Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA)
South Australia
An Act to amend the
This Act may be cited as the
Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 .
(1) This Act will come into operation on a day to be fixed by proclamation.
(2) Section 7(5) of the
Acts Interpretation Act 1915 does not apply to this Act.
In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Workers Rehabilitation and Compensation Act 1986
Section 2—after subsection (2) insert:
(3) The Corporation, and the employer from whose employment a compensable disability arises, must seek to achieve a disabled worker's return to work (taking into account the objects and requirements of this Act).
(1) Section 3(1)—definition of
apprentice , (a)—delete paragraph (a) and substitute:
(a) a person undertaking training as a trainee in a trade, declared vocation or other occupation under a contract of training under the
Training and Skills Development Act 2003 ;(2) Section 3(1)—definition of
arbitration officer —delete the definition(3) Section 3(1)—definitions of
conciliation and arbitration officer andconciliation officer —delete the definitions and substitute:
conciliation officer —see section 81;(4) Section 3(1)—definition of
the Consumer Price Index —delete the definition and substitute:
Consumer Price Index means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics;(5) Section 3(1), definition of
contract of service , (b)—delete "(the employer)"(6) Section 3(1)—after the definition of
corresponding law insert:
current work capacity , in relation to a worker, means a present inability arising from a compensable disability such that the worker is not able to return to his or her employment at the time of the occurrence of the disability but is able to return to work in suitable employment;(7) Section 3(1), definition of
employer , (a)—after "worker under a contract of service" insert:(subject to any exclusion under subsection (9))
(8) Section 3(1), definition of
exempt employer —delete the definition(9) Section 3(1), definition of
industrial association , (a)—delete "Industrial and Employee Relations Act 1994 " and substitute:
Fair Work Act 1994 (10) Section 3(1), definition of
industrial association , (e)—delete paragraph (e) and substitute:
(e) Self Insurers of South Australia Inc; or
(ea) South Australian Employers' Chamber of Commerce and Industry Inc (trading as Business SA); or
(11) Section 3(1)—after the definition of
industrial association insert:
legal personal representative —see subsection (11);(12) Section 3(1), definition of
local government corporation , (a)—delete paragraph (a) and substitute:
(a) a council under the
Local Government Act 1999 ;(13) Section 3(1), definition of
medical expert —after paragraph (i) insert:
(j) a registered osteopath;
(14) Section 3(1), definition of
medical question —delete the definition(15) Section 3(1)—after the definition of
medical services insert:
no current work capacity , in relation to a worker, means a present inability arising from a compensable disability such that a worker is not able to return to work, either in his or her employment at the time of the occurrence of the disability or in suitable employment;(16) Section 3(1), definition of
notional weekly earnings , (b)—delete "levels of earnings or in the value of money (or both)" and substitute:levels of earnings, the value of money or remuneration (including under section 37) or other relevant factors (or 1 or more of these)
(17) Section 3(1)—definition of
prescribed allowance —delete the definition and substitute:
prescribed allowance , in relation to the earnings of a worker, means any amount received by the worker from an employer by way of an allowance or benefit prescribed for the purposes of this definition;(18) Section 3(1)—after the definition of
self‑employed worker insert:
self-insured employer means an employer who is registered by the Corporation as a self‑insured employer under Part 5 Division 1;(19) Section 3(1)—after the definition of
the State insert:
suitable employment , in relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:
(a) the nature of the worker's incapacity and previous employment;
(b) the worker's age, education, skills and work experience;
(c) the worker's place of residence;
(d) medical information relating to the worker that is reasonably available, including in any medical certificate or report;
(e) if any rehabilitation programs are being provided to or for the worker;
(f) the worker's rehabilitation and return to work plan, if any;
(20) Section 3—after subsection (8) insert:
(9) The regulations may, in prescribing work or work of a specified class for the purposes of paragraph (b) of the definition of
contract of service in subsection (1)—
(a) designate a person, or persons of a specified class, as the presumptive employer of a worker who is within the ambit of the relevant prescription;
(b) exclude a person who would otherwise be the employer of such a worker from the definition of
employer in subsection (1).(10) For the purposes of this Act—
(a)
total incapacity for work is the incapacity for work that is represented by a worker having no current work capacity within the meaning of this Act; and(b)
partial incapacity for work is the incapacity for work that is represented by a worker having a current work capacity within the meaning of this Act.(11) For the purposes of this Act, a person is the legal personal representative of a deceased worker if the person is—
(a) a person who is entitled at law to administer the estate of the deceased worker; or
(b) a person who is authorised by the Tribunal (on application made under this subsection) to act under this Act as a legal personal representative of the deceased worker.
(12) A reference in this Act to suitable employment provided or offered by a worker's employer includes—
(a) employment in respect of which—
(i) the number of hours each day or week that the worker performs work; or
(ii) the range of duties the worker performs,
is suitably increased in stages (in accordance with a rehabilitation and return to work plan or otherwise); and
(b) if the employer does not provide employment involving the performance of work duties—suitable training or vocational re‑education provided—
(i) by the employer at the workplace or elsewhere; or
(ii) by any other person or body under arrangements approved by the employer,
but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the suitable training or vocational re‑education.
(13) A reference in a provision of this Act to a designated form is a reference to a form designated for the purposes of that provision by the Minister from time to time by notice in the Gazette.
(14) A reference in a provision of this Act to a designated manner is a reference to a manner designated for the purposes of that provision by the Corporation from time to time by notice in the Gazette.
(15) If a monetary sum is followed by the word (
indexed ), the amount is to be adjusted on 1 January of each year by multiplying the stated amount by a proportion obtained by dividing the Consumer Price Index for the September quarter of the immediately preceding year by the Consumer Price Index for the September quarter, 2007 (with the amount so adjusted being rounded up in accordance with the regulations).
Section 4—delete the section and substitute:
4—Average weekly earnings
(1) Subject to this section, the average weekly earnings of a disabled worker is the average weekly amount that the worker earned during the period of 12 months preceding the relevant date in relevant employment.
