Part 2 Compensation—claims and proceedings

Division 1 Notice of injury etc and claims for compensation

60A   Application of Division

(1)  Sections 61–64 apply only in respect of an injury received before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).

(2)  Sections 65 and 66 apply only in respect of the making of a claim before the commencement of this section (as inserted by the Workers Compensation Legislation Amendment Act 2001).

Note. Chapter 7 (New claims procedures) provides for notice of injury and making of claims in all other cases.

61   Notice of injury to be given to employer

(cf former s 88)

(1)  Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.

(2)  Notwithstanding subsection (1), the absence of, or any defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation:

(a)  that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or

(b)  that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or

(c)  that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, or

(d)  where the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop:

(i)  that the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section, or

(ii)  that the injury has been reported by or on behalf of the employer to an inspector of mines or factories, shops and industries, or

(iii)  that the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop, or

(e)  that the injury has been reported by the employer to the Authority in accordance with this Act.

62   Provisions relating to giving of notice of injury

(cf former s 89)

(1)  A notice of injury must state:

(a)  the name and address of the person injured, and

(b)  the cause of the injury (in ordinary language), and

(c)  the date on which the injury happened.

(2)  A notice of injury may be given orally or in writing.

(3)  If there is more than one employer, a notice of injury may be given to any one of those employers.

(4)  A notice of injury is taken to have been given to an employer:

(a)  if it is given to any person designated for the purpose by the employer, or

(b)  if it is given to any person under whose supervision the worker is employed.

(5)  A written notice of injury may be served by delivering it, or by sending it by post to, the residence or any place of business of the person on whom it is to be served.

(6)  If the regulations so require (and notwithstanding anything to the contrary in this section), a notice of injury must be given in the manner, and contain the particulars, prescribed by the regulations.

63   Register of injuries

(cf former s 90)

(1)  There is to be kept at every mine, quarry, factory, workshop, office or shop in some readily accessible place a register of injuries.

(2)  A worker employed at any such mine, quarry, factory, workshop, office or shop, or any person acting on the worker’s behalf, may enter in the register of injuries particulars of any injury received by the worker.

(3)  The regulations may prescribe the form of a register of injuries and the particulars to be entered in the register.

(4)  If particulars of an injury are duly entered in a register of injuries as soon as possible after an injury happened, the entry is sufficient notice of the injury for the purposes of this Act.

(5)  If subsection (1) is contravened, the manager of the mine or quarry, or the occupier of the factory, workshop, office or shop, is guilty of an offence and liable to a penalty not exceeding 50 penalty units.

64   Notice of incapacity, medical etc treatment and damage to property

(cf former s 91)

(1)  Sections 61–63 apply with respect to:

(a)  the giving of notice of incapacity resulting from injury that happens after the worker leaves the employment in which the worker was at the time of the injury, and

(b)  the giving of notice of any medical or related treatment, hospital treatment, occupational rehabilitation service or ambulance service to which Division 3 of Part 3 of the 1987 Act applies, and

(c)  the giving of notice of any damage to property to which Division 5 of Part 3 of the 1987 Act applies,

      in the same way as those sections apply to notice of injury.

(2)  The particulars required to be given in any such notice are (subject to the regulations) reasonable particulars of the incapacity, of the treatment or service or of the damage to property.

65   Making a claim for compensation

(cf former s 92)

(1)  A claim for compensation must be:

(a)  in writing, and

(b)  in such form or contain such information as may be prescribed by the regulations or approved by the Authority, and

(c)  in the case of a claim for weekly payments of compensation—accompanied by a medical certificate that is in or to the effect of the approved form, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in the determination of the claim, and

(d)  accompanied by such additional medical certificates or other documents as may be prescribed by the regulations, and

(e)  made in the manner prescribed by section 66.

(2)  A claim for compensation need not be accompanied by a medical certificate or other document under this section if the medical certificate or document relates to information that is substantially available to the person on whom the claim is made from other appropriate documentation given or served by or on behalf of the claimant.

(3)  To the extent that information has been furnished or material provided in the course of the making of a claim for compensation, it is not necessary to furnish that information or provide that material when making any further claim for compensation in respect of the same injury.

(4)  The medical certificate required to accompany a claim for weekly payments of compensation must (unless the claim is a claim under section 10, 11 or 12 of the 1987 Act) include a statement of the medical practitioner’s opinion (however expressed) concerning the likelihood of the worker’s employment being a substantial contributing factor to the injury or whether the worker’s condition is consistent with his or her employment being such a factor.

(5)  If a claim is deficient because subsection (4) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as possible after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement):

(a)  the claim is not considered to have been duly made for the purposes of section 93 until subsection (4) is complied with, and

(b)  court proceedings cannot be commenced in respect of the claim until subsection (4) is complied with.

(6)  All claims for compensation under sections 66 and 67 of the 1987 Act in respect of an injury must, as far as practicable, be made at the same time. A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of court proceedings) unless there is a good reason for the claim being made later.

(7)  Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months of the date of death.

(8)  If a claim for compensation was made by an injured worker within the period required by subsection (7), that subsection does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.

(9)  For the purposes of subsection (7), a person is considered to have made a claim for compensation when the person makes any claim for compensation under this Act in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.

(10)  If there is no entitlement to compensation under section 66 of the 1987 Act for a loss of hearing because of section 69A of the 1987 Act (No compensation for less than 6% hearing loss) notice of injury given in accordance with section 62 suffices (for the purposes of this section) as a claim for the compensation concerned.

(11)  If a claim for compensation and any medical certificate or other document required to accompany the claim are not given or served at the same time, the claim for compensation is taken not to have been made until the day on which the last of those documents is given or served. In that case, all of those documents are taken to have accompanied the claim.

(12)  The failure to make a claim in accordance with subsection (1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause.

(13)  The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:

(a)  the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or

(b)  the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

(14)  The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if the insurer or self-insurer concerned determines to accept the claim outside that period. An insurer or self-insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.

(15)  If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of subsections (7) and (13) taken to have been received when the worker first became so aware. If death results from an injury and a person who is entitled to claim compensation under this Act in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of subsections (7) and (13) to a claim by that person, taken to be the date that the person became so aware.

(16)  In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries) a claim for the compensation is for the purposes of this section taken to have been made when a claim is made on any one of those persons.

(17)  When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of subsections (7) and (13) as the making of a claim for compensation in respect of the injury.

(18)  In this section, approved form, in relation to a medical certificate, means a form in or to the effect of:

(a)  a form approved by the Authority for the purposes of this section or any form previously approved by the Authority for the purposes of this section, or

(b)  any form previously prescribed by the regulations for the purposes of this section.

(19)  The regulations may provide that, despite subsection (18), the approved form of a medical certificate must be in or to the effect of a particular form only in the case of any specified class of claims for compensation.

(20)  The claim form prescribed by the regulations or approved by the Authority for the purposes of this section can include a form of authority to be signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation service to the claimant in connection with the injury to which the claim relates to give the insurer or self-insurer concerned or a conciliator information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.

66   Manner of making claim for compensation

(cf former 92A)

(1)  The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed.

(2)  A claim for compensation may be made by serving the claim on an insurer who has indemnified the employer in respect of the claim if:

(a)  the person making the claim has reason to believe that the employer may not forward the claim to the insurer in accordance with section 69 (1) (a), or

(b)  the employer has refused to receive the claim, or

(c)  the person making the claim cannot identify or find the employer, or

(d)  the employer (being a natural person) is dead, or

(e)  the employer (being a corporation) has been wound up.

(2A)  Once a claim for compensation (the initial claim) in respect of injury or death has been duly made by a person in accordance with subsection (1) or (2), any further claim by the person for compensation in respect of the injury or death may be made by serving it on either the employer from whom compensation is claimed or the insurer who has indemnified the employer.

(2B)  In subsection (2A), further claim includes:

(a)  any claim by the person for compensation of a different kind from that claimed in respect of the injury or death by the initial claim, or

(b)  any claim that is supplementary to or associated with the initial claim.

(2C)  An insurer must notify the employer concerned when a further claim is made by serving it on the insurer if the claim:

(a)  is for compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act, or

(b)  is a claim of a kind that is prescribed by the regulations for the purposes of this section.

(2D)  The regulations may provide that in a specified class or classes of case a further claim must, despite subsection (2A), be served on the employer from whom the compensation is claimed.

(3)  For the purposes of this section, a claim for compensation is served on a person if:

(a)  it is given personally to the person, or

(b)  it is delivered or sent by post to the residence or any place of business of the person, or

(c)  it is served in any other manner authorised by sections 109X and 601CX of the Corporations Act 2001 of the Commonwealth.

67, 68   (Repealed)

69   Action by employer in respect of claims

(cf former s 93)

(1)  An employer (not being a self-insurer):

(a)  who receives a claim for compensation or any other documentation in respect of such a claim—must, within 7 days after receipt of the claim or documentation, forward it to the insurer who the employer believes is liable to indemnify the employer in respect of the claim, or

(b)  who receives a request from that insurer for further specified information in respect of the claim or documentation—must, within 7 days after receipt of the request, furnish that insurer with such of the specified information as is in the employer’s possession or reasonably obtainable by the employer, or

(c)  who has received compensation money under this Act from an insurer—must, as soon as practicable, pay the money to the person entitled to the compensation.

Maximum penalty: 50 penalty units.

(2)  A person is not guilty of an offence for a failure to comply with any provision of subsection (1) if there was a reasonable excuse for that failure.

Division 2 Administration by insurers of claims for compensation or damages

70   Definitions

(cf former s 93A)

In this Division:

claim means a claim for compensation under this Act or any claim for damages to which a policy of insurance applies, whether the claim was made before or after the commencement of this Division.

claimant means a person who makes or is entitled to make a claim.

insurer means a licensed insurer, a former licensed insurer or a self-insurer.

71   Duty of claimant to co-operate

(cf former s 93C)

(1)  A claimant must co-operate fully in respect of the claim with the insurer liable under the claim.

(2)  In particular, the claimant must comply with any reasonable request by the insurer to furnish specified information (in addition to the information furnished in the claim form).

(3)  The duty under this section applies only until proceedings before the Commission are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, proceedings before the Commission cannot be commenced in respect of the claim while the failure continues.

72   Inspection of relevant claims information

(cf former s 93D)

(1)  The Authority may allow:

(a)  an insurer, or

(b)  such other persons or bodies as the Authority thinks appropriate,

      to inspect information held by the Authority relating to claims or any other information held by the Authority that is prescribed by the regulations.

(2)  Insurers are authorised to exchange information held by them relating to claims or any other information held by them that is prescribed by the regulations.

(3)  In this section:

claims includes claims for compensation under the 1987 Act or the former 1926 Act, claims for compensation or other benefits under any other Act and potential claims.

insurer includes the Self Insurance Corporation and a licensed insurer under the Motor Accidents Compensation Act 1999.

73   Insurer to provide copies of reports to worker

(cf former s 93E)

(1)  The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker’s legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker.

(2)  Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.

(3)  If an insurer fails to provide a copy of a report as required by the regulations under this section:

(a)  the insurer cannot use the report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and

(b)  the report is not admissible in proceedings on such a dispute before the Commission, and

(c)  the report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.

74   Insurers to give notice and reasons when liability disputed

(cf former s 94A)

(1)  If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant.

