An Act to amend the Workers Compensation Act 1987 and other Acts with respect to the reform of the NSW workers compensation scheme.
1 Name of Act
This Act is the Workers Compensation Legislation Amendment Act 2018.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsections (2) and (3).(2) Schedule 5 (Amendments relating to indexation) commences on 1 December 2018.(3) The following provisions of this Act commence on the date of assent:(a) Schedule 4 (Amendments relating to information sharing) (except Schedule 4 [1] and [2], to the extent that it inserts section 40D into the Workplace Injury Management and Workers Compensation Act 1998),(b) Schedule 6 (Amendments relating to motor accidents scheme),(c) Schedule 7.1,(d) Schedule 8 (Amendments relating to savings and transitional provisions).
Schedule 1 Amendments relating to dispute resolution
[1] Section 43 Work capacity decisions by insurers
Omit “(referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court” from section 43 (1).Insert instead “are work capacity decisions”.
[2] Section 43 (3)
Omit the subsection.
[3] Part 3, Division 2, Subdivision 3A Review of work capacity decisions
Omit the Subdivision.
[4] Section 54 Notice required before termination or reduction of payment of weekly compensation
Omit the section.
[1] Section 4 Definitions
Insert in appropriate order in section 4 (1):work capacity decision—see section 43 of the 1987 Act.
[2] Section 27 Functions of Independent Review Officer
Omit section 27 (b).
[3] Section 27B Requirement to provide information
Omit “or a worker who has applied for review of a work capacity decision of an insurer” from section 27B (1).
[4] Section 27C Annual report
Omit section 27C (4) (d).
[5] Section 74 Insurers to give notice and reasons when liability disputed
Omit the section.
[6] Chapter 4, Part 2, Division 3
Insert after section 75:Division 3 Notification of decisions of insurersSubdivision 1 Preliminary76 DefinitionsIn this Division:internal review means a review by an insurer of a work capacity decision under Part 4 of Chapter 7.notice of discontinuation or reduction means a notice required by this Division of an insurer’s decision to discontinue payment to a worker of weekly payments of compensation, or to reduce the amount of the compensation.original decision means a work capacity decision that is the subject of an internal review or of a dispute referred for determination by the Commission.review decision means:(a) in relation to an original decision that is the subject of an internal review—a work capacity decision made by an insurer as a result of the review, or(b) in relation to an original decision that is the subject of a dispute referred for determination by the Commission—a decision of the Commission determining the dispute.77 Requirement for refund of weekly payments not affectedThis Division does not affect the operation of section 58 (Refund of weekly payments paid after return to work etc) of the 1987 Act.Subdivision 2 General notice requirements78 Insurer to give notice of decisions(1) An insurer must give notice in accordance with this Division of any decision of the insurer:(a) to dispute liability in respect of a claim or any aspect of a claim, or(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.(2) Notice of a decision of an insurer involving both a liability dispute and a discontinuation or reduction of weekly compensation may be combined into a single notice (subject to any provision of the Workers Compensation Guidelines requiring separate notices to be given).(3) The requirement to give notice of a decision to discontinue payment to a worker of weekly payments of compensation does not affect any limitation on weekly payments of compensation under Division 2 of Part 3 of the 1987 Act.79 How notice of decision is given(1) A notice required by this Division must be given:(a) to the claimant or worker concerned, and(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.(2) The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.(3) In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.(4) The regulations may make provision for:(a) the manner in which a notice under this Division is to be given, and(b) the form of and other information to be included in or to accompany the notice.Subdivision 3 Notice period for discontinuation and reduction of weekly compensation80 Required period of notice(1) An insurer must not discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation, unless the required period of notice (commencing when the notice of discontinuation or reduction is given in accordance with this Division) has expired.(2) This section applies to a worker only if the worker has received weekly payments for a continuous period of at least 12 weeks.(3) The required period of notice for a decision made on the basis of any reassessment by the insurer of the entitlement to weekly payments of compensation resulting from a work capacity decision of the insurer is 3 months.Note—See sections 81–83 for the effect of an internal review or determination of a dispute by the Workers Compensation Commission on the required period of notice.(4) In any other case, the required period of notice is:(a) for a worker who has been receiving weekly payments of compensation for a continuous period of less than 1 year—2 weeks, or(b) for a worker who has been receiving weekly payments of compensation for a continuous period of 1 year or more—6 weeks.(5) The required period of notice of the discontinuation or reduction is required to be given in accordance with this Subdivision whether or not the notice also includes notice of a liability dispute.