Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024 (Vic)
Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024
No. 8 of 2024
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Amendment of Workplace Injury Rehabilitation and Compensation Act 2013
Division 1—Mental injury amendments
4Definitions
5Entitlement to compensation
6When no entitlement to compensation
7Out of or in the course of employment
8Psychiatric impairment
9New section 263AA inserted
Division 2—Ongoing eligibility for compensation
10Application of this Division to Divisions 2 and 5 of Part 5 and Part 7
11New section 53A inserted
12Definitions
13Weekly payments after the second entitlement period
14New section 164A inserted
15Continuation of weekly payments after second entitlement period
16New Subdivision 1A inserted in Division 2 of Part 5
17Absence from Australia
18Initiation of claim by Authority or self-insurer
19Authority may suspend a claim
20ACCS may give directions about payment of compensation
21Supreme Court—limitation of jurisdiction—no proceedings
Division 2A—Return to Work Advisory Subcommittee
21AWorkCover Advisory Committee
Division 3—Information sharing
22New Division 2A inserted in Part 13
Division 4—Disputes which may be referred to arbitration
23Genuine disputes about certain matters
24Lodging of disputes for arbitration
Division 5—Independent review of amendments to scheme
25New Division 14A inserted in Part 13
Division 6—Transitional provision
26New section 625 inserted
Part 3—Amendment of Accident Compensation Act 1985
27Weekly payments after the second entitlement period
28New section 93CAB inserted
29Continuation of weekly payments after second entitlement period
30Provisions relating to the payment of compensation
Part 4—Amendment of Occupational Health and Safety Act 2004
31New Division 1A inserted in Part 2
Part 5—Repeal of this Act
32Repeal of this Act
═════════════
Endnotes
1 General information
Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024
No. 8 of 2024
[Assented to 13 March 2024]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purpose
The main purpose of this Act is to amend—
(a)the Workplace Injury Rehabilitation and Compensation Act 2013—
(i)to insert a definition of mental injury; and
(ii)to make further provision for the circumstances in which benefits are paid for mental injuries; and
(iii)to introduce an impairment threshold for assessing eligibility for the payment of benefits beyond a period of 130 weeks; and
(iv)to provide for a process for the review of the operation of the proposed amendments; and
(v)to make other miscellaneous amendments; and
(b)the Accident Compensation Act 1985 to introduce an impairment threshold for assessing eligibility for the payment of benefits beyond a period of 130 weeks; and
(c)the Occupational Health and Safety Act 2004 in relation to the use of information.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 31 March 2024, it comes into operation on that day.
3Principal Act
In this Act, the Workplace Injury Rehabilitation and Compensation Act 2013 is called the Principal Act.
PART 2—AMENDMENT OF WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013
Division 1—Mental injury amendments
4Definitions
In section 3 of the Principal Act insert the following definition—
"mental injury means an injury that—
(a)causes significant behavioural, cognitive or psychological dysfunction; and
(b)is diagnosed by a medical practitioner in accordance with the latest version of the Diagnostic and Statistical Manual of Mental Disorders;".
5Entitlement to compensation
(1)In section 39(1) of the Principal Act, after "an injury" insert ", other than a mental injury,".
(2)After section 39(1) of the Principal Act insert—
"(1A)If there is caused to a worker a mental injury predominantly arising out of or in the course of any employment, the worker is entitled to compensation in accordance with this Act.".
(3)After section 39(2) of the Principal Act insert—
"(2A)Despite section 40(1A), a worker is entitled to compensation in accordance with this Act if there is caused to a worker a mental injury predominantly caused by traumatic events experienced by the worker that may be considered usual or typical and reasonably expected to occur in the course of the worker's duties.".
6When no entitlement to compensation
(1)After section 40(1) of the Principal Act insert—
"(1A)There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury predominantly caused by work related stress or burnout that has arisen from events that may be considered usual or typical and reasonably expected to occur in the course of the worker's duties.".
(2)After section 40(2) of the Principal Act insert—
"(2A)There is no entitlement to compensation in respect of a mental injury that is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing mental injury unless the worker's employment was the predominant cause of the recurrence, aggravation, acceleration, exacerbation or deterioration.".