(2) For the purposes of subsection (1), relevant employment is constituted by—
(a) employment with the employer from whose employment the disability arose; and
(b) if the worker was, at the time of the occurrence of the disability, in the employment of 2 or more employers, employment with each such employer.
(3) For the purposes of this section, any amount paid while a worker was on annual, sick or other leave will be taken to be earnings.
(4) If during the period of 12 months before the relevant date the worker had changed the circumstances of his or her employment from working casually or seasonally to working in permanent employment (whether on a full‑time or part‑time basis) and the worker was in that permanent employment on the relevant date, the worker's average weekly earnings may be determined by reference to the average weekly amount that the worker earned during the period of that permanent employment rather than during the period of 12 months preceding the relevant date, unless to do so would disadvantage the worker.
(5) If a worker voluntarily (otherwise than by reason of an incapacity resulting from a compensable disability)—
(a) reduces the normal number of hours worked; or
(b) alters the nature of the work performed with the result that a reduction occurs in the worker's weekly earnings,
any period before the reduction or alteration takes effect will be disregarded for the purposes of determining average weekly earnings.
(6) In addition, if by reason of the shortness of time during which the worker has been in employment, the terms of the worker's employment or for any other reason, it is not possible to arrive at a fair average, the worker's average weekly earnings may be determined by reference to the average weekly amount being earned by other persons in the same employment with the same employer who perform similar work at the same grade as the worker or, if there is no person so employed, by other persons in the same class of employment who perform similar work at the same grade as the worker.
(7) If a worker is a contractor rather than an employee, the worker's average weekly earnings will be determined by reference to the rate of pay that the worker would have received if the worker had been working as an employee and, if there is an award or industrial agreement applicable to the class and grade of work in which the worker was engaged, the worker's average weekly earnings will be determined by reference to that award or industrial agreement.
(8) If—
(a) an employer is a body corporate; and
(b) the worker is a director as well as an employee of the employer,
the worker's average weekly earnings will be determined by reference to the remuneration (calculated on a weekly basis) last reported in a return from the employer to the Corporation under Part 5 Division 6 (unless the Corporation determines that there is good cause not to apply this subsection in the circumstances of the particular case).
(9) If because of the gradual onset of a compensable disability it appears that the level of earnings of a disabled worker prior to the relevant date were affected by the disability, the average weekly earnings of the worker must be set at an amount that fairly represents the weekly amount that the worker would have been earning if the level of earnings had not been so affected.
(10) The average weekly earnings of a disabled worker who—
(a) was not a full‑time worker immediately before the relevant date; and
(b) immediately before the relevant date had been seeking full‑time employment; and
(c) had been predominantly during the preceding 18 months a full‑time worker,
will be taken to be the average weekly earnings of the worker while employed in full‑time employment during the period of 18 months preceding the relevant date.
(11) If a worker who suffers a permanent incapacity (whether total or partial) is under the age of 21 years, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker been 21 years old and if a worker who suffers a permanent incapacity (whether total or partial) is an apprentice, the average weekly earnings of the worker must be determined by applying the rate of pay that would have been payable to the worker had the worker completed the apprenticeship (and this determination may have effect (if not before) when it is determined that a worker has a permanent incapacity under a redetermination under section 53).
(12) For the purposes of determining the average weekly earnings of a worker—
(a) any component of the worker's earnings attributable to overtime will be disregarded if, at the relevant date, the worker had no reasonable expectation to work overtime within the foreseeable future because of a change in employment arrangements or work practices, or other relevant factors, announced, introduced or occurring on or before the relevant date, but otherwise payments attributable to overtime will be taken into account; and
(b) to the extent that a worker has worked overtime that is to be taken into account, the component for overtime will be an amount calculated as follows:
Where
C is the amount of the component
A is the total of the amounts paid or payable to the worker for overtime during the period used to calculate the average weekly earnings of the worker under a preceding subsection (therelevant period )
B is the number of weeks in the relevant period during which the worker worked or was on annual, sick or other paid leave.(13) For the purposes of determining the average weekly earnings of a worker—
(a) any amount otherwise payable to the worker that has been the subject of a voluntary salary sacrifice for superannuation purposes by the worker will be taken into account as earnings; and
(b) any non‑cash benefit of a prescribed class provided to the worker by an employer—
(i) will be taken into account if the worker does not retain the benefit of the non‑cash benefit (and valued after taking into account any principles specified by this Act or prescribed by the regulations); and
(ii) will not be taken into account if the worker retains the benefit of the non‑cash benefit.
(14) Despite a preceding subsection, the following will be disregarded for the purposes of determining the average weekly earnings of a worker:
(a) any contribution paid or payable by an employer to a superannuation scheme for the benefit of the worker;
(b) any prescribed allowances.
(15) Despite a preceding subsection—
(a) if a disabled worker's remuneration was, at the relevant date, covered by an award or industrial agreement, the worker's average weekly earnings will not be less than the weekly wage to which the worker was then entitled under the award or industrial agreement;
(b) if, but for this paragraph, the average weekly earnings of a worker (not being a self‑employed worker) would be less than the prescribed amount, the average weekly earnings will be fixed at the prescribed amount;
(c) the average weekly earnings of a worker will in no case be fixed at more than twice State average weekly earnings.
(16) In this section—
(a) a reference to the relevant date is a reference to the date on which the relevant disability occurs; and
(b) a reference to State average weekly earnings is a reference to the amount last published before the relevant date by the Australian Bureau of Statistics as an estimate of Average Weekly Earnings for Ordinary Hours of Work for each Full‑time Employed Adult Male Unit in this State.
Section 7(2)(b)—delete "exempt" and substitute:
self-insured
8—Amendment of section 28A—Rehabilitation and return to work plans
(1) Section 28A(2)(b)—delete "3 months" and substitute:
13 weeks
(2) Section 28A(3)—after paragraph (a) insert:
(ab) must consult with the relevant rehabilitation and return to work co‑ordinator under section 28D (if appointed); and
After section 28C insert:
28D—Rehabilitation and return to work co‑ordinators
(1) Subject to this section, an employer must appoint a rehabilitation and return to work co‑ordinator (referred to in this section as a "co‑ordinator").
