) a company or business name search from the Australian Securities and Investments Commission relevant to the claim.
Where the Commission is satisfied that a party’s costs have been unreasonably incurred in accordance with section 342 of the 1998 Act, the maximum amount of recoverable costs, if any, is restricted to the costs recoverable in the phase where the circumstances referred to in section 342 (2) of that Act arose and is not to include any further costs.
Table 1 General resolution types—costs payable
Item | General resolution (for general resolution types refer to Table 2) | Claimant | Insurer | ||
Column 1 75% | Column 2 100% | Column 3 75% | Column 4 100% | ||
A | Lump sum compensation claim or dispute resolved
(Table 2—items 1–4—Claimant; item 2 only—Insurer) | $2,475 | $3,275 | $1,575 | N/A |
B | Lump sum compensation claim or dispute resolved
(Table 2—items 1–4—Claimant; item 2 only—Insurer) | $3,525 | $4,675 (or $4,000 where clause 6 of Part A applies) | $2,550 (or $1,875 where clause 6 of Part A applies) | N/A |
C | Other compensation claim or dispute resolved
(Table 2—items 5–16) | $2,860 | $3,785 | $2,345 | $3,100 |
D | Other compensation dispute resolved
(Table 2—items 5–16) | $3,870 | $5,135 | $3,355 | $4,450 |
E | Other compensation dispute resolved
(Table 2—items 5–16) | $4,250 | $5,645 | $3,665 | $4,860 |
F | Other compensation dispute resolved
(Table 2—items 5–16) | $4,615 | $6,125 | $3,935 | $5,225 |
Table 2 General resolution types—applicable rate
Item | General resolution types | Column 1 75% | Column 2 100% |
1 | Lump sum compensation for permanent impairment under section 66 of the 1987 Act (excluding any claim for pain and suffering under section 67 of that Act) where:
(Claimant only—item A or B of Table 1) | 75% | — |
2 | Lump sum compensation for pain and suffering under section 67 of the 1987 Act (item A or B of Table 1) | 75% | — |
3 | Lump sum compensation under section 16 of the 1926 Act where:
(Claimant only—item A or B of Table 1) | 75% | — |
4 | Lump sum compensation for permanent impairment under section 66 of the 1987 Act and for pain and suffering under section 67 of that Act where:
(Claimant only—item A or B of Table 1) | — | 100% |
5 | Lump sum compensation for permanent impairment where:
(Item C, D, E or F of Table 1) | — | 100% |
6 | Weekly payments compensation for a period not exceeding 12 weeks in total, excluding interim payment directions under Chapter 7, Part 5, of the 1998 Act (Item C, D, E or F of Table 1) | 75% | — |
7 | Weekly payments compensation for a period exceeding 12 weeks in total, being a period in respect of which an interim payment direction under Chapter 7, Part 5, of the 1998 Act has not been made (Item C, D, E or F of Table 1) | — | 100% |
8 | Termination or reduction of weekly payments compensation (on a review under section 55 of the 1987 Act) (Insurer only—item C, D, E or F of Table 1) | — | 100% |
9 | Successfully defending an application to terminate or reduce weekly payments compensation (Claimant only—item C, D, E or F of Table 1) | — | 100% |
10 | Increase in weekly payments compensation (on a review under section 55 of the 1987 Act) (Claimant only—item C, D, E or F of Table 1) | — | 100% |
11 | Defending an application to increase weekly payments compensation (on a review under section 55 of the 1987 Act) (Insurer only—item C, D, E or F of Table 1) | — | 100% |
12 | Medical expenses compensation not exceeding $7,500, excluding interim payment directions under Chapter 7, Part 5, of the 1998 Act (Item C, D, E or F of Table 1) | 75% | — |
13 | Medical expenses compensation exceeding $7,500 (Item C, D, E or F of Table 1) | — | 100% |
14 | Compensation in respect of the death of a worker under Part 3, Division 1, of the 1987 Act where:
(Item C of Table 1) | 75% | — |
15 | Compensation in respect of the death of a worker under Part 3, Division 1, of the 1987 Act where:
(Item C, D, E or F of Table 1) | — | 100% |
16 | Reduction in liability of employer to reimburse the WorkCover Authority Fund under section 145 of the 1987 Act by determination of the Commission or agreement after referral (Item D, E or F of Table 1) | 75% | — |
Table 3 Special resolution types—costs payable
Item | Special resolution types | Application of behalf of claimant | Application of behalf of insurer |
Column 1 Claimant | Column 2 Insurer | Column 3 Claimant | Column 4 Insurer |
A | |||||
1 | Dispute resolved by direction or agreement, after application accepted by the Registrar | $1,650 | $1,400 | N/A | N/A |
2 | If further dispute about the same claim is resolved by direction or agreement, after application accepted by the Registrar | $550 | $550 | N/A | N/A |
B | |||||
1 | Dispute resolved by direction, recommendation, determination or agreement, after application accepted by the Registrar | $1,925 | $1,675 | $1,925 | $1,675 |
2 | If further dispute about the same claim is resolved by direction, recommendation, determination or agreement, after application accepted by the Registrar | $550 | $550 | $550 | $550 |
C | |||||
1 | As ordered or certified by the Commission or the Registrar | Upper limit of $1,100 | Upper limit of $1,100 | Upper limit of $1,100 | Upper limit of $1,100 |
D | |||||