(2)  The notice must contain the following:

(a)  a statement of the reason the insurer disputes liability and of the issues relevant to the decision,

(a1)  a statement to the effect that the worker can request a review of the claim by the insurer,

(b)  unless paragraph (c) applies, a statement to the effect that the worker can refer the dispute for determination by the Commission,

(c)  if the insurer has referred or proposes to refer the dispute for determination by the Commission, a statement to that effect specifying the date of referral or proposed referral,

(c1)  a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review,

(d)  a statement to the effect that the worker can also seek advice or assistance from the worker’s trade union organisation or from a lawyer,

(e)  such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers.

(2A)  In the case of a claim for compensation under this Act, a statement of reasons in a notice under this section is to indicate the provision of the workers compensation legislation on which the insurer relies to dispute liability.

(2B)  A notice under this section must be expressed in plain language.

(3)  The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section.

The regulations may require an insurer to give a copy of a notice under this section to the claimant’s employer.

(3A)  The regulations may create offences in connection with any failure to comply with this section.

Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (See section 93 and the offence arising under section 94).

(4)  Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain.

(5)  Before giving a notice under this section, an insurer must carry out an internal review of the decision to dispute liability in respect of the claim or an aspect of the claim.

74A   Duty of insurer to pay compensation promptly

(1)  An insurer who admits liability to pay compensation must pay that compensation promptly following the admission of liability.

(2)  If the Authority is satisfied that an insurer has failed to comply with this section, the Authority may by notice in writing to the insurer direct the insurer to pay the compensation concerned within a period specified in the direction.

(3)  An insurer must comply with such a direction.

Maximum penalty: 50 penalty units.

75   Report about delays and the incurring of unreasonable costs by insurers

(cf former s 94B)

(1)  The Registrar or another member of the Commission may make a report to the Authority on:

(a)  delays by insurers in dealing with claims under this Act, and

(b)  cases of the unreasonable cessation of weekly payments of compensation to injured workers by insurers, and

(c)  cases of unreasonable interference by insurers in the medical treatment of injured workers, and

(d)  cases of insurers being responsible for costs in proceedings before the Commission being unreasonably incurred, as provided by section 115, and

(e)  cases of insurers making unreasonable determinations as to the kind of work that is suitable for an injured worker.

(2)  The Authority may take such action as it considers appropriate on the basis of any such report.

Division 3 Conciliation of disputes by conciliator

75A   Division applies only to existing claims

This Division applies only in respect of existing claims.

Note. Conciliation is not applicable to new claims. See Chapter 7 (New claims procedures).

76   Definition of “dispute”

(cf former s 95)

In this Division:

Department means the Department of Industrial Relations.

dispute means a dispute in connection with a claim for compensation between:

(a)  the person who makes the claim and the person on whom the claim is made (or the insurer on whom the claim has been served under section 66 (3) or to whom the claim has been forwarded under section 69), or

(b)  the person on whom the claim is made and that insurer.

77   Principal Conciliator and other conciliators

(cf former s 96)

(1)  For the purposes of this Act, the Principal Conciliator is the person holding office as such in the Department under Part 2 of the Public Sector Management Act 1988.

(2)  For the purposes of this Act, a conciliator is:

(a)  the Principal Conciliator, or

(b)  a person holding office as such in the Department under Part 2 of the Public Sector Management Act 1988, or

(c)  a person holding any other office in the Department that is designated by the Department Head as a conciliator for the purposes of this Act, or

(d)  a person appointed under subsection (3).

(3)  The Governor may, on the recommendation of the Minister, appoint other suitably qualified persons to be conciliators for the purposes of this Act, to conciliate on disputes as and when required to do so by the Principal Conciliator. Schedule 6 has effect with respect to conciliators appointed under this subsection.

(4)  The Principal Conciliator can delegate to any conciliator any of the Principal Conciliator’s functions under this Part, except this power of delegation.

(5)  In the month of March (or such other month as the Minister may determine) in each year, the Minister is to prepare and forward to the WorkCover Authority an estimate of the expenditure to be incurred by the Department in relation to the exercise of the functions of the Principal Conciliator and other conciliators, including the remuneration payable to them.

78   Referral of disputes for conciliation

(cf former s 97)

(1)  Any party to a dispute may refer the dispute to the Principal Conciliator for conciliation by a conciliator.

(2)  The Compensation Court may at any stage of proceedings refer a matter in dispute between the parties to the Principal Conciliator for conciliation or further conciliation by a conciliator.

(3)  The Principal Conciliator is responsible for making arrangements as to the conciliator who is to conciliate in connection with a particular dispute or class of disputes.

79   Conciliation of disputes

(cf former s 98)

(1)  A conciliator is to make all reasonable efforts to conciliate in connection with a dispute referred to him or her and to bring the parties to agreement having proper regard to relevant entitlements and liabilities under this Act.

(2)  The conciliator may do any one or more of the following things in connection with the dispute or any part of the dispute:

(a)  make such recommendations to the parties to the dispute as he or she considers appropriate,

(b)  in the case of a dispute to which Division 4 applies—give directions under that Division,

(c)  decline to make any recommendation or give any direction.

(3)  A conciliator may conciliate with respect to a dispute (and make or give relevant recommendations or directions) even though the dispute is pending determination in the Compensation Court, unless the Court otherwise orders.

79A   Exchange of information before conciliation

(1)  A party (the applicant) to a dispute who refers the dispute for conciliation must, at the time it is referred, provide the following material to the Principal Conciliator:

(a)  a list identifying the documents on which the applicant proposes to rely in connection with the conciliation of the dispute,

(b)  a list identifying all other documents that the applicant has that are relevant to the dispute,

(c)  such other documents or information as the regulations may require the applicant to provide.

(2)  The applicant must also provide that material to the other party (the respondent) to the dispute at or before the time the dispute is referred for conciliation.

(3)  Within 7 days after the applicant provides that material to the respondent, the respondent must provide the following material to the applicant and to the Principal Conciliator:

(a)  a list identifying the documents on which the respondent proposes to rely in connection with the conciliation of the dispute,

(b)  a list identifying all other documents that the respondent has that are relevant to the dispute,

(c)  such other documents or information as the regulations may require the respondent to provide.

(4)  A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.

Maximum penalty: 50 penalty units.

(5)  A document that a party to a dispute has failed to identify in a list provided as required by this section (being a document that the person has when the list is required to be provided) is not admissible on behalf of the party in proceedings on such a dispute before a conciliator or the Compensation Court.

(6)  Subsections (4) and (5) do not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.

(7)  The regulations may provide for exceptions to subsection (5). In particular, the regulations may authorise a conciliator or the Compensation Court to permit the admission in proceedings before the conciliator or Court in specified circumstances of a document that would otherwise be not admissible under that subsection.

(8)  If a conciliator is satisfied that a party to a dispute has failed without reasonable excuse to comply with a requirement of this section, the conciliator may:

(a)  refer the matter to the Authority, and

(b)  note the matter in a conciliation certificate issued by the conciliator in respect of the dispute (together with details of the documents to which the failure relates).

Note. Examples of the documents to which this section applies are medical reports, investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.

80   Power of conciliator to require information

(cf former s 98A)

(1)  A conciliator may give a direction in writing to a party to a dispute referred to the conciliator requiring the party:

(a)  to produce to the conciliator or to another party to the dispute, at a time and place specified in the direction, specified documents in the possession of the party, being documents that the conciliator considers relevant to the dispute concerned, or

(b)  to furnish specified information to the conciliator or to another party to the dispute within a time specified in the direction, being information that the conciliator considers relevant to the dispute concerned.

(2)  If a dispute in respect of a claim for weekly payments of compensation has been referred for conciliation by the worker and the person on whom the claim was made has or claims to have a reasonable excuse for failing to commence the weekly payments (or the balance of weekly payments in dispute) within 21 days after the claim was duly made, the information that a conciliator can require that person to furnish includes details of that excuse.

(3)  A conciliator must not give a direction under this section to a worker unless the conciliator is satisfied that the worker will be represented by a legal practitioner at a conciliation conference on the dispute.

(4)  A direction under this section can extend to copies of documents lodged or produced in proceedings before the Compensation Court unless the Court otherwise orders in those proceedings.

(5)  A person who fails without reasonable excuse to comply with a direction given to the person under this section is guilty of an offence.

Maximum penalty: 50 penalty units.

(6)  If a person fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before the Compensation Court or a conciliator have the document or information admitted into evidence in the proceedings unless the Court or the conciliator otherwise orders in the special circumstances of the case. This subsection does not apply to a worker unless the worker was represented by a legal practitioner at the time of the failure.

(7)  The regulations may make provision for or with respect to any of the following matters:

(a)  excepting specified kinds of information or documents from the operation of this section,

(b)  specifying cases and circumstances in which a conciliator is required to exercise the conciliator’s powers under subsection (1).

81   Power of conciliator to provide information and documents to a party

(cf former s 98AA)

(1)  When information or documents are furnished or produced to a conciliator by a party to a dispute (whether or not pursuant to a requirement under this Act), the conciliator may furnish or produce the information or documents to any other party to the dispute.

(2)  The regulations may make provision for or with respect to any of the following matters:

(a)  specifying cases and circumstances in which a conciliator is required to exercise the conciliator’s powers under subsection (1),

(b)  excepting specified kinds of information or documents from the operation of this section,

(c)  specifying circumstances in which information or documents furnished or produced to a conciliator may not be furnished or produced by the conciliator to another party to the dispute.

81A   Parties to conciliation to provide copies of documents before conciliation conference

(1)  At least 7 days before a conciliation conference on the dispute, each party to the dispute must provide to the other party and to the conciliator a copy of any documents on which the party proposes to rely in connection with the conciliation of the dispute.

(2)  A party to a dispute who fails without reasonable excuse to comply with a requirement of this section is guilty of an offence.

Maximum penalty: 50 penalty units.

(3)  Subsection (2) does not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 131) at the relevant time.

(4)  Any document that a party has that is not provided by the party as required by this section is not admissible on behalf of the party in proceedings on such a dispute before a conciliator or the Compensation Court.

(5)  The regulations may provide for exceptions to subsection (4). In particular, the regulations may authorise a conciliator or the Compensation Court to permit the admission in proceedings before the conciliator or Court in specified circumstances of a document that would otherwise be not admissible under that subsection.

(6)  If a conciliator is satisfied that a party to a dispute has failed without reasonable excuse to comply with a requirement of this section, the conciliator may:

(a)  refer the matter to the Authority, and

(b)  note the matter in a conciliation certificate issued by the conciliator in respect of the dispute (together with details of the documents to which the failure relates).

(7)  Nothing in this section affects any power of the conciliator under section 80 (Power of conciliator to require information) or 81 (Power of conciliator to provide information and documents to a party).

Note. Examples of the documents to which this section applies are medical reports, investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act.

82   Summons to appear at conciliation conference

(cf former s 98B)

(1)  The Principal Conciliator may issue a summons requiring the attendance of a party to a dispute at a conciliation conference (as defined in section 90) on the dispute if the Principal Conciliator is satisfied that the party has failed without reasonable excuse to comply with a request by a conciliator to attend a conciliation conference on the dispute.

(2)  The Principal Conciliator must not issue a summons under this section requiring the attendance of a worker at a conciliation conference unless satisfied that the worker will be represented by a legal practitioner at the conciliation conference.

(3)  A person must not fail without reasonable excuse to comply with a summons served on the person under this section.

Maximum penalty: 50 penalty units.

83   Role for conciliator in preparing for medical panel

(cf former s 98C)

(1)  When a dispute referred to a conciliator concerns compensation payable under section 66 of the 1987 Act and it appears to the conciliator that any issues in dispute may be appropriate for referral to a medical panel, the conciliator can take such steps as may be necessary or desirable for the purpose of ensuring that the matter is properly prepared for referral to a medical panel.

