2001
2001
2005-06-08
act
publicspecial
act.reprint
partuncommenced
retroactivecommencements
2001-11-27
none
act-2001-094
563bed1a-e2bb-4710-844e-65cd0cff7704
7c03fc3e-c312-4fb5-a561-7a6ad0dd2e42
See
also:
Statute Law (Miscellaneous Provisions)
Bill 2005
An Act to amend the Workers Compensation Act 1987 and the
Workplace Injury Management and Workers Compensation Act
1998 to make further provision with respect to common law
damages, lump sum compensation, attendant care services, savings and
transitional matters, private insurance arrangements and miscellaneous
matters; and for other purposes.
1Name of
Act
This Act is the Workers
Compensation Legislation Further Amendment Act
2001.
2Commencement
(1)
This Act commences on a day or days to be
proclaimed, except as provided by this section.
(2)
The following provisions of this Act (and section
3 in its application to those provisions) are taken to have commenced at 9.00
am on the day on which the Bill for this Act was introduced into
Parliament:
(a)
Schedule 1.1 (Amendments to the Workers Compensation Act 1987 relating
to common law damages),
(b)
Schedule 4 [14] to the extent that it inserts
clauses 9–11 of Part 18C of Schedule 6 to the Workers Compensation Act
1987.
3Amendments
(1)
Each Act specified in the Schedules to this Act
is amended as set out in those Schedules.
(2)
The amendments made by this Act to the Workers Compensation Act 1987 and the
Workplace Injury Management and Workers Compensation Act
1998 are amendments to those Acts as amended by the
Workers Compensation Legislation Amendment Act
2001 whether or not the amendments made by the Workers Compensation Legislation Amendment Act
2001 have commenced as at the date of assent to this
Act.
Schedule 1Amendments relating to common
law damages
(Section 3)
1.1Workers Compensation Act 1987 No
70
[1]Section 149
Definitions
Omit the definition of non-economic loss from section 149
(1).
[2]Sections 151A,
151B
Omit the sections. Insert instead:
151AEffect of recovery of damages
on compensation
(1)
If a person recovers damages in respect of an
injury from the employer liable to pay compensation under this Act then
(except to the extent that subsection (2), (3) or (4) covers the case):
(a)
the person ceases to be entitled to any further
compensation under this Act in respect of the injury concerned (including
compensation claimed but not yet paid), and
(b)
the amount of any weekly payments of compensation
already paid in respect of the injury concerned is to be deducted from the
damages (awarded or otherwise paid as a lump sum) and is to be paid to the
person who paid the compensation, and
(c)
the person ceases to be entitled to participate
in any injury management program provided for under this Act or the 1998
Act.
(2)
If damages in respect of an injury are recovered
from the employer liable to pay compensation under this Act, pursuant to a
cause of action that survives for the benefit of the estate of a deceased
worker under the Law Reform (Miscellaneous
Provisions) Act 1944, the following amounts of
compensation are to be repaid out of the estate of the deceased worker to the
person who paid the compensation:
(a)
the amount of any weekly payments of compensation
already paid in respect of the injury concerned,
(b)
the amount of any permanent impairment
compensation and pain and suffering compensation already paid in respect of
the injury concerned.
(3)
If damages are recovered in an action under the
Compensation to Relatives Act 1897 in
respect of the death of a worker from the employer liable to pay compensation
under this Act in respect of the death:
(a)
the amount of any compensation under Division 1
of Part 3 paid in respect of the death is to be deducted from the damages
(awarded or otherwise paid as a lump sum) and is to be paid to the person who
paid the compensation, and
(b)
a person recovering those damages ceases to be
entitled to any further compensation under this Act in respect of the death of
the worker.
(4)
If a person recovers motor accident damages in
respect of an injury from the employer liable to pay compensation under this
Act:
(a)
the person ceases to be entitled to any further
compensation under this Act in respect of the injury concerned (including
compensation claimed but not yet paid), and
(b)
the amount of any compensation already paid in
respect of the injury concerned is to be deducted from the damages (awarded or
otherwise paid as a lump sum) and is to be paid to the person who paid the
compensation.
[3]Section 151C 6-months delay
before commencing court proceedings against employer for
damages
Omit section 151C (2) (a). Insert instead:
(a)
the employer wholly denies liability in respect
of the injury,
[4]Section 151C
(3)
Insert after section 151C (2):
(3)
This section does not limit or otherwise affect
the operation of Part 6 of Chapter 7 of the 1998 Act.
Note—
Part 6 of Chapter 7 of the 1998 Act imposes
restrictions on the commencement of court proceedings for
damages.
[5]Section 151D Time limit for
commencement of court proceedings against employer for
damages
Omit section 151D (1).
[6]Section
151DA
Insert after section 151D:
151DATime not to run for
commencement of proceedings in certain cases
(1)
Time does not run for the purposes of section
151D:
(a)
while a medical dispute as to whether the degree
of permanent impairment of the injured worker is at least 15%, or whether the
degree of permanent impairment of the injured worker is fully ascertainable,
is the subject of a referral for assessment under Part 7 of Chapter 7 of the
1998 Act, or
(b)
while a pre-filing statement served in accordance
with section 315 of the 1998 Act in respect of the claim concerned remains
current.
(2)
A pre-filing statement remains current from the
time it is served until it is struck out under this section on the application
of the person (the
defendant) on whom it was served or it is withdrawn by the
person who served it, whichever happens first.
(3)
The defendant may apply to the President to have
the pre-filing statement struck out by order of the President. Such an
application may not be made until at least 6 months have elapsed after the
defendant served on the claimant a defence to the claim in accordance with
section 316 of the 1998 Act.
(4)
The President may order that a pre-filing
statement be struck out but must not do so if satisfied that the degree of
permanent impairment of the injured worker is not yet fully ascertainable and
the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998
Act for assessment of the degree of permanent impairment of the injured
worker.
(5)
A medical dispute is considered to be the subject
of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if
the approved medical specialist has declined to make an assessment of the
degree of permanent impairment of the injured worker until satisfied that the
degree of permanent impairment is fully ascertainable.
[7]Sections
151G–151IA
Omit sections 151G–151I. Insert
instead:
151GOnly damages for past and
future loss of earnings may be awarded
(1)
The only damages that may be awarded are:
(a)
damages for past economic loss due to loss of
earnings, and
(b)
damages for future economic loss due to the
deprivation or impairment of earning capacity.
(2)
This section does not apply to an award of
damages in an action under the Compensation to Relatives Act
1897.
151HNo damages unless permanent
impairment of at least 15%
(1)
No damages may be awarded unless the injury
results in the death of the worker or in a degree of permanent impairment of
the injured worker that is at least 15%.
Note—
Section 322 of the 1998 Act provides that the
assessment of the degree of permanent impairment is to be made in accordance
with WorkCover Guidelines. That section also provides that impairments that
result from the same injury are to be assessed together.
(2)
In assessing whether the 15% threshold has been
met (that is, whether the degree of permanent impairment resulting from an
injury is at least 15%):
(a)
impairment resulting from physical injury is to
be assessed separately from impairment resulting from psychological injury,
and
(b)
in assessing impairment resulting from
psychological injury, no regard is to be had to impairment that results from a
secondary psychological injury, and
(c)
the 15% threshold is not met unless the degree of
permanent impairment resulting from physical injury is at least 15% or the
degree of permanent impairment resulting from psychological injury is at least
15%.
Note—
This does not prevent an award of damages in
respect of both psychological and physical injuries together once the 15%
threshold has been met for one or the other.
(3)
In assessing the degree of permanent impairment
that results from a physical injury, no regard is to be had to any impairment
or symptoms resulting from a psychological injury.
(4)
The degree of permanent impairment that results
from an injury is to be assessed as provided by this section and Part 7
(Medical assessment) of Chapter 7 of the 1998 Act.
(5)
In this section:
psychological injury includes
psychiatric injury.
secondary
psychological injury means a psychological injury to the
extent that it arises as a consequence of, or secondary to, a physical
injury.
151ICalculation of past and future
loss of earnings
(1)
In awarding damages, the court is to disregard
the amount (if any) by which the injured or deceased worker’s net weekly
earnings would (but for the injury or death) have exceeded the amount that is
the maximum amount of weekly payments of compensation under section 35 (even
though that maximum amount under section 35 is a maximum gross earnings
amount).
(2)
The maximum amount of weekly payments of
compensation under section 35 for a future period is to be the amount that the
court considers is likely to be the amount for that period having regard to
the operation of Division 6 of Part 3 (Indexation of amounts of
benefits).
(3)
This section applies even though weekly payments
of compensation to the worker concerned are not subject to the maximum amount
prescribed under section 35.
