An Act to provide for the compensation and rehabilitation of workers in respect of work related injuries; to repeal the Workers’ Compensation Act 1926 and certain other Acts; and for other purposes.

Part 1 Preliminary

1   Name of Act

This Act may be cited as the Workers Compensation Act 1987.

2   Commencement

(1)  Sections 1 and 2 and Parts 19 and 20 of Schedule 6 shall commence on the date of assent to this Act.

(2)  Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.

2A   Relationship to Workplace Injury Management and Workers Compensation Act 1998

(1)  The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act.

(2)  This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.

(3)  In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.

3   Definitions

(cf former s 6 (1), (2), (13))

(1AA)  In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise.

(1)  In this Act:

agency arrangement means the contract or other arrangement by which a scheme agent is appointed.

former Act means the Workers’ Compensation Act 1926.

former licensed insurer means a person (not being a licensed insurer) who:

(a)  was previously a licensed insurer under this Act or under section 27 of the former Act, and

(b)  continues to have liabilities under policies of insurance previously issued or renewed by the person.

group means the employers who constitute a group under Division 2A of Part 7.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

Guarantee Fund means the Insurers’ Guarantee Fund established under section 227.

injury is defined by section 4.

Insurance Fund means the Workers Compensation Insurance Fund established under section 154D.

insurance premiums order means an order in force under section 168.

licensed insurer means an insurer who is the holder of a licence granted under Division 3 of Part 7 and in force.

mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 8 (3) of the Coal Mine Health and Safety Act 2002, is a place to which that Act does not apply.

Nominal Insurer means the Workers Compensation Nominal Insurer referred to in section 154A.

NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

premium income:

(a)  in relation to contributions payable under this Act by an insurer (other than a specialised insurer) in respect of a financial year—means the amount the insurer receives during that financial year as premiums in respect of policies of insurance issued or renewed by the insurer (whether the policies are issued or renewed during that financial year or during a previous financial year), or

(b)  in relation to contributions payable under this Act by a specialised insurer in respect of a financial year—means the amount the insurer receives, whether during or after that financial year, as premiums in respect of policies of insurance issued or renewed by the insurer during that financial year,

      and, in relation to contributions payable by any insurer, includes any amount comprising or attributable to GST and any amount prescribed by the regulations as included for the purposes of this definition in relation to that financial year, but does not include any amount prescribed by the regulations as excluded for the purposes of this definition in relation to that financial year.

regulations means regulations made under this Act.

scheme agent means a person appointed under section 154G to act as agent for the Nominal Insurer in connection with the exercise of any of the functions of the Nominal Insurer.

self-insurer means:

(a)  the holder of a licence in force under Division 5 of Part 7, and

(b)  a subsidiary of the licence holder covered for the time being by the licence (as provided by section 211A), and

(c)  any Government employer covered for the time being by the Government’s managed fund scheme (as provided by section 211B).

specialised insurer means a licensed insurer whose licence is endorsed with a specialised insurer endorsement.

(1A)  A reference to a worker who has been injured includes, if the worker is dead, a reference to the worker’s legal personal representative or the worker’s dependants, or any other person to whom or for whose benefit compensation is payable.

(2)  (Repealed)

(3)  The exercise of the functions of a public or local authority shall, for the purposes of this Act, be treated as its trade or business.

(4)  The operations of a racing or recreation club shall, for the purposes of this Act, be treated as its trade or business.

(5)  The Crown shall, for the purposes of this Act, be treated as the employer of members of the Police Force.

(6)  Notes included in the text of this Act do not form part of this Act.

4   Definition of “injury”

(cf former s 6 (1))

In this Act:

injury:

(a)  means personal injury arising out of or in the course of employment,

(b)  includes:

(i)  a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii)  the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and

(c)  does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

4A   Directors of uninsured employer not entitled to compensation

If an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer’s liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability.

5   (Repealed)

6   Act binds Crown

(1)  This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities.

(2)  (Repealed)

7   Certain Acts not affected

(cf former s 5)

Nothing in this Act affects the operation of the following Acts:

Workers’ Compensation (Dust Diseases) Act 1942,

Workers’ Compensation (Brucellosis) Act 1979,

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

7A   Application of Act in respect of coal industry

(1)  The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act.

(2)  However, the following provisions of this Act do not apply to or in respect of the workers compensation company:

(a)  Division 6 of Part 4,

(b)  sections 156 and 156B,

(c)  Divisions 1A, 2–5, 6A and 7 of Part 7.

(3)  For avoidance of doubt:

(a)  an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and

(b)  a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry.

