Division 1 Compensation payable on death
25 Death of worker leaving dependants
(cf former s 8 (1))
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be:(a) the amount of $425,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and(b) in addition, an amount of $66.60 per week in respect of:(i) each dependent child of the worker under the age of 16 years, and(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.(2) Payments in respect of a dependent child under subsection (1) (b) shall continue:(a) except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or(b) in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act:(a) is adjusted by the operation of Division 6, or(b) is adjusted by an amendment of this section,the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.(5) In this section:child of the worker means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.
dependent child of the worker means a child of the worker who was wholly or partly dependent for support on the worker.
student means a person receiving full-time education at a school, college or university.
If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $9,000 or such other amount as may be prescribed by the regulations.
28 Expenses of transporting body
(cf former s 8 (4A))
If compensation is payable under this Division and the usual place of residence of the worker was, at the time of the worker’s death, in Australia, the employer shall pay additional compensation equal to the reasonable cost of transporting the body of the worker to:(a) what would, in the circumstances, be an appropriate place for its preparation for burial or cremation, or(b) that usual place of residence,whichever is the lesser cost.
29 Apportionment of payments between dependants
(cf former s 59)
(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).(2) Application for apportionment may be made by or on behalf of a person entitled to the compensation:(a) to the NSW Trustee, or(b) to the Commission (whether or not an application has been made to the NSW Trustee or the NSW Trustee has made a decision).(3) The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.(4) The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.(5) A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.(6) If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.(7) If a dependant dies:(a) before a claim under this Division is made, or(b) if a claim has been made, before an agreement or award has been arrived at or made,the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.(8) The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.
30 Review of apportionment among dependants
(1) The Commission or the NSW Trustee may, on account of the variation of the circumstances of the various dependants or for any other sufficient cause, vary any previous apportionment among the dependants of a deceased worker of compensation under this Division.(2) Application for a variation may be made by or on behalf of the person entitled to compensation to the Commission or the NSW Trustee.(3) The NSW Trustee may apply to the Commission for any such variation of a previous apportionment made by the NSW Trustee or by the Commission.(4) The NSW Trustee is not to deal with an application for variation of any previous apportionment if an application for variation of the same previous apportionment is before the Commission.(5) The NSW Trustee is not to vary an apportionment made by the Commission.
31 Payment in respect of dependent children
(cf former s 8 (1A))
(1) Compensation payable under section 25 (1) (b) in respect of a dependent child of a deceased worker shall, unless the Commission otherwise orders:(a) be paid to the surviving parent of the child concerned, if there is one, or(b) be paid to the NSW Trustee for the benefit of the child or to any person (approved by the NSW Trustee) having the care or custody of the dependent child, if no such parent survives.(2) If the Commission makes an order under subsection (1), the compensation is payable in accordance with the order.
32 Payment where no dependants
(cf former s 57 (4))
If a deceased worker leaves no dependants, compensation payable under this Division shall be paid to the worker’s legal personal representative or, if there is no such representative, to the person to whom the payment of the expenses for which the compensation is payable is due.
Division 2 Weekly compensation by way of income support
In this Division and in Schedule 3:base rate of pay—see section 44G.
base rate of pay exclusion—see section 44G.
current weekly earnings—see section 44I.
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
fair work instrument means:
(a) a fair work instrument (other than an FWA order) within the meaning of the Fair Work Act 2009 of the Commonwealth, or(b) a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.
maximum weekly compensation amount means the maximum weekly compensation amount under section 34.
no current work capacity, in relation to a worker, means 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.
non-pecuniary benefit—see section 44F.
ordinary earnings—see section 44E.
ordinary hours of work—see section 44H.
pre-injury average weekly earnings—see section 44C.
relevant period—see section 44D.
second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.
seriously injured worker means a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or(b) the degree of permanent impairment has not been assessed because an approved medical specialist has declined to make an assessment until satisfied that the impairment is permanent and the degree of permanent impairment is fully ascertainable, or(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and(ii) the worker’s age, education, skills and work experience, and(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and(v) such other matters as the WorkCover Guidelines may specify, and(b) regardless of:(i) whether the work or the employment is available, and(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and(iii) the nature of the worker’s pre-injury employment, and(iv) the worker’s place of residence.work capacity assessment means a work capacity assessment under section 44A.
work capacity decision—see section 43.
Subdivision 2 Entitlement to weekly compensation
33 Weekly compensation during total or partial incapacity for work
(cf former s 9 (1))
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.Note. Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.
34 Maximum weekly compensation amount
(1) The maximum weekly compensation amount is $1,838.70.(2) If the amount mentioned in subsection (1):(a) is adjusted by the operation of Division 6, or(b) is adjusted by an amendment of this section,the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.
35 Factors to determine rate of weekly payments
(1) For the purposes of the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week:AWE means the worker’s pre-injury average weekly earnings.
D (or a deductible amount) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker.
E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,(b) the workers current weekly earnings.MAX means the maximum weekly compensation amount.
(2) If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.
36 Weekly payments in 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:(a) (AWE × 95%) − D, or(b) MAX − D,whichever is the lesser.(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 rate of:(a) (AWE × 95%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.
37 Weekly payments in 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:(a) (AWE × 80%) − D, or(b) MAX − D,whichever is the lesser.(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 rate of:(a) (AWE × 95%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.(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 rate of:(a) (AWE × 80%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.
38 Special requirements for continuation of weekly payments after second entitlement period (after week 130)
(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.(3) A worker who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted:(a) during the last 52 weeks of the second entitlement period, and(b) thereafter at least once every 2 years.Note. An insurer can conduct a work capacity assessment of a worker at any time. The WorkCover Guidelines can also require a work capacity assessment to be conducted.(5) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a seriously injured worker without conducting a work capacity assessment.(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:(a) (AWE × 80%) − D, or(b) MAX − D,whichever is the lesser.(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 rate of:(a) (AWE × 80%) − (E + D), or(b) MAX − (E + D),whichever is the lesser.(8) A worker’s entitlement to compensation under this section may be reassessed at any time.
39 Cessation of weekly payments after 5 years
(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.Note. For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).
40 Entitlement after second entitlement period not affected by certain circumstances
(1) A worker who receives weekly payments under section 38 does not cease to be entitled to weekly payments under that section by reason only that the worker occasionally, but not during more than 4 weeks in the first period of 12 consecutive weeks immediately after the worker first received weekly payments under that section, or in any subsequent consecutive period of 12 weeks:(a) has worked more hours during a week, or(b) has worked fewer hours during a week (even if the number of hours worked is less than 15), or(c) has received higher current weekly earnings, or(d) has received lower current weekly earnings (even if the earnings are less than $155 per week),than the hours worked, or the current weekly earnings received, at the time of making the application for payments under section 38.(2) A reference in subsection (1) to hours of work does not include hours of leave approved by the employer.