151IARetirement
age
In awarding damages for future economic loss due
to deprivation or impairment of earning capacity or (in the case of an award
of damages under the Compensation to Relatives Act
1897) loss of expectation of financial support, the court
is to disregard any earning capacity of the injured worker after age
65.
[8]Section 151J Damages for
future economic loss—discount rate
Omit section 151J (1). Insert instead:
(1)
For the purposes of an award of damages, the
present value of future economic loss is to be qualified by adopting the
prescribed discount rate.
[9]Section 151K Damages for
economic loss—maximum amount for provision of certain home care
services
Omit the section.
[10]Section 151KA Respite
care
Omit the section.
[11]Section 151M Payment of
interest
Omit section 151M (2) and
(3).
[12]Section 151M
(4)
Omit:
Other heads of damages
The following provisions apply to damages, other than
damages to which subsection (2) or (3) applies:
[13]Section 151M (4)
(a)
Omit “such damages”.
Insert instead
“damages”.
[14]Section 151Q Structured
settlements
Omit section 151Q (1). Insert instead:
(1)
This section applies to an award of damages if
the plaintiff requests that it apply. In making an order under this section
the court is to give preference to the views of the injured
worker.
[15]Section 151Q
(2)
Omit section 151Q (2). Insert instead:
(2)
If this section applies to an award of damages,
the court:
(a)
may separately determine the amount of damages
for future economic loss and the amount of damages for past economic loss,
and
(b)
may order that any damages determined by the
court for future economic loss are to be paid in accordance with such
arrangements as the court determines or approves.
[16]Section 151Q (3) (b) and
(c)
Omit the paragraphs.
[17]Section 151Q (4) and
(6)
Omit “subsection (2) (c)” wherever
occurring.
Insert instead “this
section”.
[18]Section 151Q
(5)
Omit the subsection.
1.2Workplace Injury Management and Workers Compensation Act
1998 No 86
[1]Section 4
Definitions
Insert in alphabetical order in section 4
(1):
mediator means a person appointed as
a mediator under section 318F.
[2]Section
280A
Insert before section 281:
280AClaim for lump sum
compensation a pre-condition to damages claim
A claim for work injury damages in respect of an
injury cannot be made unless a claim for lump sum compensation in respect of
the injury is made before or at the same time as the claim for work injury
damages.
[3]Section 281 Liability to be
accepted and settlement offer made
Insert after section 281 (2):
(2A)
The determination of a claim cannot be delayed
beyond 2 months after the claimant has provided to the insurer all relevant
particulars about the claim (that delay being on the basis that the degree of
permanent impairment of the injured worker resulting from the injury is not
fully ascertainable), unless the insurer has within that 2-month period
notified the claimant that the degree of permanent impairment of the injured
worker resulting from the injury is not fully
ascertainable.
(2B)
When the person on whom a claim is made accepts
or disputes liability, the person must notify the claimant as to whether or
not the person accepts that the degree of permanent impairment of the injured
worker resulting from the injury is sufficient for an award of
damages.
[4]Section 281
(6)
Insert “, except as the WorkCover
Guidelines may otherwise provide” after
“person”.
[5]Section 282 Relevant
particulars about a claim
Omit section 282 (1) (d).
Insert instead:
(d)
in the case of a claim for work injury damages,
details of the economic losses that are being claimed as damages and details
of the alleged negligence or other tort of the
employer,
[6]Chapter 7, Part
6
Omit the Part. Insert instead:
Part 6Court proceedings for work
injury damages
Division 1Preliminary
311Interpretation
In this Part:
claimant means a claimant for work
injury damages.
defendant means the person against
whom proceedings for the recovery of work injury damages are commenced or are
to be commenced.
312Forum for court
proceedings
Proceedings in respect of a claim for work injury
damages may be taken in any court of competent jurisdiction, subject to this
Part.
Division 2Threshold for award of
damages
313Threshold dispute prevents
service of pre-filing statement and commencement of court
proceedings
If there is a dispute as to whether the degree of
permanent impairment of the injured worker resulting from an injury is
sufficient for an award of damages, the claimant cannot commence court
proceedings for the recovery of work injury damages and cannot serve a
pre-filing statement under Division 3 unless the degree of permanent
impairment has been assessed by an approved medical specialist under Part
7.
314What constitutes threshold
dispute
(1)
For the purposes of this Part, there is
considered to be a dispute as to whether the degree of permanent impairment of
the injured worker resulting from an injury is sufficient for an award of
damages if:
(a)
the person on whom the claim is made has not
accepted that the degree of permanent impairment of the injured worker
resulting from the injury is at least 15%, or
(b)
there is a dispute as to whether the degree of
permanent impairment resulting from the injury is fully
ascertainable.
Note—
Under section 322 (4), an approved medical
specialist may decline to make an assessment of the degree of permanent
impairment of an injured worker until satisfied that the degree of permanent
impairment is fully ascertainable.
(2)
There is considered to be no dispute as to
whether the degree of permanent impairment of the injured worker resulting
from an injury is sufficient for an award of damages if:
(a)
the person on whom the claim is made has accepted
that the degree of permanent impairment of the injured worker is at least 15%,
or
(b)
an approved medical specialist has given a
medical assessment certificate certifying that the degree of permanent
impairment of the injured worker is at least 15%.
Division 3Pre-filing
statements
315Requirement for pre-filing
statement before commencing court proceedings
(1)
Before a claimant can commence court proceedings
for the recovery of work injury damages, the claimant must serve on the
defendant a pre-filing statement setting out
such particulars of the claim and the evidence that the claimant will rely on
to establish or in support of the claim as the Rules may
require.
Note—
Section 314 prevents a pre-filing statement being
served if there is a dispute as to whether the degree of permanent impairment
is sufficient for an award of damages.
(2)
The pre-filing statement cannot be served
unless:
(a)
the person on whom the claim is made wholly
disputes liability for the claim, or
(b)
the person on whom the claim is made has made an
offer of settlement to the claimant pursuant to the determination of the claim
as and when required by section 281 and 1 month has elapsed since the offer
was made, or
(c)
the person on whom the claim is made has failed
to determine the claim as and when required by section
281.
Note—
The determination of a claim in accordance with
section 281 requires the making of a reasonable offer of settlement (if
liability is wholly or partly accepted). Failure to make a reasonable offer of
settlement constitutes a failure to determine the claim. Section 74 requires
notice of a dispute as to liability to be given.
316Defendant must respond to
pre-filing statement
(1)
The defendant must, within 28 days after the
pre-filing statement has been served on the defendant, respond to the
pre-filing statement by:
(a)
accepting or denying liability (wholly or in
part), and
(b)
(to the extent, if any, that the defendant does
not accept liability) serving on the claimant a defence to the claim setting
out such particulars of the defence and evidence that the defendant will rely
on to defend the claim as the Rules may require.
Note—
A defence can be filed after 28 days but after 28
days the claimant can refer the claim to mediation under Division
4.
(2)
If the defendant fails to respond to the
pre-filing statement as required by this section within 42 days after it is
served on the defendant, the claimant can commence court proceedings for the
recovery of work injury damages.
Note—
If the defendant fails to respond within 42 days,
the defendant is prevented from filing a defence (see section 318) and the
claimant can proceed to obtain summary judgment on the question of liability.
If the defendant responds to the pre-filing statement within 42 days, the
matter is required to proceed to mediation under Division 4 before court
proceedings can be commenced.
317Defective pre-filing
statement
(1)
The defendant is not entitled to assert that a
pre-filing statement served by the claimant is defective (by reason of
incompleteness or otherwise) unless the defendant has notified the claimant,
giving details of any alleged defects, within 7 days after the pre-filing
statement is served by the claimant.
(2)
A dispute as to whether a pre-filing statement
served by the claimant is defective may be referred to the Registrar for
determination.
(3)
The Registrar may give a direction to the
claimant as to the action necessary to cure any defect in the pre-filing
statement served by the claimant. If the claimant fails to comply with the
Registrar’s direction within the time allowed for compliance, the
pre-filing statement served by the claimant is taken not to have been
served.
Note—
The effect of such a failure is that the claimant
must serve the pre-filing statement again.
(4)
If the documents and information that comprise
the pre-filing statement are furnished to the defendant at different times,
the pre-filing statement is not considered to have been served on the
defendant until the last of the required documents and information is
served.