(2)  The conciliator can assist any party with respect to the making of an application under section 122 for referral of a medical dispute to a medical panel.

(3)  The conciliator can refer a completed application to the Principal Conciliator for forwarding on to the registrar of the Compensation Court, and any such application is taken to have been made by the party or parties on whose behalf it was forwarded to the registrar.

84   Certificates as to conciliation of disputes

(cf former s 98D)

(1)  A conciliation certificate is a certificate referred to in subsection (5) that is issued by a conciliator with respect to the conciliation of a dispute free of charge to the parties to the dispute.

(2)  A conciliator is to issue a conciliation certificate for a dispute only when directed to do so by the Principal Conciliator.

(3)  The Principal Conciliator must direct the issue of a conciliation certificate as to the matters referred to in subsection (5) (a) and (b) if any person who is or has been a party to conciliation of the dispute applies for such a certificate.

(4)  The Principal Conciliator may, either on the recommendation of the conciliator or on his or her own initiative, refer a conciliation certificate to the registrar of the Compensation Court to form part of any file of the Court on proceedings commenced, or that may later be commenced, in relation to the dispute concerned.

(5)  A conciliation certificate is a certificate as to such of the following matters as the Principal Conciliator directs:

(a)  whether a dispute with respect to a claim under this Act is or has been the subject of conciliation under this Division,

(b)  the date of referral of the dispute to conciliation,

(c)  the current position (as at the date of the certificate) with respect to conciliation of the dispute,

(d)  any final outcome of the conciliation (including, if applicable, matters identified as remaining in dispute at the conclusion of the conciliation),

(e)  if conciliation was unsuccessful (wholly or partially) the reasons for that,

(f)  whether (and, if so, how) a particular party to the dispute has unreasonably failed to participate in conciliation,

(g)  if the worker has unreasonably failed to participate in conciliation, whether the amount of the conciliation costs payable by the employer should be reduced and, if so, by what amount.

(6)  A conciliation certificate is evidence of the matters that it certifies.

85   Time within which disputes must be referred to conciliation

(cf former s 98E)

The regulations may make provision for or with respect to limiting the time within which a dispute in respect of a claim can be referred for conciliation under this Division.

86   Agreements arising from conciliation

(cf former s 98F)

(1)  If the conciliation of a dispute under this Division gives rise to an agreement between the parties, the conciliator may assist the parties in drafting written terms of agreement or in completing any approved standard form of agreement.

(2)  If the agreement relates to compensation under section 66 or 67 of the 1987 Act, the conciliator can refer the agreement to the Principal Conciliator for forwarding on to the Authority to be registered under section 66A of the 1987 Act. An application for registration of the agreement under section 66A of the 1987 Act is then taken to have been made by a party to the agreement.

(3)  If the agreement relates to other compensation, it may, with the consent of the parties, be registered by the Principal Conciliator.

(4)  The following are examples of the provisions that an agreement arising from conciliation of a dispute can contain:

(a)  provision for the employer or insurer to continue to pay compensation for a specified minimum period subject to compliance by the worker with specified conditions,

(b)  provisions to cover matters such as the supply of medical certificates certifying as to incapacity and requirements for participation by the worker in the employer’s return-to-work program, rehabilitation training or other specified activities designed to assist the worker to return to work,

(c)  provisions designed to avoid or minimise further disputes between the parties, such as provisions requiring the parties to communicate with the conciliator concerning any dispute or potential dispute,

(d)  provision for a review of the agreement at a specified time, either by the parties alone or in consultation with the conciliator,

(e)  provisions designed to deal with any further disputes that might arise, so as to resolve them quickly while keeping costs to a minimum.

87   Control and direction of conciliators

(cf former s 99)

(1)  A conciliator is not subject to control and direction by the Authority, the appropriate Department Head or any other public servant with regard to any of the decisions of the conciliator that affect the interests of the parties to the dispute and the Authority, appropriate Department Head or other public servant may not overrule or interfere with any such decision of the conciliator in respect of any such dispute.

(2)  Subject to subsection (1), conciliators are, in the exercise of their functions, subject to the general control and direction of the Principal Conciliator.

(3)  Subsection (1) does not prevent the making of arrangements for the training of conciliators, and does not prevent conciliators obtaining advice, to ensure consistently correct application of the provisions of this Act and the regulations.

(4)  Conciliators are subject to guidelines issued by the Principal Conciliator with respect to the procedures to be followed in the conciliation of disputes, being guidelines issued for the purpose of achieving consistency in the application of the provisions of this Act and the regulations. Any such guidelines are subject to the regulations under section 91.

(5)  This section does not affect the exercise of the functions of the appropriate Department Head under the Public Sector Management Act 1988 with respect to conciliators.

88   Conciliation costs

(1)  In this section:

conciliation costs means the following costs incurred in conciliating a dispute under this Division:

(a)  the costs for legal services provided to a worker (or other claimant) in connection with any such conciliation,

(b)  the costs of services provided to a worker (or other claimant) of an agent acting in that capacity in connection with any such conciliation.

conciliation disbursements means disbursements in relation to the services referred to in the definition of conciliation costs in this subsection.

(2)  The conciliation costs in a dispute are payable by the employer unless the Principal Conciliator reduces the amount payable by the employer on the basis of a recommendation in a conciliation certificate. The regulations may fix the maximum amount of conciliation costs in a dispute that are payable by the employer.

(3)  Conciliation costs are payable at the end of the conciliation proceedings concerned, regardless of outcome.

(4)  The regulations may make provision for or with respect to the following:

(a)  requiring all or any conciliation disbursements to be paid by the employer,

(b)  fixing the maximum amount of conciliation disbursements that are payable by the employer,

(c)  requiring the payment of conciliation disbursements at the end of the conciliation proceedings concerned, regardless of outcome.

(5)  A requirement imposed by or under this section may be enforced as if it were a requirement of an order for the payment of costs made by the Compensation Court under section 112.

89   Protection of conciliators

(cf former s 100)

(1)  A matter or thing done or omitted to be done by a conciliator in the exercise of the conciliator’s functions does not, if the matter or thing was done or omitted in good faith, subject the conciliator personally to any action, liability, claim or demand.

(2)  A conciliator is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which he or she was involved in the course of the exercise of his or her functions as a conciliator (including as to matters in a conciliation certificate issued by a conciliator).

90   Proceedings before conciliators

(cf former s 100A)

(1)  In this section, conciliation conference means any conference or other proceeding held with or before a conciliator:

(a)  to resolve a dispute referred for conciliation, or

(b)  for the purpose of giving directions under Division 4 in connection with any such dispute.

(2)  A person who is a party to any dispute referred for conciliation is entitled to be represented by a legal practitioner, and by an agent of such a class as may be prescribed by the regulations. The conciliator may however refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party.

(3)  A party to a dispute at a conciliation conference is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to adequately communicate at the conciliation conference.

(4)  A conciliator must take into account any written submission prepared by a legal practitioner acting for a party to the dispute and submitted by or on behalf of the party (whether or not the party is represented by a legal practitioner at a conciliation conference on the dispute).

(5)  A conciliator may, subject to any general directions by the Principal Conciliator:

(a)  hold a conciliation conference with all relevant parties in attendance and, if the conciliator considers appropriate, with the employer (in the employer’s own right, even if the employer is represented by an insurer) and with relevant health professionals and rehabilitation service providers in attendance, or a separate conciliation conference in private with any of them, and

(b)  in a case where the employer concerned is represented by an insurer—nevertheless communicate directly with the employer about the provision of suitable employment for the worker or any other matter connected with the dispute.

(6)  If the conciliator is satisfied that sufficient information has been supplied to him or her in connection with a dispute, the conciliator may exercise functions under this Division and Division 4:

(a)  without holding any conciliation conference or formal hearing, and

(b)  without requesting submissions from the parties to the dispute.

(7)  A person who, in connection with a dispute referred for conciliation, makes a statement that the person knows to be false or misleading in a material particular is guilty of an offence.

Maximum penalty: 50 penalty units.

(8)  In proceedings before the Compensation Court, evidence of a statement made during any conciliation conference is not admissible unless the person who made the statement agrees to the evidence being admitted.

(9)  An agreement that arises from the conciliation of a dispute under this Division is not admissible in proceedings before the Compensation Court, except:

(a)  when the parties to the agreement otherwise agree, or

(b)  in such circumstances as the regulations may specify.

91   Regulations

(cf former s 100C)

The regulations may make provision for or with respect to the exercise of a conciliator’s functions under this Division and Division 4 and, in particular, for or with respect to:

(a)  the manner in which disputes are to be referred for conciliation, and

(b)  excluding disputes (other than disputes to which Division 4 applies) from this Division.

Division 4 Special provisions with respect to weekly payments of compensation

91A   Division applies only to existing claims

This Division applies only in respect of existing claims.

Note. Chapter 7 (New claims procedures) provides for weekly payments in the case of new claims.

92   Definitions

(cf former s 101)

(1)  In this Division:

weekly payment, in relation to compensation, includes a payment of compensation under section 25 (1) (b) of the 1987 Act with respect to a dependent child of a deceased worker.

(2)  In this Division, a reference to a person on whom a claim for a weekly payment of compensation is made includes a reference to an insurer on whom the claim has been served under section 66 (3) or to whom the claim has been forwarded under section 69.

(3)  In this Division, a reference to a dispute as to liability to make or continue to make weekly payments includes a reference to a dispute as to whether a worker is or should be treated as totally incapacitated for work or as to any other matter which affects the amount of the weekly payments.

93   Claims for weekly compensation—commencement of payments

(cf former s 102A)

(1)  Weekly payments of compensation are to commence as soon as practicable (but not later than 21 days) after the claim for compensation is duly made.

(2)  If the person on whom a claim is made disputes liability in accordance with section 74 to make the weekly payments within 21 days after the claim for compensation is duly made, the obligation under this section to commence the weekly payments (or the balance of the weekly payments in dispute) does not apply.

Note. If liability is disputed the worker can refer the dispute to conciliation. See section 101.

(3)  If a person has a reasonable excuse for failing to commence weekly payments of compensation (or the balance of weekly payments in dispute) within 21 days after the claim for compensation is duly made, subsections (1) and (2) apply to the weekly payments as if a reference in those subsections to 21 days were a reference to the period that ends:

(a)  42 days after the claim for compensation is duly made, or

(b)  when the person ceases to have that reasonable excuse,

      whichever is earlier.

(4)  An employer has such a reasonable excuse if:

(a)  the employer has duly forwarded the claim for compensation to an insurer who the employer believes is liable to indemnify the employer in respect of the claim, and

(b)  the employer has complied with all reasonable requests of the insurer with respect to the claim.

(5)  A person who has or anticipates having such a reasonable excuse must notify the claimant in writing as soon as practicable.

(6)  This section ceases to apply if the claim for compensation is withdrawn.

94   Offences—commencement of weekly payments

(cf former s 103)

(1)  A person on whom a claim for weekly payments of compensation is made is guilty of an offence if the person fails to commence those payments within the time required by section 93.

(2)  A person on whom a claim for weekly payments of compensation is made is guilty of an offence if the person refers a matter which the person knows is not a genuine dispute for the purpose of delaying, without good cause, the commencement of weekly payments of compensation.

Maximum penalty: 50 penalty units.

95   Direction by conciliator—commencement or continuation of weekly payments

(cf former s 104)

(1)  This section applies if a dispute relating to:

(a)  a claim for weekly payments of compensation, or

(b)  the continuation of weekly payments of compensation,

      has been referred for conciliation under Division 3, but a conciliator is unable to bring the parties to agreement by conciliation.