(4)  The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company).

8   (Repealed)

Part 2 Compensation—liability

9   Liability of employers for injuries received by workers—general

(cf former s 7 (1) (a))

(1)  A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

(2)  Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.

9AA   Liability for compensation

(1)  Compensation under this Act is only payable in respect of employment that is connected with this State.

(2)  The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.

(3)  A worker’s employment is connected with:

(a)  the State in which the worker usually works in that employment, or

(b)  if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or

(c)  if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

(4)  In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.

(5)  If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:

(a)  the worker is in this State when the injury happens, and

(b)  there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6)  In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

(7)  Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.

(8)  In this section:

ship means any kind of vessel used in navigation by water, however propelled or moved, and includes:

(a)  a barge, lighter, or other floating vessel, and

(b)  an air-cushion vehicle, or other similar craft,

      used wholly or primarily in navigation by water.

State includes Territory and, in a geographical sense, a State’s or Territory’s relevant adjacent area as described in Schedule 1.

9AB   Recognition of determination of State of connection in another State

(1)  If a designated court makes a determination of the State with which a worker’s employment is connected for the purposes of a corresponding law, that State is to be recognised for the purposes of section 9AA as the State with which the worker’s employment is connected.

(2)  This section does not prevent or affect the operation of a determination of the State with which a worker’s employment is connected for the purposes of section 9AA made by the Commission or a court of this State before the determination is made by a designated court.

(3)  This section does not prevent any appeal relating to any such determination of a designated court. If the determination is altered on appeal, the altered determination is to be recognised under subsection (1).

(4)  In this section:

corresponding law means the provisions of the statutory workers compensation scheme of another State that corresponds with section 9AA.

designated court means:

(a)  the Supreme Court of a State in which a corresponding law is in force, or

(b)  a court, tribunal or other decision-making body of a State in which a corresponding law is in force that is declared by the regulations to be a designated court for the purposes of this section.

State includes Territory.

9AC   Person not to be compensated twice

(1)  Compensation under this Act is not payable in respect of any matter to the extent that compensation has been received under the laws of a place other than this State.

(2)  If a person receives compensation under this Act and, for the same matter, subsequently receives compensation under the laws of a place other than this State, the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).

(3)  The amount that is recoverable under subsection (2) is:

(a)  the amount of compensation paid under this Act, or

(b)  the amount of compensation received under the laws of a place other than this State,

      whichever is less.

9A   No compensation payable unless employment substantial contributing factor to injury

(1)  No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

(2)  The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a)  the time and place of the injury,

(b)  the nature of the work performed and the particular tasks of that work,

(c)  the duration of the employment,

(d)  the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e)  the worker’s state of health before the injury and the existence of any hereditary risks,

(f)  the worker’s lifestyle and his or her activities outside the workplace.

(3)  A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a)  the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,

(b)  the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4)  This section does not apply in respect of an injury to which section 10, 11 or 12 applies.

10   Journey claims

(cf former s 7 (1) (b)–(d), (f), (g))

(1)  A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

(1A)  Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.

(1B)  A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.

(1C)  (Repealed)

(1D)  Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.

(2)  Subsection (1) does not apply if:

(a)  the injury was received during or after any interruption of, or deviation from, any such journey, and

(b)  the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,

      unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.

(3)  The journeys to which this section applies are as follows:

(a)  the daily or other periodic journeys between the worker’s place of abode and place of employment,

(b)  the daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to attend,

(c)  a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,

(d)  a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3),

(e)  a journey between any camp or place:

(i)  where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or

(ii)  where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment,

      and the worker’s place of abode when not so residing,

(f)  a journey between the worker’s place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act,

(g)  a journey between the worker’s place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money:

(i)  due to the worker under the terms of his or her employment, and

(ii)  which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment.

(4)  For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.

(5)  For the purposes of this section, if the worker is journeying from the worker’s place of employment with one employer to the worker’s place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer.

(5A)  Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.

(6)  In this section:

educational institution means:

(a)  a trade, technical or other training school, or

(b)  a university or other college or school providing secondary or tertiary education.

night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker’s employment.

place of abode includes:

(a)  the place where the worker has spent the night preceding a journey and from which the worker is journeying, and

(b)  the place to which the worker is journeying with the intention of there spending the night following a journey.

11   Recess claims

(cf former s 7 (1) (e))

If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract:

(a)  is temporarily absent from that place on that day during any ordinary recess or authorised absence,

(b)  does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and

(c)  receives a personal injury during that absence,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

11A   No compensation for psychological injury caused by reasonable actions of employer

(1)  No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

(3)  A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.