(3)In section 40(3)(c) of the Principal Act, after "disease" insert "to which subsection (2A) does not apply".
7Out of or in the course of employment
In section 46(1) of the Principal Act, after "section 39(1)" insert ", (1A)".
8Psychiatric impairment
At the end of section 64 of the Principal Act insert—
"(2)To avoid doubt, the definition of mental injury does not apply for the purposes of assessing the degree of psychiatric impairment.".
9New section 263AA inserted
Before section 263A of the Principal Act insert—
"263AA Definition of mental injury does not apply
(1)For the purposes of this Division, the definition of mental injury does not apply.
(2)To avoid doubt, a worker may be entitled to provisional payments under this Division in respect of a claimed mental injury regardless of whether the worker's claim for compensation in respect of a mental injury is ultimately accepted or rejected by the Authority or self-insurer.".
Division 2—Ongoing eligibility for compensation
10Application of this Division to Divisions 2 and 5 of Part 5 and Part 7
(1)In the heading to section 53 of the Principal Act, for "Division 5" substitute "Divisions 2 and 5".
(2)In section 53(1) and (2) of the Principal Act, for "Division 5" substitute "Divisions 2 and 5".
11New section 53A inserted
After section 53 of the Principal Act insert—
"53A Assessment under this Division is final assessment of impairment
(1)Subject to subsection (2), if a worker is assessed in accordance with this Division to determine the degree of impairment of the worker arising from one or more injuries, that assessment is the final assessment of the worker's degree of impairment arising from that injury or those injuries for the purposes of this Act.
(2)If a worker is to be assessed in accordance with this Division for the purposes of a claim under section 164A in respect of an injury for which the worker has undergone surgery—
(a)despite subsection (1), the worker may be reassessed in accordance with this Division; and
(b)the reassessment is the final assessment of the worker's degree of impairment arising from that injury for the purposes of this Act.".
12Definitions
In section 152 of the Principal Act insert the following definitions—
"compensable injury, of a worker, means an injury in respect of which—
(a)liability has been accepted or established; and
(b)the worker is, or has been, entitled to compensation in the form of weekly payments during the second entitlement period;
impairment determination means a determination under section 167A(1);
interim determination means a determination under section 167D(1);
ongoing eligibility determination means a determination under section 163(1), 164A(2), 165(4) or 175(1) or (2A) of this Act or section 93C(1), 93CAB(2), 93CD(4) or 97(2) or (2AAB) of the Accident Compensation Act 1985;".
13Weekly payments after the second entitlement period
(1)For section 163(1) of the Principal Act substitute—
"(1)Subject to section 165, a worker's entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the Authority or self-insurer determines that the worker—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)has a whole person impairment of more than 20 per cent resulting from one or more compensable injuries.".
(2)For section 163(3) of the Principal Act substitute—
"(3)If a worker is receiving compensation under subsection (2), the Authority or self‑insurer—
(a)may review the work capacity of the worker at any time; and
(b)must review the work capacity of the worker as often as reasonably necessary and not less than once every 2 years.".
14New section 164A inserted
After section 164 of the Principal Act insert—
"164A Review of impairment arising from surgery after second entitlement period
(1)A worker may apply, in a form approved by the Authority, to the Authority or self-insurer for compensation in the form of weekly payments in respect of incapacity and whole person impairment if the worker—
(a)has a compensable injury; and
(b)either, in respect of the injury—
(i)is not entitled to compensation in the form of weekly payments because of section 163; or
(ii)is entitled under section 165 to compensation in the form of weekly payments; and
(c)for at least 13 consecutive weeks immediately after the expiry of the second entitlement period, has not received compensation in the form of weekly payments other than weekly payments under section 165; and
(d)requires surgery for that injury (the subsequent surgery) for which the Authority or self-insurer has accepted liability under section 224(1); and
(e)suffers incapacity and whole person impairment resulting from or materially contributed to by the subsequent surgery; and
(f)has not attained retirement age.
(2)A worker who applies under this section is entitled to compensation in the form of weekly payments under section 163(2) if the Authority or self-insurer determines that the worker, as a result of the subsequent surgery—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)has a whole person impairment of more than 20 per cent.