41 Compensation for incapacity after second entitlement period resulting from surgery
(1) An injured worker who suffers incapacity resulting from injury related surgery is entitled to weekly payments of compensation (special compensation) as provided by this section in respect of that incapacity when the incapacity occurs after the second entitlement period.(2) The special compensation provided for by this section is payable at the rate provided under section 37, as if the period of incapacity in respect of which the special compensation is payable occurred during (not after) the second entitlement period.(3) Special compensation is not payable in respect of any period of incapacity that occurs:(a) during the first 13 consecutive weeks after the end of the second entitlement period, or(b) more than 13 weeks after the surgery concerned, or(c) during any period in respect of which the worker is otherwise entitled to compensation after the second entitlement period (under section 38).(4) Surgery is injury related if it is surgery that the worker undergoes in the course of medical treatment provided to the worker as a result of an injury (the initial injury) received by the worker (being medical treatment for which the insurer has accepted liability under this Part).(5) The following requirements must be satisfied for a worker to be eligible for the special compensation provided for by this section:(a) the worker must have received weekly payments of compensation in respect of the initial injury and have had current work capacity prior to suffering the incapacity resulting from the injury related surgery,(b) the worker must have returned to work after the initial injury (whether in self-employment or other employment) for a period of not less than 15 hours per week and have been in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week.(6) This section does not limit section 52 (Termination of weekly payments on retiring age).
42 Application by worker to alter amount of weekly payments
(1) A worker who is receiving weekly payments of compensation may apply in writing to the insurer for an increase or reduction in the amount of the payments and must specify in the application the reasons for so applying and provide with the application any supporting evidence.(2) Within 28 days after receiving an application, the insurer must:(a) approve or reject the application, and(b) give the worker and the employer written notice of its decision, including, in the case of rejection, a statement of the reasons for the decision.
43 Work capacity decisions by insurers
(1) The following decisions of an insurer (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 44 or judicial review by the Supreme Court:(a) a decision about a worker’s current work capacity,(b) a decision about what constitutes suitable employment for a worker,(c) a decision about the amount an injured worker is able to earn in suitable employment,(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).(2) The following decisions are not work capacity decisions:(a) a decision to dispute liability for weekly payments of compensation,(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.(3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.
44 Review of work capacity decisions
(1) An injured worker may refer a work capacity decision of an insurer for review:(a) by the insurer (an internal review) in accordance with the WorkCover Guidelines within 30 days after an application for internal review is made by the worker, or(b) by the Authority (as a merit review of the decision), but not until the dispute has been the subject of internal review by the insurer, or(c) to the Independent Review Officer (as a review only of the insurer’s procedures in making the work capacity decision and not of any judgment or discretion exercised by the insurer in making the decision), but not until the dispute has been the subject of internal review by the insurer and merit review by the Authority.(2) An application for review of a work capacity decision must be made in the form approved by the Authority and specify the grounds on which the review is sought. The worker must notify the insurer in a form approved by the Authority of an application made by the worker for review by the Authority or the Independent Review Officer.(3) The following provisions apply to the review of a work capacity decision when the reviewer is the Authority or the Independent Review Officer:(a) an application for review must be made within 30 days after the worker receives notice in the form approved by the Authority of the insurer’s decision on internal review of the decision (when the application is for review by the Authority) or the Authority’s decision on a review (when the application is for review by the Independent Review Officer),(b) an application for review by the Authority may be made without an internal review by the insurer if the insurer has failed to conduct an internal review and notify the worker of the decision on the internal review within 30 days after the application for internal review is made,(c) the reviewer may decline to review a decision because the application for review is frivolous or vexatious or because the worker has failed to provide information requested by the reviewer,(d) the worker and the insurer must provide such information as the reviewer may reasonably require and request for the purposes of the review,(e) the reviewer is to notify the insurer and the worker of the findings of the review and may make recommendations to the insurer based on those findings (giving reasons for any such recommendation),(f) the Independent Review Officer must also notify the Authority of the findings of a review and the Authority may make recommendations (giving reasons for any such recommendations) to the insurer based on those findings,(g) recommendations made by the Authority are binding on the insurer and must be given effect to by the insurer,(h) recommendations made by the Independent Review Officer are binding on the insurer and the Authority.(4) A review of a work capacity decision does not operate to stay the decision or otherwise prevent the taking of action based on the decision.(5) The Commission is not to make a decision in proceedings concerning a dispute about weekly payments of compensation payable to a worker while a work capacity decision by an insurer about those weekly payments is the subject of a review under this section.(6) A legal practitioner acting for a worker is not entitled to be paid or recover any amount for costs incurred in connection with a review under this section of a work capacity decision of an insurer.
(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the WorkCover Guidelines and may conduct a work capacity assessment at any other time.(2) A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the WorkCover Guidelines.(3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.(4) An insurer is not to conduct a work capacity assessment of a seriously injured worker unless the insurer thinks it appropriate to do so and the worker requests it.(5) An insurer may in accordance with the WorkCover Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.
44B Evidence as to work capacity
(1) A worker must provide to the insurer:(a) certificates of capacity in accordance with this section in respect of the period in respect of which the worker is entitled to weekly payments, and(b) a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment or in self-employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section.(2) If a decision to reject a claim for weekly payments or to terminate weekly payments is set aside, a worker is not required to comply with this section in respect of any period from the date that the decision took effect until the day on which the decision is set aside.(3) A certificate of capacity must:(a) be a certificate given by a medical practitioner in a form approved by the Authority, and(b) certify as to the worker’s incapacity for work and whether the worker has a current work capacity or has no current work capacity during the period, not exceeding 28 days, stated in the certificate, and(c) specify the expected duration of the worker’s incapacity.(4) A certificate of capacity may cover a period exceeding 28 days if:(a) the person giving the certificate states in the certificate the special reasons why the certificate covers the longer period, and(b) the insurer is satisfied that, for the special reasons stated, the certificate should be accepted.(5) A certificate of capacity is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided.(6) The insurer may discontinue weekly payments of compensation if the worker fails to comply with a requirement under this section within 7 days after the requirement is communicated to the worker by the insurer.Note. Section 270 of the 1998 Act also allows an insurer to require medical evidence and authorisations about incapacity for work when weekly payments begin.
44C Definition—pre-injury average weekly earnings
(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).(2) If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:(a) the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).(3) If a worker:(a) was not a full time worker immediately before the injury, and(b) at the time of the injury was seeking full time employment, and(c) had been predominantly a full time worker during the period of 78 weeks immediately before the injury,pre-injury average weekly earnings, in relation to that worker, means the sum of:(d) the average of the worker’s ordinary earnings while employed during the period of 78 weeks immediately before the injury (excluding any week during which the worker did not actually work and was not on paid leave) (the qualifying period), whether or not the employer is the same employer as at the time of the injury expressed as a weekly sum, and(e) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).(4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3, pre-injury average weekly earnings means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum.(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if:(a) the worker worked paid overtime or carried out work that attracted a shift allowance during the relevant period, and(b) the worker would, but for the worker’s injury, have been likely, at any time during that 52 week period, to have worked paid overtime or carried out work that attracted a shift allowance.(6) The amount of an overtime and shift allowance payment that is permitted to be included is to be calculated in accordance with the following formula:
where:A is the total amount paid or payable to the worker for paid overtime and shift allowances in respect of the relevant period.
B is the number of weeks during the relevant period during which the worker worked or was on paid annual leave.
(7) 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 deemed to be that minimum amount. Different minimum amounts may be prescribed for different classes of workers, including part-time and full-time workers.
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44D Definitions applying to pre-injury average weekly earnings—relevant period
(1) Subject to this section, a reference to the relevant period in relation to pre-injury average weekly earnings of a worker is a reference to:(a) in the case of a worker who has been continuously employed by the same employer for the period of 52 weeks immediately before the injury, that period of 52 weeks, or(b) in the case of a worker who has been continuously employed by the same employer for less than 52 weeks immediately before the injury, the period of continuous employment by that employer.(2) The relevant period, in relation to pre-injury average weekly earnings of a worker who, during the 52 weeks immediately before the injury, voluntarily (otherwise than by reason of an incapacity for work resulting from, or materially contributed to by, an injury that entitles the worker to compensation under this Act):(a) alters the ordinary hours of work, or(b) alters the nature of the work performed by the worker,and, as a result, the worker’s ordinary earnings are reduced, does not include the period before the reduction takes effect.(3) If, during the period of 52 weeks immediately before the injury, a worker:(a) is promoted, or(b) is appointed to a different position,(otherwise than on a temporary basis) and, as a result, the worker’s ordinary earnings are increased, the relevant period in relation to the worker begins on the day on which the promotion or appointment takes effect.