(4)  This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.

(5)  (Repealed)

(6)  This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.

This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).

(7)  In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”.

(8)  If a claim is deficient because subsection (7) 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 practicable 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 of the 1998 Act until subsection (7) is complied with, and

(b)  proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.

12   Claims by trade union representatives

(cf former s 7 (1) (h))

If:

(a)  a worker is an accredited representative of a trade union of employees, or other organisation of employees, of which any person employed by the worker’s employer is a member,

(b)  with the consent of or at the request of that employer or pursuant to an industrial award or agreement, the worker is carrying out his or her duties as such a representative (whether at the worker’s place of employment or elsewhere) or is on an associated journey, and

(c)  the worker receives a personal injury while carrying out those duties or on that journey,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

13   (Repealed)

14   Conduct of worker etc

(cf former s 7 (2), (3))

(1)  Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received:

(a)  acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or

(b)  acting without instructions from the worker’s employer,

      if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.

(2)  If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.

(3)  Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.

15   Diseases of gradual process—employer liable, date of injury etc

(cf former ss 7 (4), (4C), (5), 16 (1A))

(1)  If an injury is a disease which is of such a nature as to be contracted by a gradual process:

(a)  the injury shall, for the purposes of this Act, be deemed to have happened:

(i)  at the time of the worker’s death or incapacity, or

(ii)  if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b)  compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

(2)  Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

(2A)  The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:

where:

C is the contribution to be calculated for the particular employer concerned.

T is the amount of compensation to which the employer is required to contribute.

A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due.

B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due.

(3)  Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.

(4)  In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

(4A)  In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.

(5)  This section does not apply to an injury to which section 17 applies.

16   Aggravation etc of diseases—employer liable, date of injury etc

(cf former ss 7 (4A), (5), 16 (1A))

(1)  If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:

(a)  the injury shall, for the purposes of this Act, be deemed to have happened:

(i)  at the time of the worker’s death or incapacity, or

(ii)  if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b)  compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.

(2)  Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

(2A)  The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:

where:

C is the contribution to be calculated for the particular employer concerned.

T is the amount of compensation to which the employer is required to contribute.

A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

(3)  In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

(4)  This section does not apply to an injury to which section 17 applies.

17   Loss of hearing—special provisions

(cf former s 7 (4B), (4BB))

(1)  If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect:

(a)  for the purposes of this Act, the injury shall be deemed to have happened:

(i)  where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or

(ii)  where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(b)  the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom,

(c)  compensation is payable by:

(i)  where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or

(ii)  where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(d)  an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,

(e)  in paragraph (d), the relevant period means:

(i)  where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)—in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,

(ii)  where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury—in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and

(iii)  where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury—in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,

(f)  where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,

(g)  where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.

(2)  Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.

(3)  Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.

18   Special insurance provisions relating to occupational diseases

(cf former s 18 (6A)–(6C))

(1)  If an employer has become liable under section 15 (1) (b) or 16 (1) (b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation.

(2)  Where:

(a)  an employer (in this subsection referred to as the contributor) has become liable under this Act to make a contribution to another employer towards compensation payable by that other employer in respect of an injury to a worker (being an injury referred to in section 15, 16 or 17), and

(b)  on the last day of the period in respect of which the contributor was liable to make the contribution, the contributor was maintaining in force a policy of insurance,

      the insurer under that policy is:

(c)  directly liable, with the contributor, to pay the contribution to the employer who is liable to pay the compensation, and

(d)  liable to indemnify the contributor to the extent that the contributor pays the contribution.

(3)  In a case to which section 15, 16 or 17 applies, if each of the employers who is liable to pay the compensation or to make a contribution under the section concerned is insured in respect of that liability by an insurer who is an insurer within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed:

(a)  a contribution that would otherwise be payable by an employer under section 15, 16 or 17 in respect of the claim is not payable, and

(b)  for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that any contribution that would have been payable but for paragraph (a) was payable.

19   Diseases deemed work related

(cf former s 7 (4D), (4E))

(1)  If a worker, during a time when the worker is engaged in employment of a kind prescribed by the regulations as an employment to which this subsection applies, contracts a disease prescribed by the regulations as a disease that is related to employment of that kind, then for the purposes of this Act, unless the contrary is established:

(a)  the disease shall be deemed to have been contracted by the worker in the course of the employment in which the worker was so engaged, and

(b)  that employment shall be deemed to have been a substantial contributing factor to the disease.