(3)Compensation payable under this section is payable from—
(a)if the worker receives compensation under section 164 as a result of the subsequent surgery, the date that is 13 consecutive weeks after the day on which the subsequent surgery was performed; or
(b)in any other case, the date on which the ongoing eligibility determination is made under this section.".
15Continuation of weekly payments after second entitlement period
In section 165 of the Principal Act—
(a)in subsection (4)(b), for "earnings." substitute "earnings; and";
(b)after subsection (4)(b) insert—
"(c)the worker has a whole person impairment of more than 20 per cent resulting from one or more compensable injuries.".
16New Subdivision 1A inserted in Division 2 of Part 5
After Subdivision 1 of Division 2 of Part 5 of the Principal Act insert—
"Subdivision 1A—Determination of eligibility for compensation after second entitlement period
167AAuthority or self-insurer to determine degree of impairment
(1)For the purposes of section 163(1)(b), 164A(2)(b), 165(4)(c) or 175(1)(b) or (2A)(b) of this Act or section 93C(1)(c), 93CAB(2)(b), 93CD(4)(c) or 97(2)(b) or (2AAB)(b) of the Accident Compensation Act 1985, the Authority or self-insurer may determine the degree of impairment of a worker arising from one or more compensable injuries, having regard to—
(a)an assessment in accordance with Division 4 of Part 2 of the degree of impairment of the worker arising from the injury or injuries; and
(b)any medical reports, correspondence and other documents provided to the Authority or self-insurer for the purposes of determining the worker's entitlement to compensation; and
(c)the A.M.A. Guides and any guidelines referred to in section 54.
(2)The degree of impairment of a worker is the greater of the worker's—
(a)degree of impairment resulting from one or more compensable injuries that are physical injuries; or
(b)degree of impairment resulting from one or more compensable injuries that are psychiatric or psychological injuries.
(3)An impairment determination must not relate to more than one compensable injury unless those injuries arise out of the same event or circumstance.
(4)The Authority or self-insurer must not make an impairment determination in respect of a worker's injury until the worker attains the age of 18 years.
(5)To avoid doubt, in making an impairment determination, the Authority or self-insurer is not bound by an assessment in accordance with Division 4 of Part 2 of the degree of impairment of the worker.
167BAssessment of worker's degree of impairment
(1)The Authority or self-insurer may request a worker to attend an assessment in accordance with Division 4 of Part 2 for the purposes of an impairment determination.
(2)On the request of the Authority or self‑insurer under subsection (1), the worker must attend the assessment.
(3)The Authority or self-insurer must give the worker a written statement of each injury included in the assessment.
167CDetermination that it is not necessary or practicable to obtain an assessment
(1)The Authority or self-insurer may determine that it is not necessary or practicable to assess a worker in accordance with Division 4 of Part 2 for the purposes of an impairment determination.
(2)The Authority or self-insurer may make a determination under subsection (1) if satisfied of any of the following—
(a)there is no reasonable prospect of the worker having a whole person impairment of more than 20 per cent;
(b)there is no reasonable prospect of the worker having a whole person impairment of 20 per cent or less and this is likely to be the case permanently;
(c)the worker resides overseas;
(d)it is not reasonable or practicable for the worker to attend an assessment.
(3)For the purposes of making a determination under subsection (1), the Authority or self‑insurer must have regard to the following matters—
(a)the medical evidence available to the Authority or self-insurer;
(b)whether the worker's degree of impairment is likely to be permanent;
(c)any practical barriers to the worker being assessed in accordance with Division 4 of Part 2;
(d)whether determining the degree of impairment of the worker without assessing the worker in accordance with Division 4 of Part 2 is likely to disadvantage the worker.
(4)The Authority or self-insurer must give a worker written notice of a determination made under this section in respect of the worker.
(5)A notice under subsection (1) must include a written statement of each injury to which the determination relates.