(6) Subsection (1) does not apply to a decision of an insurer to discontinue or reduce the amount of weekly payments of compensation as a result only of the application of different rates of compensation after the expiration of earlier periods of incapacity for which higher rates were payable. However, notice of the decision must be given before the expiration of the period of incapacity that results in the discontinuation or reduction.81 Effect of stay of decision on notice periodA stay of a decision to discontinue, or reduce an amount of, compensation that is the subject of a dispute referred to the Commission for determination does not operate to extend the required period of notice with respect to the discontinuation or reduction.82 Effect of review decision on notice period(1) In the application of this Subdivision to a discontinuation, or reduction of the amount, of payments of compensation as a result of a review decision (whether or not the review decision is less favourable to the worker than the original decision):(a) no regard is to be had to any period of notice given to the worker in respect of any discontinuation or reduction before the date on which the worker is notified of the review decision, and(b) the required period of notice starts on that date.(2) This section does not apply to a discontinuation or reduction as a result of a review decision that affirms an original decision with respect to the discontinuation or reduction.Note—See section 83 for the effect of the affirmation of an original decision on the required period of notice.83 Effect of affirmation of work capacity decision or withdrawal, discontinuance or dismissal of dispute proceedingsThe required period of notice with respect to a discontinuation or reduction of compensation is not affected by:(a) a review decision made by an insurer or by the Commission that affirms the original decision of the insurer with respect to the discontinuation or reduction, or(b) the withdrawal of a request for internal review of the original decision with respect to the discontinuation or reduction, or(c) the withdrawal of the referral to the Commission for determination of a dispute about a work capacity decision, or the discontinuance or dismissal of proceedings before the Commission in relation to the dispute.84 Recovery of weekly payments by worker where notice not given by insurer(1) If an insurer discontinues payment to a worker of weekly payments of compensation, or reduces the amount of the compensation, in contravention of this Subdivision, the worker may recover from the insurer an amount of compensation in accordance with this section.(2) This section applies whether or not the insurer has been prosecuted for an offence under this Division involving the contravention.(3) The amount of compensation that may be recovered as a result of a failure to give the required period of notice is:(a) if no period of notice has been given—an amount that is equal to the amount of compensation, or additional compensation, that would have been payable during the required period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or(b) if less than the required period of notice has been given—an amount that is equal to the amount of compensation that would have been payable during the balance of the required period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.Subdivision 4 Offences85 Failure to comply with notice requirementAn insurer who fails to comply with a requirement of this Division is guilty of an offence.Maximum penalty: 50 penalty units.
[7] Section 93 Claims for weekly compensation—commencement of payments
Omit “in accordance with section 74” from section 93 (2).
[8] Section 105 Jurisdiction of Commission and Compensation Court
Omit the note to section 105 (1).
[9] Sections 271 (1), 274 (1), 279 (1), 281 (2) and 315 (2), notes
Omit “Section 74” wherever occurring. Insert instead “Section 78”.
[10] Section 281 Liability to be accepted and settlement offer made
Insert “under Division 3 of Part 2 of Chapter 4” after “liability” in section 281 (1) (b).
[11] Chapter 7, Part 4, Division 1, heading
Insert before section 287:Division 1 Preliminary
[12] Chapter 7, Part 4, Division 2
Omit section 287A. Insert instead:Division 2 Reviews by insurer287A Request for review(1) A worker may request an insurer to review:(a) a work capacity decision of the insurer that is disputed by the worker, or(b) a claim, or any aspect of a claim, that is disputed by the insurer.(2) A request may be made at any time before the dispute is referred for determination by the Commission.(3) The insurer must conduct the review, and notify the worker of the decision on the review, within 14 days after the request is made.Maximum penalty: 50 penalty units.287B Regulations relating to decisions and reviews by insurersThe regulations may make provision for or with respect to:(a) the notification of decisions of insurers, and(b) the procedure for conducting internal reviews, and(c) requiring insurers to conduct reviews of decisions in respect of which disputes are referred for determination by the Commission under this Part.Note—See section 78 for further requirements relating to the giving of notice of disputes.Division 3 Determination of disputes by Commission
[13] Section 289 Restrictions as to when dispute can be referred to Commission
Insert “(other than a dispute based on a work capacity decision)” after “for weekly payments” in section 289 (1).