(2)  For the purposes of this Act, the disease brucellosis, Q fever or leptospirosis shall be deemed to have been contracted by a worker if the result of any medical test:

(a)  which complies with such requirements as are prescribed by the regulations in relation to that disease, and

(b)  which was carried out for the purpose of determining whether that worker has contracted that disease,

      is a result prescribed by the regulations in respect of that disease.

20   Principal liable to pay compensation to workers employed by contractors in certain cases

(cf former s 6 (3))

(1)  If any person (in this section referred to as the principal) in the course of or for the purposes of the person’s trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.

(2)  If compensation is claimed from or proceedings are taken against the principal in respect of any such injury, then, in the application of this Act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.

(3)  Notwithstanding subsection (1), where the contract relates to threshing, chaff-cutting, ploughing or other agricultural work, and the contractor provides and uses machinery driven by mechanical power for the purposes of that work, the contractor (and no other person) shall be liable under this Act to pay compensation to any worker employed by the contractor on that work.

(4)  If the principal is liable to pay compensation under this section, the principal is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement be determined by the Commission.

(5)  Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal.

(6)  This section does not apply in any case where the injury occurred elsewhere than on, in or about premises on which the principal has undertaken to execute the work or which otherwise are under the principal’s control or management, but nothing in the foregoing affects the liability of the contractor under any other provision of this Act.

(7)  This section does not render the owner of a farm liable to pay compensation as principal in respect of any worker employed by a share farmer.

(8)  If:

(a)  a principal under a contract referred to in subsection (1) is, at the time of an injury to a worker employed in the execution of the work under the contract, insured under a policy of insurance in respect of workers other than the workers employed in the execution of the work under the contract,

(b)  compensation payable by the principal under subsection (1) in respect of the injury is paid by the principal’s insurer, and

(c)  the principal has not, in respect of the policy, paid to the insurer a premium in respect of the principal’s liability under subsection (1),

      the principal is liable to pay the insurer, in addition to the premium payable or paid in respect of the policy, a premium calculated having regard to:

(d)  the insurance premiums order in force as at the commencement of the policy, and

(e)  the wages paid to the workers employed in the execution of the work under the contract during the term of the policy.

(9)  A principal under a contract referred to in subsection (1) is not, under subsection (8), liable to pay in respect of a policy of insurance more than one additional premium in respect of the workers employed in the execution of the work under the contract.

(10)  In the event of a disagreement between a principal and insurer as to whether or not an additional premium is payable under subsection (8) or as to the amount of an additional premium payable under that subsection, the Authority may, on the request of either party, determine the matter.

(11)  A determination by the Authority under subsection (10) shall have effect according to its tenor and shall not be subject to review or appeal.

21   (Repealed)

22   Compensation to be apportioned where more than one injury

(1)  If:

(a)  the death or incapacity of a worker, or

(b)  a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or

(c)  a liability under Division 3 of Part 3 to a worker,

      results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.

(1A)  Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.

(2)  Liability to pay compensation under this Act includes:

(a)  the liability of an employer (including an employer who is a self-insurer), and

(b)  the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and

(c)  a liability in respect of a claim under Division 6 of Part 4, and

(d)  in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.

(3)  Liability to pay compensation under this Act is not to be apportioned by the Commission if the parties to whom the liability relates have agreed on the apportionment.

(4)  Liability to pay compensation under this Act may be apportioned by the Commission even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.

(5)  The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether:

(a)  liability to pay compensation under this Act should be apportioned under this section, or

(b)  any such liability should be apportioned under this section in respect of different injuries.

The determination of the Commission has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer’s own right) or the Authority.

(6)  (Repealed)

(7)  A person who is liable to pay compensation under this Act is not entitled in any proceedings under this Act to a reduction in that liability by apportionment on account of the existence of any other person who is also liable to pay any part of that compensation unless that other person is a party to the proceedings.

(8)  This section applies to any liability arising before or after the commencement of this Act.

22A   Further provisions concerning apportionment of liability under section 22

(1)  The apportionment of liability under section 22 is:

(a)  in the case of the apportionment of liability between employers—to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and

(b)  in the case of the apportionment of liability between insurers of the same employer—to be on the basis of the relative length of the employer’s period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.

(2)  If a worker’s partial incapacity for work results from more than one injury to the worker and consequently more than one person would be liable to pay compensation in respect of that incapacity were the worker not entitled to compensation under section 38 of this Act or section 11 (2) of the former Act (as applied by Schedule 6 to this Act), those persons are nevertheless liable for the compensation so payable and accordingly that liability may be apportioned under section 22.