167DInterim determination of eligibility
(1)For the purposes of section 163(1), 165(4) or 175(1) or (2A) of this Act or section 93C(1)(c), 93CD(4) or 97(2) or (2AAB) of the Accident Compensation Act 1985, the Authority or self-insurer may make an interim determination that—
(a)the worker is eligible to receive weekly payments after the expiry of the second entitlement period in respect of one or more compensable injuries; or
(b)the worker is not eligible to receive weekly payments after the expiry of the second entitlement period in respect of one or more compensable injuries.
(2)The Authority or self-insurer may make an interim determination if an impairment determination cannot be made because—
(a)the worker's injury has not stabilised; or
(b)the worker has been diagnosed with an eligible progressive disease which is unlikely to stabilise; or
(c)the worker is under the age of 18 years; or
(d)information required to make the impairment determination is not available for any reason.
(3)For the purposes of subsection (1)(a), the Authority or self-insurer must be satisfied that—
(a)the worker's impairment arising from the injury is likely to be permanent; and
(b)if the worker's degree of impairment were able to be assessed, it would likely be assessed as a whole person impairment of more than 20 per cent; and
(c)the worker has no current work capacity and is likely to continue indefinitely to have no work capacity.
(4)For the purposes of subsection (1)(b), the Authority or self-insurer must be satisfied of any of the following—
(a)the worker's impairment arising from the injury is not likely to be permanent;
(b)if the worker's degree of impairment were able to be assessed, it would likely be a whole person impairment of 20 per cent or less;
(c)the worker has a current work capacity.
(5)In making an interim determination under this section, the Authority or a self-insurer may have regard to any medical evidence available to the Authority or self-insurer about the work capacity and degree of impairment of the worker.
167ENotice of interim determination of eligibility
(1)The Authority or self-insurer must give a worker written notice of an interim determination made in respect of the worker.
(2)A notice under subsection (1) must include a written statement of each injury to which the interim determination relates.
(3)An interim determination in respect of a worker applies until the Authority or a self‑insurer makes—
(a)a further interim determination in respect of the worker; or
(b)an ongoing eligibility determination in respect of the worker.
(4)At any time, the Authority or self-insurer may review an interim determination.
167FNotice of ongoing eligibility determination
(1)The Authority or self-insurer must give a worker written notice of an ongoing eligibility determination made in respect of the worker.
(2)If the worker advises the Authority or self‑insurer that the worker disputes the ongoing eligibility determination, the worker must not commence a proceeding in relation to the claim, except as provided in section 273(1) or (2).
167GEffect of ongoing eligibility determination made after interim determination
(1)If the Authority or self-insurer makes an interim determination under section 167D(1)(a) that a worker is entitled to compensation after the expiry of the second entitlement period and subsequently makes an ongoing eligibility determination that the worker is not entitled to compensation after the expiry of the second entitlement period, the Authority or self-insurer must give the worker 13 weeks of notice for the purposes of section 191(1)(b) before terminating the worker's weekly payments.
(2)If the Authority or self-insurer makes an interim determination under section 167D(1)(b) that a worker is not entitled to compensation after the expiry of the second entitlement period and subsequently confirms in an ongoing eligibility determination that the worker is not entitled to compensation after the expiry of the second entitlement period, the Authority or self-insurer is taken to have given the worker 13 weeks of notice for the purposes of section 191(1)(b).
(3)If the Authority or self-insurer makes an interim determination under section 167D(1)(b) that a worker is not entitled to compensation after the expiry of the second entitlement period and subsequently makes an ongoing eligibility determination that the worker is entitled to compensation after the expiry of the second entitlement period, the worker is entitled to compensation from the date that the interim determination took effect.
(4)No interest is payable to the worker on payments made to the worker in the circumstances described in subsection (3).
167HReferral of dispute to Medical Panel
(1)The Authority or self-insurer must refer the medical question as to the degree of impairment of a worker to a Medical Panel for its opinion under section 302 if—
(a)the worker advises the Authority or self-insurer that the worker disputes an ongoing eligibility determination; and
.(b) the dispute does not require the resolution of any issue other than the degree of impairment arising from the compensable injury or injuries to which the ongoing eligibility determination relates.
(2)The Authority or self-insurer must refer the medical question under subsection (1) within 14 days of being advised by the worker that the worker disputes the ongoing eligibility determination.