318Parties limited to pre-filing
statement and defence
(1)
For the purposes of court proceedings on a claim
for work injury damages:
(a)
the claimant is not entitled to file a statement
of claim that is materially different from the proposed statement of claim
that formed part of the pre-filing statement served by the claimant, except
with leave of the court, and
(b)
the defendant is not entitled to file a defence
that is materially different from any defence served on the claimant in
response to the claimant’s pre-filing statement within 42 days after
service of the pre-filing statement, except with leave of the court,
and
(c)
the defendant is not entitled to file a defence
that wholly or partly disputes liability for the claim if the defendant has
failed to serve on the claimant a defence to the claim as required by this
Division within 42 days after the claimant served the pre-filing statement on
the defendant, and
(d)
a party to the proceedings is not entitled to
have any report or other evidence admitted in the proceedings on the
party’s behalf if the report or other evidence was not disclosed by the
party in a pre-filing statement or defence served under this Division, except
with leave of the court.
(2)
The court is not to grant leave under this
section unless satisfied that:
(a)
the material concerned was not reasonably
available to the party when the pre-filing statement or defence was served,
and
(b)
the failure to grant leave would substantially
prejudice the party’s case.
(3)
The regulations may provide for exceptions to
this section.
Division 4Mediation
318AMediation of claim before
commencement of court proceedings
(1)
A claimant must refer a claim for work injury
damages for mediation under this Division before the claimant can commence
court proceedings for recovery of those work injury damages. The claim cannot
be referred for mediation until at least 28 days after the pre-filing
statement has been served on the defendant under Division
3.
(2)
The claimant need not refer a claim for work
injury damages for mediation if the defendant has failed to respond to the
claimant’s pre-filing statement as required under Division 3 within 42
days after it is served on the defendant.
Note—
A defence can still be filed in the 28–42
day period. A defence can be filed after 42 days but such a defence cannot
dispute liability. A defence filed after 42 days can deal with such matters as
quantum of damages or contributory negligence.
(3)
The defendant may decline to participate in
mediation of the claim if the defendant wholly disputes liability in respect
of the claim, but in any other case the defendant cannot decline to
participate in mediation.
(4)
Court proceedings for recovery of work injury
damages cannot be commenced while the claim is the subject of mediation in the
Commission.
(5)
A claim is referred for mediation by being
referred to the Registrar for mediation by a mediator. The Registrar is to
give directions as to which mediator is to mediate on a particular claim
referred for mediation.
(6)
The Rules may make provision for or with respect
to mediation under this Division.
318BMediator to bring parties to
agreement
(1)
The mediator must use the mediator’s best
endeavours to bring the parties to agreement on the
claim.
(2)
Failing agreement, the mediator is to issue a
certificate certifying as to the final offers of settlement made by the
parties in the mediation.
318CLegal and other assistance at
mediation
At the mediation of a claim, an injured worker is
entitled to be accompanied by a person (whether or not a legal adviser or
agent) to act as the injured worker’s advocate and assist him or her to
present his or her case to the mediator.
318DPowers of
mediators
(1)
For the purposes of and in connection with the
mediation of a claim, a mediator has all the functions of the Commission under
sections 357–359 and those sections apply in respect of the mediation of
a claim in the same way as they apply in respect of proceedings on a dispute
before the Commission.
(2)
A mediator may award costs in connection with the
mediation of a claim.
318EOffers made at mediation not
to be disclosed to court
The amount of any offer of settlement made by a
party in the course of mediation of a claim is not to be specified in any
pleading, affidavit or other document filed in or in connection with court
proceedings on the claim, and is not to be disclosed to or taken into account
by the court, before the court’s determination of the amount of damages
in the proceedings.
318FAppointment of
mediators
(1)
The President is, in accordance with criteria
developed by the Minister, to appoint persons to be mediators for the purposes
of this Act to mediate on claims for work injury damages as and when required
to do so by the Registrar.
(2)
Mediators are in the exercise of their functions
subject to the general control and direction of the
Registrar.
(3)
Subject to this section, a mediator holds office
for such period (not exceeding 5 years) as may be specified in the instrument
of appointment of the mediator, but is eligible for
re-appointment.
(4)
A mediator is entitled to be paid such
remuneration (including travelling and subsistence allowances) in respect of
work done as a mediator as the Minister may from time to time determine in
respect of the mediator.
(5)
A mediator is taken to have vacated office if the
mediator:
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(d)
becomes a mentally incapacitated person,
or
(e)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable, or
(f)
resigns the office by instrument in writing
addressed to the President, or
(g)
is removed from office by the
President.
(6)
The President may at any time remove a mediator
from office.
(7)
Part 2 of the Public Sector
Management Act 1988 does not apply to a
mediator.
318GProtection of
mediators
(1)
A matter or thing done or omitted to be done by a
mediator in the exercise of the mediator’s functions does not, if the
matter or thing was done or omitted in good faith, subject the mediator
personally to any action, liability, claim or demand.
(2)
A mediator is, in any legal proceedings,
competent but not compellable to give evidence or produce documents in respect
of any matter in which he or she was involved in the course of the exercise of
his or her functions as a mediator.
318HMediation
fees
(1)
The regulations may make provision for or with
respect to the fees to be paid in connection with mediation under this
Division.
(2)
In particular, the regulations may specify any
such fee or the method by which the fee is to be calculated, and may specify
by whom and in what circumstances the fee is payable.
(3)
Fees payable under the regulations under this
section are payable into the WorkCover Authority Fund.
Division 5General
318IOrders for access to
information and premises
(1)
If there is no dispute that the degree of
permanent impairment of an injured worker is sufficient for an award of
damages, the Registrar may on the application of the claimant give either or
both of the following written directions to the defendant:
(a)
a direction directing the defendant to produce to
the claimant within a specified period specified reports and other documents
in the defendant’s possession,
(b)
a direction directing the defendant to provide or
allow the claimant access to specified premises within a specified period for
a purpose relevant to the claimant’s claim.
(2)
A person who fails without reasonable excuse to
comply with a direction given to the person under this section is guilty of an
offence.
Maximum penalty: 50 penalty
units.
Note—
The Commission also has power under section 357
to require the production of documents and the furnishing of information by
the parties.
[7]Section 319
Definitions
Omit the definition of medical
dispute. Insert instead:
medical
dispute means a dispute between a claimant and the person on
whom a claim is made about any of the following matters or a question about
any of the following matters in connection with a claim:
(a)
the worker’s condition (including the
worker’s prognosis, the aetiology of the condition, and the treatment
proposed or provided),
(b)
the worker’s fitness for
employment,
(c)
the degree of permanent impairment of the worker
as a result of an injury,
(d)
whether any proportion of permanent impairment is
due to any previous injury or pre-existing condition or abnormality, and the
extent of that proportion,
(e)
the nature and extent of loss of hearing suffered
by a worker,
(f)
whether impairment is
permanent,
(g)
whether the degree of permanent impairment of the
injured worker is fully ascertainable.
[8]Section 322 Assessment of
impairment
Insert “, as in force when the injury
concerned was received” after “purpose” in section 322
(1).
[9]Section 322
(4)
Insert “and that the degree of permanent
impairment is fully ascertainable” after “impairment is
permanent”.
[10]Section 322
(4)
Insert “a court or” after
“Proceedings before”.
[11]Section 325 Medical assessment
certificate
Omit “opinion” from section 325 (2)
wherever occurring.
Insert instead
“assessment”.
[12]Section 326 Status of medical
assessments
Omit “opinion” wherever
occurring.
Insert instead
“assessment”.
[13]Section 326
(1)
Insert “a court or” after
“proceedings before” in section 326 (1).
[14]Section 326 (1)
(e)
Insert at the end of section 326 (1):
(e)
whether the degree of permanent impairment is
fully ascertainable.
[15]Section 327 Appeal against
medical assessment
Insert “a court or” after
“proceedings before” in section 327 (2).
[16]Section 327
(2)
Omit “opinion”. Insert instead
“assessment”.
[17]Section 327
(7)
Insert “a court or” after
“determination by”.
[18]Section 329 Referral of matter
for further medical assessment
Insert “a court or” before “the
Commission” in section 329 (1) (b).
[19]Section
340
Omit the section. Insert instead:
340Application of
Division
This Division applies to costs payable by a party
in or in relation to a claim for compensation.
[20]Section 346 Claims assessment
fees
Omit the section.
[21]Chapter 7 Part 8 Division
3A
Insert after Division 3 of Part 8 of Chapter
7:
Division 3ASpecial provisions for costs
in work injury damages proceedings
346Costs
(1)
This section applies to costs (including
disbursements) payable by a party in or in relation to a claim for work injury
damages, including court proceedings for work injury
damages.
(2)
The regulations may make provision for or with
respect to the awarding of costs to which this section applies. The
regulations may provide for the awarding of costs on a party and party basis,
on a practitioner and client basis, or on any other
basis.