(3)  Liability may be apportioned under section 22 even if the liability has been discharged.

(4)  When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.

(5)  The person ordered under subsection (4) to pay compensation to the worker is to be:

(a)  in the case of apportionment between employers—the employer who most recently employed the worker, or such other of the employers as the Commission considers reasonable in the special circumstances of the case, and

(b)  in the case of apportionment between insurers—the insurer of the employer at the time of the last injury, or such other of the insurers as the Commission considers reasonable in the special circumstances of the case.

(6)  An order is not to be made under subsection (4) if the parties concerned have agreed as to the payment by one of them of the compensation concerned.

(7)  In this section a reference to an insurer includes a reference to a self-insurer and a reference to a period of insurance includes a reference to a period of self-insurance. A liability in respect of a claim under Division 6 of Part 4 is for the purposes of this section taken to be a liability of the insurer of the employer concerned during the period that is relevant to that liability.

(8)  In a case to which section 22 applies, if all of the insurers concerned (being either insurers of the same employer or of the different employers concerned) are insurers within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed:

(a)  the compensation is (despite subsection (5)) payable by the last insurer or the last employer (as relevant to the case), with no apportionment of liability under section 22, and

(b)  for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that liability had been apportioned under section 22 (without the need for a determination of, or agreement as to, that apportionment).

(9)  The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.

22B   Determination as to which injury gave rise to compensation liability

(1)  The Commission may, on the application of an employer (in the employer’s own right) or of the Authority, determine a dispute as to which injury, from among 2 or more alleged injuries, has given rise to a liability to pay compensation under this Act.

(2)  Such a determination may be made irrespective of any agreement and irrespective of whether the payment of any contribution is ordered under section 15 or 16 or any apportionment of liability is ordered under section 22.

22C   Certain injuries not to be dealt with under sections 15 and 16

(1)  This section applies to an injury that is of a kind, or that occurs in circumstances, prescribed by the regulations for the purposes of this section.

(2)  The regulations may provide that either or both of sections 15 and 16 is or are not to apply to an injury to which this section applies and that instead section 22 is to apply to the injury.

(3)  The regulations may provide that section 15 (1) (a) or 16 (1) (a) is, for the purposes of all or specified provisions of this Act, to apply in respect of an injury to which this section applies.

(4)  A regulation made for the purposes of this section extends to apply to an injury that happened before the commencement of the regulation, but only if:

(a)  death, incapacity, loss or liability as referred to in section 22 results from that injury and one or more other injuries, and

(b)  at least one of those other injuries happened after the commencement of the regulation.

(5)  A regulation made for the purposes of this section does not (despite subsection (4)) affect any liability of an employer or insurer to pay compensation or a contribution, or any liability of an insurer to indemnify an employer, that arose before the commencement of the regulation, unless the Commission otherwise orders.

23   Age or residence not relevant to liability

(cf former ss 53D, 72)

Compensation under this Act is payable to a person, and proceedings for the recovery of compensation under this Act may be instituted by a person, even though:

(a)  the person is under the age of 18 years, or

(b)  the person resides, or at any time resided, outside New South Wales.

24   Illegal employment

(cf former s 53I)

If, in any proceedings for the recovery of compensation under this Act, it appears that the contract of service or training contract under which the injured person was engaged at the time when the injury happened was illegal, the matter may be dealt with as if the injured person had at that time been a worker under a valid contract of service or training contract.

Part 3 Compensation—benefits

Division 1 Compensation payable on death

25   Death of worker leaving dependants

(cf former s 8 (1))

(1)  If death results from an injury, the amount of compensation payable by the employer under this Act shall be:

(a)  the amount of $425,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and

(b)  in addition, an amount of $66.60 per week in respect of:

(i)  each dependent child of the worker under the age of 16 years, and

(ii)  each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.

(2)  Payments in respect of a dependent child under subsection (1) (b) shall continue:

(a)  except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or

(b)  in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.

(3)  The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).

(4)  If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act:

(a)  is adjusted by the operation of Division 6, or

(b)  is adjusted by an amendment of this section,

      the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.

(4A)  If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.

(5)  In this section:

child of the worker means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.

dependent child of the worker means a child of the worker who was wholly or partly dependent for support on the worker.

student means a person receiving full-time education at a school, college or university.

26   Funeral expenses

If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $9,000 or such other amount as may be prescribed by the regulations.