(3)Within 60 days of obtaining the opinion of the Medical Panel under section 302, the Authority or self-insurer must advise the worker of—
(a)the opinion of the Medical Panel; and
(b)the worker's entitlement, if any, to compensation in the form of weekly payments after the expiry of the second entitlement period.
(4)Within 60 days of being advised by the Authority or self-insurer of the entitlement of the worker to compensation in accordance with subsection (3), the worker must advise the Authority or self-insurer whether the worker accepts or disputes the entitlement to compensation.
(5)Within 14 days of being advised by the worker that the worker accepts the entitlement to compensation, the Authority or self‑insurer must pay the compensation in accordance with this Division.
167IOngoing eligibility determination does not give rise to issue estoppel
An ongoing eligibility determination made by the Authority or a self-insurer in respect of a compensable injury does not give rise to an issue estoppel in any proceeding under this Act in respect of the injury.
167JNo appeal from certain determinations and opinions
For the purposes of this Subdivision, section 208 applies to an impairment determination or any other determination or opinion as to the degree of impairment of a worker resulting from an injury.
167KMinister may give directions
(1)For the purposes of this Division, the Minister may give directions in accordance with section 609 for or with respect to procedures for making any of the following—
(a)an impairment determination;
(b)an interim determination;
(c)an ongoing eligibility determination.
(2)Directions under subsection (1) may include directions requiring that information specified in the direction must be provided by affidavit.".
17Absence from Australia
(1)In section 175(1) of the Principal Act, for "worker has no current work capacity and is likely to continue indefinitely to have no current work capacity." substitute "worker—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)in the case of a worker receiving weekly payments after the second entitlement period, has a whole person impairment of more than 20 per cent resulting from one or more compensable injuries.".
(2)After section 175(2) of the Principal Act insert—
"(2A)If a worker who ceases to reside in Australia is receiving weekly payments, the worker's entitlement to weekly payments ceases upon the expiry of the second entitlement period unless the Authority or self-insurer determines that the worker—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)has a whole person impairment of more than 20 per cent resulting from one or more compensable injuries.".
(3)For section 175(4) of the Principal Act substitute—
"(4)If a worker who does not reside in Australia is receiving weekly payments because of subsection (1), (2) or (2A), the worker is entitled to receive the weekly payments if the worker proves in the prescribed manner and at the prescribed intervals to the satisfaction of the Authority or self-insurer—
(a)the worker's identity; and
(b)that the worker continues to have no current work capacity.
(5)If a worker who does not reside in Australia is receiving weekly payments after the second entitlement period, the Authority or self-insurer—
(a)may review the work capacity of the worker at any time; and
(b)must review the work capacity of the worker as often as reasonably necessary and not less than once every 2 years.".
18Initiation of claim by Authority or self-insurer
For section 199(1) of the Principal Act substitute—
"(1)The Authority or a self-insurer may request a worker to attend an independent examination under section 203(1) in respect of an injury if—
(a)liability has been accepted or determined in respect of a prior claim for compensation for the injury; and
(b)either—
(i)it has been at least 18 months since the date of the injury; or
(ii)the degree of impairment of the worker is being assessed under Subdivision 1A of Division 2; and
(c)the worker has not made a Division 5 claim in respect of the injury.".
19Authority may suspend a claim
(1)After section 200(1) of the Principal Act insert—
"(1A)The Authority or self-insurer, by notice in writing to the worker, may suspend a Division 5 claim from a worker within 14 days of the date on which the Authority or self-insurer has—
(a)received the Division 5 claim; and
(b)either—
(i)made a request under section 167B(1) for the worker to attend an assessment; or
(ii)given the worker a statement of injuries under section 167B(3).".
(2)In section 200(2) of the Principal Act—
(a)in paragraph (b), for "stabilised—" substitute "stabilised; or";
(b)after paragraph (b) insert—
"(c)if subsection (1A) applies, of giving notice under section 167F(1) to the worker of an ongoing eligibility determination in respect of the worker—".
(3)After section 200(2) of the Principal Act insert—
"(3)In this section—
ongoing eligibility determination has the same meaning as in section 152.".