(2) A co‑ordinator—
(a) must be an employee of the employer; and
(b) must be based in South Australia.
(3) The employer must appoint the co‑ordinator—
(a) within 6 months after the requirement to be registered under Part 5 first arises (disregarding any exemption that may be available under that Part); or
(b) within a later period approved by the Corporation.
Maximum penalty: $10 000.
(4) A co‑ordinator has the following functions:
(a) to assist workers suffering from compensable disabilities, where prudent and practicable, to remain at or return to work as soon as possible after the occurrence of the disability;
(b) to assist with liaising with the Corporation in the preparation and implementation of a rehabilitation and return to work plan for a disabled worker;
(c) to liaise with any persons involved in the rehabilitation of, or the provision of medical services to, workers;
(d) to monitor the progress of a disabled worker's capacity to return to work;
(e) to take steps to, as far as practicable, prevent the occurrence of a secondary disability when a worker returns to work;
(f) to perform other functions prescribed by the regulations.
(5) An employer must—
(a) provide such facilities and assistance as are reasonably necessary to enable a co‑ordinator to perform his or her functions under this section; and
(b) comply with any training or operational guidelines published by the Corporation from time to time for the purposes of this section.
(6) If a vacancy occurs in the office of a co‑ordinator under this section, the employer must make a new appointment to the office within the prescribed period.
Maximum penalty: $10 000.
(7) The regulations may exempt an employer, or employers of a prescribed class, from a requirement under this section.
10—Amendment of section 30—Compensability of disabilities Section 30(3)(e)—after "rehabilitation program" insert:
or for the purposes of a rehabilitation and return to work plan
11—Amendment of section 32—Compensation for medical expenses
(1) Section 32(1)(a)—delete "prescribed" and substitute:
published by the Minister
(2) Section 32(7)—after "published" insert:
by the Minister
(3) Section 32(9)—delete "prescribed" and substitute:
published by the Minister
(4) Section 32(10)—delete "prescribed" and substitute:
published by the Minister
(5) Section 32(11)—delete "The Governor may, by regulation, prescribe" and substitute:
The Minister may, by notice in the Gazette, on the recommendation of the Corporation, publish
(6) Section 32(12)—delete "A" and substitute:
Subject to subsection (12a), a
(7) Section 32(12)—delete "prescribed" and substitute:
published
(8) Section 32—after subsection (12) insert:
(12a) A scale of charges for services provided by a public hospital may be based on government charges for the relevant service.
(9) Section 32(13)—delete "a regulation is made prescribing" and substitute:
the Corporation makes a recommendation to the Minister about the publishing of
(10) Section 32(13)—delete "on the terms of the proposed regulation"
(11) Section 32(14)—delete "prescribed" and substitute:
published
After section 32 insert:
32A—Special provisions for payment of medical expenses after initial notification of disability
(1) A worker may, by application made to the Corporation in the designated manner and the designated form, apply to the Corporation for the payment of costs within the ambit of section 32 before the determination of a claim under Division 8.
(2) The Corporation may, in connection with an application under subsection (1), require a worker to provide information specified by the Corporation.
(3) The Corporation may, on application under subsection (1), determine that it is reasonable to accept provisional liability for the payment of compensation under section 32 and make a payment under this section.
(4) The maximum amount payable under this section with respect to a particular disability is $5 000 (indexed).
(5) The acceptance of provisional liability under this section does not constitute an admission of liability under this Act or independently of this Act.
(6) A payment under this section with respect to a particular cost discharges any liability that the Corporation may have with respect to that cost under section 32.
(7) The Corporation may determine not to make a payment under this section despite the fact that the Corporation has previously made 1 or more payments with respect to the same disability under this section.
(8) Subject to subsection (9), if the Corporation makes 1 or more payments under this section and it is subsequently determined that the worker was not entitled to compensation under this Act, the Corporation may, subject to and in accordance with the regulations—
(a) recover the amount or amounts paid as a debt; or
(b) set the amount off against a right to payment of compensation under this Act.
(9) A right of recovery or set off under subsection (8) only arises if the worker has acted dishonestly in making an application or providing information for the purposes of this or any other section of this Act.
(10) The following decisions are not reviewable:
(a) a decision to accept or not to accept liability under this section;
(b) a decision to make or not to make a payment under this section;
(c) a decision to exercise or not to exercise a right of recovery under this section.
13—Amendment of section 33—Transportation for initial treatment
(1) Section 33(4)—delete "an exempt" and substitute:
a self-insured
(2) Section 33—after subsection (4) insert:
(5) An amount prescribed by regulation under subsection (4) may, if the regulations so provide, be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.
14—Amendment of section 34—Compensation for property damage Section 34—after subsection (2) insert:
(3) An amount prescribed by regulation under subsection (1) may, if the regulations so provide, be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.
Section 35—delete the section and substitute:
35—Preliminary
(1) Subject to this Act, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with this Division.
(2) Weekly payments are not payable under this Division in respect of a period of incapacity for work falling after the date on which the worker reaches retirement age.
(3) However, if a worker who is within 2 years of retirement age or above retirement age becomes incapacitated for work while still in employment, weekly payments are payable for a period of incapacity falling within 2 years after the commencement of the incapacity.
(4) A worker is not entitled under this Division to receive, in respect of 2 or more disabilities, weekly payments in excess of the worker's notional weekly earnings.
(5) If a liability to make weekly payments is redeemed, the worker is taken, for the purposes of this Division, to be receiving the weekly payments that would have been payable if there had been no redemption.