27, 27A   (Repealed)

28   Expenses of transporting body

(cf former s 8 (4A))

If compensation is payable under this Division and the usual place of residence of the worker was, at the time of the worker’s death, in Australia, the employer shall pay additional compensation equal to the reasonable cost of transporting the body of the worker to:

(a)  what would, in the circumstances, be an appropriate place for its preparation for burial or cremation, or

(b)  that usual place of residence,

whichever is the lesser cost.

29   Apportionment of payments between dependants

(cf former s 59)

(1)  The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.

(1A)  The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.

(1B)  In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).

(2)  Application for apportionment may be made by or on behalf of a person entitled to the compensation:

(a)  to the NSW Trustee, or

(b)  to the Commission (whether or not an application has been made to the NSW Trustee or the NSW Trustee has made a decision).

(3)  The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.

(4)  The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.

(5)  A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.

(6)  If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.

(7)  If a dependant dies:

(a)  before a claim under this Division is made, or

(b)  if a claim has been made, before an agreement or award has been arrived at or made,

      the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.

(8)  The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.

30   Review of apportionment among dependants

(1)  The Commission or the NSW Trustee may, on account of the variation of the circumstances of the various dependants or for any other sufficient cause, vary any previous apportionment among the dependants of a deceased worker of compensation under this Division.

(2)  Application for a variation may be made by or on behalf of the person entitled to compensation to the Commission or the NSW Trustee.

(3)  The NSW Trustee may apply to the Commission for any such variation of a previous apportionment made by the NSW Trustee or by the Commission.

(4)  The NSW Trustee is not to deal with an application for variation of any previous apportionment if an application for variation of the same previous apportionment is before the Commission.

(5)  The NSW Trustee is not to vary an apportionment made by the Commission.

31   Payment in respect of dependent children

(cf former s 8 (1A))

(1)  Compensation payable under section 25 (1) (b) in respect of a dependent child of a deceased worker shall, unless the Commission otherwise orders:

(a)  be paid to the surviving parent of the child concerned, if there is one, or

(b)  be paid to the NSW Trustee for the benefit of the child or to any person (approved by the NSW Trustee) having the care or custody of the dependent child, if no such parent survives.

(2)  If the Commission makes an order under subsection (1), the compensation is payable in accordance with the order.

32   Payment where no dependants

(cf former s 57 (4))

If a deceased worker leaves no dependants, compensation payable under this Division shall be paid to the worker’s legal personal representative or, if there is no such representative, to the person to whom the payment of the expenses for which the compensation is payable is due.

Division 2 Weekly compensation by way of income support

33   Weekly compensation during total or partial incapacity for work

(cf former s 9 (1))

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

Note. Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.

34   Definition of first 26 weeks of incapacity

(1)  For the purposes of this Division, the first 26 weeks of incapacity, in relation to a worker, is the period of incapacity for work (whether total or partial, or both) not exceeding 26 weeks after the worker becomes entitled to weekly payments of compensation in respect of the incapacity.

(2)  A reference in subsection (1) to a period of incapacity for work includes, in the case of separate periods of incapacity resulting from the same injury, a reference to the aggregate of those periods.

(3)  For the avoidance of doubt, the first 26 weeks of incapacity does not include any period during which there is no weekly compensation payable in accordance with this Division, whether because of the operation of section 40 or otherwise.

35   Maximum weekly payment

(1)  The maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work shall not in any case exceed $1,000.

(2)  If the amount mentioned in subsection (1):

(a)  is adjusted by the operation of Division 6, or

(b)  is adjusted by an amendment of this section,

      the maximum weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.

(3)  Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.

36   Weekly payment during total incapacity—first 26 weeks

(cf former s 9 (1) (a))

(1)  The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.

(2)  In this section:

current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.

37   Weekly payment during total incapacity—after first 26 weeks

(cf former s 9 (1), (4))

(1)  The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be:

(a)  90 per cent of the worker’s average weekly earnings, except that:

(i)  the payment shall not exceed $235.20 per week,

(ii)  in the case of a worker who is over 21 years of age at the time of payment—the payment shall not be less than $187.10 per week, and

(iii)  in the case of a worker whose average weekly earnings do not exceed $170 per week—the payment shall be 100 per cent of those earnings or $153, whichever is the lesser amount,

(b)  in addition, $62 per week in respect of:

(i)  a dependent wife or dependent husband of the worker, or

(ii)  if there is no dependent wife or dependent husband at any time during which weekly payments are payable—any one dependent de facto spouse or other family member of the worker, and

(c)  in addition:

(i)  in respect of the dependent children of the worker, the following amounts per week:

No of dependent children	Additional amount per week
1 dependent child	$44.30
2 dependent children	$99.10
3 dependent children	$164.16
4 dependent children	$230.90
5 or more dependent children	$230.90 plus $66.60 for each child in excess of 4

(ii)  if there are no dependent children at any time during which weekly payments are payable—in respect of the dependent brothers and sisters of the worker, the same amounts per week as are payable under subparagraph (i) in respect of dependent children of the worker.

