Chapter 3 Workplace injury management
41 Object and application of Chapter
(1) The object of this Chapter is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries.(2) The various provisions of this Chapter apply only in respect of injuries that happen after the commencement of the provision concerned.
41A Chapter applies even when liability disputed
The requirements of this Chapter apply even when there is a dispute as to liability.
(1) In this Chapter:injured worker means a worker who has received a workplace injury.
injury management means the process that comprises activities and procedures that are undertaken or established for the purpose of achieving a timely, safe and durable return to work for workers following workplace injuries.
injury management plan means a plan for co-ordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker.
injury management program means a co-ordinated and managed program that integrates all aspects of injury management (including treatment, rehabilitation, retraining, claims management and employment management practices) for the purpose of achieving optimum results in terms of a timely, safe and durable return to work for injured workers.
insurer means a licensed insurer, specialised insurer or self-insurer.
nominated treating doctor means the treating doctor nominated from time to time by a worker for the purposes of an injury management plan for the worker.
significant injury means a workplace injury that is likely to result in the worker being incapacitated for work for a continuous period of more than 7 days, whether or not any of those days are work days and whether or not the incapacity is total or partial or a combination of both.
workplace injury means an injury to a worker in respect of which compensation is or may be payable under this Act.
(2) If 2 or more employers are or may be liable to pay compensation to an injured worker, a reference in this Chapter to the employer is a reference to whichever of those employers last employed the worker and a reference to the insurer is a reference to that employer’s insurer.
42A Injury management pilot projects
Schedule 5A has effect.
(1) The Authority may provide assistance (claims assistance) to injured workers and employers in connection with claims for compensation and work injury damages.(2) In particular the Authority may establish an advisory service to provide claims assistance.(3) The Authority may provide funds to fund the provision of claims assistance by organisations representing employers or employees, including by means of the establishment of an advisory service to provide claims assistance.(4) Funds may only be provided within a period of 1 year after the commencement of this section (the initial period). However, funds may be provided for a period of 2 years following the expiry of the initial period (the additional period) if, before the expiry of the initial period, both Houses of Parliament pass a resolution approving the provision of funds during the additional period.Editorial note. The following resolution was passed by the Legislative Assembly on 31.10.2002 and the Legislative Council on 13.11.2002:That in accordance with section 42B (4) of the Workplace Injury Management and Workers Compensation Act 1998, this House approves funds being provided for an additional period of 2 years to fund the provision of claims assistance by organisations representing employers or employees to help them assist their members understand and comply with the new workers compensation and occupational health and safety legislation.
(5) Before the Authority first provides any funds under this section, the Authority is to:(a) advertise in a newspaper circulating in New South Wales for expressions of interest from organisations to provide claims assistance, and(b) publish in the Gazette the name of each organisation to which the Authority intends to provide funds, the amount of funding to be provided and a description of the claims assistance that the organisation is to provide.(6) Within 1 month after the expiry of the initial period, a statement is to be laid before each House of Parliament setting out:(a) the name of each organisation to which funds have been provided under this section, and(b) the amount paid to each organisation, and(c) a description of the claims assistance provided by the organisation.
(1) An insurer must establish and maintain an injury management program and must revise its injury management program from time to time or when the Authority directs. An insurer must lodge a copy of its injury management program, and any revised injury management program, with the Authority.(2) An insurer must give effect to its injury management program and for that purpose must comply with the obligations imposed on the insurer by or under the program.(3) An insurer must take appropriate steps to ensure that each employer who is insured by the insurer is made aware of the employer’s obligations under this Chapter and made and kept aware of the requirements of the insurer’s injury management program. This subsection does not apply to a self-insurer.(4) Within 3 working days after being notified of a significant injury to a worker, the insurer must initiate action under the insurer’s injury management program and must (in accordance with that program) make contact with the worker, the employer (except when the insurer is a self-insurer) and (if appropriate and reasonably practicable) the worker’s treating doctor. A working day is any day except a Saturday, Sunday or public holiday.(5) An employer must comply with the obligations imposed on the employer by or under the insurer’s injury management program. This subsection does not apply when the employer is a self-insurer.