(6) Subject to subsection (7) (and any other relevant provision of this Act) a reference in this Division to a worker making
every reasonable effort to return to work in suitable employment includes any reasonable period during which—
(a) the worker is waiting for a response to a request for suitable employment made by the worker and received by the employer; and
(b) if the employer's response is that suitable employment may or will be provided at some time, the worker is waiting for suitable employment to commence; and
(c) if the employer's response is that suitable employment cannot be provided at some time, the worker is waiting for a response to requests for suitable employment from other employers; and
(d) the worker is waiting for the commencement of a rehabilitation and return to work plan, after approval has been given.
(7) A worker must not be treated as making
every reasonable effort to return to work in suitable employment for the purposes of this Division if the worker—
(a) has refused to have an assessment made of the worker's employment prospects; or
(b) has refused or failed to take all reasonably necessary steps to obtain suitable employment; or
(c) has refused or failed to accept an offer of suitable employment from any person; or
(d) has refused or failed to participate in a rehabilitation program or a rehabilitation and return to work plan.
(8) In this Division—
(a)
first entitlement period means an aggregate period not exceeding 13 weeks (whether consecutive or not) in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on the account of that incapacity;(b)
second entitlement period means an aggregate period not exceeding 13 weeks (whether consecutive or not) commencing after the end of the first entitlement period, in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on account of that incapacity;(c)
third entitlement period means an aggregate period not exceeding 104 weeks (whether consecutive or not), commencing after the end of the second entitlement period, in respect of which a worker has an incapacity for work and is entitled to the payment of compensation under this Act on the account of that incapacity;(d)
retirement age means—
(i) if there is a normal retirement age for workers in employment of the kind from which the worker's disability arose—that age of retirement; or
(ii) the age of 65 years,
whichever is the lesser;
(e) a reference to weekly earnings, or current weekly earnings, is a reference to weekly earnings exclusive of prescribed allowances.
35A—Weekly payments over designated periods
(1) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the first entitlement period as follows:
(a) for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to the worker's notional weekly earnings;
(b) for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(2) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the second entitlement period as follows:
(a) for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 90% of the worker's notional weekly earnings;
(b) for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 90% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(3) Subject to this Act, a worker is, in respect of a particular compensable disability, entitled to weekly payments while incapacitated for work during the third entitlement period as follows:
(a) for any period when the worker has no current work capacity—the worker is entitled to weekly payments equal to 80% of the worker's notional weekly earnings;
(b) for any period when the worker has a current work capacity—the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's designated weekly earnings.
(4) For the purposes of this section, but subject to subsection (5), the
designated weekly earnings of a worker will be taken to be—
(a) the current weekly earnings of the worker in employment or self‑employment; or
(b) the weekly earnings that the Corporation determines that the worker could earn from time to time (including, but not limited to, the amount of any current weekly earnings) in employment, whether in the worker's employment previous to the relevant disability or in suitable employment, that the Corporation determines the worker is capable of performing despite the disability,
whichever is the greater, but not to include a prescribed benefit under subsection (6).
(5) Subsection (4)(b) will not apply to a worker who has a current work capacity during any period or periods during which the worker is incapacitated for work and in which either of the following circumstances apply:
(a) the employer has failed to provide the worker with suitable employment and the worker is making every reasonable effort to return to work in suitable employment;
(b) the worker is participating in a rehabilitation and return to work plan which reasonably prevents the worker from returning to employment.
(6) The following are
prescribed benefits for the purposes of subsection (4):
(a) any amount paid to the worker by the Corporation or a self‑insured employer in respect of an employment program provided or arranged by the Corporation or self‑insured employer for the purposes of this Act;
(b) any of the following received by the worker from an employer:
(i) any payment, allowance or benefit related to annual or other leave;
(ii) any payment, allowance or benefit paid or conferred by the employer on the worker's retirement;
(iii) any payment, allowance or benefit paid or conferred under a superannuation or pension scheme;
(iv) any payment, allowance or benefit paid or conferred on the retrenchment, or in relation to the redundancy, of the worker;
(c) any other payment, allowance or benefit of a prescribed kind.
35B—Weekly payments after expiry of designated periods—no work capacity
(1) Subject to section 35C (and to the other provisions of this Act), a worker's entitlement to weekly payments under this Division ceases at the end of the third entitlement period under section 35A (unless brought to an end before this time) unless the worker is assessed by the Corporation as—
(a) having no current work capacity; and
(b) likely to continue indefinitely to have no current work capacity.
(2) If a worker qualifies under an assessment under subsection (1), the worker is entitled to weekly payments while incapacitated for work in respect of a particular disability equal to 80% of the worker's notional weekly earnings as though the third entitlement period were continuing.
(3) A review of the assessment of a worker under this section may be conducted by the Corporation at any time and must be conducted as often as may be reasonably necessary, being at least once in every 2 years.
(4) In connection with the operation of subsection (1), a worker who, immediately before the end of a third entitlement period, is in receipt of weekly payments under paragraph (a) of section 35A(3) is entitled to continue to receive weekly payments at the rate prescribed by that paragraph unless or until the Corporation has assessed whether the worker falls within the category of a worker who may be considered as—
(a) having no current work capacity; and
(b) likely to continue indefinitely to have no current work capacity.
(5) An assessment under subsection (4) may be made before or after the end of the third entitlement period.
(6) Despite section 35A, the Corporation must not discontinue weekly payments to a worker who is subject to the operation of subsection (4) until it has given the worker at least 13 weeks notice in writing of the proposed discontinuance (and the requirements of section 36 will not apply with respect to this notice).
(7) A notice under subsection (6) must not be given unless or until the assessment envisaged by subsection (4) has been undertaken.
(8) Subsections (4), (5), (6) and (7) do not apply if the Corporation discontinues the worker's weekly payments under section 36 or suspends such payments under another provision of this Act.
(9) The Corporation may, on the basis of a review under subsection (3), discontinue weekly payments under this section if satisfied that the worker has a current work capacity.
35C—Weekly payments after expiry of designated periods—current work capacity
(1) Subject to this Act, a worker who is, or has been, entitled to weekly payments under section 35A(3)(b) or 35B, may apply to the Corporation in accordance with this section for a determination that the worker's entitlement to weekly payments under this Division does not cease at the end of the third entitlement period under section 35A or at the expiry of an entitlement under section 35B (as the case may be).