(3)
A party is not entitled to an award of costs to
which this section applies, and a court may not award such costs, except as
prescribed by the regulations under this Act or by the rules of the court
concerned.
(4)
In the event of any inconsistency between the
provisions of the regulations under this section and rules of court, the
provisions of the regulations prevail to the extent of the
inconsistency.
1.3District Court Act 1973 No
9
[1]Section 4 Definitions:
general
Insert in alphabetical order in section 4
(1):
work
injury damages claim means a claim for an award of damages
to which Division 3 (Modified common law damages) of Part 5 of the Workers Compensation Act 1987
applies.
[2]Section 44
Actions
Insert after section 44 (1) (d):
(d1)
any work injury damages claim, irrespective of
the amount claimed,
[3]Section 79 Motor accident and
work injury damages claims
Insert at the end of section 79 (2) (a):
(a1)
damages are claimed under a work injury damages
claim, or
[4]Section 79 (2)
(b)
Insert “or (a1)” after
“paragraph (a)”.
[5]Section 79
(4)
Omit the subsection.
[6]Section 143 Transfer of
proceedings from Supreme Court
Insert “or work injury damages claim”
after “motor accident claim” in section 143 (5)
(a).
[7]Section 145 Transfer of
proceedings to Supreme Court
Insert “or work injury damages claim”
after “motor accident claim” in section 145
(2).
[8]Section 145
(3)
Insert “or work injury damages claim”
after “motor accident claim”.
Schedule 2Amendments relating to lump
sum compensation
(Section 3)
Workers Compensation Act 1987 No
70
[1]Section 65A Special provisions
for psychological and psychiatric injury
Omit section 65A (1) (including the note to that
subsection).
Insert instead:
(1)
No compensation is payable under this Division
(either as permanent impairment compensation or pain and suffering
compensation) in respect of permanent impairment that results from a secondary
psychological injury.
Note—
This does not prevent a secondary psychological
injury from being compensated under section 67 as pain and suffering resulting
from permanent impairment (but only if that permanent impairment results from
a physical injury or a primary psychological injury).
[2]Section 65A
(3)
Omit the subsection (not including the note to
that subsection).
Insert instead:
(3)
No compensation is payable under this Division
(either as permanent impairment compensation or pain and suffering
compensation) in respect of permanent impairment that results from a primary
psychological injury unless the degree of permanent impairment resulting from
the primary psychological injury is at least 15%.
[3]Section 66 Entitlement to
compensation for permanent impairment
Omit section 66 (2). Insert instead:
(2)
The amount of permanent impairment compensation
is to be calculated as follows:
(a)
if the degree of permanent impairment is not
greater than 10%, the amount of permanent impairment compensation is to be
calculated as follows:
(b)
if the degree of permanent impairment is greater
than 10% but not greater than 20%, the amount of permanent impairment
compensation is to be calculated as follows:
(c)
if the degree of permanent impairment is greater
than 20% but not greater than 40%, the amount of permanent impairment
compensation is to be calculated as follows:
(d)
if the degree of permanent impairment is greater
than 40% but not greater than 75%, the amount of permanent impairment
compensation is to be calculated as follows:
(e)
if the degree of permanent impairment is greater
than 75%, the amount of permanent impairment compensation is
$200,000,
where D is the number derived by
expressing the degree of permanent impairment as D%.
(3)
The amount of permanent impairment compensation
is to be calculated under this section as it was in force at the date the
injury was received.
[4]Section 67 Compensation for
pain and suffering
Omit “greater than that prescribed by the
regulations for the purposes of this section” from section 67
(1).
Insert instead “of 10% or
more”.
[5]Section 67 (1),
note
Omit “greater than the degree of permanent
impairment prescribed by the regulations for the purposes of that
section”.
Insert instead “15% or
more”.
[6]Section 67
(4A)
Omit the subsection.
[7]Section 70 Loss of hearing due
to age
Omit the section.
Schedule 3Amendments relating to
compensation for domestic assistance
(Section 3)
Workers Compensation Act 1987 No
70
[1]Section 59
Definitions
Insert after paragraph (f) of the definition of
medical
or related treatment:
(f1)
domestic assistance
services,
[2]Section 60 Compensation for
cost of medical or hospital treatment and rehabilitation
etc
Insert “(other than domestic
assistance)” after “treatment” in section 60 (1)
(a).
[3]Section 60 (1),
note
Insert at the end of section 60 (1):
Note—
Compensation for domestic assistance is provided
for by section 60AA.
[4]Section
60AA
Insert after section 60:
60AACompensation for domestic
assistance
(1)
If, as a result of an injury received by a
worker, it is reasonably necessary that any domestic assistance is provided
for an injured worker, the worker’s employer is liable to pay, in
addition to any other compensation under this Act, the cost of that assistance
if:
(a)
a medical practitioner has certified, on the
basis of a functional assessment of the worker, that it is reasonably
necessary that the assistance be provided and that the necessity for the
assistance to be provided arises as a direct result of the injury,
and
(b)
the assistance would not be provided for the
worker but for the injury (because the worker provided the domestic assistance
before the injury), and
(c)
the injury to the worker has resulted in a degree
of permanent impairment of the worker of at least 15% or the assistance is to
be provided on a temporary basis as provided by subsection
(2).
(2)
Assistance is provided on a temporary basis if it
is provided in accordance with each of the following requirements:
(a)
it is provided for not more than 6 hours per
week,
(b)
it is provided during a period that is not longer
than, or during periods that together are not longer than, 3
months,
(c)
it is provided pursuant to the requirements of
the relevant injury management plan.
(3)
Compensation is not payable under this section
for gratuitous domestic assistance unless the following requirements are also
satisfied:
(a)
the person who provides the assistance must have
lost income or forgone employment as a result of providing the
assistance,
(b)
the assistance must be provided in accordance
with a care plan established by the insurer in accordance with the WorkCover
Guidelines.
(4)
Compensation payable under this section for
gratuitous domestic assistance is payable as if the cost of that assistance
were such sum as may be applicable under section 61 (2) in respect of the
assistance concerned.
(5)
The following requirements apply in respect of
payments under this section:
(a)
payments are to be made as the costs are incurred
or, in the case of gratuitous domestic assistance, as the services are
provided,
(b)
payments are only to be made if those costs and
the provision of the assistance is properly verified (and the WorkCover
Guidelines may make provision for how the performance of those services is to
be verified),
(c)
payments for gratuitous domestic assistance are
to be made to the provider of the assistance.
(6)
In this section:
gratuitous domestic assistance means
domestic assistance provided to an injured worker for which the injured worker
has not paid and is not liable to pay.
Schedule 4Amendments relating to savings
and transitional matters
(Section 3)
Workers Compensation Act 1987 No
70
[1]Schedule 6 Savings,
transitional and other provisions Part 2A Provisions relating to compensation
generally
Omit the Part.
[2]Schedule 6 Part 18 Special
provision relating to coal miners
Omit clause 3 (1). Insert instead:
(1)
Subject to this clause, the 2001 amendments do
not apply to or in respect of coal miners and this Act and the 1998 Act (and
the regulations under those Acts) apply to and in respect of coal miners as if
the 2001 amendments had not been enacted.
[3]Schedule 6 Part 18 clause 3
(2)
Omit “2001 amending Act”. Insert
instead “Workers Compensation Legislation
Amendment Act 2001”.
[4]Schedule 6 Part 18 clause 3
(3) (a)
Omit “before the commencement of court
proceedings”.
Insert instead “before or after the
commencement of court proceedings”.
[5]Schedule 6 Part 18 clause 3
(3)
Insert at the end of clause 3 (3):
(d)
providing for the exercise by officers of the
Compensation Court of functions in connection with the conciliation, mediation
or other review of a claim or any dispute in connection with a
claim,
(e)
providing for the employment under the Public Sector Management Act 1988 of
officers of the Compensation Court to exercise the functions conferred or
imposed on officers of the court pursuant to regulations under this
clause.
[6]Schedule 6 Part 18 clause 3
(4)
Omit the definition of the 2001 amending Act. Insert
instead:
the 2001
amendments means the amendments made by the Workers Compensation Legislation Amendment Act
2001 and Schedules 1, 2, 3 and 8 to the Workers Compensation Legislation Further Amendment Act
2001.
[7]Schedule 6 Part
18C
Omit the heading to the Part. Insert
instead:
Part 18CProvisions consequent on
enactment of 2001 amending Acts
[8]Schedule 6 Part
18C
Omit the definition of the 2001
amending Act. Insert instead:
lump sum
compensation amendments means the amendments made by
Schedule 3 to the Workers Compensation Legislation
Amendment Act 2001 and Schedule 2 to the Workers Compensation Legislation Further Amendment Act
2001.
