2010
2010
2011-02-02
act
government
publicspecial
act.reprint
allinforce
2010-06-23
2010-06-23
1
2011-02-02
act-1987-015
2010
none
act-2010-101
ce13f523-ca5a-4247-8db7-5b39efe6c2c5
87eb7099-d4c2-4ed4-ba50-6d13bee49a47
Repeal:
The Act was repealed by sec 30C of the Interpretation Act 1987 No 15 with
effect from 2.2.2011.
An Act to amend workers compensation legislation
to make further provision for determination of compensation and work injury
damages, workplace rehabilitation, medical assessment, appeals and other
matters.
1Name of
Act
This Act is the Workers
Compensation Legislation Amendment Act
2010.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation.
(2)
A proclamation under this section may appoint a
particular time on a day as the time for commencement on that
day.
Schedule 1Amendment of Workers Compensation Act 1987 No
70
[1]Section 9A No compensation
payable unless employment substantial contributing factor to
injury
Omit “occupational rehabilitation
service” from section 9A (3) (b).
Insert instead “workplace rehabilitation
service”.
[2]Section 38A Determination of
whether worker seeking suitable employment
Omit “occupational rehabilitation
services” from the definition of rehabilitation training in section
38A (7).
Insert instead “workplace rehabilitation
services”.
[3]Section 40 Weekly payments
during partial incapacity—general
Insert at the end of section 40 (1):
Note—
Section 35 limits the maximum weekly payment of
compensation under this section.
[4]Section 40
(2)
Omit “(but not exceeding $1,000)”
wherever occurring.
[5]Section 40 (2) and
(2A)
Insert at the end of each subsection:
Note—
The difference between (a) and (b) is the maximum
amount of compensation payable to the worker. It is not a limit on the
combined total of compensation and earnings.
[6]Section 40
(7)
Omit “subsection (2)”. Insert instead
“subsection (2A)”.
[7]Section 59
Definitions
Omit “occupational rehabilitation
service” from the definition of medical
or related treatment.
Insert instead “workplace rehabilitation
service”.
[8]Section 59, definition of
“occupational rehabilitation service”
Omit the definition.
[9]Section 59, definition of
“workplace rehabilitation service”
Insert in alphabetical order:
workplace
rehabilitation service means any service provided as a
workplace rehabilitation service by or on behalf of a provider of
rehabilitation services approved under section 52 of the 1998
Act.
[10]Section 60 Compensation for
cost of medical or hospital treatment and rehabilitation
etc
Omit “occupational” from section 60
(1) (d). Insert instead “workplace”.
[11]Section 60
(5)
Insert after section 60 (4):
(5)
The jurisdiction of the Commission with respect
to a dispute about compensation payable under this section extends to a
dispute concerning any proposed treatment or service and the compensation that
will be payable under this section in respect of any such proposed treatment
or service. Any such dispute must be referred by the Registrar for assessment
under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the
regulations otherwise provide.
[12]Section 60A Worker not liable
for medical, hospital and rehabilitation charges above applicable
rates
Omit “an occupational” wherever
occurring. Insert instead “a workplace”.
[13]Section 63A Rates applicable
for workplace rehabilitation services
Omit “occupational” wherever
occurring in section 63A (1), (2), (5) and (6).
Insert instead
“workplace”.
[14]Section 63A (3) and
(4)
Omit the subsections.
[15]Section 73 Reimbursement for
costs of medical certificate and examination
Insert after section 73 (2):
(3)
The following provisions apply to compensation to
which a worker is entitled in respect of the obtaining of a permanent
impairment medical certificate and any examination required for the
certificate:
(a)
the compensation is not payable until the claim
for the permanent impairment compensation to which the certificate or
examination relates is determined,
(b)
a claim for the compensation is to be treated as
part of the claim for the permanent impairment compensation to which the
certificate or examination relates (and so is subject to the requirements of
section 281 of the 1998 Act as to when the claim must be
determined),
(c)
section 279 (Liability to be accepted within 21
days) of the 1998 Act does not apply to the
compensation.
[16]Part 3, Division 6,
heading
Omit the heading. Insert instead:
Division 6Indexation of certain
amounts
[17]Section 79
Definitions
Insert at the end of the definition of adjustable amount:
, and
(c)
the amount of $7,500 specified in section 297 (2)
of the 1998 Act.