[14] Section 289 (1), note
Omit “without having disputed liability”.Insert instead “pursuant to a work capacity decision (without having disputed liability)”.
[15] Section 289B
Insert after section 289A:289B Stay of disputed work capacity decision(1) The referral of a dispute for determination by the Commission in relation to a work capacity decision to discontinue, or reduce the amount of, weekly payments of compensation operates to stay the decision and prevents the taking of action by an insurer based on the decision while the decision is stayed.(2) However, the decision is stayed only if the dispute is referred for determination by the Commission before the expiry of the required period of notice under section 80.(3) A stay operates from the time the Registrar accepts the dispute for referral until the proceedings are determined, dismissed or discontinued.(4) The Commission may, if it considers that a party to the dispute is unreasonably delaying the proceedings on the dispute, order that the stay ceases to have effect.
[16] Section 291 Duties of insurer when dispute referred to Commission
Omit the section.
[17] Section 297 Directions for interim payment of weekly payments or medical expenses compensation
Omit section 297 (1A). Insert instead:(1A) Section 298 does not apply to a dispute concerning a decision by the insurer to discontinue or reduce weekly payments of compensation on the basis of a work capacity decision under Division 2 of Part 3 of the 1987 Act.
[1] Clause 38 Notice of dispute about liability
Omit “section 74” from clause 38 (1). Insert instead “section 78”.
[2] Clause 38 (1) (g)
Omit “or from any”.Insert instead “, from the Independent Review Officer or from any other”.
[3] Clause 38 (1), note
Omit ‘Section 74” and “indicating”.Insert instead “Section 79” and “identifying”, respectively.
[4] Clause 38 (2)
Omit the subclause.
[5] Clause 41 Access to certain medical reports and other reports obtained by insurer
Omit “and reasons under section 74 of the 1998 Act”, “of intention under section 54 of the 1987 Act” and “under section 74 of the 1998 Act, section 54 of the 1987 Act” wherever occurring in clause 41 (2) (a) and (b) and (3).Insert instead “under Division 3 of Part 2 of Chapter 4 of the 1998 Act”.
[6] Clause 42 Interim payment direction not presumed to be warranted
Omit “section 74 of the 1998 Act (Insurers to give notice and reasons when liability disputed)”.Insert instead “section 78 of the 1998 Act (Insurer to give notice of decisions)”.
[7] Schedule 5 Penalty notice offences
Insert in appropriate order in Part 2:
[8] Schedule 5, Part 3
Omit the matter relating to clause 38 (2).
Schedule 2 Amendments relating to medical assessments for permanent impairment
[1] Section 60 Compensation for cost of medical or hospital treatment and rehabilitation etc
Insert “by an approved medical specialist” after “for assessment” in section 60 (5).
[2] Section 65 Determination of degree of permanent impairment
Omit section 65 (3).
[1] Section 293 Medical assessment
Omit “, in accordance with this section,” from section 293 (1).Insert instead “(subject to the regulations under section 321A (Referral of medical dispute concerning permanent impairment))”.
[2] Section 293 (2) and (3) (a)
Omit the provisions.
[3] Section 321 Referral of medical dispute for assessment
Insert “(other than a dispute concerning permanent impairment of an injured worker)” after “medical dispute” in section 321 (1).
[4] Section 321 (3) and (4)
Omit the subsections.
[5] Section 321A
Insert after section 321:321A Referral of medical dispute concerning permanent impairment(1) The regulations may make provision for or with respect to:(a) the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and(b) the giving of notice of a referral to the parties to the dispute.(2) Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.(3) A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the Registrar, either of their own motion or at the request of a party to the dispute.
[6] Section 322A One assessment only of degree of permanent impairment
Insert after section 322A (1):(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
[7] Section 322A (3)
Omit “subject of assessment and a medical assessment certificate under this Part”.Insert instead:subject of:(a) assessment and a medical assessment certificate under this Part, or(b) a determination by the Commission under Part 4.