44E Definitions applying to pre-injury average weekly earnings—ordinary earnings
(1) Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:(i) the worker’s earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,(ii) amounts paid or payable as piece rates or commissions in respect of that week,(iii) the monetary value of non-pecuniary benefits provided in respect of that week, or(b) in any other case, the sum of the following amounts:(i) the actual earnings paid or payable to the worker in respect of that week,(ii) amounts paid or payable as piece rates or commissions in respect of that week,(iii) the monetary value of non-pecuniary benefits provided in respect of that week.(2) A reference to ordinary earnings does not include a reference to any employer superannuation contribution.
44F Definition of “non-pecuniary benefits”
(1) The following benefits provided in respect of a week to a worker by the employer for the performance of work by the worker are non-pecuniary benefits in respect of that week:(a) residential accommodation,(b) use of a motor vehicle,(c) health insurance,(d) education fees.(2) Any amount that, under the worker’s terms of employment, the employer is required (for the performance of work by the worker) to apply or deal with on behalf of the worker in accordance with the worker’s instructions is also a non-pecuniary benefit but this does not include any amount that is a base rate of pay exclusion.(3) Any amount that is excluded from base rate of pay as a base rate of pay exclusion is not a non-pecuniary benefit.(4) The monetary value of a non-pecuniary benefit referred to in subsection (1) 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 subsection (5), divided by 52, or(b) in the case of residential accommodation that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that accommodation, or equivalent accommodation in the same area, in respect of that week if it were let on commercial terms.(5) Value as a fringe benefit is to be determined in accordance with the formula:
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.
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44G Definition applying to pre-injury average weekly earnings and current weekly earnings—base rate of pay
(1) In relation to pre-injury average weekly earnings and current weekly earnings, a reference to a base rate of pay is a reference to the rate of pay payable to a worker for his or her ordinary hours of work but does not include any of the following amounts (referred to in this Division as base rate of pay exclusions):(a) incentive based payments or bonuses,(b) loadings,(c) monetary allowances,(d) piece rates or commissions,(e) overtime or shift allowances,(f) any separately identifiable amount not referred to in paragraphs (a) to (e).(2) In relation to pre-injury average weekly earnings and current weekly earnings, if, at the time of the injury:(a) a worker’s base rate of pay is prescribed by a fair work instrument that applies to the worker, and(b) the worker’s actual rate of pay for ordinary hours is higher than that rate of pay,the worker’s actual rate of pay is to be taken to be the worker’s base rate of pay.
44H Definition applying to pre-injury average weekly earnings and current weekly earnings—ordinary hours of work
In relation to pre-injury average weekly earnings and current weekly earnings, the ordinary hours of work:(a) in the case of a worker to whom a fair work instrument applies are:(i) if the ordinary hours of work in relation to a week are agreed or determined in accordance with a fair work instrument between the worker and the employer—those hours, or(ii) in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period, or(b) in the case of a worker to whom a fair work instrument does not apply:(i) if the ordinary hours of work are agreed between the worker and the employer, those hours, or(ii) in any other case, the worker’s average weekly hours (excluding any week during which the worker did not actually work and was not on paid leave) during the relevant period.
44I Definition—current weekly earnings
In this Act, current weekly earnings of a worker in relation to a week means:(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:(i) the worker’s earnings calculated at that rate for the ordinary hours worked during that week,(ii) amounts paid or payable for overtime or shift allowances in respect of that week,(iii) amounts paid or payable as piece rates or commissions in respect of that week, or(b) in any other case, the worker’s actual earnings in respect of that week but not including any amount that is a base rate of pay exclusion unless it is:(i) paid or payable for overtime or shift allowances in respect of that week, or(ii) paid or payable as piece rates or commissions in respect of that week.
45 Reduction of weekly payments to qualify for other benefits
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment:(a) is not payable, or(b) is reduced to a specified amount or in a specified manner,if the worker, or any spouse or other person related to the worker, would as a result be qualified to receive any pension, allowance or other benefit under the Social Security Act 1991 of the Commonwealth or under any other Act or law.(2) Any such order has effect according to its tenor.(3) Any such order does not have effect for the purposes of determining (if applicable) the lump sum payable on the commutation of a weekly payment under this Act or the redemption of a weekly payment under section 15 of the former Act (as applied by Schedule 6 to this Act).
46 Reduction of weekly payments to prevent dual benefits
(cf former s 13)
(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.(2) Any such order shall have effect according to its tenor.(3) This section does not affect the operation of section 49 or 50.
47 Incapacity deemed to exist in certain cases
(cf former s 12A)
A worker who, as a result of injury, is unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment shall be deemed to be incapacitated for employment of that kind.
48 Compensation payable despite existing incapacity
(cf former s 7 (2A))
(1) Compensation is payable under this Division in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work of the worker.(2) Any such compensation is payable as if total or partial incapacity for work had in fact resulted from the injury.(3) In this section:existing incapacity means total incapacity for work by disease or other cause:
(a) not entitling the worker to compensation under this Act, and(b) existing at the time when the total or partial incapacity for work would otherwise have resulted from the injury.
49 Weekly compensation payable despite holiday pay etc
(cf former s 7 (2B))
(1) Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.(2) The amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive in respect of the period any such payment, allowance or benefit.
50 Weekly compensation and sick leave
(cf former s 7 (2C))
(1) Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.(2) If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave:(a) that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and(b) the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.(3) If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period:(a) the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and(b) the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.(4) If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period:(a) if the worker has not also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or(b) if the worker has also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).(5) The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity.(6) In this section:compensation means weekly payments of compensation under this Division.
wages means wages, salary, allowance or other payment.
52 Termination of weekly payments on retiring age
(cf former s 60A)
(1) In this section:retiring age, in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.
(2) If a person:(a) receives an injury before reaching the retiring age—a weekly payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the date on which that person reaches the retiring age, or(b) receives an injury on or after reaching the retiring age—a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury.(3) This section has effect notwithstanding anything to the contrary in this Division.(4) This section does not apply to injuries received before 30 June 1985.
53 Weekly payments—residence outside the Commonwealth
(cf former s 54)
(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.(2) If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.
54 Notice required before termination or reduction of payment of weekly compensation
(1) If a worker has received weekly payments of compensation for a continuous period of at least 12 weeks, the person paying the compensation must not discontinue payment, or reduce the amount, of the compensation without first giving the worker not less than the required period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation.Maximum penalty: 50 penalty units.
(2) The required period of notice for the purposes of this section is:(a) when the discontinuation or reduction is 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—3 months, or(b) in any other case—2 weeks for a worker who has been receiving weekly payments of compensation for a continuous period of less than 1 year, or 6 weeks for a worker who has been receiving weekly payments of compensation for a continuous period of 1 year or more.(3) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that:(a) if no period of notice has been given—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—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.(4) The notice referred to in this section is to be given to the worker personally or by post and (if the regulations so require) be in such form or contain such information as may be prescribed by the regulations.(5) This section does not affect the operation of section 58 (Refund of weekly payments paid after return to work etc).(6) This section does not apply to a reduction in weekly 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.