(2)  If the conciliator is satisfied that there is no genuine dispute with respect to the liability to make or continue to make weekly payments, the conciliator may direct:

(a)  the person on whom the claim for weekly payments was made, or

(b)  the person who was making the weekly payments,

      to pay or continue to pay compensation in accordance with the direction.

(3)  There is considered to be no genuine dispute with respect to a liability if there is no sufficient basis or no reasonable basis for dispute (but this does not limit the circumstances in which there can be considered to be no genuine dispute).

(4)  If the conciliator is satisfied that there is a genuine dispute with respect to the liability to make or continue to make weekly payments, the conciliator must notify the person who made the claim for weekly payments, or who was receiving weekly payments, of that fact and that an application may be made to the Compensation Court to determine the matter.

(5)  A direction of the conciliator may be given subject to such conditions as are specified in the direction.

96   Maximum period of weekly payments of compensation under direction of conciliator

(cf former s 105)

(1)  A direction (or further direction) of a conciliator under this Division may require a person to pay or continue to pay weekly payments for such period (not exceeding 12 weeks) as is specified in the direction.

(2)  Nothing in this section prevents a conciliator from giving a further direction (or further directions) for payment of compensation after the expiry of an earlier direction (except where the earlier direction is revoked by the Compensation Court).

(3)  A conciliator may direct payment of weekly payments during a period that is before the direction is given, but that period must not exceed 10 weeks.

97   Revocation of directions of conciliator

(cf former s 106)

(1)  A direction given by a conciliator under this Division may be revoked by the conciliator or by any other conciliator.

(2)  The Compensation Court may, on the application of a person who is liable to make weekly payments in accordance with a direction of a conciliator under this Division, revoke the direction.

(3)  The applicant must serve a copy of the application on the Principal Conciliator within 7 days (or such other period as the rules of the Compensation Court may specify) after the application is made. The Compensation Court must not hear or determine the application until a copy of the application has been served on the Principal Conciliator.

(4)  If a direction is revoked, the obligation to make weekly payments under the direction ceases.

(5)  If the Compensation Court subsequently determines that a person is not liable under this Act to make the weekly payments of compensation that have been paid in accordance with a direction of a conciliator, the following provisions apply:

(a)  the worker or other person who received those payments is not required to refund those payments unless the Court otherwise orders under paragraph (b),

(b)  if the Court is satisfied that the claim for compensation was wholly or partly fraudulent or made without proper justification, it may order the worker or other person concerned to refund the whole or a specified part of those payments,

(c)  the Court may order that the Insurance Fund bear the liability for the refund of the whole or a specified part of those payments (unless it makes an order under paragraph (b) for a refund),

(d)  the Court may (instead of making an order for a refund) order any other person whom it determines was liable for the whole or any part of those payments to reimburse the person who made those payments,

(e)  those payments are to be excluded from any determination of the claims experience of the employer for the purposes of calculating the premium payable by the employer for a policy of insurance.

(6)  This section does not affect the recovery of weekly payments under section 58 of the 1987 Act.

98   Offence—failure to comply with directions

(cf former s 106A)

A person who fails to comply with a direction of a conciliator under this Division is guilty of an offence.

Maximum penalty: 50 penalty units.

99   Payment under direction etc not admission of liability

(cf former s 106B)

(1)  The fact that a person:

(a)  pays or continues to pay compensation in accordance with a direction of a conciliator under this Division, or

(b)  does not apply for a revocation of any such direction,

      is not an admission of liability by the person.

(2)  The grant or refusal by the Compensation Court of an application for revocation of a direction is not a finding as to liability in respect of the matter in dispute.

100   Direction under section 95 not to be challenged on technicality

(cf former s 106C)

The validity of a direction under section 95 is not affected merely because the referral of the dispute to which the direction relates contained, or was done on a basis containing, a defect of manner or form.

Division 5 Restrictions on commencing court proceedings

100A   Division applies only to existing claims

This Division applies only in respect of existing claims.

Note. Chapter 7 (New claims procedure) provides for restrictions on commencing court proceedings in the case of new claims.

101   Restrictions on commencing court proceedings about weekly payments

(cf former s 106FB)

(1)  A worker cannot commence court proceedings in respect of weekly payments of compensation unless a dispute about liability to commence or to continue to make weekly payments of compensation to the worker has been referred for conciliation under Division 3 and either:

(a)  the conciliator has issued a conciliation certificate that indicates that conciliation was wholly or partially unsuccessful, or

(b)  the conciliator has given a notification under section 95 (4) in respect of the dispute, or

(c)  a period of 35 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was referred for conciliation,

      whichever happens first.

(2)  Further, if the conciliator has issued a conciliation certificate indicating that conciliation was successful, the worker cannot commence court proceedings as referred to in subsection (1) unless a dispute about the liability has subsequently been referred for conciliation under Division 3 and either:

(a)  the conciliator has issued a further conciliation certificate, or

(b)  the conciliator has given a notification under section 95 (4) in respect of the dispute, or

(c)  a period of 21 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was subsequently referred for conciliation,

      whichever happens first.

(3)  A worker cannot refer a dispute about liability to commence or to continue to make weekly payments of compensation to the worker for conciliation under Division 3 until:

(a)  the person on whom the claim is made has disputed liability to make the payments, or

(b)  the time within which the person on whom the claim is made is required under section 93 to commence those payments (including any extension under section 93 (3)) has elapsed without the person commencing to make those payments (or the balance of the weekly payments in dispute),

      whichever happens first.

Note. Section 93 allows up to 42 days for the commencement of weekly payments of compensation.

(4)  A worker cannot commence court proceedings in respect of related compensation until this section allows the commencement of proceedings in respect of the weekly payments of compensation concerned. Related compensation is compensation under Division 3 of Part 3 of the 1987 Act that relates to the incapacity for work to which the weekly payments of compensation relate.

(5)  This section does not prevent the commencement of court proceedings in any of the following circumstances:

(a)  if the proceedings concern an application for a determination under section 53 of the 1987 Act,

(b)  if the proceedings concern weekly payments of compensation that are the subject of an award already made by the Compensation Court,

(c)  if the proceedings concern weekly payments of compensation in respect of an injury received before the commencement of the 1987 Act,

(d)  any circumstances prescribed by the regulations.

102   Restrictions on commencing court proceedings for lump sum compensation

(cf former s 106FC)

(1)  A worker cannot commence court proceedings in respect of compensation under section 66 of the 1987 Act unless a dispute about that compensation has been referred for conciliation under Division 3 and either:

(a)  the conciliator has issued a conciliation certificate that indicates that conciliation was wholly or partially unsuccessful, or

(b)  a period of 42 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was referred for conciliation,

      whichever happens first.

(2)  Further, if the conciliator has issued a conciliation certificate indicating that conciliation was successful, the worker cannot commence court proceedings as referred to in subsection (1) unless a dispute about the compensation has subsequently been referred for conciliation under Division 3 and either:

(a)  the conciliator has issued a further conciliation certificate, or

(b)  a period of 21 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was subsequently referred for conciliation,

      whichever happens first.

(3)  A worker cannot refer a dispute about compensation under section 66 of the 1987 Act for conciliation under Division 3 until:

(a)  12 weeks after the claim for the compensation is duly made, or

(b)  the person on whom the claim is made disputes liability to pay the compensation,

      whichever happens first.

(4)  If the person on whom a claim for compensation under section 66 of the 1987 Act is made has, within 12 weeks after that claim is duly made, duly applied under section 122 for reference of the matter to a medical panel, the worker can commence court proceedings in respect of that compensation 14 days after the panel has given its certificate under that section even if subsection (1) or (2) would otherwise prevent commencement of proceedings at that time.

(5)  A worker cannot commence court proceedings in respect of compensation under section 67 of the 1987 Act for pain and suffering resulting from a loss or further loss, or for related compensation, until this section allows the commencement of proceedings in respect of compensation under section 66 of the 1987 Act for the loss or further loss. Related compensation is compensation under Division 3 of Part 3 of the 1987 Act that relates to that loss, further loss or pain and suffering.

(6)  When a claim that is the subject of court proceedings is amended to include a claim (or further claim) for compensation under section 66 of the 1987 Act, the proceedings are to be adjourned until:

(a)  12 weeks after the claim was amended, or

(b)  12 weeks after the worker has provided the employer with particulars (including a supporting medical report) sufficient to enable the employer to ascertain the nature and amount of the compensation to which the amendment relates,

      whichever is later.

(7)  The parties to proceedings can agree, or the Compensation Court can order, that there be no adjournment or a shorter adjournment of the proceedings under subsection (6).

(8)  A claim for compensation that is the subject of court proceedings cannot be amended to include a claim for compensation under section 67 of the 1987 Act unless the amendment includes particulars of the amount of compensation claimed under that section. The amount claimed is not to be stated to be the maximum amount of compensation under that section except in a most extreme case, as referred to in section 67 (3) of the 1987 Act.

(9)  If a worker joins another person as a party to proceedings in respect of a claim for compensation under section 66 or 67 of the 1987 Act without having made a claim on that person before commencing the proceedings, the Compensation Court may, if it considers that the failure to make a claim on the person has prejudiced the person in respect of the proceedings, adjourn the proceedings for such period as the Court considers appropriate to enable the person to properly consider the claim.

(10)  This section does not prevent the commencement of court proceedings in any circumstances prescribed by the regulations.

103   Restrictions on commencing court proceedings about medical, hospital and other expenses

(cf former s 106FD)

(1)  A worker cannot commence court proceedings in respect of compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) or Division 5 (Compensation for property damage) of Part 3 of the 1987 Act unless a dispute about that compensation has been referred for conciliation under Division 3 and either:

(a)  the conciliator has issued a conciliation certificate that indicates that conciliation was wholly or partially unsuccessful, or

(b)  a period of 42 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was referred for conciliation,

      whichever happens first.

(2)  Further, if the conciliator has issued a conciliation certificate indicating that conciliation was successful, the worker cannot commence court proceedings as referred to in subsection (1) unless a dispute about the compensation has subsequently been referred for conciliation under Division 3 and either:

(a)  the conciliator has issued a further conciliation certificate, or

(b)  a period of 21 days (or such other period as may be prescribed by the regulations) has elapsed after the dispute was subsequently referred for conciliation,

      whichever happens first.

(3)  A worker cannot refer a dispute about compensation under Division 3 or 5 of Part 3 of the 1987 Act for conciliation under Division 3 until:

(a)  28 days after the claim for compensation is duly made, or

(b)  the person on whom the claim is made disputes liability to pay the compensation,

      whichever happens first.

(4)  This section does not prevent the commencement of court proceedings of the kind referred to in subsection (1) if the proceedings are also proceedings in respect of weekly payments of compensation or compensation under section 66 or 67 of the 1987 Act and are commenced in compliance with section 101 or 102 (whichever is appropriate).

(5)  This section does not prevent the commencement of court proceedings in such circumstances as may be prescribed by the regulations.

104   Court rules and regulations providing for evidence of compliance

(cf former s 106FE)

The rules of the Compensation Court or the regulations may make provision for or with respect to:

(a)  requiring an application commencing proceedings in the Compensation Court to which section 101 or 102 applies to be accompanied by evidence (in the form of a certificate or other information provided for by the rules or regulations) that commencement of the proceedings is not prevented by any of those sections, and

(b)  preventing the acceptance for lodgment of an application not accompanied by any evidence required by the rules or regulations to accompany it.