[18]Section 79, definition of
“base index number”
Renumber paragraph (c) as paragraph (d) and
insert as paragraph (c):
(c)
in respect of the adjustable amount of $7,500
specified in section 297 (2) of the 1998 Act—the latest index number for
the adjustment date of 1 October 2010, and
[19]Section 145 Employer or
insurer to reimburse Insurance Fund
Insert after section 145 (4):
(4A)
The Commission is not authorised to make a
determination that waives the liability of an employer under subsection (1) to
reimburse the Insurance Fund or that limits or otherwise affects any function
of the Nominal Insurer to decide whether or not any such liability should be
waived.
[20]Section 151IA Retirement
age
Omit “age 65”.
Insert instead “pension age (as defined in
the Social Security Act 1991 of the
Commonwealth for persons other than veterans)”.
[21]Section 172A Security deposit
or guarantee for payment of premium—optional alternative premium
calculation method
Omit section 172A (6). Insert instead:
(6)
Sections 214–215B apply to and in respect
of an amount of money deposited or required to be deposited with the Nominal
Insurer under this section as if:
(a)
the amount deposited or required were deposited
or required pursuant to an obligation imposed under Division 5
(Self-insurers), and
(b)
the employer were a self-insurer while the
employer holds a policy of insurance in respect of which the amount is held or
required to be held on deposit, and
(c)
a reference in those provisions to the Authority
were a reference to the Nominal Insurer.
[22]Section 177A Special
provisions for specialised insurers
Omit section 177A (3) (c). Insert instead:
(c)
that the applicant is authorised under section 12
of the Insurance Act 1973 of the Commonwealth
to carry on insurance business in Australia (or does not require such an
authorisation to lawfully carry on the insurance business to be carried on
pursuant to the licence), and
[23]Section 182 Matters that may
be regulated by conditions of licences
Omit section 182 (1) (c). Insert instead:
(c)
requiring a charge or other security to be taken
by the Authority in respect of the assets of an insurer, or otherwise
requiring the insurer to provide security, for the purpose of securing the
payment of the insurer’s liabilities (including contingent liabilities)
for the payment of compensation under this Act.
[24]Section
215B
Insert after section 215A:
215BBond as alternative to
deposit
It is sufficient compliance with a requirement of
this Division to deposit an amount of money with the Authority if a bond is
provided, on terms acceptable to the Authority, as security for the amount
required to be deposited.
[25]Schedule 6 Savings,
transitional and other provisions
Insert as Part 19G:
Part 19GProvisions consequent on
enactment of Workers Compensation Legislation
Amendment Act 2010
1Definition
In this Part:
2010
amending Act means the Workers
Compensation Legislation Amendment Act
2010.
2Weekly payments during partial
incapacity
An amendment made by the 2010 amending Act to
section 40 of the 1987 Act applies only to compensation payable pursuant to a
claim for compensation made after the commencement of the amendment (and so
applies even if the injury concerned was received before that
commencement).
3Retirement
age
The amendment made by the 2010 amending Act to
section 151IA of the 1987 Act does not apply to an award of damages in
proceedings commenced before the commencement of the
amendment.
4Rates applicable for
occupational rehabilitation services
The repeal by the 2010 amending Act of section
63A (3) and (4) of the 1987 Act does not affect a claim for an amount payable
under that section made before the commencement of the repeal and that section
and regulations under that section continue to apply in respect of such a
claim as if the provisions had not been repealed.
5Reimbursement for costs of
medical certificate and examination
Section 73 (3) of the 1987 Act extends to
compensation payable in respect of the obtaining of a permanent impairment
medical certificate and any examination required for the certificate before
the commencement of that subsection.
6Lump sum compensation to be
paid before damages recovered
Section 280B of the 1998 Act extends to a claim
for damages that is pending immediately before the commencement of that
section (but does not apply to a claim finally determined or settled before
that commencement).
7Appeal against medical
assessment
An amendment made by the 2010 amending Act to
section 327 or 328 of the 1998 Act extends to a medical assessment made before
the commencement of the amendment (including an appeal made before that
commencement) but not so as to affect any decision of a court, the Registrar
or an Appeal Panel made before the commencement of the
amendment.