(1A)  Despite subsection (1), for a maximum of 26 weeks the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (whether the period is during or after, or partly during and partly after, the first 26 weeks of incapacity) is the amount specified in section 36. This subsection applies even if the injury concerned resulted in any period of partial incapacity for work in respect of which the worker received or receives weekly payments of compensation.

(2)  The total weekly payment under subsection (1) shall not exceed the worker’s current weekly wage rate determined from time to time in accordance with section 42.

(3)  A weekly payment made under this section in respect of a dependent wife, husband, de facto spouse or other family member, child, brother or sister is payable only during the period of dependency.

(4)  For the purposes of this section, a person is a dependent wife, husband, de facto spouse or other family member, child, brother or sister in relation to a worker if the person is totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or (whether married to the worker or born before or after that date) becomes so dependent after that date.

(5)  A person is not precluded from being totally or mainly dependent for support on a worker merely because:

(a)  in the case of a child—a payment is made in respect of the child under the Social Security Act 1991 of the Commonwealth, or

(b)  in the case of a de facto spouse or other family member—the worker pays wages to the person for the performance of domestic services for the worker.

(6)  A husband, wife or de facto spouse or other family member of the worker who, at the time of the injury to the worker:

(a)  was employed, and

(b)  was not totally or mainly dependent for support on the worker merely because of earnings from that employment,

      shall be regarded as being so dependent at the time of the injury if the Commission is satisfied that the person left that employment for the purpose of caring for the worker.

(6A)  If an amount mentioned in subsection (1):

(a)  is adjusted by the operation of Division 6, or

(b)  is adjusted by an amendment of this section,

      the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of total incapacity for work occurring on and after that date (not being a period during the first 26 weeks of incapacity), to be determined by reference to that amount as so adjusted.

(6B)  Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.

(7)  In this section:

appropriate period, for the purposes of the calculation of “average weekly earnings” in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.

average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:

(a)  the time of the injury concerned,

(b)  the time at which the relevant weekly payment of compensation is due,

      with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.

brother or sister, in relation to a worker, means a brother or sister of the worker who is:

(a)  under the age of 16 years, or

(b)  a student,

      but does not include a person in respect of whom a weekly payment is being made under subsection (1) (b) (ii).

child, in relation to a worker, means:

(a)  child or stepchild of the worker who is under the age of 16 years,

(b)  a person under the age of 16 years to whom the worker stands in the place of a parent, or

(c)  a student who is a child or stepchild of the worker or is a person to whom the worker stands in the place of a parent.

de facto spouse or other family member, in relation to a worker, means a person who:

(a)  in relation to:

(i)  an injury received before the commencement of Schedule 5 [2] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lives with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or

(ii)  an injury received after that commencement—is the other party to a de facto relationship with the worker, or

(b)  is the worker’s father, mother, grandfather, grandmother, stepfather, stepmother, grandson, grand-daughter, brother, sister, half-brother or half-sister and is over the age of 16 years, or

(c)  is over the age of 21 years and is caring for any child of the worker.

student means a person of or over the age of 16 years but under the age of 21 years who is receiving full-time education at a school, college or university.

38   Partially incapacitated workers not suitably employed—special initial payments while seeking employment

(1) Entitlement
If:

(a)  a worker is partially incapacitated for work as a result of an injury, and

(b)  the worker is not suitably employed during any period of that partial incapacity for work,

      the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.

(2) Maximum period of entitlement
The maximum total period for which the worker may be so compensated is 52 weeks.

(3) Rate of compensation
When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:

(a)  80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),

(b)  the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).

(4) Worker to seek suitable employment
Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).

38A   Determination of whether worker seeking suitable employment

(1) Application
This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).

(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:

(a)  the worker is ready, willing and able to accept an offer of suitable employment from the employer, and

(b)  the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and

(c)  the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and

(d)  the worker is taking reasonable steps to obtain suitable employment from some other person.

Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.

(3) Notice of requirement relating to obtaining suitable employment from other person
The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.

Such a notice:

(a)  must be given in writing by the insurer or self-insurer concerned, and

(b)  must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and

(c)  may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and

(d)  is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and

(e)  does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.