Division 6 Proceedings before Commission or the Compensation Court

105   Jurisdiction of Commission and Compensation Court

(1)  Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.

(2)  The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.

(3)  The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine.

(4)  Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act.

(4A)  After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act).

(5)  Despite section 17 (4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter.

(6)  For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references:

(a)  to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or

(b)  to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.

Note. Provision is made in the 1987 Act for regulations to require existing claims to be treated as new claims (transferred claims). The Compensation Court ceases to have jurisdiction in respect of transferred claim matters and the Commission acquires exclusive jurisdiction in respect of transferred claim matters.

106   Authority may intervene in proceedings

(cf former s 107A)

(1)  The Authority has a right to be heard in any proceedings before the Commission.

(2)  The Authority may, for that purpose, be represented by a legal practitioner or a member of staff or by any other person.

(3)  In any such proceedings the Authority may apply for an order for which any party may apply in those proceedings.

107   Applications to be heard together

(cf former s 108)

(1)  A person who has applied to the Commission for a determination of a claim for compensation under this Act against 2 or more persons alleged to have been the employers of the worker concerned (either at the same time or at different times) is entitled, if the person so requests, to have all or any of the applications heard together.

(2)  If more than one employer or more than one insurer may be involved in an application for compensation or any other matter under this Act, the regulations may make provision for or with respect to requiring one of those insurers or one of those employers, the Authority or some other person, to represent the employers or insurers in any proceedings relating to the application.

108   Interim awards

(cf former s 112)

(1)  This section applies where:

(a)  there is a dispute between employers or insurers, between a self-insurer and an insurer or between an employer and an insurer, as to whether incapacity or death resulted from more than one injury, or

(b)  there is a dispute between employers or insurers, or between a self-insurer and an insurer, as to the apportionment between them of liability as referred to in section 22 (Compensation to be apportioned where more than one injury etc) of the 1987 Act, or

(c)  an employer has at any time or from time to time been a self-insurer under this Act, the 1987 Act or the former 1926 Act and at another time or at other times has obtained a policy of insurance from an insurer, and a dispute arises as to whether an insurer is liable to indemnify the employer in respect of compensation payable under this Act for a particular injury, or

(d)  an insurer is, pursuant to section 224 (2) (b), joined as a party to proceedings, or

(e)  a person is, by the operation of this Act, deemed to be a worker employed by more than one principal or other person, and there is a dispute as to which principal or other person is liable to pay compensation under this Act.

(2)  Where this section applies, the Commission may:

(a)  if the Commission is satisfied that compensation is payable (but is not yet able to finally determine that compensation is payable, the amount of the compensation, the appropriate apportionment of liability for the compensation or the person liable to pay the compensation), make such interim awards as the Commission thinks fit:

(i)  for compensation by an insurer or self-insurer, or

(ii)  for indemnity by an insurer, or

(iii)  for payment under Division 6 of Part 4 of the 1987 Act,

      and make such interim orders as the Commission thinks fit for contribution on the part of an insurer, employer or principal or other person or under Division 6 of Part 4 of the 1987 Act, and

(b)  make such final awards and orders as the Commission thinks fit with respect to any of the matters the subject of an interim award or order under paragraph (a), and

(c)  if the Commission makes a final award or order, make such orders as the Commission thinks fit with respect to adjustments to be made between persons against whom orders have been made under paragraphs (a) and (b) or between any such persons and the Insurance Fund.

(3)  If the Commission subsequently determines that a person is not liable under this Act to make the payments of compensation that have been paid in accordance with an interim award, the worker or other person who received those payments is not required to refund those payments unless the Commission:

(a)  is satisfied that the claim for compensation was wholly or partly fraudulent or made without proper justification, and

(b)  orders the worker or other person to refund those payments or a specified part of those payments.

(4)  This section does not affect the recovery of weekly payments under section 58 of the 1987 Act.

109   Interest before order for payment

(cf former s 113)

(1)  In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.

(2)  Interest cannot be ordered under this section:

(a)  on any compensation payable under Division 4 of Part 3 of the 1987 Act, or

(b)  on any compensation payable under this Act for any period before a claim for the compensation was duly made, or

(c)  on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.

(3)  This section does not:

(a)  authorise the giving of interest upon interest, or

(b)  apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.

110   Interest after order for payment

(cf former s 114)

(1)  Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum ordered to be paid by the Commission as is from time to time unpaid.

(2)  Interest payable under subsection (1) in respect of any sum ordered to be paid:

(a)  is to be calculated as from the date when the order was made or from such later date as the Commission in any particular case fixes, and

(b)  is to be calculated at the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 or, if the regulations under this Act prescribe some other rate, at that other prescribed rate, and

(c)  forms part of the sum ordered to be paid, but not so as to require the payment of interest on interest.

(3)  Despite subsections (1) and (2), where:

(a)  the amount of any sum ordered to be paid (excluding the amount of costs to be assessed) is paid in full within 21 days after the sum becomes payable, or

(b)  the amount of costs assessed is paid in full within 21 days after that amount is assessed, interest is not payable on the amount so paid, unless the Commission otherwise orders.

111   Interest on agreed payment of lump sum compensation

(cf former s 115)

(1)  Unless the Commission orders in any particular case that interest be not payable, interest is payable on so much of the amount of any sum agreed to be paid as permanent impairment compensation or pain and suffering compensation as is from time to time unpaid.

(2)  Interest payable under subsection (1) in respect of any sum so agreed to be paid:

(a)  is to be calculated as from the date provided by the agreement as the date when the sum is due to be paid or (if the agreement does not so provide) the date that is 21 days after the date the agreement was made, and

(b)  is to be calculated at the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 or, if the regulations under this Act prescribe some other rate, at that other prescribed rate, and

(c)  forms part of the sum agreed to be paid, but not so as to require the payment of interest on interest.

111A   Costs provisions apply only to existing claim matters

Sections 112–116 apply only in respect of existing claim matters.

Note. Chapter 7 (New claims procedures) provides for costs in respect of new claim matters.

112   Costs

(cf former s 116)

(1)  In this section, a reference to costs is a reference to the costs payable by a party in or in relation to proceedings, including disbursements.

(2)  Subject to this Act and the regulations and the rules of the Compensation Court and subject to any other Act:

(a)  costs in or in relation to any proceedings are in the discretion of the Court, and

(b)  the Court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to any proceedings, and

(c)  the Court may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on an indemnity basis.

(3)  Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification.

(4)  If the Court is satisfied that a part only of any such application for compensation was frivolous or vexatious, fraudulent or made without proper justification, the Court may order the claimant to pay the costs relating to that part of the application.

(5)  If a person claiming compensation appeals under section 34A (Appeal to Judge from commissioner) of the Compensation Court Act 1984, costs in or in relation to the appeal are to be paid by the unsuccessful party unless the Compensation Court is of the opinion that such a requirement would be unjust in the circumstances of the case.

(6)  The Court may order the payment of costs by any party to the proceedings who has unreasonably failed to participate in a conciliation of the dispute under this Act if it appears to the Court that the failure has resulted in unnecessary litigation or has adversely affected the rehabilitation of an injured worker.

(7)  An order of the Court for payment of costs may include:

(a)  the costs actually incurred or to be incurred by a person claiming compensation, and

(b)  if liability for a claim for compensation is admitted without recourse to the Court—the reasonable expenses incurred by a person in pursuing the person’s claim, and

(c)  costs incurred in relation to any proceedings under this Act (including conciliation of a dispute under Division 3), and

(d)  costs incidental to an application for referral of a medical dispute under section 121 or 122, and

(e)  costs incidental to an application for registration of an agreement under section 66A of the 1987 Act, and

(f)  costs incurred in relation to the mediation or neutral evaluation of any matter under Part 4A of the Compensation Court Act 1984.

(8)  In this section:

application for compensation includes any proceedings in connection with an application for compensation.

compensation means compensation under this Act.

113   Regulations fixing maximum costs recoverable by legal practitioners or agents

(cf former s 117)

(1)  The regulations may make provision for or with respect to the following:

(a)  fixing maximum costs for legal services or agent services provided to a worker (or other claimant), an employer or an insurer in any workers compensation matter,

(b)  fixing maximum costs for matters that are not legal services or agent services but are related to proceedings on a workers compensation matter (for example, expenses for witnesses or medical reports (including certificates)).

(2)  A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An agent is not entitled to be paid or recover for an agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section.

(3)  To the extent that the regulations so provide, a legal practitioner or agent is not entitled to be paid or recover costs of the kind referred to in subsection (1) (b) that are incurred in connection with the obtaining of any medical report (including any certificate) or opinion for use for any of the following purposes and which is not used for the purpose for which it was obtained:

(a)  for use in the making of a claim for compensation under this Act,

(b)  for use in negotiations or conciliation in respect of a claim for compensation,

(c)  for consideration by a medical panel or medical referee under section 122 or by a medical specialist under section 121,

(d)  for use in court proceedings.

(4)  Regulations under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 2004.

(5)  This section and any regulations under this section prevail to the extent of any inconsistency with the Legal Profession Act 2004 (in particular section 329 of that Act) and the regulations under that Act. An assessment under Division 11 of Part 3.2 of that Act of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation.

(6)  Expressions used in this section have the same meanings as they have in Part 3.2 of the Legal Profession Act 2004, except as provided by this section.

(7)  In this section:

agent means a person who acts as agent for a person in connection with a claim for compensation under this Act.

agent service means any service performed by a person in the person’s capacity as an agent.

costs includes:

(a)  costs actually incurred or to be incurred by a person claiming compensation, and

(b)  if liability for a claim for compensation is admitted without recourse to the Compensation Court—the reasonable expenses incurred by a person in pursuing the person’s claim, and

(c)  costs incurred in relation to any proceedings under this Act (including conciliation of a dispute under Division 3), and

(d)  costs incidental to an application for referral of a medical dispute under section 121 or 122, and

(e)  costs incidental to an application for registration of an agreement under section 66A of the 1987 Act, and

(f)  costs incurred in relation to the mediation or neutral evaluation of any matter under Part 4A of the Compensation Court Act 1984.

114   Maximum fees recoverable by medical practitioners for medico-legal services

(cf former s 118)

(1)  The Authority may, by order published in the Gazette, fix maximum fees for the provision by medical practitioners of the following services:

(a)  provision of any medical report (including any certificate) for use in court proceedings in connection with a claim for compensation under this Act,

(b)  appearance as a witness in court proceedings on a claim for compensation under this Act.

(2)  A medical practitioner is not entitled to be paid or recover any fee for providing a service that exceeds any maximum fee fixed under this section for the provision of the service.

(3)  An order under this section can fix costs and amounts by reference to costs and amounts fixed by regulations under the Legal Profession Act 2004.

115   Limit on recovery of costs unreasonably incurred

(cf former s 119)

(1)  If the Compensation Court is satisfied that any costs in proceedings under this Act before the Court were unreasonably incurred, the Court is to order that those costs are to be treated as unreasonably incurred for the purposes of this section and the Court is not to make an order for payment of those costs by any other party to the proceedings.

(2)  Costs incurred by a party to proceedings are considered to have been unreasonably incurred for the purposes of this section only if they were incurred by the party:

(a)  after a reasonable offer of settlement in the proceedings was made to the party, or

(b)  after the party has failed without reasonable excuse to comply with a written request from another party to the proceedings to provide that other party with particulars (including any necessary medical report) sufficient to enable that other party to properly consider the claim for the purpose of making an offer of settlement, or

(c)  after the party has unreasonably failed to participate in a conciliation of the dispute with which the proceedings are concerned and the Court is of the opinion that the failure has resulted in unnecessary litigation, or

(d)  in connection with an unsuccessful application by the party to admit further evidence in respect of matters of which a certificate or report of a medical panel that has been admitted in evidence in the proceedings is evidence (as provided by section 128 (2)) and the Court is of the opinion that the application was frivolous or vexatious.