44 Early notification of workplace injury
(1) An injured worker must notify the employer that the worker has received a workplace injury as soon as possible after the injury happens.(2) The employer of an injured worker must notify the insurer or the Authority within 48 hours after becoming aware that a worker has received a workplace injury in the manner prescribed by the regulations.(3) If an employer has given notice to the insurer in accordance with subsection (2) of a workplace injury to a worker, the insurer must forward that notice to the Authority in accordance with the regulations.(3A) If an employer has given notice to the Authority in accordance with subsection (2) of a workplace injury to a worker:(a) the Authority must as soon as practicable forward that notice to the insurer, and(b) the notice given to the Authority is taken to be notice given to the insurer for the purposes of the employer’s policy of insurance.(4) Subsection (2) do not apply when the insurer is a self-insurer.(5) An insurance premiums order referred to in the definition of prescribed excess amount in section 160 (1) of the 1987 Act may make provision for the prescribed excess amount applicable to an employer under that section to vary according to the time within which the employer notifies the insurer concerned that a worker has received a workplace injury.Note. The obligations imposed by this section are in addition to those imposed by sections 61–69.
45 Injury management plan for worker with significant injury
(1) When it appears that a workplace injury is a significant injury, an insurer who is or may be liable to pay compensation to the injured worker must establish an injury management plan for the injured worker.(2) The injury management plan must be established in consultation with the employer (except when the insurer is a self-insurer), the treating doctor and the worker concerned, to the maximum extent that their co-operation and participation allow.(3) The insurer must provide both the employer and the injured worker with information with respect to the injury management plan.(4) The information that the insurer must provide to the injured worker includes a statement to the effect that the worker may have no entitlement to weekly payments of compensation if the worker fails unreasonably to comply with the requirements of this Chapter after being requested to do so by the insurer.(5) The insurer must keep the employer of a worker who has received a significant injury informed of significant steps taken or proposed to be taken under the injury management plan for the worker. This subsection does not apply when the insurer is a self-insurer.(6) An insurer must as far as possible ensure that vocational retraining provided or arranged for an injured worker under an injury management plan is such as may reasonably be thought likely to lead to a real prospect of employment or an appropriate increase in earnings for the injured worker.(7) An insurer must give effect to an injury management plan established for an injured worker and for that purpose must comply with the obligations imposed on the insurer by or under the plan.
45A Injury management consultants
(1) The Authority may by instrument in writing approve a person as an injury management consultant for the purposes of the Workers Compensation Acts.(2) Such an approval may be for a fixed or indefinite period and may be made subject to conditions.(3) The Authority may by instrument in writing revoke the approval of an injury management consultant for any breach of the conditions of the approval or for such other reason as the Authority thinks appropriate.(4) WorkCover Guidelines may provide for the functions of approved injury management consultants.(5) A person approved as an injury management consultant under this section is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as an approved injury management consultant.(6) An injury management consultant who is aggrieved by a decision of the Authority to revoke the consultant’s approval may apply to the Administrative Decisions Tribunal for a review of the decision.
46 Employer’s injury management plan obligations
(1) The employer must participate and co-operate in the establishment of an injury management plan required to be established for an injured worker.(2) The employer must comply with obligations imposed on the employer by or under an injury management plan for an injured worker.(3) This section does not apply when the employer is a self-insurer.
47 Worker’s injury management plan obligations
(1) An injured worker must participate and co-operate in the establishment of an injury management plan required to be established for the worker.(2) The worker must comply with obligations imposed on the worker by or under an injury management plan for the worker.(3) The worker must, when requested to do so by the insurer, nominate as the worker’s treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan.(4) A medical practice can be nominated as treating doctor for the purposes of subsection (3). Such a nomination operates as a nomination of the members of the practice who treat the worker from time to time and a reference in this Chapter to the nominated treating doctor is a reference to those members of the practice.(5) The worker must authorise the worker’s nominated treating doctor to provide relevant information to the insurer or the employer for the purposes of an injury management plan for the worker.(6) An injury management plan must provide for the procedure for changing the worker’s nominated treating doctor.
48 Injured worker’s obligation to return to work
An injured worker must make all reasonable efforts to return to work with his or her pre-injury employer (that is, the employer liable to pay compensation to the worker) as soon as possible, having regard to the nature of the injury.
49 Employer must provide suitable work
(1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.(2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 43A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.(3) This section does not apply if:(a) it is not reasonably practicable to provide employment in accordance with this section, or(b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or(c) the employer terminated the worker’s employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury.Note. See also Part 7 Chapter 2 of the Industrial Relations Act 1996 for provisions for protection of employment of injured workers.