(2) The Corporation may determine that the worker's entitlement to weekly payments under this Division does not cease as contemplated by subsection (1) if the Corporation is satisfied that the worker is in employment and that because of the compensable disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work which would increase the worker's current weekly earnings.
(3) The Corporation—
(a) must within 90 days of receiving an application under subsection (1), make or refuse to make a determination under subsection (2) and advise the worker in writing of its decision (unless the Corporation requires an extension of time because of the operation of paragraph (b)); and
(b) must not refuse to make a determination under subsection (2) on the ground that the Corporation is not satisfied under the requirements of that subsection unless—
(i) the Corporation has referred the medical question whether, because of the disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work, and if not so incapable, what further or additional employment or work the worker is capable of undertaking, for the opinion of a Medical Panel under Part 6C; and
(ii) the opinion of the Medical Panel is that the worker is not so incapable and specifies what further or additional employment or work the worker is capable of undertaking.
(4) If the Corporation makes a determination under subsection (2), subject to this Division, the worker is entitled to weekly payments equal to 80% of the difference between the worker's notional weekly earnings and the worker's current weekly earnings.
(5) The entitlement to weekly payments under subsection (4) continues until—
(a) the Corporation ceases to be satisfied as to the matters specified in subsection (2); or
(b) the worker otherwise ceases to be entitled to weekly payments (including by virtue of the operation of section 36).
16—Amendment of section 36—Discontinuance of weekly payments
(1) Section 36(1)—delete paragraph (h) and substitute:
(h) the worker's entitlement to weekly payments ceases because of the passage of time; or
(i) the worker's entitlement to weekly payments ceases because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, brings the entitlement to weekly payments to an end or the discontinuance of weekly payments is otherwise authorised or required under another provision of this Act.
(2) Section 36(1a)—after paragraph (f) insert:
(fa) the worker refuses or fails to participate in assessments of the worker's capacity, rehabilitation progress or future employment prospects (including by failing to attend); or
(3) Section 36(2)(c)—delete paragraph (c) and substitute:
(c) the worker has recommenced work as an employee or as a self‑employed contractor, or the worker has had an increase in remuneration as an employee or a self‑employed contractor; or
(d) the worker's entitlement to weekly payments reduces because of the passage of time; or
(e) the worker's entitlement to weekly payments reduces because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, is expressed to result in a reduction to an entitlement to weekly payments or the reduction of weekly payments is otherwise authorised or required under another provision of this Act.
(4) Section 36(2)—delete "(and any reduction made on the basis of this subsection must be consistent with section 35)"
(5) Section 36(3a)—delete "21 days" and substitute:
the prescribed number of days
(6) Section 36(3a)—after paragraph (b) insert:
(ba) where a decision to reduce weekly payments is made on account of the end of the first entitlement period or the second entitlement period under section 35A; or
(bb) where a decision to discontinue weekly payments is made on account of the end of the third entitlement period under section 35A; or
(bc) where a decision to discontinue weekly payments is made on account of—
(i) a review by the Corporation under section 35B(3); or
(ii) a decision of the Corporation under section 35C(5)(a); or
(7) Section 36—after subsection (3a) insert:
(3b) For the purposes of subsection (3a), the prescribed number of days is—
(a) if the worker has been receiving weekly payments under this Division (or Division 7A) for a period that is less than 52 weeks, or for 2 or more periods that aggregate less than 52 weeks—14 days;
(b) in any other case—28 days.
(8) Section 36(4), (4a) and (5)—delete subsections (4), (4a) and (5) and substitute:
(4) Subject to complying with subsection (3a), a discontinuance or reduction of weekly payments under this section takes effect in accordance with the terms of the Corporation's notice under subsection (3).
(5) The effect of a decision to discontinue or reduce weekly payments is not affected by the worker lodging a notice of dispute under Part 6A.
(5a) If a dispute is resolved in favour of the worker at the reconsideration, conciliation or judicial determination stage, or on an appeal, the worker is entitled to be paid—
(a) in the case of a reconsideration—the total amount that, under the terms of the reconsideration, should have been paid to the worker between the date that the disputed decision took effect and the date that the decision, as varied under the reconsideration, takes effect (less any amount paid to the worker under subsection (15));
(b) in the case of a resolution at the conciliation stage—any amount payable under the terms of the relevant settlement;
(c) in the case of a judicial determination or determination or on appeal—the amount that, under the terms of the determination or according to the outcome of the appeal, would have constituted the worker's entitlements under this Act had the weekly payments not been discontinued or reduced (as the case may be), taking into account any amount paid to the worker under a preceding paragraph, under subsection (15), or under another provision of this Act, and subject to the specific terms of any determination or order made as a result of the judicial determination or appeal (as the case may be).
(5b) An amount paid under subsection (5a) will be taken to be an amount in arrears under section 47 (with interest payable subject to the operation of section 47(2)).
(5c) If a dispute is ultimately resolved in favour of the Corporation and the worker has been paid an amount in excess of the amount of the worker's lawful entitlements to weekly benefits on account of the operation of subsection (5a)(c) or (15), the Corporation may, at the Corporation's discretion (but subject to the regulations)—
(a) recover the amount of the excess (together with any interest on that amount paid by the Corporation) from the worker as a debt; or
(b) set off the amount recoverable under paragraph (a) against liabilities of the Corporation to make payments to the worker under this Act.
(9) Section 36—after subsection (13) insert:
(14) In connection with the operation of subsection (1) (and to avoid doubt), a worker is required—
(a) to take reasonable steps to attend any appointment reasonably required for the purposes of this Division; and
(b) to take reasonable steps to comply with any requirement reasonably required under a rehabilitation program or a rehabilitation and return to work plan,
(and a failure to comply with these requirements constitutes a ground for the discontinuance of payments under this section).