1 | Where agreement approved by WorkCover Authority and registered with the Registrar (including all preparation and documentation in approved form in accordance with Rules | $1,500 | $1,500 | $1,500 | $1,500 |
E | ||
1 | Where an insurer’s decision on the existing entitlement to weekly payments is varied to the worker’s benefit by an increase of 5% or more in weekly payments as a consequence of a legal service, where it was reasonable to carry out that service | Upper limit of $1,100 |
F | ||
1 | Where:
(subject to clause 7 of Part A) | Upper limit of $825 |
G | ||
1 | Where independent legal advice given to a claimant in respect of a complying agreement proposed by an insurer under section 66A of the 1987 Act (subject to clause 7 of Part A) | $825 |
Table 4 Additional legal services or other factors
Item | Additional legal services or other factors | Application on behalf of claimant | Application on behalf of insurer | |
Column 1 Claimant | Column 2 Insurer | Column 3 Claimant | Column 4 Insurer | |
1 | ||||
Appeal resolved by decision of Presidential member |
| Upper limit of $2,200 | Upper limit of $2,200 |
|
Costs to be as ordered or certified by the Presidential member and may encompass all parties’ costs |
|
| ||
2 | ||||
Matter resolved by the decision of the President | Upper limit of $2,200 | Upper limit of $2,200 | Upper limit of $2,200 | Upper limit of $2,200 |
Costs to be as ordered or certified by the President and may encompass all parties’ costs | ||||
3 | ||||
Appeal resolved by the decision of Appeal Panel |
| Upper limit of $1,100 | Upper limit of $1,100 |
|
Costs to be as ordered or certified by the Commission or the Registrar and may encompass all parties’ costs |
|
| ||
4 | ||||
If:
| Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 30% of costs at item D, E or F of Table 1 |
5 | |||
If:
| Percentage increase—upper limit of 45% of costs at item D, E or F of Table 1 | Percentage increase—upper limit of 45% of costs at item D, E or F of Table 1 | |
6 | |||
If the claim or dispute is resolved by an award or settlement apportioned between more than one respondent This allowance does not apply to any resolution that has an increase in fees under item 4 or 5 of this Table. | Percentage increase—upper limit of 30% of costs payable under Table 1 and items 1, 2 and 3 of this Table The increase does not apply for each additional respondent, and accordingly 30% is the maximum allowable increase notwithstanding the number of respondents. | ||
7 | |||
If the claim or dispute is resolved by a scheme agent on behalf of multiple scheme agents This allowance does not apply to any resolution that has an increase in fees under item 4 or 5 of this Table. |
The increase referred to in paragraph (a) does not apply for each additional scheme agent, and accordingly 30% is the maximum allowable increase notwithstanding the number of scheme agents who are parties to the resolution. |
Item | Disbursement | Applicable provisions |
1 | Country/interstate loadings (including travel and accommodation expenses) | Payable in accordance with the Motor Accidents Compensation Regulation 2005, Schedule 1, clause 3 or 4 (as relevant). Clause 15 of Part A applies for this purpose. |
2 | Conduct money to comply with notice for the production of documents | Where the producer is a party other than the worker—nil payable Where the producer is the worker—an amount sufficient to meet the reasonable expenses of complying with the notice is payable |
3 | Conduct money to comply with direction for the production of documents | An amount sufficient to meet the reasonable expenses of complying with the direction is payable In the case of medical practitioners, the term “sufficient to meet the reasonable expenses” is an amount calculated in accordance with the AMA Revised Recommended Scale as in force from time to time In the case of production by a government agency—the standard rate applied by that agency is payable |
4 | Treating health service provider’s report | If a claim or dispute is resolved whether before or after proceedings commenced: Claimant:
Insurer:
|
5 | Report of independent medical examination by an appropriately qualified and experienced medical practitioner in accordance with WorkCover Guidelines Fee allowed in accordance with any applicable fee order where paragraph (a) or (b) opposite applies A supplementary report that complies with clause 43AA of the Workers Compensation Regulation 2003 gives rise to a further entitlement to costs under this item, if the supplementary report otherwise satisfies the provisions of this item. |
|
6 | Treating health service provider’s clinical notes and records | If a claim or dispute is resolved whether before or after proceedings commenced: Claimant:
Insurer:
|
7 | Fee for the provision of independent financial advice by a qualified financial adviser for a commutation by agreement that is approved by the Authority and registered with the Commission | Upper limit of $1,000, on the production of account or receipt |
(Clause 87)
The maximum costs for legal services provided for a stage of a claim for work injury damages set out in Column 1 of the Work Injury Costs Table A to this clause are the costs set out in Column 2 opposite that stage.