57 Worker to notify return to work etc with other employer
(1) A worker who is in receipt of weekly payments of compensation shall forthwith notify the person making those payments of:(a) the worker’s commencing employment with some other person or in the worker’s own business, or(b) any change in that employment that affects the worker’s earnings.Maximum penalty: 40 penalty units.
(2) A worker is not guilty of an offence under this section if the worker satisfies the court that the person to whom the matter was to be notified failed to inform the worker of the obligation to notify that matter.(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.
58 Refund of weekly payments paid after return to work etc
(1) If, because of a worker’s return to employment or a change in employment that affects the worker’s earnings:(a) the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker, or(b) the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act (including under the former Act),the Commission may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment.(2) Any such refund may, in accordance with the terms of the Commission’s order, be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction.(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.(4) Without limiting this section, the Commission may make such orders as the Commission thinks fit for the adjustment of weekly payments of compensation to a worker to take account of any overpayments made to the worker (whether or not in the circumstances referred to in subsection (1)) in respect of any previous period.(5) In this section:(a) a reference to the worker’s return to employment includes a reference to the worker’s commencing employment, and(b) a reference to employment includes a reference to employment in the worker’s own business.(6) A court before which proceedings for an offence under section 57 are taken against a person may, on the application of the Authority (whether or not the person is convicted of the offence), make any order that it is satisfied the Commission could make under this section as a result of the return to employment or change in employment to which the alleged offence relates. The standard of proof that applies in connection with an application under this subsection is proof on the balance of probabilities.(7) The power conferred on a court by subsection (6) is subject to the following limitations:(a) it does not authorise the making of an order providing for the refund to be deducted from any future weekly payments of compensation to the extent that they are payable under an award of the Commission,(b) it does not authorise the making of an order of the kind described in subsection (4).(8) An order under subsection (6) is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.(9) The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.(10) This section does not limit any other right of recovery that a person may have against another person in respect of any overpayment of compensation to that other person.
Division 3 Compensation for medical, hospital and rehabilitation expenses etc
(cf former s 10 (2))
In this Division:ambulance service includes any conveyance of an injured worker to or from a medical practitioner or hospital.
chiropractor means a person registered under the Health Practitioner Regulation National Law to practise in the chiropractic profession (other than as a student).
dental prosthetist means a person registered under the Health Practitioner Regulation National Law:
(a) to practise in the dental profession as a dental prosthetist (other than as a student), and(b) in the dental prosthetists division of that profession.hospital treatment means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes:
(a) the maintenance of the worker as a patient at the hospital or rehabilitation centre,(b) the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and(c) any other ancillary service,but does not include ambulance service.medical or related treatment includes:
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,(b) therapeutic treatment given by direction of a medical practitioner,(c) (Repealed)(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,(f1) domestic assistance services,(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and(h) treatment or other thing prescribed by the regulations as medical or related treatment,but does not include ambulance service, hospital treatment or workplace rehabilitation service.osteopath means a person registered under the Health Practitioner Regulation National Law to practise in the osteopathy profession (other than as a student).
public hospital means:
(a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,(c) (Repealed)(d) a hospital or other institution (whether in this State or in another State or a Territory of the Commonwealth) that:(i) is prescribed by the regulations, or(ii) belongs to a class of hospitals or institutions prescribed by the regulations,for the purposes of this definition.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.
59A Limit on payment of compensation
(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.(2) If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.(3) If a worker becomes entitled to weekly payments of compensation after ceasing to be entitled to compensation under this Division, the worker is once again entitled to compensation under this Division but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.(4) This section does not apply to a seriously injured worker (as defined in Division 2).
60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:(a) any medical or related treatment (other than domestic assistance) be given, or(b) any hospital treatment be given, or(c) any ambulance service be provided, or(d) any workplace rehabilitation service be provided,the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).Note. Compensation for domestic assistance is provided for by section 60AA.(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and(b) if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if:(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the WorkCover Guidelines from the requirement for prior insurer approval), or(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or(c) the treatment or service is not given or provided in accordance with any conditions imposed by the WorkCover Guidelines on the giving or providing of the treatment or service, or(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.(2C) The WorkCover Guidelines may make provision for or with respect to the following:(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,(e) specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.(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.
60AA Compensation 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), and(d) the assistance is provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines.(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 person who provides the assistance has lost income or forgone employment as a result of providing the assistance.(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.
60A Worker not liable for medical, hospital and rehabilitation charges above applicable rates
A worker is not liable to pay, and a person is not entitled to recover from a worker, any amount in respect of medical or related treatment, hospital treatment at a hospital or a workplace rehabilitation service, given or provided to the worker as a result of an injury, to the extent that the amount exceeds any applicable maximum, as follows:(a) in the case of a medical or related treatment for which a sum is fixed under section 61 (2), the applicable maximum is that fixed sum,(b) in the case of hospital treatment at a hospital, the applicable maximum is the amount calculated as fixed under section 62 (1) as the cost to the hospital of the treatment,(c) in the case of a workplace rehabilitation service for which a sum is fixed under section 63A (2), the applicable maximum is that fixed sum.
61 Rates applicable for medical or related treatment
(cf former s 10 (4), (5A))
(1) The amount for which an employer is liable in respect of the medical or related treatment of a worker is such amount as is reasonably appropriate to the treatment given, having regard to the reasonable necessity for the treatment.(2) The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.(2A) An order under subsection (2) may provide for the maximum amount fixed in respect of any particular medical or related treatment to vary by reference to different factors of a specified kind (for example, a higher maximum amount could be fixed for a treatment when provided by a provider accredited by the Authority).(3) The maximum amount for which an employer is liable for medical or related treatment given to a worker in respect of the same injury (whether the treatment is given at different stages of the injury or not) is:(a) $50,000, or(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.(4) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (3).(4A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of medical or related treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.(5) The amount for which an employer is liable for the care of a worker as referred to in paragraph (f) of the definition of medical or related treatment in section 59 is (subject to any maximum amount under this section) the reasonable cost of providing that care having regard to the extent to which care might be expected to be provided by the worker’s spouse or other person residing with the worker.(6) The amount for which an employer is liable for the modification of a worker’s home or vehicle as referred to in paragraph (g) of the definition of medical or related treatment in section 59 is the reasonable cost of carrying out those modifications.(7) Except as otherwise provided by the regulations, the maximum amount under subsection (3) does not apply to any liability of an employer referred to in subsection (6).(8) Any amount for which an employer is liable under this Division in respect of medical or related treatment may be recovered from the employer by the person who gave the treatment.(9) If the maximum amount referred to in subsection (3) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the medical or related treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.Editorial note. For Orders under this section and section 62, see the Historical notes at the end of this Act.
62 Rates applicable for hospital treatment
(cf former s 10 (2A), (3))
(1) The amount for which an employer is liable in respect of hospital treatment of a worker at a hospital is the cost to the hospital of the hospital treatment, calculated as determined by the Authority by order published in the Gazette.(2)–(4) (Repealed)(5) The maximum amount for which an employer is liable for hospital treatment given to a worker in respect of the same injury (whether the treatment is afforded at different stages of the injury or not) is:(a) $50,000, or(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.(6) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (5).(6A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.(7) A hospital, or a duly authorised officer of the hospital, may recover from the employer any amount for which the employer is liable under this Division in respect of hospital treatment given by that hospital.(8) A determination under subsection (1) shall not be made without the concurrence of the Minister for Health.(9) If the maximum amount referred to in subsection (5) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the hospital treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.Editorial note. For Orders under this section and section 61, see the Historical notes at the end of this Act.