(15) Despite subsections (4) and (5), if—
(a) a worker who has—
(i) received a notice of discontinuance of weekly payments under this section; and
(ii) lodged a notice of dispute under Part 6A,
applies to the WorkCover Ombudsman for a review of the decision to discontinue weekly payments; and
(b) on the application for review it appears to the WorkCover Ombudsman that it was not reasonably open to the Corporation to decide to discontinue the payments having regard to the circumstances of the case,
the WorkCover Ombudsman may suspend the operation of the decision to discontinue weekly payments.
(16) Weekly payments reinstated under subsection (15) will continue until—
(a) the notice of dispute is withdrawn; or
(b) the matter is resolved on reconsideration by the Corporation or at conciliation (or otherwise between the parties); or
(c) the Tribunal—
(i) determines the matter in the exercise of its judicial function; or
(ii) pending its determination of the matter—orders that the worker should no longer have the benefit of the weekly payments due to some unreasonable act, omission or delay on the part of the worker in connection with the proceedings.
(17) In connection with the operation of subsection (15)—
(a) the WorkCover Ombudsman should seek to consider an application for review under subsection (15)(a) as expeditiously as is reasonably practicable; and
(b) the WorkCover Ombudsman has an absolute discretion as to whether or not the worker or the Corporation will be heard on the review; and
(c) a decision of the WorkCover Ombudsman on a review is not subject to appeal or review under this or any other Act or law.
After section 36 insert:
37—Adjustments due to change from original arrangements
(1) The Corporation may, on its own initiative or at the request of the worker, review the calculation of the average weekly earnings of a worker (and therefore the notional weekly earnings of a worker) for the purpose of making an adjustment due to—
(a) a change in a component of the worker's remuneration used to determine average weekly earnings (including a component constituted by a non‑cash benefit); or
(b) a change in the equipment or facilities provided or made available to the worker (if relevant to average weekly earnings).
(2) A request by a worker must be made in a designated manner and a designated form.
(3) Before the Corporation begins a review under this section, the Corporation must give the worker notice, in a designated form—
(a) informing the worker of the proposed review; and
(b) inviting the worker to make written representations to the Corporation on the subject of the review within a reasonable time specified in the notice.
(4) If the Corporation finds on a review under this section that there has been a change that warrants an adjustment contemplated by subsection (1), the Corporation may make the relevant adjustment.
(5) An adjustment under this section—
(a) will take effect as an adjustment to the worker's notional weekly earnings (and may therefore increase or reduce weekly payments under this Division); and
(b) operates from a date determined by the Corporation (which may be an antecedent date but not a date that is before the date of the change on which the adjustment is based and not so as to result in a retrospective reduction in weekly payments).
(6) For the purposes of a review under this section, the Corporation may, by notice in writing to the worker to whom the review relates, require the worker to furnish any information that the Corporation determines to be relevant to the review.
(7) If a worker fails to comply with a requirement under subsection (6) within the time allowed in the notice, the Corporation may suspend weekly payments to the worker.
(8) On completing the review, the Corporation must give notice, in a designated form, setting out the Corporation's decision on the review, and the rights of review that exist in respect of the decision to—
(a) the worker; and
(b) the employer from whose employment the compensable disability arose.
18—Amendment of section 38—Review of weekly payments
(1) Section 38—after subsection (1a) insert:
(1b) A request by a worker or employer must be made in a designated manner and a designated form.
(2) Section 38(3)—delete "in the form determined by the regulations" and substitute:
in a designated form
(3) Section 38(7)—delete "in the prescribed form" and substitute:
in a designated form
Section 38A—delete the section
20—Amendment of section 39—Economic adjustments to weekly payments
(1) Section 39—after subsection (1) insert:
(1a) Before the Corporation begins a review under this section, the Corporation must give the worker notice, in a designated form—
(a) informing the worker of the proposed review; and
(b) inviting the worker to make written representations to the Corporation on the subject of the review within a reasonable time specified in the notice.
(2) Section 39(2)(a)(ii)—delete "in accordance with the regulations" and substitute:
in a designated manner and a designated form
(3) Section 39(2)(b)—delete paragraph (b) and substitute:
(b) operates—
(i) in the case of an adjustment under paragraph (a)(i)—from the end of the year of incapacity in which the review is made;
(ii) in the case of an adjustment under paragraph (a)(ii)—from the Corporation's decision on the application, back‑dated to the date of the relevant changes in rates of remuneration.
(4) Section 39(3)—delete "in the form prescribed by regulation" and substitute:
in a designated form
21—Amendment of section 41—Absence of worker from Australia Section 41(2)—delete "in the form prescribed by regulation" and substitute:
in a designated form
22—Amendment of section 42—Redemption of liabilities
(1) Section 42(1)(c)—delete paragraph (c)
(2) Section 42(2)—after paragraph (d) insert:
and
(e) 1 (or more) of the following requirements are satisfied in the case of a proposed redemption under subsection (1)(a):
(i) the rate of weekly payments to be redeemed does not exceed $30 (indexed);
(ii) the worker has attained the age of 55 years and the Corporation has determined that the worker has no current work capacity;
(iii) the Tribunal (constituted of a presidential member) has determined, on the basis of a joint application made to the Tribunal by the worker and the Corporation in contemplation of an agreement being entered into under this section, that the continuation of weekly payments is contrary to the best interests of the worker from a psychological and social perspective.
Part 4 Division 4B—delete Division 4B
Section 43—delete the section and substitute:
43—Lump sum compensation
(1) Subject to this Act, if a worker suffers a compensable disability resulting in permanent impairment as assessed in accordance with section 43A, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non‑economic loss by way of a lump sum.
(2) Subject to this section, the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.
(3) Regulations made for the purposes of subsection (2) must provide for compensation that at least satisfies the requirements of Schedule 3 taking into account the assessment of whole of person impairment under this Division.
(4) An entitlement does not arise under this section if the worker's degree of permanent impairment is less than 5%.
(5) An entitlement does not arise under this section in relation to a psychiatric impairment.