[8] Section 322A (4)
Insert “or 352 (Appeal against decision of Commission constituted by Arbitrator)” after “assessment)”.
[9] Section 352 Appeal against decision of Commission constituted by Arbitrator
Insert “(including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by an approved medical specialist under Part 7)” after “Commission” in section 352 (7).
Schedule 3 Amendments relating to pre-injury average weekly earnings
[1] Section 32A Definitions
Omit the definitions of base rate of pay, base rate of pay exclusion, current weekly earnings, current work capacity, no current work capacity, non-pecuniary benefit, ordinary earnings, ordinary hours of work, pre-injury average weekly earnings and relevant period.
[2] Section 32A (2)
Insert at the end of section 32A:(2) Words and expressions in this Division that are defined in Schedule 3 have the meanings provided by that Schedule. The regulations may amend Schedule 3.Note—Definitions include current work capacity, current weekly earnings and pre-injury average weekly earnings.
[3] Section 34 Maximum weekly compensation amount
Insert before section 34 (1):(1AA) A weekly payment of compensation under this Subdivision is not to exceed the maximum weekly compensation amount.
[4] Section 34 (1)
Omit “maximum weekly compensation amount” from section 34 (1).Insert instead “maximum weekly compensation amount”.
[5] Sections 36 and 37
Omit sections 35–37. Insert instead:36 Weekly payments during first entitlement period (first 13 weeks)(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates:(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.37 Weekly payments during second entitlement period (weeks 14–130)(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates:(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates:(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
[6] Section 38 Weekly payments after second entitlement period (after week 130)
Omit section 38 (6) and (7). Insert instead:(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates:(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
[7] Section 44BAA
Insert after section 44B:44BAA RegulationsThe regulations may provide for the procedures to be followed by insurers in connection with the making of work capacity decisions, including the adjustment of any amount of weekly payments as a result of a work capacity decision.
[8] Part 3, Division 2, Subdivision 4, heading
Omit the heading. Insert instead:Subdivision 4 Miscellaneous
[9] Sections 44C–44I
Omit the sections.
[10] Section 82A Indexation—weekly payments
Omit section 82A (3).
[11] Schedule 3
Omit the Schedule. Insert instead:Schedule 3 Earnings for purposes of weekly payments of compensation under Division 2 of Part 3(Section 32A)1 ApplicationThe words and expressions defined in this Schedule apply for the purposes of Division 2 of Part 3 of this Act.2 Meaning of “pre-injury average weekly earnings”(1) Pre-injury average weekly earnings, in relation to an injured worker, means the weekly average of the gross pre-injury earnings received by the worker for work in any employment in which the worker was engaged at the time of the injury.Note—See also clauses 3–5 relating to modifications of pre-injury average weekly earnings by agreement and in relation to apprentices, trainees and persons aged under 21 years.(2) Except as provided by this clause (or by regulations made under this clause), in calculating the pre-injury earnings received by a worker in employment for the purposes of subclause (1), no regard is to be had to earnings in the employment paid or payable to the worker for work performed before or after the period of 52 weeks ending immediately before the date of the injury (the relevant earning period).(3) The regulations may provide for the adjustment of the relevant earning period for a worker in employment (including, for example, by extending or reducing the period):(a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment, or(b) to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment.(4) If the amount of a worker’s pre-injury average weekly earnings is less than any minimum amount prescribed by the regulations as applicable to the worker, the amount of the worker’s pre-injury average weekly earnings is taken to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.3 Agreements relating to pre-injury average weekly earnings(1) An injured worker and the employer may agree, in accordance with any requirements of the regulations, as to the amount of pre-injury average weekly earnings that is to apply to the worker for the purposes of Division 2 of Part 3 of this Act.(2) If a worker enters into an agreement under this clause, the amount of pre-injury average weekly earnings that applies to the worker for the purposes of that Division is, subject to the regulations, the amount so agreed.(3) Any decision of the insurer authorised or required by the regulations to be made in relation to an agreement under this clause before the agreement can take effect is, subject to the regulations, taken not to be a work capacity decision for the purposes of that Division.4 Pre-injury average weekly earnings for short-term workers(1) If, at the time of the injury, the injured worker had been continuously employed in employment for less than 4 weeks, the pre-injury average weekly earnings in relation to the worker may be calculated having regard to the weekly average of the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.