20ACCS may give directions about payment of compensation
In section 297(1) of the Principal Act—
(a)in paragraph (e), for "section 26(1)." substitute "section 26(1);";
(b)after paragraph (e) insert—
"(f)a dispute as to the degree of impairment of a worker as determined under section 167A.".
21Supreme Court—limitation of jurisdiction—no proceedings
After section 618(2) of the Principal Act insert—
"(3)It is the intention of section 167J as inserted by section 16 of the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024 to alter or vary section 85 of the Constitution Act 1975.".
Division 2A—Return to Work Advisory Subcommittee
21AWorkCover Advisory Committee
After section 512(5) of the Principal Act insert—
"(6)The WorkCover Advisory Committee must establish a Return to Work Advisory Subcommittee.
(7)The Return to Work Advisory Subcommittee must be chaired by the Chairperson of the Board.
(8)The function of the Return to Work Advisory Subcommittee is to advise the Board in relation to the following—
(a)ways to promote the occupational rehabilitation and early return to work of injured workers;
(b)the establishment, administration and operation of occupational rehabilitation services, vocational re-education facilities and return to work programs available to injured workers.
(9)In this section—
Chairperson of the Board means the Chairperson appointed under section 509.".
Division 3—Information sharing
22New Division 2A inserted in Part 13
After Division 2 of Part 13 of the Principal Act insert—
"Division 2A—Use of information
551AUse of information
(1)Information collected by the Authority under this Act or the regulations may be used by the Authority to perform its functions and exercise its powers under any Act if the use—
(a)is reasonably necessary for the purposes of performing a function or exercising a power conferred on the Authority under that Act or regulations made under that Act; or
(b)is directly related to a function or power conferred on the Authority under that Act.
(2)This section does not affect the operation of—
(a)the Health Records Act 2001; or
(b)the Privacy and Data Protection Act 2014; or
(c)the Victorian Data Sharing Act 2017.".
Division 4—Disputes which may be referred to arbitration
23Genuine disputes about certain matters
At the foot of section 298(1) of the Principal Act insert the following note—
"Note
See section 301C(1) for matters that can be referred to arbitration.".
24Lodging of disputes for arbitration
(1)In section 301C(1)(a) of the Principal Act omit "liability for".
(2)After section 301C(1)(a) of the Principal Act insert—
"(ab)the dispute is not or does not include a dispute as to any of the following—
(i)whether an injury is an injury under this Act;
(ii)whether an injury has occurred in circumstances that create a liability for the Authority or self-insurer to pay compensation under this Act; and".
(3)After section 301C(2) of the Principal Act insert—
"(2A)A dispute excluded from arbitration under subsection (1)(ab) includes a dispute as to any of the following matters—
(a)whether a claimant is a worker;
(b)whether the claimant has suffered an injury, including a mental injury;
(c)whether an injury caused to the claimant is an injury that arose out of, or in the course of, or due to the nature of, the claimant's employment;
(d)whether the claimant's employment was a significant contributing factor to an injury caused to the claimant;
(e)whether an injury caused to the claimant is a mental injury for which there is no entitlement to compensation;
(f)whether an injury caused to the claimant is a disease for which there is no entitlement to compensation;
(g)whether an injury caused to the claimant is a proclaimed disease;
(h)any other matter that is relevant to determining any of the following—
(i)whether an injury is an injury under this Act;
(ii)whether an injury has occurred in circumstances that create a liability for the Authority or self‑insurer to pay compensation under this Act.".
Division 5—Independent review of amendments to scheme
25New Division 14A inserted in Part 13
After Division 14 of Part 13 of the Principal Act insert—
"Division 14A—Review of amendments
620AIndependent review by expert panel
(1)The Minister must cause an independent review of the operation of the amendments made to this Act by the amending Act to be conducted by an expert panel.
(2)The conduct of the review must commence on or after 1 January 2027 and before 1 January 2028.
(3)The independent review must be conducted in accordance with the terms of reference set by the Minister.