(3)  In determining whether costs were unreasonably incurred the Court is to have particular regard to any conciliation certificate issued under section 84 certifying as to the unreasonable failure of a party to participate in conciliation. A party who denies unreasonable refusal to participate in conciliation has the onus of rebutting the conciliation certificate.

(4)  A legal practitioner representing a party to proceedings in the Compensation Court is not entitled to recover from the party any costs that the Court has ordered are to be treated as unreasonably incurred.

(5)  The Court may by order exempt any costs or a proportion of any costs from the operation of subsection (4) if of the opinion that it would be unjust not to do so because the legal practitioner concerned made all reasonable efforts to avoid unnecessary litigation in the proceedings or for any other reason should not be held responsible for the incurring of the costs concerned.

116   Solicitor/client costs in compensation proceedings

(cf former s 122)

(1)  The legal representative or agent of a person claiming compensation under this Act is not entitled:

(a)  to recover from the person any costs in respect of the claim, or

(b)  to claim a lien in respect of those costs on, or deduct those costs from, the sum awarded, ordered or agreed as compensation,

      unless those costs are awarded by the Compensation Court.

(2)  Any such award may be made on the application either of the person claiming compensation or the person’s legal representative or agent.

(3)  Any sum so awarded is subject to assessment in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004.

(4)  This section prevails to the extent of any inconsistency with Part 3.2 of the Legal Profession Act 2004.

(5)  A person must not:

(a)  claim a lien that the person is not entitled to claim because of subsection (1), or

(b)  deduct costs from a sum awarded, ordered or agreed as compensation that the person is not entitled to deduct because of subsection (1).

Maximum penalty: 50 penalty units.

(6)  A person who has paid an amount in respect of costs to another person that the other person was not entitled to recover because of subsection (1) is entitled to recover the amount paid as a debt in a court of competent jurisdiction or by proceedings in the Compensation Court.

(7)  A reference in this section to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made).

117   Admissibility of statements by injured workers

(cf former s 124)

(1)  If a worker after receiving an injury makes any statement in writing in relation to that injury to the worker’s employer or to an insurer or to any person acting on behalf of the employer or insurer, the statement may not be admitted in evidence if tendered or used by the employer or insurer in any proceedings before the Commission unless the employer or insurer has, at least 14 days before the hearing, furnished to the worker or to the legal representative or agent of the worker a copy in writing of the statement.

(2)  (Repealed)

(3)  In this section:

employer, in relation to a worker, includes a principal referred to in section 20 of the 1987 Act who is liable to pay compensation to the worker.

insurer means licensed insurer or former licensed insurer.

118   Registration of certain persons involving interpreting etc services

(cf former s 125)

(1)  On and from the commencement date prescribed by the regulations for the purposes of this section, a person who:

(a)  for fee or reward, acts as interpreter for a worker in connection with a claim for compensation under this Act, whether or not the claim is eventually made and whether or not the person also provides a related service, or

(b)  holds himself or herself out as being available to do so,

      is guilty of an offence against this Act and liable to a penalty not exceeding 20 penalty units if the person is not registered under this section.

(2)  A person who acts as interpreter for a worker is taken to act for fee or reward if the fee or reward:

(a)  is payable or given by some person on behalf of the worker, or

(b)  is payable or given to some person who employs, or is nominated by, the person acting as interpreter, or

(c)  is payable or given for any related service provided to the worker by the person acting as interpreter.

(3)  This section does not apply to a person who acts as interpreter:

(a)  if the person is a solicitor, barrister, medical practitioner or other person prescribed by the regulations, or

(b)  if the person is engaged by, and the person’s services are paid for by:

(i)  the Authority, or

(ii)  the Community Relations Commission, or

(iii)  an employer or insurer, or

(iv)  an industrial union of employees or employers, or

(v)  any other person or body prescribed by the regulations.

(4)  The regulations may make provision for or with respect to:

(a)  applications for registration under this section and the disposal of any such applications, and

(b)  the fees to be paid by applicants for registration, and

(c)  the qualifications, experience, fitness and character of applicants for registration, and

(d)  the duration of registration, and

(e)  the conditions to which any registration is subject (including conditions regulating any related service provided by the registered person), and

(f)  the cancellation or suspension of registration, and

(g)  any other matter in connection with registration under this section.

(5)  The regulations under this section are to provide for a right of appeal against a decision of the Authority:

(a)  to refuse to register a person under this section, or

(b)  to cancel or suspend any such registration, or

(c)  to attach any condition to any such registration.

(6)  The regulations may make provision for or with respect to the maximum amount that may be charged by a person who is registered or required to be registered under this section:

(a)  for acting as interpreter as referred to in subsection (1), and

(b)  for any related service provided to the worker concerned.

(7)  A person who acts as interpreter in contravention of subsection (1) is not entitled to charge or recover any fee for so acting or for any related service provided to the worker concerned.

(8)  A reference in this section:

(a)  to a person acting as interpreter includes a reference to a person who translates documents into another language, or

(b)  to a related service includes a reference to the services of an agent or adviser.

Division 7 Medical examinations and disputes

118A   Application of certain provisions of Division only to existing claims

Sections 121–124 and 128–130 apply only in respect of existing claims.

119   Medical examination of workers at direction of employer

(cf former s 129)

(1)  A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.

(2)  A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.

(3)  If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination:

(a)  the worker’s right to recover compensation under this Act with respect to the injury, or

(b)  the worker’s right to the weekly payments,

      is suspended until the examination has taken place.

(4)  A worker must not be required to submit himself or herself for examination by a medical practitioner under this section otherwise than in accordance with the WorkCover Guidelines or at more frequent intervals than may be prescribed by the WorkCover Guidelines.

(5)  The regulations may make provision for or with respect to requiring an employer or insurer to provide a worker, a worker’s legal representative or any other person, within the period required by the regulations, with a copy of any medical opinion or report furnished to the employer or insurer by a medical practitioner in connection with an examination of the worker pursuant to a requirement under this section.

(6)  If an employer or insurer fails to provide a copy of an opinion or report as required by the regulations under subsection (5):

(a)  the employer or insurer cannot use the opinion or report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the opinion or report for any other purpose prescribed by the regulations for the purposes of this section, and

(b)  the opinion or report is not admissible in proceedings on such a dispute before the Commission, and

(c)  the opinion or report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.

120   Medical examination of worker at direction of Commission

(cf former s 130)

(1)  The Commission or the Authority may, at any time or from time to time, require any worker:

(a)  who claims compensation under this Act, or

(b)  who is in receipt of weekly payments of compensation under this Act,

      to submit himself or herself for examination by an approved medical specialist on a date and at a place arranged by the Registrar.

(2)  If a worker refuses to submit himself or herself for any such examination or in any way obstructs the examination:

(a)  the worker’s right to recover compensation under this Act with respect to the injury, or

(b)  the worker’s right to weekly payments,

      is suspended until the examination has taken place.

121   Assessment of medical disputes by approved medical specialists

(1)  In this section:

approved medical specialist means a medical practitioner who is on a list of medical practitioners approved from time to time by the Authority as approved medical specialists for the purposes of this section.

medical dispute means a disagreement between a worker and the employer as to:

(a)  the worker’s condition, or

(b)  the worker’s fitness for employment,

      but does not include a medical dispute concerning the extent of a loss, or further loss, of hearing due to boilermaker’s deafness or any deafness of similar origin.

Note. See section 72 of the 1987 Act which requires a dispute concerning the extent of any such deafness to be referred to a medical panel under section 122.

(2)  A worker or employer can refer a medical dispute for assessment to:

(a)  an approved medical specialist agreed to by the worker and employer,

(b)  an approved medical specialist nominated by the Principal Conciliator if the worker and employer are not able to agree on the matter.

The worker and the employer can agree that some or all of the approved medical specialist’s findings on the dispute are to be binding on them for the purposes of the worker’s claim for compensation.

(3)  The approved medical specialist is to make an assessment of a dispute referred under this section and:

(a)  make findings on the dispute as required by the terms of reference, and

(b)  give a certificate as to those findings.

(4)  The certificate is, in any proceedings:

(a)  conclusive evidence of those matters certified on which the parties agreed to be bound, and

(b)  prima facie evidence of any other matters certified.

(5)  The fact that court proceedings have been commenced in respect of a claim for compensation does not affect the operation of this section in respect of a medical dispute concerning the claim, except as provided by subsections (6) and (7).

(6)  If a medical dispute is referred under this section after the commencement of court proceedings in respect of the compensation to which the referral relates, subsection (4) (a) does not apply to any certificate issued as a result of the referral unless the worker and the employer agree that subsection (4) (a) is to apply.

(7)  Once the hearing (or part of the hearing) of court proceedings that deals with a medical dispute has commenced, a medical dispute relating to the proceedings may not be referred under this section unless the other party consents or the court grants leave.

(8)  An approved medical specialist is competent to give evidence as to matters in a certificate given by the specialist under this section, but the specialist may not be compelled to give any such evidence.

(9)  A worker or employer who is a party to an agreement under this section may apply to the Authority for registration of the agreement and any certificate given under this section, and the Authority is to register the agreement and certificate. The Authority is to provide the Compensation Court with a copy of the agreements and certificates that are registered by the Authority under this section.

(10)  The regulations may make provision for or with respect to the approval of medical practitioners for the purposes of this section and the referral of medical disputes to approved medical specialists for the purposes of this section.

(11)  An approved medical specialist may:

(a)  consult with any medical practitioner who is treating or has treated the worker in connection with the worker’s claim, and

(b)  call for the production of such medical records (including X-rays and the results of other tests) and other information as the approved medical specialist considers necessary or desirable for the purposes of the fair and proper consideration of the matter.

(12)  If a worker refuses to submit himself or herself for examination by the approved medical specialist to whom the medical dispute has been referred if required to do so, or in any way obstructs the examination:

(a)  the worker’s right to recover compensation under this Act with respect to the injury, or

(b)  the worker’s right to weekly payments,

      is suspended until the examination has taken place.

(13)  The fees of the approved medical specialist to whom a medical dispute is referred under this section are to be paid by the employer.

122   Referral of medical disputes to referee or panel on application of worker or employer

(cf former s 131)

(1)  In this section:

medical dispute means a disagreement between a worker and the employer as to:

(a)  the worker’s condition, or

(b)  the worker’s fitness for employment.

(2)  If there is a medical dispute, the registrar of the Compensation Court must, on the application of either the worker or the employer, refer the medical dispute to a medical panel or (if subsection (3) permits) to a medical referee, but only if:

(a)  the worker has submitted himself or herself for examination by a medical practitioner in accordance with a requirement of the employer under section 119 or has been examined by a medical practitioner selected by the worker, and

(b)  the employer or worker (as the case may be) has furnished the other with a copy of the medical practitioner’s report of the examination (being a report relevant to the medical dispute).

(3)  A medical dispute can be referred under this section to a medical referee only if the registrar is satisfied that it is not reasonably practicable in the circumstances to constitute a medical panel. A medical dispute must not in any circumstances be referred to a medical referee if the dispute concerns the extent of a loss, or a further loss, of hearing due to boilermaker’s deafness or any deafness of similar origin.