(2) The regulations may make provision for the matters to be taken into account for the purposes of determining the earnings that the worker could reasonably have been expected to have earned in the employment, but for the injury, during the period of 52 weeks after the injury.5 Pre-injury average weekly earnings of apprentices, trainees and young people(1) This clause applies to an injured worker who, at the time of the injury, is:(a) under the age of 21 years, or(b) an apprentice, or(c) working under a contract of employment under which the worker is required to undergo training, instruction or examination in order to become qualified to carry on an occupation to which the contract of employment relates.(2) This clause applies to an injured worker under subclause (1) only if the worker would, but for the injury, have been entitled to increments in earnings at certain ages or stages during the course of employment to become qualified.(3) The pre-injury average weekly earnings, in relation to an injured worker to whom this clause applies, means:(a) until the day on which the worker attains the age or stage or would, but for the injury, have attained the stage at which the highest rate is payable—the amount of earnings that the worker would have been entitled to receive in respect of a relevant week if the worker had not sustained the injury and had continued in the employment, or(b) on and after the day on which the worker attains the age or stage or would, but for the injury, have attained the age or stage at which the highest rate is payable—the amount of pre-injury average weekly earnings calculated under clause 6 as if, at the time of the injury, the worker were being paid at the highest rate applicable to that age or stage, or(c) if paragraph (a) or (b) applies but there is no rate applicable to a worker who has attained the age of 21 years, the worker’s pre-injury average weekly earnings are to be determined in accordance with the regulations.(4) The Workers Compensation Guidelines may make provision for the matters to be taken into account for the purposes of determining the weekly earnings that it is likely that a worker would have been entitled to in a week had the injury not occurred and had he or she continued in the employment concerned.6 Meaning of “earnings”(1) The earnings received by a worker in respect of a week means the amount that is the income of the worker received by the worker for work performed in any employment during the week.(2) The income of a worker does not include:(a) any minimum amount paid to a superannuation fund or scheme in respect of the week to avoid an individual superannuation guarantee shortfall, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, for the worker, or(b) the monetary value of any non-monetary benefit provided to the worker for the performance of work by the worker, or(c) any payment in respect of loss of earnings under a scheme to which the workers compensation legislation relates or under any other insurance or compensation scheme.(3) However, the monetary value of a non-monetary benefit of a worker is to be included as part of the income of the worker for the purposes of the calculation of the weekly payments of compensation payable to the worker if the worker is not entitled to the use of the benefit.(4) The Workers Compensation Guidelines may make provision for or with respect to the matters to be taken into account for the purposes of determining whether a benefit has been provided to a worker or whether the worker is entitled to the use of a benefit.7 Monetary value of non-monetary benefits(1) The monetary value of a non-monetary benefit in respect of a week is:(a) the value that would be the value as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth, calculated in accordance with subclause (2), divided by 52, or(b) in the case of a non-monetary benefit that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that benefit (having regard to any matter specified by the Workers Compensation Guidelines).(2) Value as a fringe benefit is to be determined in accordance with the formula:%20AND%20(No%3D062)%20AND%20(Year%3D2018)%20AND%20(%22Historical%20Document%22%3D%222018-10-27%22))/g1.gif)
where:TV is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.FBT rate is the rate of fringe benefits tax imposed by the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth that applies when the non-pecuniary benefit is provided.8 Meaning of “current weekly earnings”Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount:(a) the worker’s actual gross earnings in respect of that week,(b) the weekly amount that the worker is able to earn in suitable employment.9 Meaning of “current work capacity” and “no current work capacity”(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
Section 4 Definitions
Insert in appropriate order in section 4 (1):current work capacity—see Schedule 3 to the 1987 Act.no current work capacity—see Schedule 3 to the 1987 Act.suitable employment—see section 32A of the 1987 Act.
Schedule 4 Amendments relating to information sharing
[1] Section 4 Definitions
Insert in appropriate order in section 4 (1):mandatory notification requirement—see section 40D.