8Appeal against decision of
Commission constituted by Arbitrator
(1)
An amendment made by the 2010 amending Act to
section 352 of the 1998 Act does not apply to an appeal when the decision
appealed against is a decision made before the commencement of the amendment,
except as provided by subclause (2).
(2)
Section 352 (5A) of the 1998 Act is for the
removal of doubt and extends to appeals pending on the commencement of that
provision.
9Adjustment of maximum interim
medical expenses payment
For the purposes of the operation of Division 6
(Indexation of certain amounts) of Part 3 of the 1987 Act in relation to the
adjustable amount in section 297 (2) of the 1998 Act, 1 October 2010 is not an
adjustment date and the first adjustment date is 1 April 2011. Accordingly,
the first adjustment under that Division of that adjustable amount is to be
the adjustment provided for under that Division on and from 1 April
2011.
10Coal
miners
(1)
The amendments made by the 2010 amending Act 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
those amendments had not been enacted.
(2)
In this clause, coal
miner means a worker employed in or about a
mine.
[26]Schedule 6, Part
20
Insert at the end of clause 1 (1):
Workers
Compensation Legislation Amendment Act
2010
Schedule 2Amendment of Workplace Injury Management and Workers Compensation Act
1998 No 86
[1]Section 23 Specific
functions
Omit “accredited rehabilitation
providers” from section 23 (1) (e).
Insert instead “approved rehabilitation
providers”.
[2]Section 52 Workplace
rehabilitation
Omit section 52 (4) (c). Insert instead:
(c)
may provide for the approval of providers of
rehabilitation services for the purposes of return-to-work programs and may
require employers to use the services of approved providers in connection with
the program, and
[3]Section 64 Notice of
incapacity, medical etc treatment and damage to property
Omit “occupational” from section 64
(1) (b). Insert instead “workplace”.
[4]Section 65 Making a claim for
compensation
Omit “occupational” from section 65
(20). Insert instead “workplace”.
[5]Section 257 Notice of
incapacity, medical etc treatment and damage to property
Omit “occupational” from section 257
(1) (b). Insert instead “workplace”.
[6]Section 260 How a claim is
made
Omit “occupational” from section 260
(3). Insert instead “workplace”.
[7]Section 270 Obligations of
worker to provide authorisations and medical evidence
Omit “occupational” from section 270
(1) (b). Insert instead “workplace”.
[8]Section
280B
Insert after section 280A:
280BLump sum compensation to be
paid before damages recovered
(1)
An injured worker cannot recover damages in
respect of an injury from the employer liable to pay compensation under this
Act in respect of the injury unless and until any permanent impairment
compensation and pain and suffering compensation to which the worker is
entitled in respect of the injury has been paid.
(2)
This section does not prevent a claim for damages
from being made before any permanent impairment compensation and pain and
suffering compensation to which the worker is entitled in respect of the
injury has been paid.
Note—
This section ensures that an injured worker
receives the compensation to which the worker is entitled before damages are
recovered (because section 151A of the 1987 Act would prevent the payment of
compensation after damages are recovered).
[9]Section 289 Restrictions as to
when dispute can be referred to Commission
Insert after section 289 (2):
(2A)
Subsection (2) does not prevent the referral to
the Commission of a dispute about whether any proposed treatment or service is
reasonably necessary as a result of an injury.
Note—
Section 60 of the 1987 Act provides for such a
dispute to be referred to the Commission.
[10]Section 297 Directions for
interim payment of weekly payments or medical expenses
compensation
Insert after section 297 (2):
Note—
The amount of $7,500 is subject to adjustment
under Division 6 of Part 3 of the 1987 Act.
[11]Section 320 Appointment of
approved medical specialists
Insert after section 320 (2):
(2A)
One or more approved medical specialists may be
appointed as a senior approved medical specialist, either by the instrument of
appointment of the approved medical specialist or by a later instrument
executed by the President.