(4)  The registrar of the Compensation Court may refuse to refer any such medical dispute to a medical referee or medical panel if the medical practitioner’s report was not furnished to the other party within 30 days (or such longer period as the worker and the employer may agree) after it was received from the medical practitioner or within such longer period as the registrar of the Compensation Court, in the circumstances of the case, considers justified.

(5)  The medical referee or medical panel to whom a medical dispute is so referred is to give a certificate as to:

(a)  the worker’s condition, or

(b)  the worker’s fitness for employment (specifying, where necessary, the kind of employment for which the worker is fit).

(6)  Any such certificate of a medical panel is conclusive evidence as to the matters certified, except in relation to the following:

(a)  the fitness of the worker for employment,

(b)  the question of whether any of the following losses or impairments exist and, if so, the nature and extent of the loss or impairment:

(i)  the loss of the sense of taste or smell,

(ii)  the loss of sexual organs,

(iii)  permanent brain damage,

(iv)  the impairment of the back, neck or pelvis,

(v)  any loss or impairment added to the Table to Division 4 of Part 3 of the 1987 Act by the regulations.

(7)  The fact that court proceedings have been commenced in respect of a claim for compensation does not affect the operation of this section in respect of a medical dispute concerning the claim, except as provided by subsections (8) and (9).

(8)  If an application for referral of a medical dispute is made under this section after the commencement of court proceedings in respect of the compensation to which the application relates, subsection (6) does not apply to any certificate issued on the application unless:

(a)  the dispute concerns the extent of a loss, or further loss, of hearing due to boilermaker’s deafness or any deafness of similar origin, or

(b)  the dispute concerns compensation that is the subject of proceedings by reason of the amendment of a claim as referred to in section 102 (5), or

(c)  the worker and the employer agree that subsection (6) is to apply.

(9)  Once the hearing (or part of the hearing) of court proceedings that deals with a medical dispute has commenced, an application may not be made under this section in respect of the medical dispute concerned unless the other party consents or the Compensation Court grants leave.

(10)  A medical panel or medical referee may call for the production of such medical records (including X-rays and the results of other tests) and other information as the panel or referee considers necessary or desirable for the purposes of the fair and proper consideration of the matter.

(11)  If a worker, on being required so to do, refuses to submit himself or herself for examination by a medical referee or medical panel to whom the medical dispute has been referred, or in any way obstructs the examination:

(a)  the worker’s right to recover compensation under this Act with respect to the injury, or

(b)  the worker’s right to weekly payments,

      is suspended until the examination has taken place.

(12)  If there is a disagreement between a worker and the employer as to whether or to what extent the incapacity of the worker is due to the injury, this section applies (subject to the regulations) as if the question were one as to the condition of the worker.

(13)  The rules of the Compensation Court may make provision for or with respect to:

(a)  applications and certificates under this section, and

(b)  the application of this section for the purposes of subsection (12).

123   Reference of medical disputes by Principal Conciliator

(cf former s 131B)

(1)  When a medical dispute (as defined in section 122) is the subject of conciliation by a conciliator and concerns the compensation payable under section 66 of the 1987 Act, the Principal Conciliator may request the registrar of the Compensation Court to refer the dispute to a medical panel and the registrar is to refer the dispute accordingly.

(2)  The medical panel to whom a medical dispute is so referred is to give a certificate as to the worker’s condition, in accordance with the terms of reference of the dispute.

(3)  The certificate of the medical panel is, in any proceedings, evidence (but not conclusive evidence) as to the matters certified.

(4)  If a worker, on being required so to do, refuses to submit himself or herself for examination by a medical panel to whom the medical dispute has been referred, or in any way obstructs the examination:

(a)  the worker’s right to recover compensation under this Act with respect to the injury, or

(b)  the worker’s right to weekly payments,

      is suspended until the examination has taken place.

124   Submission by Court, conciliator etc of matters to medical referee or panel for report

(cf former s 132 and s 20 (1) (c) Compensation Court Act 1984)

(1)  The Compensation Court or a conciliator may refer to a medical referee or medical panel for report any matter which appears to be relevant to any question arising in proceedings before the Compensation Court or the conciliator.

(2)  The Authority may refer to a medical referee or medical panel for report any matter which appears to be relevant to the exercise of its functions.

(3)  A medical referee or medical panel is to submit a report to the Compensation Court or the conciliator or the Authority in accordance with the terms of a reference under this section.

125   Reimbursement of worker for loss of wages and expenses associated with medical examination

(cf former s 133)

(1)  If a worker is required to submit himself or herself for examination pursuant to this Division, the worker is entitled to recover from the worker’s employer, in addition to any compensation otherwise provided:

(a)  the amount of any wages lost by the worker by reason of so submitting himself or herself for examination, and

(b)  the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred in so submitting himself or herself.

(2)  A worker required to submit himself or herself for examination by an approved medical specialist is not entitled to recover any amount if:

(a)  the matter was referred on the application of the worker, and

(b)  the Commission finds that the application was unreasonable or unnecessary.

(3)  If it is necessary for a worker to travel in order to submit himself or herself for examination but the worker is not reasonably able to travel unescorted, the fares, travelling expenses and maintenance referred to in this section include fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort for the worker provided to enable the worker to submit himself or herself for examination.

(4)  If the cost of fares, travelling expenses and maintenance referred to in this section includes the cost of travel by private motor vehicle, that cost is to be calculated at such rate as is fixed for the purposes of section 64 of the 1987 Act.

(5)  (Repealed)

126   Copies of certain medical reports to be supplied to worker

(cf former s 134)

(1)  In this section:

insurer means a licensed insurer or a former licensed insurer.

medical report, in relation to an injured worker, means a written report by:

(a)  a medical practitioner by whom the worker has been referred to another medical practitioner for treatment or tests related to the injury, or

(b)  a medical practitioner who has treated the injury, or

(c)  a medical practitioner who has been consulted by a medical practitioner referred to in paragraph (a) or (b) in connection with treatment of, or tests related to, the injury.

(2)  The regulations may make provision for or with respect to requiring an employer or insurer in possession of a medical report relating to an injured worker to provide a copy of the report to the worker, the worker’s legal representative or any other person, if the worker’s claim is disputed.

(3)  If an employer or insurer fails to provide a copy of a report as required by the regulations under subsection (2):

(a)  the employer or insurer cannot use the opinion or report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and

(b)  the report is not admissible in proceedings on such a dispute before the Commission, and

(c)  the report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.

127   Admissibility of medical reports

(1)  A medical report is admissible in proceedings before the Commission.

(2)  Subsection (1) is subject to any provision of the regulations relating to the giving of notice of the admission of the medical report.

(3)  Subsection (1) is also subject to any provision of the regulations relating to the number of medical reports that may be admitted in connection with a claim or any aspect of a claim.

(4)  A medical practitioner whose medical report is admissible under subsection (1) may be required, in accordance with the regulations, to attend and be cross-examined on the contents of the report.

(5)  In proceedings relating to the making of an interim award, a medical practitioner whose medical report is admissible in evidence under subsection (1) may not be required to attend and be cross-examined on the contents of the report without the leave of the Commission given in any case where the Commission is satisfied there is a real issue as to whether the worker is entitled to receive compensation from any of the parties.

(6)  In this section, medical report means any written report of a medical practitioner relating to the worker.

128   Admissibility and evidentiary value of certificates and reports of medical referees and panels

(cf former s 136 and s 20 (2) Compensation Court Act 1984)

(1)  A certificate or report given by a medical referee or medical panel is admissible in evidence in any proceedings before the Compensation Court.

(2)  In any proceedings before the Compensation Court, a certificate or report given by a medical panel is to the extent that it relates to the worker’s condition (and except to the extent that it is conclusive evidence under this Division) prima facie evidence of the matters in the certificate or report.

(3)  When a certificate or report given by a medical panel is admitted in evidence in proceedings before the Compensation Court no further evidence is to be admitted in the proceedings in respect of the matters of which the certificate or report is prima facie evidence, except with the leave of the Court.

(4)  A medical referee is competent to give evidence as to matters in a certificate or report given by the referee or by a medical panel of which the referee was a member, but the referee may not be compelled to give any such evidence.

129   Power to correct mistakes in medical reports or certificates

(cf former s 136A)

(1)  A medical referee or medical panel may, of the referee’s or panel’s own motion or on the application of a party to proceedings (and without formally reconvening), correct a certificate or report given by the referee or panel if it contains:

(a)  a clerical mistake, or

(b)  an error arising from an accidental slip or omission, or

(c)  a material miscalculation of figures or material mistake in the description of any person, thing or matter referred to in the certificate or report, or

(d)  a defect of form.

(2)  This section applies to a medical certificate given by a medical specialist pursuant to section 121 as if the medical specialist were a medical referee.

130   Rules of Court and regulations with respect to medical evidence

(cf former s 137)

(1)  The rules of the Compensation Court and the regulations may make provision for or with respect to:

(a)  the disclosure, by the furnishing of copies of reports or otherwise, of the nature of the expert medical evidence to be given (including the exclusion of any such evidence for non-compliance with any requirement for the disclosure of the nature of the evidence), and

(b)  the disclosure of medical reports (including X-rays and the results of other tests) to medical referees and medical panels (including the exclusion of any such medical report for non-compliance with any requirement for the disclosure of the medical report), and

(b1)  limiting the number of medical reports in connection with a claim or any aspect of a claim and, in particular:

(i)  limiting the number of medical reports that may be produced in connection with the conciliation of a dispute, and

(ii)  limiting the number of medical reports that may be admitted in evidence in proceedings before the Compensation Court, and

(iii)  limiting the medical reports that may be so admitted in evidence to those produced in connection with the conciliation of the dispute concerned, and

(iv)  excluding the costs of excess medical reports from the costs recoverable in connection with a claim (whether the reports were obtained for the purposes of making or dealing with a claim or for the purposes of conciliation or court proceedings), and

(c)  limiting the number of medical witnesses that may be called by any party, and

(d)  the manner of referring matters to a medical referee or medical panel for report.

(2)  This section only authorises rules of the Compensation Court in connection with proceedings before that Court or matters referred to a medical panel or medical referee.

Division 8 Prohibited conduct relating to touting for claims

131   Definitions

(cf former s 148B)

(1)  In this Division:

agent means a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not (unless the regulations otherwise provide) include a legal practitioner.

claim means a claim for compensation under this Act.

hearing loss claim means:

(a)  a claim under section 66 of the 1987 Act (as in force at any time before the commencement of this definition) for loss of hearing, or

(b)  a claim for permanent impairment compensation in respect of loss of hearing.

lawyer means a legal practitioner.

prohibited conduct has the meaning given by section 132.

protected claim means:

(a)  a hearing loss claim, and

(b)  a claim for the cost of provision of a hearing aid, and

(c)  any other claim that is declared by the regulations to be a protected claim for the purposes of this section.

(2)  A reference in this Division to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made). For example, section 132 does not require that a claim be made before the conduct described in that section can be considered to be prohibited conduct.

(3)  Each of the following activities is considered to constitute acting as agent for a person in connection with a claim:

(a)  advising the person with respect to the making of a claim,

(b)  assisting the person to complete or prepare, or completing or preparing on behalf of the person, any form, correspondence or other document concerning a claim,

(c)  making arrangements for any test or medical examination to determine the person’s entitlement to compensation,

(d)  arranging referral of the person to a lawyer for the performance of legal work in connection with a claim,

(e)  any other activity prescribed by the regulations.

(4)  The regulations may provide that persons who engage in specified activities are not to be regarded as agents for the purposes of this Division.