63 Rates applicable for ambulance service
(cf former s 10 (5))
(1) The maximum amount for which an employer is liable for any ambulance service provided to a worker is:(a) $10,000, or(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.(2) An amount additional to that fixed by subsection (1) may be allowed on account of the distance travelled in any particular case.(2A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of ambulance services for the worker, such an allowance may be awarded by the Commission. If no such proceedings are before the Commission, such an allowance may be awarded by the Authority on application made in respect of the worker from time to time.(2B) If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of ambulance services provided to a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.(3) Any amount for which an employer is liable under this Division in respect of any ambulance service may be recovered from the employer by the person providing the ambulance service.
63A Rates applicable for workplace rehabilitation services
(1) The amount for which an employer is liable for any workplace rehabilitation service provided to or for the benefit of a worker is such amount as is reasonably appropriate to the service provided, having regard to the reasonable necessity for the service and any guidelines determined by the Authority by order published in the Gazette.(2) The maximum amount for which an employer is liable for any particular workplace rehabilitation service is such sum (if any) as may be fixed by the Authority in respect of that service by order published in the Gazette.(2A) An order under subsection (2) may provide for the maximum amount fixed in respect of any particular service to vary by reference to different factors of a specified kind (for example, a higher maximum amount could be fixed for a service when provided by a provider approved or accredited by the Authority).(3), (4) (Repealed)(5) The regulations may exempt an employer from liability under this Division for workplace rehabilitation services unless the services are approved in the manner, or provided in the circumstances, specified in the regulations.(6) Any amount for which an employer is liable under this Division in respect of workplace rehabilitation services may be recovered from the employer by the person who provided the service.
64 Rates applicable for car travel associated with treatment
(cf former s 10 (1B))
If the cost referred to in section 60 (2) (a) or the amount referred to in section 60 (2) (b) includes the cost of, or an amount for, travel by private motor vehicle, that cost or amount shall be calculated at:(a) the rate of 28 cents per kilometre, or(b) where some other rate has been fixed by the Authority by order published in the Gazette—that other rate.Editorial note. For Orders under this section, see the Historical notes at the end of this Act.
64A Compensation for cost of interpreter services
(1) If it is reasonably necessary for a worker to obtain the assistance of an interpreter in connection with a claim for compensation under this Act, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the reasonable costs of any such assistance.(2) The Authority may by order published in the Gazette:(a) establish guidelines for determining the amount payable under this section, and(b) fix the maximum amount payable under this section.(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.(4) The Authority may pay any such costs (whether or not liability to pay those costs has been determined) and recover the amount from any employer liable to pay them.(5) This section applies only to the costs of assistance provided in respect of a claim made after the commencement of this section.
Division 4 Compensation for non-economic loss
65 Determination of degree of permanent impairment
(1) For the purposes of this Division, 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.(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.(4) (Repealed)
65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.(3) No compensation is payable under this Division 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%.Note. If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.Note. If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.(5) In this section:primary psychological injury means a psychological injury that is not a secondary psychological injury.
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.
66 Entitlement to compensation for permanent impairment
(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.(2) The amount of permanent impairment compensation is to be calculated as follows:(a) (Repealed)(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 $220,000,where D is the number derived by expressing the degree of permanent impairment as D%.(2A) To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.Example 1. A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $17,050 ($13,750 + [2 × $1,650]). If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $17,050. Under this subsection, that $17,050 will be increased by 5%, yielding $17,902.50.Example 2. A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $123,750 ($85,250 + (10 × $3,850)). If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $123,750, or $82,500. Under this subsection, that $82,500 will be increased by 5%, yielding $86,625. The total compensation payable for the impairment will therefore be $127,875.(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.
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66A Agreements for compensation
(1) In this section, complying agreement means a written agreement:(a) under which a worker who has received an injury, and an employer or insurer, agree as to the degree of permanent impairment that has resulted from the injury, and(b) in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice, or has waived the right to obtain independent legal advice, before entering into the agreement.(2) If a worker enters into a complying agreement in relation to an injury, the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed.(3) The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:(a) the agreed degree of permanent impairment is manifestly too low, or(b) the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or(c) since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.(4) Complying agreements, and the payments made under them, are to be recorded in accordance with the WorkCover Guidelines.(5) Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.(6) Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.
66B No proceedings to enter up award on agreement for compensation
(1) When a worker agrees to receive an amount of permanent impairment compensation, the Commission is not to entertain proceedings for entry of an award to give effect to the agreement unless the proceedings also relate to some dispute in connection with the worker’s claim for compensation under this Act.(2) The regulations may prescribe exceptions to this section.(3) The regulations may make provision for or with respect to:(a) requiring an application referring a matter to the Commission to be accompanied by evidence (in the form of a certificate or other information provided for by the regulations) that the proceedings are not prevented by this section from being entertained by the Commission, and(b) preventing the acceptance for lodgment of an application not accompanied by any evidence required by the regulations to accompany it.
67A Special provisions for HIV/AIDS
(1) (Repealed)(1A) For the purposes of the determination of the amount of permanent impairment compensation payable, HIV infection and AIDS are each considered to result in a degree of permanent impairment of 100%.(2) Section 68 does not apply to a loss that is HIV infection or AIDS.(3) The regulations may make provision for methods for determining for the purposes of this Act whether a person is HIV infected or is suffering from AIDS. Regulations need not be made under this subsection and in the absence of regulations the determination of whether a person is HIV infected or suffering from AIDS is to be on the basis of medical opinion.(4) Permanent impairment compensation is not payable in respect of permanent impairment that is HIV infection or AIDS if the impairment resulted from voluntary sexual activity or illicit drug use. This subsection does not limit the operation of section 14 (Conduct of worker etc).(5) In this section HIV infection means infection by the Human Immunodeficiency Virus, and AIDS means Acquired Immune Deficiency Syndrome.
68B Deductions for previous injuries and pre-existing conditions—operation of sections 15, 16, 17 and 22
(1) When determining the compensation payable in respect of permanent impairment for the purposes of the apportionment of liability under section 22, there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to an injury in respect of which liability is to be apportioned (but without affecting any deduction under that section for any proportion of the impairment that is due to any other injury or that is due to any pre-existing condition or abnormality).(2) When determining the compensation payable by an employer in a case in which section 15 applies (disease of such a nature as to be contracted by a gradual process), section 323 of the 1998 Act applies to that compensation subject to the following:(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the permanent impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,(b) for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 15 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),(c) in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.(3) When determining the compensation payable by an employer in a case in which section 16 applies (an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease), section 323 of the 1998 Act applies to that compensation subject to the following:(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,(b) for the purposes of paragraph (a), previous relevant employment is employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration by a previous employer who is liable under section 16 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),(c) in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.(4) When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following:(a) there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,(b) for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).
73 Reimbursement for costs of medical certificate and examination
(1) The obtaining of a permanent impairment medical certificate and any examination required for the certificate are taken to be a medical or related treatment for the purposes of Division 3 if:(a) the medical practitioner has completed such training as the Authority may require in respect of the assessment of the degree of permanent impairment as provided by this Act, and(b) the worker has given the employer a copy of the certificate.(2) In this section:permanent impairment medical certificate means a report or certificate of a medical practitioner that certifies:
(a) that a worker has received an injury resulting in permanent impairment, and(b) the degree of permanent impairment (assessed as provided by this Act) resulting from the injury.(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.