50 Payment of cost of treatment of injured worker
(1) An injury management plan may provide for the insurer to pay the following costs:(a) the cost of any treatment for the workplace injury provided to the worker by the nominated treating doctor if the nominated treating doctor is prepared to participate in the arrangements under the plan,(b) the cost of other specified treatment provided to the worker for the workplace injury (specified by reference to such factors as the kind of treatment, the identity of the health care professional who provides the treatment, and the circumstances in which the treatment is provided).(2) For the purposes of any such payment, it does not matter that the worker has not made a claim for compensation, the insurer has not accepted liability in respect of the injury or the insurer disputes liability in respect of the injury.(3) If the insurer pays any such costs and another insurer or another employer accepts liability to pay compensation to the worker in respect of the injury concerned, the insurer is entitled to recover those costs (to the extent that compensation is payable under this Act in respect of those costs) as a debt from that other insurer or other employer. Any amount so recoverable is taken to be payable by the other insurer or other employer as compensation to the injured worker.
(cf 1987 s 152)
(1) An employer must establish a return-to-work program with respect to policies and procedures for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer. An employer’s return-to-work program must not be inconsistent with the injury management program of the employer’s insurer and is of no effect to the extent of any such inconsistency.(2) A return-to-work program is to be established in accordance with the regulations and must, subject to the regulations:(a) comply with any guidelines determined by the Authority, and(b) be developed by the employer in consultation with the workers concerned and any industrial union of employees representing those workers, and(c) be in writing and be displayed or notified at places of work.(3) The Authority may, in determining guidelines for the purposes of this section, consult with such persons and bodies as the Authority considers to be appropriate.(4) The regulations:(a) may require a return-to-work program to be approved by the Authority or other person or body, and(b) may exempt specified classes of employers from this section, and(c) may provide for the accreditation of providers of rehabilitation services for the purposes of return-to-work programs and may require employers to use the services of accredited providers in connection with the program, and(d) may create offences with respect to any failure to comply with this section or with a return-to-work program, and(e) may make other provisions that are necessary or convenient for the purposes of giving effect to this section.(5) A group of 2 or more employers may establish a single return-to-work program under this section for each member of the group if the employers are authorised to do so by the regulations.
53 Vocational re-education etc provided by Authority
(cf 1987 s 153)
(1) The Authority may institute, administer or co-ordinate vocational re-education and rehabilitation schemes for injured workers.(2) The Authority may draw from the WorkCover Authority Fund such amounts as may be necessary or desirable for the purposes of the vocational re-education and rehabilitation of injured workers.(3) Without limiting the generality of subsection (2), the Authority may draw from the WorkCover Authority Fund such amounts as the Authority considers appropriate:(a) to provide financial incentives to employers who offer employment to injured workers unable to find suitable employment and who provide (or assist in the provision of) vocational re-education and rehabilitation for those workers, or(b) to provide financial incentives to employers who retain or re-employ their injured workers and who provide (or assist in the provision of) vocational re-education and rehabilitation for those workers, or(c) to provide financial assistance to employers or others who offer injured workers work-trial experience or other voluntary work as part of the workers’ rehabilitation training (being assistance in connection with the cost of any necessary insurance arrangements relating to the workers or for other incidental expenses).(4) The Authority may establish within the WorkCover Authority Fund an account, to be known as the Vocational Re-education and Rehabilitation Account, for the purpose of keeping a separate record of the money in that Fund set aside by the Authority for the purposes of this section and the money paid from that Fund under this section.
(cf 1987 s 153A)
(1) The Authority is to institute and administer under section 53 a scheme (to be called the second-injury scheme) to encourage the employment of injured workers by providing financial incentives to their employers in connection with insurance liabilities arising from further injuries to the workers.(2) The second-injury scheme applies to such injured workers as are approved by the Authority as being suitable for inclusion in the scheme.(3) Any such approval:(a) applies to such employment of the injured worker as is specified in the approval (including employment that is limited to, or excludes, employment with particular employers), and(b) applies for a period of 6 months of any such employment or such other period as is specified in the approval, and(c) applies to all injuries or only to particular injuries, or injuries of a class, specified in the approval, and(d) is subject to any other conditions imposed by the Authority.(4) If the second-injury scheme applies to an injured worker:(a) the employer of the worker is not required under section 152 (Recovery of excess from employer) to repay the relevant part of any weekly compensation claim paid under a policy of insurance for compensation for an injury to the worker to which the scheme applies, and(b) any such claim (or any liability of the employer independently of this Act for that injury) is to be excluded from the claims experience of the employer for the purposes of calculating the premium payable by the employer for a policy of insurance.(5) Subsection (4) is subject to:(a) the regulations, and(b) the terms and conditions of the Authority’s approval for the inclusion of the injured worker in the second-injury scheme, and(c) any other limitation imposed by the Authority when giving that approval.(6) The regulations may make provision for or with respect to the operation of the second-injury scheme.