However, if a legal practitioner was first retained in the matter after a certificate as to mediation was issued under section 318B of the 1998 Act (or, if the matter is not referred to mediation because the insurer wholly denies liability, or the insurer has failed to respond to the pre-filing statement, after the service of the pre-filing statement of claim), the maximum costs are those set out in the Work Injury Costs Table B to this clause.
Costs may be charged for more than one stage described in this Schedule.
Other than stage 1 in the Work Injury Costs Table B to this clause, each stage specifies the maximum costs payable for all legal services provided in the period commencing on the occurrence of one specified event and concluding on either the occurrence of another specified event or settlement of the matter (whichever occurs first).
A reference in this Schedule to an amount of a settlement or an award is a reference to the amount inclusive of any weekly payment of compensation under Division 2 of Part 3 of the 1987 Act.
Work Injury Costs Table A
Column 1 | Column 2 | |
Stage | Costs | |
1 | From the acceptance of the retainer to the preparation and service of a claim under section 260 of the 1998 Act (including the provision of all relevant particulars under 281 of that Act) |
|
2 | From service of the claim under section 260 of the 1998 Act to the preparation and service of the pre-filing statement of claim under section 315 of that Act |
|
3 | If:
—from service of the pre-filing statement to finalisation of the matter | In addition to the $500 specified for stages 1 and 2 (if chargeable):
|
4 | If the matter is referred to mediation and settlement occurs after the issue of a certificate as to the mediation under section 318B of the 1998 Act but without the commencement of court proceedings—from service of the pre-filing statement to finalisation of the matter | The total of the following:
|
4A | If the matter is referred to mediation and the claim is withdrawn by the claimant after the issue of a certificate as to the mediation under section 318B of the 1998 Act but before the commencement of court proceedings—from service of the pre-filing statement to finalisation of the matter |
|
5 | If the matter is referred to mediation and is finalised after the commencement of court proceedings (whether by way of settlement or an award of damages)—from service of the pre-filing statement to finalisation of the matter | The total of the following:
|
6 | If the matter is not referred to mediation and the matter is finalised after the commencement of court proceedings (whether by way of settlement or an award of damages)—from service of the pre-filing statement to finalisation of the matter | The total of the following:
|
6A | If the matter is finalised after the commencement of court proceedings other than by settlement or an award of damages—from service of the pre-filing statement to finalisation of the matter |
|
Work Injury Costs Table B
Column 1 | Column 2 | |
Stage | Costs | |
1 | Advice on the certificate as to mediation (if the matter is referred to mediation) | $250 |
2 | From the giving of advice on the certificate of mediation (or, if the matter is not referred to mediation, from acceptance of the retainer) to finalisation of the matter by settlement or award of damages. | In addition to the $250 specified for stage 1 (if chargeable):
|
3 | From the giving of advice on the certificate of mediation (or, if the matter is not referred to mediation, from acceptance of the retainer) to finalisation of the matter other than by settlement or an award of damages. |
|
Maximum costs for legal services provided in a claim for work injury damages may include (in addition to the costs for legal services referred to in clause 1) the costs set out in the Other Work Injury Costs Table to this clause.
However, an amount for the fees for senior counsel, or for more than one advocate, are not to be included unless the court so orders.
Other Work Injury Costs Table
Column 1 | Column 2 | |
Nature of costs | Maximum costs | |
1 | Costs associated with a dispute under Part 6 of Chapter 7 of the 1998 Act as to whether the degree of permanent impairment of an injured worker is sufficient for an award of damages (including costs associated with referring the dispute for assessment by an approved medical specialist under Part 7 of that Chapter) | $500 |
2 | Costs associated with a dispute under section 317 of the 1998 Act as to whether a pre-filing statement is defective | $200 |
3 | Cost of representation at a mediation under section 318A of the 1998 Act: | |
| $400 | |
| up to $125 per hour (or part of an hour) in excess of 2 hours | |
4 | If the matter was referred to mediation and counsel advised before mediation about settlement: | |
| $500 (separate to the daily rate below) | |
| $1,500 | |
| $2,200 | |
If the matter was not referred to mediation: | ||
| $1,500 | |
| $2,200 |
0
0
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