Division 5 Compensation for property damage
74 Damage to artificial limbs etc
(cf former s 10A (1), (2), (3))
(1) A worker:(a) who has met with an accident arising out of or in the course of the worker’s employment, and(b) whose crutches, artificial members, eyes or teeth, other artificial aids, or spectacles, are damaged as a result of the accident,is entitled to receive, by way of compensation from the worker’s employer, the reasonable cost of repairing or, if necessary, replacing the articles so damaged.(2) Nothing in this section:(a) affects the liability of an employer under Division 3, or(b) entitles a worker to payments under this section as well as under Division 3 in respect of the same damage.(3) For the purposes of this section, the cost of repairing or replacing any article includes:(a) any fees and charges paid by the worker to medical practitioners, dentists or other qualified persons for such services by way of consultations, examinations or prescriptions as are reasonably rendered in connection with the repairing or replacing of the article, and(b) the amount of any wages lost by the worker by reason of the worker’s attendance at any place for the purpose of having, undergoing or obtaining any such consultation, examination or prescription.
(cf former s 10B (1))
A worker:(a) who has met with an accident arising out of or in the course of the worker’s employment, and(b) whose clothing has, as a result of the accident, been damaged,is entitled to receive, by way of compensation from the worker’s employer, the reasonable cost of repairing or, if necessary, replacing the articles of clothing so damaged.
76 Maximum rate for damage to artificial limbs, spectacles
(cf former s 10A (1))
(1) The maximum amount for which an employer is liable under section 74 in respect of damage resulting from an accident is:(a) $2,000, or(b) where some greater amount has been prescribed by the regulations—that greater amount.(2) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that prescribed by subsection (1).(3) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, damage to an item referred to in section 74 (1) (b), such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.(4) If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or a regulation, the amount for which an employer is liable under section 74 in respect of damage resulting from an accident to a worker is to be calculated by reference to the maximum amount applicable to the worker at the time of the accident.
77 Maximum rate for damage to clothing
(cf former s 10B (1))
(1) The maximum amount for which an employer is liable under section 75 in respect of damage resulting from an accident is:(a) $600, or(b) where some greater amount has been prescribed by the regulations—that greater amount.(2) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that prescribed by subsection (1).(3) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, damage to the worker’s clothing, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.(4) If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or a regulation, the amount for which an employer is liable under section 75 in respect of damage resulting from an accident to a worker is to be calculated by reference to the maximum amount applicable to the worker at the time of the accident.
(cf former ss 10A (1A), (1B), 10B (2), (3))
(1) If it is proved that any damage for which compensation would otherwise be payable to a worker under this Division is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that damage.(2) Compensation is not payable under this Division in respect of any damage caused intentionally by the worker concerned.(3) The provisions of Part 5 (Common law remedies) apply to damage to which this Division applies in the same way as they apply to injuries.(4) For the purposes of this Division, an accident arises out of or in the course of employment if:(a) the accident occurred on a journey to which section 10 applies, and(b) the worker received an injury in that accident for which compensation is, because of that section, payable or, if the worker had been injured in that accident, compensation would have been so payable.
Division 6 Indexation of certain amounts
(cf former s 9A (1))
In this Division:adjustable amount means:
(a) each of the amounts specified in sections 25, 34, 37 and 40, or clause 2 of Part 19H of Schedule 6, without regard to any adjustment under this Division, and(b) such of the amounts specified in section 66 or 67 as may be declared by the regulations to be an adjustable amount for the purposes of this Division, without regard to any adjustment under this Division, and(c) the amount of $7,500 specified in section 297 (2) of the 1998 Act.adjustment date means 1 April or 1 October in each year.
base index number means:
(a) in respect of an adjustable amount that is the amount specified in section 25 (1) (a)—the number 212.1, and(a1) in respect of an adjustable amount that is the amount specified in section 34 or clause 2 of Part 19H of Schedule 6—the number 240.5, and(b) in respect of any adjustable amount that is an amount specified in section 66 or 67—the number declared by the regulations to be the base index number for that adjustable amount, and(b1) in respect of an adjustable amount that is an amount specified in section 8 (2B) (b) (i) of the Workers’ Compensation (Dust Diseases) Act 1942—the latest index number in relation to the adjustment date of 1 October 2012, and(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(d) in respect of any other adjustable amount—the number 130.8.latest index number, in relation to an adjustment date, means:
(a) where:(i) the adjustment date is 1 April in any year—the index number, relating to adult males in New South Wales, for the preceding month of December, or(ii) the adjustment date is 1 October in any year—the index number, relating to adult males in New South Wales, for the preceding month of June,shown in the first preliminary table in the award rates of pay indexes, Australia, being the table entitled “Wage and salary earners: indexes of weekly award rates of pay States and Territories”, published by the Australian Statistician, or(b) where there is, under paragraph (a), no latest index number in relation to an adjustment date—such number as may be prescribed by the regulations in respect of that date.
80 Adjustment of amounts of benefits according to award rate of pay index
(cf former s 9A (2), (4))
(1) On and from each adjustment date and until immediately before the next following adjustment date, a reference in this Act to an adjustable amount shall be construed as a reference to an amount calculated as follows:
(2) The amount so calculated is (if for any reason it would be less than the amount calculated in respect of the previous adjustment date) to be the same as the amount calculated in respect of the previous adjustment date.
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(cf former s 9A (2A), (3))
(1) If a reference to an adjustable amount (being an amount specified in section 25 (1) (a), 66 or 67) as construed in accordance with section 80 would, but for this section:(a) be expressed as including an amount in cents—that amount in cents shall be disregarded, or(b) be expressed as including a whole number of dollars that is not divisible by 50 without remainder—that number of dollars shall be reckoned as the next higher whole number of dollars that is divisible by 50 without remainder.(2) If a reference to any other adjustable amount as construed in accordance with section 80 would, but for this section, be expressed as including an amount in cents that is not a whole number of cents divisible by 10 without remainder, that amount:(a) shall be disregarded if it is less than 5 cents,(b) shall, if it is a whole number of cents divisible by 5 without remainder, be reckoned as the next higher whole number of cents that is divisible by 10 without remainder, or(c) shall, if it is not referred to in paragraph (a) or (b), be reckoned as the nearest whole number of cents that is divisible by 10 without remainder.
82 Publication of adjusted amounts
(cf former s 9A (4))
(1) On or before each adjustment date, the Authority shall, by notice published in the Gazette, declare the amount at which each adjustable amount is to be construed in accordance with this Division on and from that adjustment date until immediately before the next following adjustment date.(2) However, an adjustment under section 80 is not affected by any failure (including a failure that occurred before the commencement of this subsection) to publish the notice referred to in subsection (1).Editorial note. For declarations under this section see the Historical notes at the end of this Act.
Division 6A Indexation of weekly payments
82A Indexation—weekly payments
(1) The amount of a weekly payment to a worker under Division 2 in respect of an injury is to be varied on each review date after the day on which the worker became entitled to weekly payments in respect of that injury, by varying the amount of the worker’s pre-injury average weekly earnings for the purposes of the calculation of the amount of the weekly payment in accordance with the formula:where:
A is the amount of the worker’s pre-injury average weekly earnings within the meaning of Division 2 or, if that amount has been varied in accordance with this section, that amount as last so varied.