(4)The Minister must set the terms of reference for the independent review which may include an examination of and recommendations in relation to matters arising from the operation of the amendments, including the operational and financial impact of the following—
(a)the introduction of the definition of mental injury and the amendment of sections 39 and 40 by Division 1 of Part 2 of the amending Act;
(b)the introduction of Subdivision 1A of Division 2 of Part 5 and consequential amendments relating to the introduction of a whole person impairment test in the second entitlement period made by Division 2 of Part 2 of the amending Act;
(c)increasing the scope of claims that may be dealt with administratively because of the amendments made by Division 2 of Part 2 of the amending Act;
(d)changes to the information sharing framework under this Act by Division 3 of Part 2 of the amending Act;
(e)reducing the scope of disputes that may be referred to arbitration because of the amendments made by Division 4 of Part 2 of the amending Act;
(f)any other relevant matter.
(5)In this section—
amending Act means the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024.
620BAppointment of expert panel
(1)For the purposes of section 620A, the Minister must appoint a minimum of 3 persons to form the expert panel.
(2)The Minister must ensure that each person appointed to the expert panel has experience in one or more of the following areas—
(a)medicine;
(b)law;
(c)finance;
(d)occupational health and safety.".
Division 6—Transitional provision
26New section 625 inserted
After section 624 of the Principal Act insert—
"625 Transitional provision—Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024
(1)The definition of mental injury as inserted by Division 1 of Part 2 of the amending Act and sections 39 and 40, as amended by that Division of that Act, apply to claims made in respect of injuries that occur on or after the date of commencement of Division 1 of Part 2 of the amending Act.
(2)Sections 163, 165 and 175, as in force immediately before the commencement of Division 2 of Part 2 of the amending Act, continue to apply to a worker who immediately before the date of commencement of that Division of the amending Act is receiving weekly payments despite the expiry of the second entitlement period.
(3)Section 301C, as in force immediately before the commencement of Division 4 of Part 2 of the amending Act, continues to apply to a dispute that relates to an injury that occurs before the date of commencement of that Division of the amending Act.
(4)In this section—
amending Act means the Workplace Injury Rehabilitation and Compensation Amendment (WorkCover Scheme Modernisation) Act 2024.".
PART 3—AMENDMENT OF ACCIDENT COMPENSATION ACT 1985
27Weekly payments after the second entitlement period
(1)For section 93C(1) of the Accident Compensation Act 1985 substitute—
"(1)Subject to section 93CD, a worker's entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless—
(a)subject to paragraph (c), the worker is assessed by the Authority or self‑insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity; or
(b)the worker is a pre-12 November 1997 claimant who has a serious injury; or
(c)in the case of a worker whose second entitlement period expires on or after 1 January 2024, the Authority or self‑insurer determines in accordance with Subdivision 1A of Division 2 of Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013 that the worker—
(i)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(ii)has a whole person impairment of more than 20 per cent.".
(2)In section 93C(2) of the Accident Compensation Act 1985, for "subsection (1)(a) or (b)" substitute "subsection (1)(a), (b) or (c)".
(3)After section 93C(3) of the Accident Compensation Act 1985 insert—
"(4)In the case of a worker referred to in subsection (1)(c) who is receiving compensation under subsection (2), the Authority or self-insurer—
(a)may review the work capacity of the worker at any time; and
(b)must review the work capacity of the worker as often as reasonably necessary and not less than once every 2 years.".
28New section 93CAB inserted
After section 93CA of the Accident Compensation Act 1985 insert—
"93CAB Review of impairment arising from surgery after second entitlement period
(1)A worker may apply, in a form approved by the Authority, to the Authority or self-insurer for compensation in the form of weekly payments in respect of incapacity and whole person impairment if the worker—
(a)has an injury arising on or after 5 April 2010 in respect of which—
(i)liability has been accepted or established; and
(ii)the worker is, or has been, entitled under this Act to compensation in the form of weekly payments during the second entitlement period; and
(b)either, in respect of the injury—
(i)is not entitled to compensation in the form of weekly payments because of section 93C; or
(ii)is entitled under section 93CD to compensation in the form of weekly payments; and
(c)for at least 13 consecutive weeks immediately after the expiry of the second entitlement period, has not received compensation in the form of weekly payments other than weekly payments under section 93CD; and
(d)requires surgery for that injury (the subsequent surgery) for which the Authority or self-insurer has accepted liability under section 99; and
(e)suffers incapacity and whole person impairment resulting from or materially contributed to by the subsequent surgery; and
(f)has not attained retirement age.