(6) If a worker suffers 2 or more compensable disabilities arising from the same trauma—
(a) the disabilities may together be treated as 1 disability to the extent set out in the WorkCover Guidelines (and assessed together using any combination or other principle set out in the WorkCover Guidelines); and
(b) the worker is not entitled to receive compensation by way of lump sum under subsection (2) in respect of those disabilities in excess of the prescribed sum.
(7) If—
(a) a compensable disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior compensable disability; and
(b) compensation by way of lump sum has been previously paid under this section, or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in respect of the disability by the amount of the previous payment unless such a reduction is incorporated into the provisions of the WorkCover Guidelines.
(8) For the purposes of this section, the
prescribed sum is—
(a) unless a regulation has been made under paragraph (b)—$400 000 (indexed); or
(b) a greater amount prescribed by regulation for the purposes of this definition.
(9) In connection with the operation of subsection (8)—
(a) the amount to be applied with respect to a particular disability is the amount applying under that subsection at the time of the occurrence of that disability; and
(b) an amount prescribed by regulation under paragraph (b) of that subsection must be indexed so as to provide annual adjustments according to changes in the Consumer Price Index.
(10) For the purposes of this section, any degree of impairment will be assessed in accordance with section 43A (and the WorkCover Guidelines).
(11) Compensation is not payable under this section after the death of the worker concerned.
(12) In this section—
WorkCover Guidelines means the guidelines published under section 43A.
43A—Assessment of impairment
(1) This section sets out a scheme for assessing the degree of impairment that applies to a compensable disability that results in permanent impairment.
(2) An assessment—
(a) must be made in accordance with the WorkCover Guidelines; and
(b) must be made by a legally qualified medical practitioner who holds a current accreditation issued by the Corporation for the purposes of this section.
(3) The Minister will publish guidelines (the "WorkCover Guidelines") for the purposes of section 43 and this section.
(4) The guidelines under subsection (3)—
(a) must be published in the Gazette; and
(b) may adopt or incorporate the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time; and
(c) must incorporate a methodology that arrives at an assessment of the degree of impairment of the whole person; and
(d) may specify procedures to be followed in connection with an assessment for the purposes of this Division; and
(e) may have effect on a day specified by the Minister by notice in the Gazette; and
(f) may be amended or substituted by the Minister from time to time.
(5) The Minister must, before publishing or amending the WorkCover Guidelines, consult with—
(a) the Australian Medical Association (South Australia) Incorporated; and
(b) any other prescribed body.
(6) The Corporation will establish an accreditation scheme for the purposes of subsection (2)(b).
(7) The accreditation scheme—
(a) may provide for a term or period of accreditation, and for the suspension or cancellation of accreditation on specified grounds; and
(b) may specify terms or conditions of accreditation; and
(c) may be amended or substituted by the Corporation from time to time.
(8) An assessment of the degree of impairment resulting from a disability for the purposes of this Division must—
(a) be made after the disability has stabilised; and
(b) subject to subsection (9), be based on the worker's current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the disability.
(9) An assessment must take into account the following principles:
(a) if a worker presents for assessment in relation to disabilities which occurred on different dates, the impairments are to be assessed chronologically by date of disability;
(b) impairments from unrelated disabilities or causes are to be disregarded in making an assessment;
(c) assessments are to comply with any other requirements specified by the WorkCover Guidelines or prescribed by the regulations.
(10) An amendment or substitution in relation to the WorkCover Guidelines under subsection (4)(d) will only apply in respect of a disability occurring on or after the date the amendment or substitution takes effect.
(11) A number determined under the WorkCover Guidelines with respect to a value of a person's degree of impairment may be rounded up or down according to any principle set out in the WorkCover Guidelines.
43B—No disadvantage—compensation table
(1) If—
(a) a worker suffers a compensable disability that gives rise to an entitlement to compensation under sections 43 and 43A; and
(b) the compensable disability is a loss mentioned in the table in Schedule 3A; and
(c) the amount of compensation payable under sections 43 and 43A in respect of that disability is less than the amount applying under the table in Schedule 3A in respect of that disability,
then the worker is entitled to compensation equal to the amount applying under the table (and, if relevant, subsection (2)) instead of the compensation payable under sections 43 and 43A.
(2) If a worker suffers 2 or more disabilities mentioned in the table in Schedule 3A arising from the same trauma, the worker is not entitled in any case to receive compensation under this section in excess of $254 100 (indexed) (despite the operation of subsection (1) and the table).
(3) Compensation is not payable under this section after the death of the worker concerned.
25—Amendment of section 44—Compensation payable on death—weekly payments
(1) Section 44(1)—delete "compensation is payable" and substitute:
compensation in the form of weekly payments is payable
(2) Section 44(1)(a), (b) and (c)—delete paragraphs (a), (b) and (c) and substitute:
(a) a dependent spouse or domestic partner is entitled to weekly payments equal to—
(i) in the case of total dependency—50%;
(ii) in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency,
of the amount of the notional weekly earnings of the deceased worker;
(b) a dependent child (being an orphaned child) is entitled to weekly payments equal to—
(i) in the case of total dependency—25%;
(ii) in the case of partial dependency—such lesser percentage as may be fixed by the Corporation having regard to the extent of the dependency,
of the amount of the notional weekly earnings of the deceased worker;
(3) Section 44(1)(e)—delete "lump sum or"
(4) Section 44(2)—delete subsection (2)
(5) Section 44(3)—delete subsection (3)
(6) Section 44(4a)—delete subsection (4a)
(7) Section 44(5)—delete "subsection (1)(c)" and substitute:
subsection (1)(b)
(8) Section 44(10)—delete "(either by way of lump sum or weekly payment)"
After section 45 insert:
45A—Compensation payable on death—lump sums
(1) In this section—
child means a person who—
(a) is under the age of 18 years; or
(b) is a full‑time student at an educational institution approved by the Corporation for the purposes of this paragraph and is under the age of 26 years; or
(c) is, by reason of physical or mental disability, incapable of earning a living;
dependent child means a child, including an orphaned child, totally, mainly or partially dependent on the worker's earnings;
dependent partner means a spouse or domestic partner totally or mainly dependent on the worker's earnings;
partially dependent partner means a spouse or domestic partner who is to any extent dependent on the worker's earnings;
prescribed sum means the prescribed sum under section 43 (as at the time of the occurrence of the compensable disability that resulted in the death of the relevant worker and less any amount paid to the relevant worker under section 43).