B is:
(a) the CPI for the December quarter immediately prior to the review date when the review date is 1 April, or(b) the CPI for the June quarter immediately prior to the review date when the review date is 1 October.C is:
(a) the CPI for the June quarter immediately prior to the review date when the review date is 1 April, or(b) the CPI for the December quarter immediately prior to the review date when the review date is 1 October.(2) In this section:CPI means the consumer price index (All Groups Index) for Sydney issued by the Australian Statistician.
review date means 1 April and 1 October in each year.
(3) A variation of an amount of a worker’s pre-injury average weekly earnings under this section does not take effect to the extent (if any) to which it increases that amount to more than 100% of the worker’s ordinary earnings (calculated in accordance with Division 2) expressed as a weekly sum to which the worker would be entitled if he or she were employed in the same position or positions (if it or they can be identified) as he or she was employed in immediately before the injury, being the position or positions on the basis of which the calculation of the worker’s pre-injury average weekly earnings was made.(4) The Minister is, on or before each review date, to notify, by order published on the NSW legislation website, the number that equates to the factorfor the purposes of the variation required for that review date under this section.
(5) A notification published on the NSW legislation website after a review date for the purposes of the variation required for that review date under this section has effect as if published before that review date.
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82B Indexation of certain amounts—according to average weekly earnings
(1) The amount A is to be varied, in respect of the financial year beginning on 1 July 2012 and each subsequent financial year, in accordance with the formula:
where:A is the amount of $155 specified in sections 38, 40 and 41 or, if that amount has been varied in accordance with this section, that amount as last so varied.
B is the latest average weekly earnings as at 30 May in the preceding financial year of all employees for NSW published by the Australian Statistician in respect of the December quarter of that financial year or, if that is not available, the latest available quarter.
C is the average weekly earnings of all employees for NSW as at 30 May in the year preceding the preceding financial year published by the Australian Statistician in respect of the quarter preceding that 30 May corresponding to the quarter referred to above.
(2) The Minister is to notify, by order published on the NSW legislation website before the start of each financial year, the amount that is to apply for that financial year as the amount specified in sections 38, 40 and 41 as varied in accordance with this section.(3) A notification published on the NSW legislation website after the start of a financial year and specifying an amount that is to apply as the amount specified in sections 38, 40 and 41 for that financial year is to apply and has effect for that financial year.
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If the variation of an amount specified in section 82A or 82B by operation of that section has the effect of reducing the amount:(a) the variation is deemed not to have taken effect, except for the purposes of the application of this section, and(b) when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year, that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase.
Where it is necessary for the purposes of this Division to calculate an amount that consists of or includes a fraction of a whole number, the amount is deemed to have been calculated in accordance with this section if the calculation is made:(a) if the amount is less than $1,000, to the nearest whole $1, or(b) if the amount is $1,000 or more, to the nearest whole $10.
Division 7 Payment of benefits
83 Manner of payment of compensation
(cf former ss 17, 56 (1))
(1) Compensation payable under this Act to a worker shall be paid:(a) in cash,(b) by cheque, or(c) by means of direct credit to an account maintained with a financial institution by the worker (either alone or jointly or in common with another person).(2) Payment in cash shall be made by delivery to the worker at the employer’s usual place of payment of wages or at any other place agreed on between the employer and the worker.(3) Payment by cheque shall be made:(a) by delivery to the worker at any such place, or(b) by means of a letter containing the cheque sent by post to the worker’s address.(4) A payment of compensation by post shall be deemed to have been made when the letter is posted, but the liability to make the payment is not satisfied until the worker receives the payment.(5) Payment made by means of direct credit to an account shall be made only if the worker agrees to payment being made in that manner.(6) The Commission may authorise the payment of compensation in a particular case in such other manner as the Commission thinks fit.(7) This section does not apply to compensation paid to the Authority or the NSW Trustee under this Act.(8) In this section:account includes a deposit account and a withdrawable share account.
financial institution means:
(a) a bank,(b) a building society, or(c) a credit union.worker includes any person to whom compensation is payable under this Act.
84 Times for payment of weekly compensation
(1) A weekly payment of compensation is payable:(a) at the employer’s usual times of payment of wages to the worker,(b) at fortnightly or other shorter intervals, or(c) at such other intervals as are agreed on between the employer and the worker.(2) In this section:weekly payment of compensation includes compensation payable under section 25 (1) (b) in respect of a dependent child of a deceased worker.
85 Payments to NSW Trustee for benefit of beneficiary
(cf former ss 15 (3), 57, 58, 61)
(1) The following compensation shall be paid to the NSW Trustee in trust for the benefit of the persons entitled to the compensation:(a) compensation payable in respect of the death of a worker (unless paid to a worker’s legal personal representative or a particular person in accordance with this Act or an award),(b) compensation payable to a person who is mentally ill (unless the Commission otherwise orders),(c) compensation payable to a worker under the age of 18 years if the worker agrees or the Commission directs that the compensation be paid to the NSW Trustee,(d) a lump sum commutation payment which the worker agrees or the Commission orders to be paid to the NSW Trustee.(2) Any money so paid to the NSW Trustee may be invested, applied, paid out or otherwise dealt with by the NSW Trustee in such manner as the NSW Trustee thinks fit for the benefit of the persons entitled to the money.(3) If a widow or widower (over 18 years of age and not mentally ill) is the only person entitled to compensation paid to the NSW Trustee in respect of the death of a worker, the compensation shall be paid out to the widow or widower in one or more lump sums determined by the NSW Trustee.(4) A reference in subsection (3) to the widow or widower of a deceased worker includes a reference to a dependant of the worker who is the de facto partner of the worker.(5) In the case of a lump sum commutation payment, the NSW Trustee shall exercise its powers under this section in accordance with the agreement or order under which it was paid to the NSW Trustee.(6) The Commission may, for any sufficient cause, vary the manner in which the NSW Trustee invests, applies, pays out or otherwise deals with money under this section.(7) The NSW Trustee may apply for any such variation.(8) The receipt of the NSW Trustee is sufficient discharge in respect of any money paid to the NSW Trustee under this section.
85A Payment of benefits to beneficiaries
(1) Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1):(a) to the person who is entitled to the compensation, or(b) to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.(2) Any such payment is to be made in the manner authorised by the Commission.
86 NSW Trustee’s powers of investment
(1) All amounts held by the NSW Trustee under this Act are to form part of a common fund established under the NSW Trustee and Guardian Act 2009 and are available for investment as provided by that Act.(2) A power conferred by this Division on the NSW Trustee to invest money for the benefit of a person includes a power to invest the money in any manner that the NSW Trustee is authorised under the NSW Trustee and Guardian Act 2009 to invest money held in trust by the NSW Trustee.
(cf former s 62B)
(1) If:(a) any money paid at any time to the NSW Trustee has been invested by the NSW Trustee for the benefit of a person entitled to the money under this Act or the former Act, and(b) the whereabouts of the beneficiary has not been known to the NSW Trustee during any succeeding period of 10 years,the NSW Trustee may pay the money, together with accrued income from the investment of the money, to the credit of the WorkCover Authority Fund.(2) Money so credited to the WorkCover Authority Fund, together with accrued interest, shall:(a) be paid out on the application of any person who would have been entitled to have it paid out if it had not been credited to that Fund, and(b) at the request of the person for whose benefit it was invested before being credited to that Fund, or the legal personal representative of that person—again be so invested.