[2] Chapter 2, Part 7
Insert after Part 6 of Chapter 2:Part 7 Information collection and sharing40A DefinitionsIn this Part:data means any facts, statistics, instructions, concepts or other information in a form that is capable of being communicated, analysed or processed (whether by an individual or by a computer or other automated means).insurer means a licensed insurer, a former licensed insurer, a self-insurer or a former self-insurer, and includes a scheme agent.means a relevant authority for the purposes of section 10 of the State Insurance and Care Governance Act 2015, and includes authorities of the Commonwealth, the other States and Territories that administer insurance or compensation schemes.40B General data gathering, exchange, etc, by Authority, insurers and relevant insurance or compensation authorities(1) The Authority may collect, use and disclose data relating to any of the following:(a) policies of insurance,(b) claims for compensation or for work injury damages,(c) the functions, activities and performance of insurers and employers,(d) the provision of health, legal and other services to injured workers,(e) any matter in respect of which a complaint is made to the Authority or the Independent Review Officer concerning any aspect of the schemes to which the workers compensation legislation relates.(2) For that purpose, the Authority may obtain data from insurers, from relevant insurance or compensation authorities, from hospitals, from government agencies and from any other source.(3) Data concerning policies of insurance, claims and other related matters under the workers compensation legislation and policies, claims and other related matters under other insurance or compensation schemes is authorised to be exchanged between different parts of the Authority.(4) The Authority, the Independent Review Officer and insurers are authorised to exchange data concerning policies of insurance, claims, complaints and other related matters under the workers compensation legislation.(5) The Authority and relevant insurance or compensation authorities are authorised to exchange data concerning policies of insurance, claims and other related matters under the workers compensation legislation and policies, claims and other related matters under other insurance or compensation schemes administered by those authorities.(6) This section applies in respect of data that is personal information or health information about an individual despite anything to the contrary in the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002.(7) Section 243 does not prevent the disclosure of information in accordance with this section.40C Data required to be supplied to Authority by insurers(1) The Authority may require an insurer to disclose to the Authority (within the time and in the manner specified by the Authority) data relating to policies of insurance, claims and other related matters under the workers compensation legislation.(2) Subsection (1) extends to requiring:(a) data relating to any aspect of a workers compensation insurance scheme under the workers compensation legislation (for example, the setting of premiums, the handling of claims, the cost of providing health, legal and other services to injured workers or the detection and prosecution of fraudulent claims), and(b) data relating to policies or claims generally or to particular policies or claims.This subsection does not affect the generality of subsection (1) or any other provision of this Act regarding the obtaining of data by the Authority.(3) An insurer may be required to disclose data to the Authority under this section that is personal information or health information about an individual despite anything to the contrary in the Privacy and Personal Information Protection Act 1998 or the Health Records and Information Privacy Act 2002.(4) Unless the insurer satisfies the court that it is not within its power to comply with a requirement under this section, an insurer that fails to comply with a requirement under this section is guilty of an offence.Maximum penalty: 100 penalty units.40D Mandatory notification(1) The regulations may make provision for or with respect to requiring a scheme participant to notify the Authority of any contravention of this Act of which the scheme participant becomes aware. Any such requirement is a mandatory notification requirement.(2) Each of the following is a scheme participant:(a) an insurer,(b) any specified person, or person of a specified class, on whom functions are conferred by this Act.(3) A mandatory notification requirement may apply in relation to all or any specified class of insurers.(4) Without limiting subsection (1), the regulations may:(a) provide for the form and manner in which notification is to be given, and(b) provide for when the notification is to be given, and(c) provide for the information required to be notified, and(d) provide for any further requirements relating to the notification (such as a requirement to provide further information or answer questions).
[3], [4] (Repealed)
sch 4: Am 1987 No 15, sec 30C.
Schedule 5 Amendments relating to indexation
[1] Section 79 Definitions
Omit “prescribed by the regulations in respect of that date” from paragraph (b) of the definition of latest index number.Insert instead “declared by the Authority in respect of that date by order published on the NSW legislation website”.
[2] Section 82 Publication of adjusted amounts
Omit “shall, by notice published in the Gazette, declare” from section 82 (1).Insert instead “is to declare, by order published on the NSW legislation website,”.