(1) It is a condition of an insurer’s licence that the insurer must comply with the requirements of this Chapter.(2) If the Authority is satisfied that an insurer has persistently or repeatedly failed to comply with the requirements of this Chapter without reasonable excuse, the Authority can do any of the following:(a) cancel or suspend the insurer’s licence,(b) impose a pecuniary penalty of up to an amount that is equivalent to 100 penalty units,(c) amend the terms or conditions of the insurer’s licence (for example by the inclusion of a condition providing for increased supervision of the insurer by the Authority),(d) issue a letter of censure to the insurer.(3) Before the Authority takes action under this section, the Authority must give the insurer concerned an opportunity to make submissions to the Authority regarding the proposed action. The Authority is to consider any submissions so made.(4) If the Authority then decides to take the proposed action or other action authorised by this section, the Authority is to give the insurer written notice of the action. Any action taken by the Authority under this section takes effect when notice of it is given to the insurer or on such later date as the notice may provide.(5) The Authority may, at any time, terminate or reduce a period of suspension of an insurer’s licence.(6) A pecuniary penalty imposed on an insurer under this section may be recovered by the Authority in a court of competent jurisdiction as a debt due to the Crown.(7) The Authority is to monitor compliance by insurers with the requirements of this Chapter.
55A Compliance by scheme agents
A scheme agent must comply with the requirements of this Chapter.Maximum penalty: 1,000 penalty units.
Note. Section 154M (2) of the 1987 Act provides that certain provisions of this Act (including certain provisions of this Chapter) extend to scheme agents acting on behalf of the Nominal Insurer.
(1) Any increased costs associated with a failure by an employer to comply with a requirement of this Chapter can be taken into account (in conformity with the requirements of this Act with respect to the determination of premiums) in the calculation of a claims experience factor for the employer for use in the determination of the premium payable for an insurance policy by the employer.(2) The regulations may make provision for or with respect to the payment by an employer who fails to comply with a requirement of this Chapter of an amount by way of a premium surcharge.(3) The amount of any such premium surcharge payable under the regulations need not be referable to any increase in costs attributable to or associated with the employer’s failure to comply.(4) The amount of a premium surcharge payable under the regulations is to be added to, and becomes payable as part of, the premium payable by the employer for the issue or renewal of a policy of insurance as provided by the regulations.(5) It is a condition of any policy of insurance issued under the 1987 Act that the employer must comply with the requirements of this Chapter, but only if the insurer has taken appropriate steps to ensure that the employer is made aware of those obligations.
(1) If a worker fails unreasonably to comply with a requirement of this Chapter after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).(2) A worker’s entitlement to weekly payments does not cease under this section until the insurer has given the worker written notice to that effect, together with a statement of the reasons for the entitlement ceasing and the action that the insurer considers the worker must take to be entitled to the resumption of weekly payments.(3) The resumption of weekly payments does not entitle the worker to weekly payments for the period in respect of which the worker had no entitlement to weekly payments.Note. See also provisions for discontinuation of weekly payments in the 1987 Act (ss 52A, 54).
None of the following things done by an insurer or employer constitutes an admission of liability by the employer or insurer under this Act or independently of this Act:(a) anything done under or for the purposes of an injury management program or injury management plan,(b) anything done in connection with the assessment of an injured worker for rehabilitation or for employment or the provision or arrangement of services or other measures for the rehabilitation or suitable employment of injured workers (whether done under a return-to-work program or otherwise).
The regulations:(a) may provide for the way in which an injury management program or injury management plan is to be established by an insurer, and(b) may require an injury management program or injury management plan to be approved by the Authority or by some other person or body, and(c), (d) (Repealed)(e) may create offences with respect to any failure to comply with this Chapter or with any injury management program or injury management plan, and(f) may modify the operation of any provision of this Chapter in its application to self-insurers and may exempt self-insurers or a particular class of self-insurers from the operation of any provision of this Chapter, and(g) may make other provisions that are necessary or convenient for the purposes of giving effect to this Chapter.