Division 8 Reduction of benefits where additional or alternative compensation payable
87A Additional or alternative compensation to which Division applies
(1) This Division applies to additional or alternative compensation prescribed by the regulations.(2) The regulations may prescribe any of the following as additional or alternative compensation:(a) payments to workers or their dependants in respect of injuries or deaths under any specified or class of contract of employment, industrial agreement, award or other arrangement (including payments as a supplement or an alternative to the periodic or lump sum payments of compensation under this Act),(b) damages for breaches of section 52, 53B or 55A of the Trade Practices Act 1974 of the Commonwealth,(c) any other payments in respect of injuries or deaths for which compensation is payable under this Act.(3) The regulations may prescribe additional or alternative compensation even though the arrangements under which it is paid were made before the commencement of this Division.(4) For the purposes of this Division, compensation is paid to a worker or other person if it is paid for the benefit or at the direction of the worker or other person.
87B Reduction of compensation under this Act
(1) If a person who is entitled to compensation under this Act has been paid additional or alternative compensation to which this Division applies, the amount of compensation payable under this Act is to be reduced by the amount of the additional or alternative compensation.(2) If any such additional or alternative compensation is paid after compensation has been paid under this Act, the relevant amount of compensation paid under this Act is to be refunded.(3) Any such refund may be deducted from any future payments of compensation under this Act or be recovered as a debt in a court of competent jurisdiction.(4) A reduction, refund or deduction under this section is to be made in accordance with the regulations and is not to be made in any case excluded by the regulations.(5) This section applies even though the compensation under this Act is payable under an award of the Commission.
87C Employer etc to notify claim or payment of additional or alternative compensation
(1) An employer (not being a self-insurer) or top-up insurer on whom a claim is made for additional or alternative compensation to which this Division applies (or who pays any such compensation) must, within 7 days after receipt of the claim or making the payment, notify the relevant workers compensation insurer of the details of the claim or payment.(2) For the purposes of this section:(a) the relevant workers compensation insurer is the insurer who the employer believes is liable to indemnify the employer in respect of a claim under this Act for compensation for the injury to the worker concerned, and(b) a top-up insurer is a person who indemnifies an employer against liability for additional or alternative compensation.(3) A person who contravenes this section is guilty of an offence.Maximum penalty: 20 penalty units.
Division 9 Commutation of compensation
In this Division:commutation agreement means an agreement to commute a liability to a lump sum, as provided by section 87F.
87E Compensation that may be commuted
(1) A liability in respect of any of the following kinds of compensation under this Act or the former Act may be commuted to a lump sum as provided by this Division (and not otherwise):(a) weekly payments of compensation,(b) 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.(2) Such a liability cannot be commuted to a lump sum by an order or award of the Commission (but this subsection does not affect the operation of section 87G).
87EA Preconditions 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 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 terminated under section 48A of the 1998 Act.(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.
(1) A liability may be commuted to a lump sum with the agreement of the worker.(2) A commutation agreement must not be entered into unless (before the agreement is entered into):(a) a legal practitioner instructed independently of the insurer and the employer has certified in writing that the legal practitioner has advised the worker:(i) on the full legal implications of the agreement, including implications with respect to any entitlement of the worker to compensation under this Act or to benefits under any other law (including a law of the Commonwealth), and(ii) on the desirability of the worker obtaining independent financial advice, before the worker enters into the agreement, as to the financial consequences of the agreement, and(b) the worker has confirmed in writing that the worker has been given and understands the advice referred to in paragraph (a).(3) A commutation agreement (including an agreement purporting to be a commutation agreement) is not subject to review or challenge in proceedings before the Commission or a court.(4) The worker has 14 days after entering into a commutation agreement in which to withdraw from the agreement by giving notice in writing to the insurer. Withdrawal from the agreement by the worker makes the agreement a nullity.(5) A liability cannot be commuted under this section if the worker is legally incapacitated because of the worker’s age or mental capacity.Note. Section 87G provides for the commutation of a liability when the worker is legally incapacitated.(6) A commutation agreement is of no effect unless and until it is registered as provided by this Part. Registration of the agreement removes the liability to which the agreement relates.(7) The amount payable under an agreement is payable within 7 days after the agreement is registered or within such longer period as the agreement may provide. Interest calculated at the rate prescribed by the regulations is payable on any amount due and unpaid. The amount payable under a commutation agreement and any interest payable on that amount is recoverable as a debt in a court of competent jurisdiction.(8) As part of a commutation agreement, a worker may agree that payment of a lump sum removes any liability to make a payment under Division 4 of Part 3 (or section 16 of the former Act) in respect of the injury concerned. This Division applies to the agreement for payment of that lump sum as if it were an agreement to commute the liability to pay that compensation to a lump sum. Payment of the lump sum removes any liability to which the agreement of the worker relates.
87G Commutation when worker legally incapacitated
(1) If a worker is legally incapacitated because of the worker’s age or mental capacity, a liability in respect of compensation may be commuted to a lump sum by determination by the Commission made having regard to:(a) any dispute as to liability to pay compensation under this Act, and(b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury, and(c) the worker’s diminished ability to compete in an open labour market, and(d) other benefits that the worker may be entitled to from any other source.(2) The Commission is not to determine a lump sum for the purposes of this section unless satisfied that the termination of liability concerned is in the best interests of the worker.(3) Payment of the lump sum to which a liability has been commuted under this section removes the liability.(4) A determination under this section may include a determination as to the payment of a lump sum to remove any liability to make a payment under Division 4 of Part 3 in respect of the injury concerned. Payment of that lump sum removes any liability to which the determination relates.
87H Registration of commutation agreements
(1) A party to a commutation agreement may apply to the Registrar for registration of the agreement by the Registrar.Note. Section 87F (6) provides that a commutation agreement is of no effect unless and until it is registered.(2) The Registrar must refuse to register a commutation agreement unless satisfied that the requirements of section 87F (2) have been complied with in respect of the agreement.(3) Before registering a commutation agreement, the Registrar may (on the application of a party to the agreement or of the Registrar’s own motion) refer the agreement for review by the Commission. The Registrar is not to register the agreement if the Commission recommends that the agreement not be registered.(4) The Commission reviewing a commutation agreement may recommend to the Registrar that the agreement not be registered if the Commission considers that the agreement is inaccurate or that the lump sum to which a liability has been commuted by the agreement is inadequate.(5) In reviewing a commutation agreement, the Commission may have regard to the following matters:(a) any dispute as to liability to pay compensation under the Workers Compensation Acts,(b) the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury,(c) the worker’s diminished ability to compete in an open labour market,(d) other benefits that the worker may be entitled to from any other source.(6) The registration of a commutation agreement may not be cancelled except within such period after the agreement is registered, and in such manner, as may be authorised by the regulations.(7) This section has effect despite section 234 of the 1998 Act (No contracting out).(8) This section does not prevent a commutation agreement containing provision as to the payment of costs.
(1) If a liability in respect of compensation is only partially commuted under this Division, the balance of the compensation continues to be payable under and subject to this Act.(2) (Repealed)(3) The annual report of the Authority is to include a statement as to trends in the commutation of liabilities under this Act.
87J Other commutation agreements invalid
(1) Neither agreement as to the commutation of a payment to a lump sum nor payment of the sum payable under the agreement exempts the person by whom the payment is payable from any liability under this Act, except as provided by this Division.(2) This section does not affect the operation of section 51 in respect of a liability commuted under that section before the commencement of this section.(3) This section does not affect the operation of section 66A.
87K Commutation payment taken to be payment of compensation
Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this Division or section 51, or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act), is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.