[3] Section 82 (2)
Omit “(including a failure that occurred before the commencement of this subsection) to publish the notice”.Insert instead “to publish the order”.
[4] Section 82A Indexation—weekly payments
Omit “Minister is, on or before each review date, to notify, by order published on the NSW legislation website” from section 82A (4).Insert instead “Authority is to declare, by order published on the NSW legislation website on or before each review date”.
[5] Section 82A (5)
Omit “A notification” and “as if published”.Insert instead “A declaration made by an order” and “as if the order were published”, respectively.
[6] Section 82B Indexation of certain amounts—according to average weekly earnings
Omit “Minister is to notify” from section 82B (2). Insert instead “Authority is to declare”.
[7] Section 82B (3)
Omit “A notification”. Insert instead “A declaration made by an order”.
[8] Section 82BA Indexation—compensation amount for workers with highest needs
Omit “Minister is to notify” from section 82BA (3). Insert instead “Authority is to declare”.
[9] Section 82BA (4)
Omit “A notification” and “as if published”.Insert instead “A declaration made by an order” and “as if the order were published”, respectively.
[10] Section 82F Indexation—compensation for permanent impairment
Omit “Minister is to notify” from section 82F (3). Insert instead “Authority is to declare”.
[11] Section 82F (4)
Omit “A notification”. Insert instead “A declaration made by an order”.
[1] Clause 8 Meaning of “latest index number”
Transfer the clause as clause 41 of Part 8 (with the following heading) of Schedule 8.Part 8 Provision consequent on enactment of Workers Compensation Legislation Amendment Act 2018
[2] Schedule 8, clause 41 (as amended by item [1])
Insert “(as in force before the commencement of Schedule 5 to the Workers Compensation Legislation Amendment Act 2018)” after “1987 Act”.
Schedule 6 (Repealed)
sch 6: Rep 1987 No 15, sec 30C.
Schedule 7 Miscellaneous amendments
7.1
(Repealed)Section 87EAA
Insert after section 87E:87EAA Medical expenses compensation not to be commuted for catastrophic injuries(1) A liability in respect of compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act or section 10 of the former Act may not be commuted to a lump sum under this Division unless the Authority is satisfied that, and certifies that it is satisfied that, the injury is not a catastrophic injury.(2) An injury is a catastrophic injury if it satisfies the criteria specified in the Workers Compensation Guidelines for the purposes of this section.(3) This section applies in addition to any other provision of this Division limiting the commutation of a liability.
[1] Section 52 Workplace rehabilitation
Omit section 52 (2) (c). Insert instead:(c) be in writing, and(d) be displayed at places of work, or notified to workers by publishing it on a website or by any other method authorised by the regulations.
[2] Section 61 Notice of injury to be given to employer
Insert “(as in force at the time of the injury)” after “section 231” in section 61 (2) (d) (i).
[3] Section 231 Notification of summary of Act and insurance details
Omit “There must be kept constantly posted up in some conspicuous place at or near every mine, quarry, factory, workshop, office or shop, and on every ship to which this Act applies, where it may be conveniently read by a person employed there” from section 231 (1).Insert instead “An employer must ensure that the following information is available at all times to workers of the employer”.
[4] Section 231 (1) (a)
Omit “(in the form prescribed by the regulations or approved by the Authority from time to time)”.
[5] Section 231 (1) (a)–(c)
Omit “and” wherever lastly occurring.
[6] Section 231 (2)–(4)
Omit section 231 (2) and (3). Insert instead:(2) The information is to be made available to workers by publishing it on a website or by any other method authorised by the regulations.(3) If the information required by this section is made available to workers of the employer but becomes damaged, destroyed or otherwise inaccessible, the employer must renew the information (whether by the same or another method) as soon as practicable.(4) The Workers Compensation Guidelines may make provision for or with respect to the form of the information required to be made available.Maximum penalty: 20 penalty units.
[7] Section 254 Notice of injury must be given to employer
Insert after section 254 (3) (d):(e) the employer has contravened section 231,(f) the injury has been treated in a first aid room at the place of work,(g) if the employer is the owner of a mine—the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.
sch 7: Am 1987 No 15, sec 30C.
Schedule 8 (Repealed)
sch 8: Rep 1987 No 15, sec 30C.