[9]Schedule 6 Part 18C clause 2
Operation of amendments generally
Omit clause 2 (1). Insert instead:
(1)
The Workers Compensation Acts apply to and in
respect of an existing claim as if the Workers
Compensation Legislation Amendment Act 2001 and the
Workers Compensation Legislation Further Amendment Act
2001 had not been enacted.
[10]Schedule 6 Part 18C clause 3
Lump sum compensation amendments
Omit clause 3 (1). Insert instead:
(1)
The lump sum compensation amendments do not apply
in respect of an injury received before the commencement of the amendments
(even if the injury is the subject of a claim made after the commencement of
the amendments) except as follows:
(a)
the amendments to section 66A apply in respect of
an injury received before the commencement of the amendments (even if the
injury is the subject of a claim made after the commencement of the
amendments) and so apply:
(i)
subject to such modifications to that section as
may be prescribed by the regulations, and
(ii)
as if an agreement registered before that
commencement by the Authority were registered by the
Commission,
(b)
the repeal of section 72 applies in respect of an
injury received before the commencement of the amendments, but only to the
extent that the injury is the subject of a new
claim.
[11]Schedule 6 Part 18C clause 3
(2)–(4)
Omit “2001 amending Act” wherever
occurring. Insert instead “lump sum compensation
amendments”.
[12]Schedule 6 Part 18C clause 4
Disputes concerning lump sum compensation claims
Omit clause 4 (1). Insert instead:
(1)
In the case of a new claim in respect of an
injury received before the commencement of the lump sum compensation
amendments, compensation under Division 4 of Part 3 (as in force before the
commencement of those amendments) may not be awarded by the Commission if
there is an impairment dispute unless the dispute has been assessed by an
approved medical specialist under Part 7 of Chapter 7 of the 1998
Act.
[13]Schedule 6 Part 18C clause 4
(2)
Omit “opinion”. Insert instead
“assessment”.
[14]Schedule 6 Part
18C
Omit clause 9. Insert instead:
9Amendments relating to common
law damages
(1)
An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act
2001 applies in respect of the recovery of damages after
the commencement of the amendment (and so applies even if the injury concerned
was received before the commencement of the amendment) but does not apply in
respect of the recovery of damages if proceedings for their recovery were
commenced in a court before the commencement of the
amendment.
(2)
The following transitional arrangements apply in
respect of proceedings for the recovery of damages commenced in a court after
the commencement of Schedule 1.1, and before the commencement of Schedule 1.2,
to the Workers Compensation Legislation
Further Amendment Act 2001:
(a)
the proceedings are to be adjourned until after
the commencement of Schedule 1.2 to that Act, and
(b)
after the commencement of Schedule 1.2 to that
Act, Division 2 of Part 6 of Chapter 7 of the 1998 Act applies to the
proceedings but so applies as if a reference to the commencement of
proceedings were a reference to the continuation of
proceedings.
(3)
An amendment made by Schedule 1.1 to the Workers Compensation Legislation Further Amendment Act
2001 does not apply in a case where a person has elected
to claim permanent loss compensation under section 151A before the
commencement of the amendment.
Note—
This will enable such an election to be revoked
in the circumstances provided by section 151A and common law damages recovered
on the basis of the law as in force at the time of the original
election.
(4)
In this clause:
damages has the same meaning as in
Part 5 of this Act.
Note—
Schedule 1.1 to the Workers Compensation Legislation Further Amendment Act
2001 is taken to have commenced at 9.00 am on the day the
Bill for that Act was introduced into Parliament.
10Compensation for domestic
assistance
The amendments made by Schedule 3 (Amendments
relating to compensation for domestic assistance) to the Workers Compensation Legislation Further Amendment Act
2001 extend to domestic assistance provided after the
commencement of the amendments (whenever the injury concerned was received)
but do not so extend in a case where damages (within the meaning of Part 5 of
this Act) have been recovered from the employer liable to pay compensation
under this Act in respect of the injury.
11Commutations
(1)
Section 51 (Exit payments by commutation of
weekly payments) is taken to have been repealed on the commencement of this
clause.
(2)
Section 51 continues to apply, as if it had not
been repealed, to the commutation of a liability if:
(a)
an application for a determination under that
section in respect of the liability is pending immediately before the
commencement of this clause, but only so as to authorise the determination of
such an application before 31 March 2002, or
(b)
an application for determination of a dispute in
respect of the liability is pending before the Compensation Court immediately
before the commencement of this clause, but only so as to authorise the
commutation of a liability before 31 March 2002.
(3)
Except as provided by subclause (2), Division 9
(Commutation of compensation) of Part 3 applies to the commutation of a
liability arising in respect of an injury received before or after the
commencement of that Division.
(4)
A liability may be commuted under Division 9 of
Part 3 even if the Compensation Court refused, before the repeal of section
51, to make a determination under that section or under section 15 of the
former Act.
(5)
Clauses 6–6B of Part 4 of this Schedule do
not apply in respect of the commutation or redemption of a liability after the
commencement of this clause (except for the purposes of the continued
operation of section 51 pursuant to subclause (2)).
12Seniority of Compensation
Court judges appointed to District Court or Supreme
Court
(1)
If the Chief Judge of the Compensation Court is
appointed as a judge of the Supreme Court, the judge is to have seniority,
rank and precedence as a judge of the Supreme Court as if the date of his or
her commission as a judge of the Supreme Court were:
(a)
the date of his or her commission as Chief Judge
of the Compensation Court, unless paragraph (b) applies,
or
(b)
the date of his or her original commission as a
judge of the Supreme Court if the judge was a judge of the Supreme Court
immediately before being appointed as Chief Judge of the Compensation
Court.
(2)
If a judge of the Compensation Court is appointed
as a judge of the District Court, the judge is to have seniority, rank and
precedence as a judge of the District Court as if the date of his or her
commission as a judge of the District Court were the date of his or her
commission as a judge of the Compensation Court.
13Operation of conciliation
provisions—existing claims
The regulations may make provision for or with
respect to disapplying or modifying the application or operation of any of the
provisions of Divisions 3–5 of Part 2 of Chapter 4 of the 1998 Act in
respect of existing claims or any class of existing
claims.
14Disclosure of information to
Commission
(1)
The Authority or an authorised officer may
disclose to the Commission or to a member or member of staff of the Commission
information obtained in connection with the administration or execution of
this Act or the 1998 Act that is reasonably necessary to enable the Commission
to carry out its functions.
(2)
A disclosure of information pursuant to this
clause is not prevented by section 243 (Disclosure of information) of the 1998
Act.
(3)
The Authority or an authorised officer is
authorised to not comply with a provision of the Privacy and Personal Information Protection Act
1998 to the extent necessary to enable the disclosure of
information pursuant to this clause.
(4)
In this clause:
authorised officer means an officer
of the Authority, the Department of Industrial Relations or the Compensation
Court authorised by the Commission for the purposes of this
clause.
15Expiration of current insurer
licences
(1)
A licence granted under Division 3 of Part 7 of
the 1987 Act and in force immediately before the commencement of this clause
remains in force as if the period specified in the licence as the period
during which it is to be in force were an indefinite period that ends on the
expiration date for the licence notified under this
clause.
(2)
The Authority may by notice in writing to the
holder of such a licence notify the expiration date for the
licence.
[15]Schedule 6 Part 20 Savings and
transitional regulations
Insert at the end of clause 1 (1):
Workers Compensation Legislation
Further Amendment Act 2001
Schedule 5Amendments relating to
jurisdiction of Commission
(Section 3)
5.1Workers Compensation Act 1987 No
70
[1]Schedule 6 Savings,
transitional and other provisions Part 18C Provisions consequent on enactment
of 2001 amending Acts
Insert “or specified provisions of those
Acts” after “Workers Compensation Acts” in clause 5
(1).
[2]Schedule 6 Part 18C clause 5
(2)
Insert “or those specified
provisions” after “Workers Compensation
Acts”.
[3]Schedule 6 Part
18C
Omit clause 8. Insert instead:
8New procedures for making a
claim
(1)
Division 2 of Part 2 (sections 259–264) and
Divisions 2–5 of Part 3 (sections 274–286), except section 284, of
Chapter 7 of the 1998 Act extend (subject to any modifications prescribed by
the regulations for the purposes of this clause) to the making of a claim
after the commencement of those sections even if the claim is an existing
claim.
(2)
This clause has effect despite section 251 of the
1998 Act.
5.2Workplace Injury Management and Workers Compensation Act
1998 No 86
[1]Section 4
Definitions
Omit the definition of claim from section 4 (1). Insert
instead:
claim means a claim for compensation
or work injury damages that a person has made or is entitled to
make.