(2)A worker who applies under this section is entitled to compensation in the form of weekly payments under section 93C(2)(d) if the Authority or self-insurer determines in accordance with Subdivision 1A of Division 2 of Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013 that the worker, as a result of the subsequent surgery—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)has a whole person impairment of more than 20 per cent.
(3)Compensation payable under this section is payable from—
(a)if the worker receives compensation under section 93CA as a result of the subsequent surgery, the date that is 13 consecutive weeks after the day on which the subsequent surgery was performed; or
(b)in any other case, the date that it is determined that the worker is entitled to compensation.".
29Continuation of weekly payments after second entitlement period
In section 93CD of the Accident Compensation Act 1985—
(a)in subsection (4)(b), for "earnings." substitute "earnings; and";
(b)after subsection (4)(b) insert—
"(c)in the case of a worker whose second entitlement period expires on or after 1 January 2024, the worker has a whole person impairment of more than 20 per cent.".
30Provisions relating to the payment of compensation
(1)In section 97(2) of the Accident Compensation Act 1985, for "worker has no current work capacity and is likely to continue indefinitely to have no current work capacity." substitute "worker—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)in the case of a worker whose second entitlement period expires on or after 1 January 2024 and who is receiving weekly payments after the second entitlement period, has a whole person impairment of more than 20 per cent, determined in accordance with Subdivision 1A of Division 2 of Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013.".
(2)After section 97(2AA) of the Accident Compensation Act 1985 insert—
"(2AAB)If a worker who ceases to reside in Australia is receiving weekly payments and the worker's second entitlement period expires on or after 1 January 2024, the worker's entitlement to weekly payments ceases upon the expiry of the second entitlement period unless the Authority or self-insurer determines in accordance with Subdivision 1A of Division 2 of Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013 that the worker—
(a)has no current work capacity and is likely to continue indefinitely to have no current work capacity; and
(b)has a whole person impairment of more than 20 per cent.".
(3)For section 97(3) of the Accident Compensation Act 1985 substitute—
"(3)If a worker who does not reside in Australia is receiving weekly payments because of subsection (1), (2) or (2AAB), the worker is entitled to receive the weekly payments if the worker proves in the prescribed manner and at the prescribed intervals to the satisfaction of the Authority or self-insurer—
(a)the worker's identity; and
(b)that the worker continues to have no current work capacity.
(3A)If a worker who does not reside in Australia is receiving weekly payments after the second entitlement period, the Authority or self-insurer—
(a)may review the work capacity of the worker at any time; and
(b)must review the work capacity of the worker as often as reasonably necessary and not less than once every 2 years.".
PART 4—AMENDMENT OF OCCUPATIONAL HEALTH AND SAFETY ACT 2004
31New Division 1A inserted in Part 2
After Division 1 of Part 2 of the Occupational Health and Safety Act 2004 insert—
"Division 1A—Use of information
8AAUse of information
(1)Information collected by the Authority under this Act or the regulations may be used by the Authority to perform its functions and exercise its powers under any Act if the use—
(a)is reasonably necessary for the purposes of performing a function or exercising a power conferred on the Authority under that Act or regulations made under that Act; or
(b)is directly related to a function or power conferred on the Authority under that Act.
(2)This section does not affect the operation of—
(a)the Health Records Act 2001; or
(b)the Privacy and Data Protection Act 2014; or
(c)the Victorian Data Sharing Act 2017.".
PART 5—REPEAL OF THIS ACT
32Repeal of this Act
This Act is repealed on 31 March 2025.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
═════════════
ENDNOTES
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 1 November 2023
Legislative Council: 16 November 2023
The long title for the Bill for this Act was "A Bill for an Act to amend the Workplace Injury Rehabilitation and Compensation Act 2013, the Accident Compensation Act 1985 and the Occupational Health and Safety Act 2004 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 1 November 2023
Legislative Council: 16 November 2023
Absolute majorities:
Legislative Assembly: 16 November 2023
Legislative Council: 6 March 2024
0
0
0