[12]Section 327 Appeal against
medical assessment
Omit section 327 (3) (b). Insert instead:
(b)
availability of additional relevant information
(but only if the additional information was not available to, and could not
reasonably have been obtained by, the appellant before the medical assessment
appealed against),
[13]Section 327
(6)
Omit the subsection. Insert instead:
(6)
The Registrar may refer a medical assessment for
further assessment under section 329 as an alternative to an appeal against
the assessment (but only if the matter could otherwise have proceeded on
appeal under this section).
Note—
Section 329 also allows the Registrar to refer a
medical assessment back to the approved medical specialist for reconsideration
(whether or not the medical assessment could be appealed under this
section).
[14]Section 328 Procedure on
appeal
Omit section 328 (2) and (3). Insert
instead:
(2)
The appeal is to be by way of review of the
original medical assessment but the review is limited to the grounds of appeal
on which the appeal is made. The WorkCover Guidelines can provide for the
procedure on an appeal.
(3)
Evidence that is fresh evidence or evidence in
addition to or in substitution for the evidence received in relation to the
medical assessment appealed against may not be given on an appeal by a party
to the appeal unless the evidence was not available to the party before that
medical assessment and could not reasonably have been obtained by the party
before that medical assessment.
[15]Section 352 Appeal against
decision of Commission constituted by Arbitrator
Omit section 352 (1)–(3). Insert
instead:
(1)
A party to a dispute in connection with a claim
for compensation may appeal to the Commission constituted by a Presidential
member against a decision in respect of the dispute by the Commission
constituted by an Arbitrator.
(2)
An appeal is to be made by application to the
Registrar. The appeal is not to proceed unless the Registrar is satisfied that
the procedural requirements of this section and any applicable Rules and
regulations as to the making of an appeal have been complied with. The
Registrar is not required to be satisfied as to the substance of the
appeal.
(3)
There is no appeal under this section unless the
amount of compensation at issue on the appeal is both:
(a)
at least $5,000 (or such other amount as may be
prescribed by the regulations), and
(b)
at least 20% of the amount awarded in the
decision appealed against.
(3A)
There is no appeal under this section against an
interlocutory decision except with the leave of the Commission. The Commission
is not to grant leave unless of the opinion that determining the appeal is
necessary or desirable for the proper and effective determination of the
dispute.
[16]Section 352 (5) and
(5A)
Omit section 352 (5). Insert instead:
(5)
An appeal under this section is limited to a
determination of whether the decision appealed against was or was not affected
by any error of fact, law or discretion, and to the correction of any such
error. The appeal is not a review or new hearing.
(5A)
An appeal under this section stays the operation
of the decision appealed against pending the determination of the appeal.
However, an appeal does not stay or otherwise affect the operation of a
decision as to weekly payments of compensation and weekly payments of
compensation remain payable despite any appeal.
[17]Section 352
(6)
Insert “The Commission is not to grant
leave unless satisfied that the evidence concerned was not available to the
party, and could not reasonably have been obtained by the party, before the
proceedings concerned or that failure to grant leave would cause substantial
injustice in the case.” at the end of the
subsection.
[18]Section 352
(8)
Omit “, but does not include any award,
order, determination, ruling or direction of an interlocutory nature
prescribed by the regulations”.
[19]Section
378
Omit the section. Insert instead:
378Reconsideration of decisions
of Registrar or Appeal Panel
(1)
The Registrar or an Appeal Panel may reconsider
any matter that has been dealt with by the Registrar or an Appeal Panel,
respectively, and rescind, alter or amend any decision previously made or
given.
(2)
Without limiting subsection (1), if the Registrar
is satisfied that there is an obvious error in the text of a decision, the
Registrar may alter the text of the decision to correct the
error.
(3)
Without limiting subsection (1), if an Appeal
Panel is satisfied that its decision or any medical assessment certificate it
has issued contains an obvious error, the Appeal Panel concerned may correct
that error and, if necessary, issue a replacement medical assessment
certificate (which is to prevail over any previous
certificate).
(4)
The reconsideration of a matter that is in
response to an application for reconsideration must be completed within 2
months after the application is received.
(5)
This section does not affect any other power
under this Act or the 1987 Act to review or amend a
decision.
Historical
notes
Table of amending
instruments
Workers
Compensation Legislation Amendment Act 2010 No 101.
Assented to 16.11.2010. Date of commencement, 1.2.2011, sec 2 (1) and 2011 (4)
LW 14.1.2011.