[2]Section 4
(1)
Insert in alphabetical order:
existing
claim matter has the same meaning as in Chapter 7 (New
claims procedures).
new claim
matter has the same meaning as in Chapter 7 (New claims
procedures).
[3]Section
105
Omit the section. Insert instead:
105Jurisdiction of Commission and
Compensation Court
(1)
Subject to this Act, the Commission has exclusive
jurisdiction to examine, hear and determine all matters arising under this Act
and the 1987 Act.
(2)
The Commission does not have that jurisdiction in
respect of matters arising under Part 5 (Common law remedies) of the 1987 Act
except for the purposes of and in connection with the operation of Part 6 of
Chapter 7 of this Act.
(3)
The Commission does not have jurisdiction in
respect of matters that the Compensation Court has jurisdiction to examine,
hear and determine.
(4)
Subject to this Act and the Compensation Court Act 1984, the
Compensation Court has exclusive jurisdiction to examine, hear and determine
all existing claim matters except matters arising under Part 5 of the 1987
Act.
(5)
Despite section 17 (4) of the Compensation Court Act 1984, the
Compensation Court does not have jurisdiction to reconsider a matter, or to
rescind, alter or amend any decision previously made or given by the Court in
relation to a matter, once the matter has become a new claim
matter.
(6)
References in this Act to the Commission are, for
the purposes of giving effect to subsection (4), to be read as references to
the Compensation Court to the extent that the reference is in respect of an
existing claim matter.
Note—
Provision is made in the 1987 Act for regulations
to require existing claims to be treated as new claims (transferred claims). The
Compensation Court ceases to have jurisdiction in respect of transferred claim
matters and the Commission acquires exclusive jurisdiction in respect of
transferred claim matters.
[4]Section
111A
Omit the section. Insert instead:
111ACosts provisions apply only to
existing claim matters
Sections 112–116 apply only in respect of
existing claim matters.
Note—
Chapter 7 (New claims procedures) provides for
costs in respect of new claim matters.
[5]Section 250
Interpretation
Omit the definitions of existing claim and new claim from section 250
(1).
Insert instead:
existing
claim means a claim for compensation that is made before the
commencement of this section or a related claim that is made or entitled to be
made (whether before or after the commencement of this section).
Note—
Part 18C of Schedule 6 to the 1987 Act provides
for the transfer of existing claims, so that the claims transferred will be
treated as new claims.
existing
claim matter means any matter arising under the Workers
Compensation Acts in respect of an existing claim.
new
claim means any claim (made or entitled to be made) that is
not an existing claim.
new claim
matter means any matter arising under the Workers
Compensation Acts in respect of a new claim.
[6]Section
251
Omit the section. Insert instead:
251Application of
Chapter
Except as otherwise specifically provided in this
Chapter, this Chapter applies to and in respect of new claim matters
only.
Note—
Part 18C of Schedule 6 to the 1987 Act provides
for the transfer of existing claims, so that the claims transferred will be
treated as new claims.
Schedule 6Amendments to repeal private
insurance arrangements
(Section 3)
6.1Workers Compensation Act 1987 No
70
[1]Part 7, Division 1A
Commencement of insurance arrangements under the 1998
Act
Omit the Division.
[2]Section 156A Misleading
conduct by insurers and insurance intermediaries
Omit section 156A (7).
[3]Section 158 Insurance for
trainees
Omit section 158 (11).
[4]Section 224B Declaration of
defaulting insurers
Omit section 224B (3).
[5]Section 226 Insolvent
insurers
Omit section 226 (2).
6.2Workplace Injury Management and Workers Compensation Act
1998 No 86
[1]Section 4
Definitions
Omit the definitions of Guarantee
Fund, licensed
insurer, private
insurance start time, Rating Bureau, self-insurer and specialised insurer from section 4
(1).
[2]Section 4 (1), definition of
“policy of insurance”
Omit “this
Act,”.
[3]Section 4 (1), definition of
“premium income”
Insert “or the 1987 Act” after
“this Act” wherever occurring.
[4]Section 4 (1), definition of
“Uninsured Liability and Indemnity Scheme”
Omit the definition. Insert instead:
Uninsured
Liability and Indemnity Scheme means the scheme established
under Division 6 of Part 4 of the 1987 Act.
[5]Section 9 Agreements with the
insurance industry
Omit the section.
[6]Section 23 Specific
functions
Omit “, the Rating Bureau” from
section 23 (1) (r).
[7]Chapter 2 Part 3 Workers
Compensation Premiums Rating Bureau of New South Wales
Omit the Part.
[8]Section 35 Payments into and
from Fund
Omit section 35 (2) (c).
[9]Section 37
Definitions
Omit the definition of deemed
risk premium income.
Insert instead:
deemed
premium income, in relation to the contribution payable by a
self-insurer under this Division for any period during a financial year, means
the amount that the self-insurer would have been liable to pay (in such
circumstances as may be prescribed by the regulations) to a licensed insurer
as premiums on policies of insurance that would otherwise be required under
the 1987 Act during that period if the person were not a self-insurer,
and:
(a)
includes any amount prescribed by the regulations
for the purposes of this paragraph in relation to that financial year,
and
(b)
does not include any amount prescribed by the
regulations for the purposes of this paragraph in relation to that financial
year.
[10]Section 37 definition of
“risk premium”
Omit the definition.
[11]Section 39 Contributions to
Fund by insurers and self-insurers
Omit section 39 (2). Insert instead:
(2)
The contribution to be paid by an insurer in
respect of each financial year is an amount equal to the percentage
(determined by the Authority in accordance with this section) of the premium
income of the insurer in respect of that financial year.
[12]Section 39 (4)
(c)
Omit the paragraph.
[13]Section 39 (6A),
(6B)
Insert after section 39 (6):
(6A)
The Authority may, at any time during or after a
financial year, re-determine the percentages determined pursuant to
subsections (2) and (3) in respect of the financial year if the estimated
total amount of premium income and deemed premium income for the financial
year is less than the previously estimated amount on which the original
determination of the percentage was based.
(6B)
If a percentage is re-determined, the Authority
is to make the necessary adjustments to the contributions payable by insurers
and self-insurers.
[14]Section 42
Definitions
Omit “, under this Act or the 1987
Act” from the definition of insurer.
[15]Section 51 Second-injury
arrangements
Omit the section.
[16]Section 54 Second-injury
scheme
Omit “The second-injury scheme under this
section does not apply in respect of injuries that happen at or after the
private insurance start time.” from section 54
(1).
[17]Section 56 Compliance by
employer
Omit “Subsections (1)–(4) apply only
to employers insured under policies of insurance issued or renewed by licensed
insurers under this Act.” from section 56 (5).
[18]Section 70
Definitions
Omit “under this Act or the 1987 Act”
from the definition of insurer.
[19]Section 117 Admissibility of
statements by injured workers
Omit “under this Act or the 1987 Act”
from the definition of insurer in section 117
(3).
[20]Section 126 Copies of certain
medical reports to be supplied to worker
Omit “under this Act or the 1987 Act”
from the definition of insurer in section 126
(1).
[21]Chapter 5 Workers compensation
insurance
Omit the Chapter.
[22]Section 230A Premium Discount
Schemes
Omit section 230A (6) and
(7).
[23]Sections 237 (1) and 240
(1)
Omit “, the Council or the Rating
Bureau” from the definition of body wherever
occurring.
Insert instead “or the
Council”.
[24]Section 241
Seals
Omit section 241 (2).
[25]Section 243 Disclosure of
information
Omit section 243 (2) (b).
[26]Section 250
Interpretation
Omit “under this Act or the 1987
Act,” from the definition of insurer in section 250
(1).
[27]Schedule 4 Provisions relating
to Rating Bureau
Omit the Schedule.
Schedule 7Amendments relating to
Industrial Magistrates
(Section 3)
Industrial Relations Act 1996 No
17
[1]Section 382 Jurisdiction of
Chief and other Industrial Magistrates
Insert after “Entertainment Industry Act 1989”
in section 382 (1):
Building and Construction
Industry Long Service Payments Act 1986
Essential Services Act
1988
Occupational Health and Safety
Act 2000
Shops and Industries Act
1962
Workers Compensation Act
1987
Workplace Injury Management and
Workers Compensation Act 1998
[2]Section
383A
Insert after section 383:
383ARecovery of amount ordered to
be paid by Industrial Magistrate under other legislation
Any amount ordered to be paid by a Local Court
constituted by an Industrial Magistrate under any of the following provisions
may be recovered as if it were a judgment of the Local Court for the payment
of a debt of the same amount (whether or not the Local Court has jurisdiction
to give judgment for the payment of a debt of that amount under the Local Courts (Civil Claims) Act
1970):
(a)
section 114 (Orders regarding costs and expenses
of investigation) of the Occupational Health and Safety
Act 2000,
(b)
section 156 (5) (Recovery of double premiums from
employer not obtaining policy of insurance) of the Workers Compensation Act
1987,
(c)
section 175 (7) (Employers evading payment of
correct premiums) of the Workers Compensation Act
1987.