132   Prohibited conduct by agents

(cf former s 148C)

(1)  The following conduct by an agent is prohibited conduct for the purposes of this Division:

(a)  making a statement to a person, knowing that the statement is false or misleading in a material particular, for the purpose of encouraging the person or any other person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim,

(b)  using information obtained by the agent in connection with a claim to contact any other person for the purpose of encouraging that other person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim,

(c)  seeking to obtain information from a client of the agent for the purpose of using that information as described in paragraph (b),

(d)  inducing or attempting to induce a client of the agent to encourage any other person to make a claim (whether or not it is a protected claim) and to use (in connection with the claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the claim,

(e)  making any unsolicited contact by telephone, personal approach or other prescribed means with a person who is not a client of the agent, for the purpose of encouraging the person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim,

(f)  such other conduct as may be prescribed by the regulations as prohibited conduct for the purposes of this section.

(2)  The regulations can specify circumstances in which conduct that would otherwise be prohibited conduct under subsection (1) is not to be regarded as prohibited conduct for the purposes of this Division.

(3)  For the purposes of this Division, any conduct engaged in by a person on behalf of an agent, or that an agent has caused or procured the person to engage in, is taken to have been engaged in by the agent.

133   Offence of engaging in prohibited conduct

(cf former s 148D)

An agent who engages in prohibited conduct is guilty of an offence.

Maximum penalty: 50 penalty units.

134   Consequences of prohibited conduct for recovery of fees by agents

(cf former s 148E)

(1)  An agent is not entitled to recover from a person any fees, costs or other charges that would otherwise be payable by the person in connection with services made use of by the person if the services were made use of as a result of prohibited conduct engaged in by the agent, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct.

(2)  If prohibited conduct engaged in by an agent involved encouraging a person to make use of services and the person makes use of those services after the conduct is engaged in, it is to be presumed for the purposes of this section that the services were made use of as a result of that prohibited conduct, unless the agent concerned establishes otherwise.

(3)  If the services of an agent were made use of as a result of prohibited conduct engaged in by the agent in connection with a hearing loss claim, it is to be presumed for the purposes of this section that any services of the agent made use of in connection with a subsequent hearing loss claim in respect of further loss of hearing made by the same worker (whether or not made against the same employer) were made use of as a result of prohibited conduct engaged in by the agent, unless the agent concerned establishes otherwise.

(4)  A person who has paid any amount in respect of fees, costs or other charges to an agent that the agent would not have been entitled to recover because of this section is entitled to recover the amount from the agent as a debt in a court of competent jurisdiction.

135   Consequences of prohibited conduct for lawyers

(cf former s 148F)

(1)  A lawyer who acts for a person on a claim must not include in any bill given to the person, and must not otherwise seek to recover from the person, any amount by way of disbursements for fees paid to an agent in connection with referral of the person to the lawyer by the agent if the lawyer knows or has reasonable cause to suspect that the agent engaged in prohibited conduct that involved encouraging the person to make the claim, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct.

Maximum penalty: 50 penalty units.

(2)  A lawyer who acts for a person on a claim is not entitled to recover from any person any amount by way of disbursements for fees paid to an agent in connection with the claim if the claim was made as a result of prohibited conduct engaged in by the agent, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct.

(3)  If prohibited conduct engaged in by an agent involved encouraging a person to make a claim and the person makes a claim after the conduct is engaged in, it is to be presumed for the purposes of subsection (2) that the claim was made as a result of that prohibited conduct unless the lawyer establishes otherwise.

(4)  If a hearing loss claim was made as a result of prohibited conduct engaged in by an agent, it is to be presumed for the purposes of subsection (2) that any subsequent hearing loss claim in respect of further loss of hearing made by the same worker (whether or not made against the same employer) in connection with which that agent performed any service was made as a result of prohibited conduct engaged in by that agent, unless the lawyer concerned establishes otherwise.

(5)  A person who has paid any amount in respect of disbursements to a lawyer that the lawyer would not have been entitled to recover because of subsection (2) is entitled to recover the amount from the lawyer as a debt in a court of competent jurisdiction.

136   Lawyers and agents can be requested to certify as to prohibited conduct

(cf former s 148G)

(1)  An employer or insurer who is liable to pay a lawyer or agent any fees, costs or other charges incurred in connection with a protected claim made by a person is entitled to request the lawyer or agent to provide a certificate under this section about the claim (unless the lawyer or agent has already provided it). The request must be in writing.

(2)  A certificate under this section is a certificate that to the best of the lawyer’s or agent’s knowledge, no agent has engaged in prohibited conduct that involved encouraging the person to make the claim or any previous claim, except as may be disclosed in the certificate.

(3)  If a certificate is requested:

(a)  the lawyer or agent is not entitled to be paid by or recover from the employer or insurer any fees, costs or other charges incurred in connection with the claim concerned until the certificate is provided (even if the fees, costs or other charges are payable under an award or order of a court or Commission), and

(b)  no interest that might otherwise be payable on those fees, costs or other charges is payable for the period from when the certificate is requested until it is provided (despite any order or award of a court or Commission for the payment of that interest).

(4)  A lawyer or agent can provide an employer or insurer with a certificate under this section even if the employer or insurer has not requested it.

(5)  A lawyer or agent who gives a certificate under this section about a claim made by a person is guilty of an offence if the lawyer or agent knew or had reasonable cause to suspect that an agent had engaged in prohibited conduct that involved encouraging the person to make the claim.

Maximum penalty: 50 penalty units.

137   Power to restrict or ban recovery of costs by agents who engage in prohibited conduct

(cf former s 148H)

(1)  The Authority can by notification given to insurers and self-insurers direct that an agent specified in the notification is not entitled to recover any fees, costs or other charges in connection with any claims or in connection with a class of claims specified in the notification, or is not so entitled unless specified conditions have been complied with.

(2)  Such a notification cannot be given unless the Authority is satisfied that:

(a)  the agent has persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4), or

(b)  in the case of an agent that is a corporation, a director of the corporation or other person concerned in the management of the corporation has persistently engaged in any such conduct.

(3)  Before the Authority gives such a notification it must give the agent a reasonable opportunity to make written submissions to the Authority on the matter.

(4)  The effect of a notification under this section is that the agent specified in the notification is not entitled to recover fees, costs or other charges (as provided by the notification) in respect of services performed while the notification is in force.

(5)  An agent aggrieved by a notification under this section can appeal against the notification to the Compensation Court within 14 days after the notification is given. An appeal does not stay the operation of the notification unless the Compensation Court otherwise orders.

(6)  A notification remains in force until it is withdrawn. A notification can be withdrawn at any time by the Authority by giving notice of withdrawal in writing to insurers and self-insurers and to the agent to whom it applies.

138   Power to restrict or ban recovery of costs by solicitors

(cf former s 148HA)

(1)  The Authority can by notification given to insurers and self-insurers direct that a solicitor, incorporated legal practice or firm of solicitors specified in the notification is not entitled to recover any fees, costs or other charges in connection with any claims or in connection with a class of claims specified in the notification, or is not so entitled unless specified conditions have been complied with.

(2)  Such a notification cannot be given unless the Authority is satisfied that the solicitor or a member of the firm of solicitors or a voting shareholder of the incorporated legal practice is a director of or has a financial interest in an agent and:

(a)  the agent has persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4), or

(b)  a director of the agent or other person concerned in the management of the agent has persistently engaged in any such conduct.

(3)  Before the Authority gives such a notification it must give the solicitor, incorporated legal practice or firm of solicitors a reasonable opportunity to make written submissions to the Authority on the matter.

(4)  The effect of a notification under this section is that the solicitor, incorporated legal practice or firm of solicitors specified in the notification is not entitled to recover fees, costs or other charges (as provided by the notification) in respect of services performed while the notification is in force.

(5)  A solicitor, incorporated legal practice or firm of solicitors aggrieved by a notification under this section can appeal against the notification to the Compensation Court within 14 days after the notification is given. An appeal does not stay the operation of the notification unless the Compensation Court otherwise orders.

(6)  A notification remains in force until it is withdrawn. A notification can be withdrawn at any time by the Authority by giving notice of withdrawal in writing to insurers and self-insurers and to the solicitor, incorporated legal practice or firm of solicitors concerned.

(7)  For the purposes of this section, a financial interest in an agent is a share in the capital of the business conducted by the agent or any entitlement to receive any income derived from the business or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise.

139   Power to restrict or ban agents who engage in prohibited conduct

(cf former s 148I)

(1)  The Authority can by direction in writing given to an agent prohibit the agent from acting for any person in connection with any claims or in connection with specified types of claims. The prohibition can be absolute or subject to conditions.

(2)  Such a direction cannot be given unless:

(a)  the Authority is satisfied that the agent concerned has persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4) and as a result is not a fit and proper person to act in connection with claims to which the direction relates, and

(b)  the Authority has given the agent a reasonable opportunity to make written submissions to the Authority on the matter.

(3)  An agent who acts in contravention of a direction given under this section:

(a)  is guilty of an offence for which the maximum penalty is 200 penalty units, and

(b)  is not entitled to recover any fees, costs or other charges from a person for anything done by the agent in contravention of the direction.

(4)  A person aggrieved by a direction under this section can appeal against the direction to the Compensation Court within 14 days after the direction is given to the agent. An appeal does not stay the operation of the direction unless the Court otherwise orders.

(5)  A direction remains in force until it is withdrawn. A direction can be withdrawn at any time by the Authority by giving written notice of withdrawal to the agent concerned.

140   Past conduct included in assessing persistent conduct

(cf former s 148J)

(1)  A reference in sections 137, 138 and 139 to conduct that constitutes a contravention of section 133 or 343 (4) includes a reference to:

(a)  conduct engaged in by a person before the commencement of this section, and

(b)  conduct engaged in before the commencement of section 133 or 343 (4) that would, if engaged in after that commencement, have constituted a contravention of the provision.

(2)  However, a person cannot be considered to have persistently engaged in conduct that constitutes a contravention of section 133 or 343 (4) unless at least one instance of that conduct occurred after the commencement of this section.

For the purposes of section 138, at least one instance of the conduct must have occurred after the commencement of that section.

141   Duty of claimants to comply with requests for information about agents and lawyers

(cf former s 148K)

(1)  A person who makes a protected claim must comply with a request from the insurer or self-insurer concerned for information as to whether the person made use of the services of an agent or lawyer in respect of the claim and how the person came to make use of those services. Such a request by the insurer may be made at any time (whether or not proceedings before the Commission have been commenced in respect of the claim).

(2)  The regulations may make provision for limiting the operation of this section with respect to lawyers.

142   Regulation of advertising

(cf former s 148L)

(1)  The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of services to be provided by a lawyer or agent in connection with claims for compensation under this Act or claims for work injury damages, including (without limitation) regulating or prohibiting any of the following:

(a)  advertising by a lawyer or agent,

(b)  advertising by any person for or on behalf of a lawyer or agent,

(c)  advertising by any person in connection with the provision of those services,

(d)  advertising by any person of services connected with injuries.

(2)  A regulation may not be made under this section except with the concurrence of the Minister administering the Legal Profession Act 2004.

(3)  Any such regulation can impose a penalty not exceeding 200 penalty units for any contravention of the regulations.

(4)  The Minister may direct a person in writing not to engage in conduct described in the direction if the Minister is satisfied that:

(a)  the conduct contravenes the regulations under this section, and

(b)  the person has been engaged in conduct of that or a similar kind.

(5)  A person who contravenes a direction under this section is guilty of an offence.

Maximum penalty: 200 penalty units.

(6)  The Minister is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction.

(7)  A direction under this section may be amended or revoked by the Minister.