(2) For the purposes of this section, in determining whether a spouse or domestic partner was wholly or mainly dependent on a worker's earnings at the time of death of the worker or other relevant time, no regard will be had to any money which the spouse or domestic partner had earned or was earning by his or her own personal exertion or to any savings arising from any such earnings.
(3) For the purposes of this section, if a worker and the worker's spouse or domestic partner jointly contributed to the support of a dependent child immediately before the occurrence of the compensable disability that resulted in the worker's death, any contribution to the support of the child from the worker's spouse or domestic partner will be disregarded in determining whether the child is a dependant and, if so, the extent of the child's dependency.
(4) Subject to this Act, if a worker dies as a result of a compensable disability, compensation in the form of a lump sum is payable in accordance with this section.
(5) If the worker leaves a dependent partner, or dependent partners, and no dependent child, the amount of compensation is an amount equal to the prescribed sum payable to the dependent partner or, if there is more than 1, in equal shares to the dependent partners.
(6) If the worker leaves no dependent partner and no dependent children other than an orphan child or orphan children, the amount of compensation is an amount equal to the prescribed sum payable to that orphan child or, if there are 2 or more, in equal shares for those children.
(7) If the worker leaves a dependent partner, or dependent partners, and 1, and only 1, dependent child, the amount of compensation is—
(a) an amount equal to 90% of the prescribed sum payable to the dependent partner or, if more than 1, in equal shares to the dependent partners; and
(b) an amount equal to 10% of the prescribed sum payable to the dependent child.
(8) If the worker leaves a dependent partner, or dependent partners, and more than 1 and not more than 5 dependent children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares:
(a) an amount equal to 5% of the prescribed sum payable to each dependent child;
(b) the balance to the dependent partner or, if more than 1, in equal shares to the dependent partners.
(9) If the worker leaves a dependent partner, or dependent partners, and more than 5 dependent children, the amount of compensation is an amount equal to the prescribed sum payable in the following shares:
(a) an amount equal to 75% of the prescribed sum payable to the dependent partner or, if more than 1, in equal shares to the dependent partners;
(b) an amount equal to 25% of the prescribed sum payable to the dependent children in equal shares.
(10) If the worker does not leave a dependent partner but leaves a dependent child or dependent children (not taking into account an orphan child or orphan children), that dependent child is, or if more than 1, each of those dependent children are, entitled to the amount of compensation being such share of a sum not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to the dependent child or, if more than 1 dependent child, to those dependent children.
(11) If the worker leaves—
(a) a partially dependent partner or partially dependent partners; and
(b) a dependent partner or dependent partners or a dependent child or dependent children or any combination thereof,
each of those dependents is entitled to the amount of compensation being such share of a sum not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to that dependent.
(12) If the worker does not leave any dependent partner, dependent child or partially dependent partner but leaves any other person who is to any extent dependent on the worker's earnings, the Corporation may, if it considers it to be justified in the circumstances, pay compensation of a sum not exceeding the prescribed sum that the Corporation considers is reasonable and appropriate to the loss to that person (and if the Corporation decides to make a payment of compensation to more than 1 person under this subsection then the sums paid must not in total exceed the prescribed sum).
(13) If the worker, being under the age of 21 years at the time of the compensable disability, leaves no dependent partner, dependent child or partially dependent partner but, immediately before the disability, was contributing to the maintenance of the home of the members of his or her family, the members of his or her family are taken to be dependents of the worker partly dependent on the worker's earnings.
Section 45A of the principal Act, as enacted by this Act, applies to claims for a lump sum payment of compensation on account of the death of a worker made on or after the relevant day (whether the entitlement to compensation arose before or on or after the relevant day).
Section 45B of the principal Act, as enacted by this Act, applies to claims for a funeral benefit made on or after the relevant day (including in respect of a funeral occurring before the relevant day).
Section 45C of the principal Act, as enacted by this Act—
(a) applies to claims for compensation made under that section on or after the relevant day (whether the entitlement to compensation arose before or on or after the relevant day); and
(b) extends to claims for compensation for counselling services made to the Corporation or a self-insured employer before the relevant day under section 44 of the principal Act if the Corporation or self-insured employer determines that it is reasonable to allow the claim to be incorporated into the operation of this clause.
(1) Division 7A of Part 4 of the principal Act, as enacted by this Act, extends to cases involving disabilities occurring before the relevant day.
(2) Subclause (1) does not apply in a case where the relevant worker has made a claim for compensation under Division 8 of Part 4 of the principal Act before the relevant day.
A medical question may be referred to a Medical Panel under Part 6C of the principal Act, as enacted by this Act, even if the medical question relates to a claim made or proceedings commenced before that enactment.
(1) The Minister must, as soon as practicable after 31 December 2010, appoint an independent person to carry out a review concerning—
(a) the impact of this Act on workers who have suffered compensable disabilities and been affected by the operation of this Act; and
(b) the impact of this Act on levies paid by employers under Part 5 of the principal Act; and
(c) the impact of this Act on the sufficiency of the Compensation Fund to meet the liabilities of the WorkCover Corporation of South Australia under the principal Act; and
(d) such other matters as the Minister may determine.
(2) The person appointed by the Minister under subclause (1) must present to the Minister a report on the outcome of the review no later than 4 months following his or her appointment.
(3) The Minister must, within 6 sitting days after receiving the report, have copies of the report laid before both Houses of Parliament.
(4) In this clause, terms used have meanings consistent with the meanings they have in the principal Act.
(5) In this clause—
principal Act means theWorkers Rehabilitation and Compensation Act 1986
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