[3]Schedule 4 Savings,
transitional and other provisions
Insert at the end of clause 2 (1):
Workers Compensation Legislation
Further Amendment Act 2001
[4]Schedule
4
Insert after clause 43:
44Validation of exercise of
jurisdiction by Industrial Magistrates
(1)
For the avoidance of doubt, any exercise or
purported exercise of jurisdiction by the Chief Industrial Magistrate or other
Industrial Magistrate under any of the following Acts (or regulations under
those Acts) before the commencement of this clause is as valid as it would
have been had the amendments made by Schedule 7 to the Workers Compensation Legislation Further Amendment Act
2001 been in force at the time of the exercise or
purported exercise of the jurisdiction:
Building and Construction
Industry Long Service Payments Act
1986
Essential Services Act
1988
Occupational Health and Safety
Act 2000
Shops and Industries Act
1962
Workers Compensation Act
1987
Workplace Injury Management and
Workers Compensation Act 1998
(2)
For the avoidance of doubt, any exercise or
purported exercise of jurisdiction by the Chief Industrial Magistrate or other
Industrial Magistrate under any of the following Acts (or regulations under
those Acts) before the repeal of the Act concerned is as valid as it would
have been had that Act been specified in section 382 (1) at the time of the
exercise or purported exercise of the jurisdiction:
Construction Safety Act
1912
Occupational Health and Safety
Act 1983
Schedule 8Amendments relating to
commutation
(Section 3)
Workers Compensation Act 1987 No
70
Section
87EA
Insert after section 87E:
87EAPreconditions to
commutation
(1)
A liability in respect of an injury may not be
commuted to a lump sum under this Division unless the Authority is satisfied
that, and certifies that it is satisfied that:
(a)
the injury has resulted in a degree of permanent
impairment of the injured worker that is at least 15% (assessed as provided by
Part 7 of Chapter 7 of the 1998 Act), and
(b)
permanent impairment compensation and pain and
suffering compensation to which the injured worker is entitled in respect of
the injury has been paid, and
(c)
a period of at least 2 years has elapsed since
the worker’s first claim for weekly payments of compensation in respect
of the injury was made, and
(d)
all opportunities for injury management and
return to work for the injured worker have been fully exhausted,
and
(e)
the worker has received weekly payments of
compensation in respect of the injury regularly and periodically throughout
the preceding 6 months, and
(f)
the worker has an existing and continuing
entitlement to weekly payments of compensation in respect of the injury
(whether the incapacity concerned is partial or total),
and
(g)
the injured worker has not had weekly payments of
compensation discontinued under section 52A or reduced under section
38A.
(2)
The Authority may give directions as to the
circumstances in which it will be considered that all opportunities for injury
management and return to work for an injured worker have or have not been
fully exhausted.
(3)
For the purposes of determining the degree of
permanent impairment of an injured worker, the Authority may refer the matter
for assessment under Part 7 of Chapter 7 of the 1998 Act. That Part applies in
respect of such an assessment as if the matter referred for assessment were a
dispute.
(4)
The Authority may delegate to an insurer any of
the Authority’s functions under this section in respect of an injury
that is an injury for which the insurer is liable to pay
compensation.
(5)
This section does not apply to the commutation of
a liability in respect of compensation under the former
Act.
Schedule 9Amendments relating to
Uninsured Liability and Indemnity Scheme
(Section 3)
Workers Compensation Act 1987 No
70
[1]Section 140 Persons eligible
to make claims
Omit section 140 (1) and (2). Insert
instead:
(1)
A claim under the Scheme may be made as provided
by this section by any person who considers he or she has a claim against an
employer for compensation under this Act or work injury damages in respect of
an injury to a worker, if:
(a)
the employer is uninsured, or
(b)
the person claiming the compensation has been
unable, after due search and inquiry, to identify the relevant
employer.
(2)
An employer is considered to be uninsured if the employer:
(a)
had not obtained, or was not maintaining in
force, a policy of insurance for the full amount of the employer’s
liability under this Act in respect of the injured worker at the relevant
time, or
(b)
having been a self-insurer at the relevant time,
has ceased to undertake liability to pay compensation to the employer’s
own workers (but only if the claim cannot be paid under section 216 from any
money deposited with the Authority or under any arrangement relating to the
refund of any such deposit).
(2A)
A claim may not be made and payment cannot be
made under the Scheme in respect of a claim for work injury damages against a
person who is an employer as a result of being a principal within the meaning
of section 20 who is liable to pay compensation to the
worker.
(2B)
The regulations may prescribe the searches and
inquiries necessary to constitute due search and inquiry to identify an
employer for the purposes of this section.
[2]Section
141A
Insert after section 141:
141ASpecial provisions for claims
for work injury damages
(1)
Subject to this section and the regulations, the
provisions of this Act and the 1998 Act apply to and in respect of a claim
under the Scheme for work injury damages as if the Authority were the insurer
under this Act of the relevant employer at the relevant
time.
(2)
The regulations may prescribe modifications to
the provisions of this Act and the 1998 Act for the purposes of their
application under this section to and in respect of a claim under the Scheme
for work injury damages.
(3)
A claim under the Scheme for work injury damages
cannot be made until a claim under the Scheme for lump sum compensation in
respect of the injury has been made and determined.
[3]Section 142 Publication of
claims etc
Omit “under this Act” from section
142 (2).
Insert instead “in respect of the
claim”.
[4]Section 143 Determination of
claim by Authority
Insert “or work injury damages” after
“Act” in section 143 (1) (a).
[5]Section 144 Appeal against
Authority’s decision on claim for compensation
Omit “in respect of the claim” from
section 144 (1).
Insert instead “in respect of a claim for
compensation”.
[6]Section
144A
Insert after section 144:
144ACourt proceedings for work
injury damages following determination of claim
(1)
A claimant for work injury damages under the
Scheme who is dissatisfied with a decision of the Authority in respect of the
claim may take proceedings in respect of the claim in any court of competent
jurisdiction. Part 6 (Court proceedings for work injury damages) of Chapter 7
of the 1998 Act does not apply to any such proceedings.
(2)
When those proceedings are commenced:
(a)
the claimant must name the employer by whom the
claimant alleges work injury damages are payable and the Authority as
defendants in the proceedings, and
(b)
the Authority may, by service of a notice on any
person who, in the opinion of the Authority, may be liable to pay work injury
damages to the claimant (or may have insured that liability), join that person
as a party to the proceedings.
(3)
The court hearing and determining the proceedings
may make such orders in relation to the proceedings as the court thinks fit.
An order may provide for the reimbursement of the WorkCover Authority Fund
under section 145.
[7]Section 145 Employer or
insurer to reimburse Authority
Omit “liability under this Act” from
section 145 (3).
Insert instead “liability in respect of the
payment concerned”.
[8]Section 145
(5)
Insert “or work injury damages” after
“compensation under this Act” in section 145 (5)
(b).
[9]Section 147 Miscellaneous
provisions
Omit “the application for an award of
compensation” from section 147 (1) (a).
Insert instead “the proceedings for an
award of compensation or work injury damages”.
[10]Section 147 (1)
(b)
Omit “compensation”. Insert instead
“compensation or work injury damages”.
[11]Section 147
(2)
Omit the subsection. Insert instead:
(2)
The Commission or a court before which the
proceedings are taken may adjourn proceedings referred to in subsection (1)
or, if an award has been made, may reopen the proceedings and order some fit
person to take and defend the proceedings in substitution for the employer,
and for those purposes all the rights of the employer are subrogated to that
person.
[12]Section 147
(3)
Insert “or a court” after
“Commission”.
[13]Section 147
(4)
Insert “or a court” after
“Commission” where firstly occurring.
[14]Section 147
(4)
Insert “or court” after
“Commission” where secondly occurring.
[15]Section 147 (5) and
(6)
Insert “or work injury damages” after
“compensation” wherever occurring.
[16]Section 148 Application of
other provisions of the Act to Scheme
Insert “or work injury damages (as
appropriate)” after “compensation” in section 148
(2).
[17]Section 148A Authority’s
right of subrogation
Insert “or an amount of work injury damages
for which an employer is liable” after “former
Act”.
Schedule 10Miscellaneous
amendments
(Section 3)
10.1Workers Compensation Act 1987 No
70
[1]Section 192A Claims
administration manual
Insert at the end of section 192A (3) (d):
, and
(e)
procedures to be followed before a claim is made,
such as procedures in connection with early notification of injury and
provisional acceptance of liability.
[2]Section 280 Regulations and
orders
Insert “or order under this Act or the 1998
Act” after “regulation” in section 280
(3).
[3]Section 280
(4)
Insert “under this Act or the 1998
Act” after “A regulation or order”.
10.2Workplace Injury Management and Workers Compensation Act
1998 No 86
[1]Section 15 Board of
Directors
Omit section 15 (2). Insert instead:
(2)
The Board is to consist of 8 directors,
being:
(a)
the General Manager of the Authority,
and
(b)
7 part-time directors appointed by the Governor
on the recommendation of the Minister.
[2]Section 15
(5)
Omit the subsection. Insert instead:
(5)
A person cannot be a member of both the Council
and the Board at the same time unless the person is the General Manager of the
Authority or the Chairperson of the Council.
[3]Section
245A
Insert after section 245:
245AEvidence—criminal
proceedings under OHS legislation
(1)
An admission of liability by an employer in
common law work injury proceedings against the employer cannot be relied upon
in any proceedings against the employer for an offence under occupational
health and safety legislation.
(2)
An admission of guilt by an employer in
proceedings against the employer for an offence under occupational health and
safety legislation may be relied upon in common law work injury proceedings
against the employer.
(3)
In this section:
common
law work injury proceedings means proceedings for the
recovery of damages to which Division 3 (Modified common law damages) of Part
5 of the 1987 Act applies.
[4]Section 248A Review of
Act
Insert “and the Workers Compensation Legislation Further Amendment Act
2001” after “Workers
Compensation Legislation Amendment Act 2001” in
section 248A (1).
[5]Section 248A
(2)
Omit the subsection. Insert instead:
(2)
The review is to be undertaken as soon as
possible after the period of 12 months from the date of assent to the Workers Compensation Legislation Further Amendment Act
2001, and is to be completed by 27 April
2003.
[6]Section 248A (3)
(a)
Insert “before 27 April 2003” after
“House of Parliament”.
[7]Section 248A
(4)
Insert “and before 27 April 2003”
after “copy of the review”.
[8]Section 268 Insurer must
notify worker of reasonable excuse for not commencing weekly
payments
Omit “early notification”. Insert
instead “initial notification”.
[9]Section 287 Disputes to which
Part applies
Insert at the end of the section:
(2)
This Part extends to a dispute that concerns
failure to commence provisional weekly payments of compensation as required by
Division 1 of Part 3 (even though no claim has been made for that
compensation) and so extends as if:
(a)
a reference in this Part to weekly payments
included a reference to provisional weekly payments, and
(b)
initial notification of injury (as defined in
Part 3) constituted a claim for the compensation.
[10]Section 290 Information
exchange between parties
Omit section 290 (3). Insert instead:
(3)
Any document or information that a party to a
dispute has failed to provide in contravention of this section cannot be
admitted on behalf of the party in proceedings on the dispute before the
Commission.
[11]Section 290
(5)
Insert “or information” after
“document”.
[12]Section 290 (6)
(b)
Insert “or information” after
“documents”.
[13]Section 291 Duties of insurer
when dispute referred to Commission
Insert “WorkCover” before
“Guidelines”.
[14]Section
294A
Insert after section 294:
294ARules and regulations
concerning medical evidence
(1)
The Rules and the regulations may make provision
for or with respect to:
(a)
the disclosure, by the furnishing of copies of
reports or otherwise, of the nature of the expert medical evidence to be given
in evidence before the Commission (including the exclusion of any such
evidence for non-compliance with any requirement for the disclosure of the
nature of the evidence), and
(b)
the disclosure of medical reports (including
X-rays and the results of other tests) to approved medical specialists
(including the exclusion of any such medical report for non-compliance with
any requirement for the disclosure of the medical report),
and
(c)
limiting the number of medical reports in
connection with a claim or any aspect of a claim and, in particular, limiting
the number of medical reports that may be admitted in evidence in proceedings
before the Commission, and
(d)
limiting the number of expert witnesses that may
be called by any party and otherwise restricting the calling of expert
witnesses by a party.
(2)
This section only authorises Rules in connection
with proceedings before the Commission.
[15]Section 295 Disputes to which
Part applies
Insert at the end of the section:
(2)
This Part extends to a dispute that concerns
failure to commence provisional weekly payments of compensation as required by
Division 1 of Part 3 (even though no claim has been made for that
compensation) and so extends as if:
(a)
a reference in this Part to weekly payments
included a reference to provisional weekly payments, and
(b)
initial notification of injury (as defined in
Part 3) constituted a claim for the compensation.
[16]Section 296 Exercise of
functions of Registrar
Omit “this section” from section 296
(2). Insert instead “this Part”.
[17]Section 320 Appointment of
approved medical specialists
Insert after section 320 (4):
(5)
The Registrar may from time to time issue a list
of the medical practitioners who are for the time being appointed as approved
medical specialists under this section. The list is evidence of the
appointments concerned.
[18]Section 325 Medical assessment
certificate
Insert at the end of section 325:
(4)
An approved medical specialist is competent to
give evidence as to matters in a certificate given by the specialist under
this section, but may not be compelled to give evidence.
[19]Section 337 Maximum lawyer and
agent costs
Insert after section 337 (5):
(6)
The power under this section to make regulations
fixing maximum costs for services or matters includes power to make
regulations to provide that no amount is recoverable for a particular service
or matter or class of services or matters, with the result that a legal
practitioner or agent is not entitled to be paid or recover any amount for the
service or matter concerned.
[20]Section 347 Regulations for
costs assessment
Insert after section 347 (4):
(5)
The regulations may make such modifications to
the provisions of Part 11 of the Legal Profession
Act 1987 as may be consequential on the assessment or
taxation of costs payable to a legal practitioner being provided for by the
regulations under this Division rather than under Division 6 of Part 11 of
that Act.
[21]Section 355 Arbitrator to
attempt conciliation
Insert at the end of section 355:
(2)
No objection may be taken to the making of an
award or the determination of a dispute by an Arbitrator on the ground that
the Arbitrator had previously used the Arbitrator’s best endeavours to
bring the parties to the dispute to a settlement.
[22]Section 357 Power of
Commission to require information
Insert “or Rules” after
“regulations” in section 357 (7).
[23]Section 357 (7)
(c)
Insert after section 357 (7) (b):
(c)
specifying cases and circumstances in which the
Commission is not to exercise the Commission’s powers under this
section.
[24]Section 364 Rules of the
Commission
Insert after section 364 (1) (c):
(c1)
requiring the provision of documents and
information by a party to a matter before the Commission to any other party to
the matter, and
[25]Section 364 (1)
(j)
Insert at the end of section 364 (1) (i):
, and
(j)
any other matter that this Act or the 1987 Act
provides may be the subject of Rules of the
Commission.
[26]Section 365 Publication of
decisions and inspection of registers of agreements
Omit “The Commissioner” from section
365 (2).
Insert instead “The
Commission”.
[27]Section 365 (2)
(a)
Omit the paragraph.
[28]Section 371 Functions of
Registrar
Omit “Act” from section 371 (2).
Insert instead “Acts”.
[29]Schedule 3 Provisions relating
to Board of Directors
Omit “4 directors” from clause 11
(Quorum). Insert instead “5 directors”.
10.3Workers Compensation Legislation Amendment Act
2000 No 87
Schedule
5
Omit the Schedule.
Historical
notes
Table of amending
instruments
Workers Compensation Legislation
Further Amendment Act 2001 No 94. Minister’s second
reading speech made: Legislative Assembly, 27.11.2001; Legislative Council,
28.11.2001. Assented to 6.12.2001. Date of commencement (except Schs 1.1 and 4
[14] (to the extent that it inserts cll 9–11 of Part 18C of Sch 6 to the
Workers Compensation Act 1987) and sec 3
in its application to those provisions and Sch 1.2 [8]), 1.1.2002, sec 2 (1)
and GG No 195A of 21.12.2001, p 10175; date of commencement of Schs 1.1 and 4
[14] (to the extent that it inserts cll 9–11 of Part 18C of Sch 6 to the
Workers Compensation Act 1987) and sec 3
in its application to those provisions, 9.00 am on the day on which the Bill
for this Act was introduced into Parliament (ie 27.11.2001), sec 2 (2); date
of commencement of Sch 1.2 [8]: not in force.