The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.

(4) Notice not applicable when proceedings pending etc
If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:

(a)  a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and

(b)  particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.

(5) Workers treated as not seeking suitable employment
A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:

(a)  unreasonably refuses to have an assessment made of the worker’s employment prospects, or

(b)  unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.

(6) Court orders
An order of the Commission relating to the weekly payment of compensation:

(a)  may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and

(b)  may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.

(7) Definitions
In this section:

employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.

refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing.

rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation.

suitable employment means suitable employment within the meaning of section 43A.

39   Incapacity treated as total—“odd-lot” rule

(cf former s 12)

(1)  If:

(a)  a worker is fit for employment of a kind not commonly available for a person in the worker’s circumstances, and

(b)  but for this section, the worker would be entitled to be compensated under this Division as totally incapacitated for work,

      the worker is not entitled to be so compensated unless:

(c)  the worker proves to the satisfaction of the Commission that the worker has taken all reasonable steps to obtain (but has failed to obtain) employment for which the worker is fit, and

(d)  payment is made in accordance with the Commission’s order.

(2)  An order of the Commission under this section may be limited to such period, and be subject to such conditions, as may be specified in the order.

(3)  The Commission may, in determining whether a worker has taken all reasonable steps to obtain employment for the purposes of this section, have regard to:

(a)  whether the worker was made aware of the worker’s obligation to take those steps, and

(b)  circumstances of the kind referred to in section 38A (5).

(4)  The “odd-lot” rule and any similar rule for determining whether a worker is totally or partially incapacitated for work is subject to the provisions of this section.

(5)  This section does not affect the operation of section 38 or 55.

(6)  The Registrar may make any order that the Commission may make under this section if the matter must be determined for the purposes of any interim payment direction by the Registrar.

40   Weekly payments during partial incapacity—general

(cf former ss 9, 11)

(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.

(2) Calculation of reduction in earnings of worker—general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:

(a)  the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and

(b)  the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).

(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment
If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:

(a)  the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and

(b)  the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).

(2B)  For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:

(a)  a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or

(b)  the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.

(3) Ability to earn in suitable employment
The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:

(a)  the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,

(b)  the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.

(4) Rehabilitation—unemployed (or not fully employed) workers
An injured worker who duly undertakes rehabilitation training under section 38 is not to be disadvantaged under this section by any increase in the amount that the worker would be able to earn merely because of that training, unless the worker unreasonably refuses an offer of suitable employment for which the worker has been trained. The Commission may determine any dispute about the operation of this subsection.

(5) Maximum rate of compensation
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.

(6) Adjustment of compensation—indexation
If it appears proper in the circumstances of the case, the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work may (subject to subsection (5)) be adjusted to take account of any adjustment because of the operation of Division 6 in the weekly payment that would be payable to the worker if it were a period of total incapacity for work.

(7) Adjustment of maximum amounts—application
If an amount mentioned in subsection (2):

(a)  is adjusted by the operation of Division 6, or

(b)  is adjusted by an amendment of this section,

      the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of partial incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.

(8) Exemption
This section does not apply to any period of partial incapacity for work during which the worker is compensated under this Act as if the worker’s incapacity for work were total.

40A   Assessment of incapacitated worker’s ability to earn

(1)  An injured worker who is partially incapacitated for work may be required by the employer to undergo an assessment of the worker’s ability to earn in some suitable employment.

(2)  An injured worker is not required to undergo such an assessment unless the worker has been informed about the possible entitlements of the worker under section 38 and the requirements for the worker to obtain those entitlements, and about the possible effects of section 52A on the worker. The giving of that information does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.

(3)  The Authority may, by notice to insurers and self-insurers, require any such information to be given in the form approved by the Authority.

(4)  Any such assessment is at the cost of the person who requires it.

(5)  If an injured worker fails, without reasonable excuse, to undergo any such assessment, the right to weekly compensation for partial incapacity for work is suspended while the failure continues.

41   Incapacity for period less than 1 week

(cf former s 9 (1) (a))

A weekly payment of compensation for total or partial incapacity for work in respect of a period of less than 1 week shall be reduced by the same proportion as normal working time during that part of the week bears to the worker’s full normal working week.

42   Current weekly wage rate

(cf former s 9 (8)–(13))

(1)  Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:

(a)  was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))—is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,

(b)  was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period—is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,

(c)  belonged to a class of workers prescribed by the regulations for the purposes of this paragraph—is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or

(d)  was not a worker or employee to whom paragraph (a), (b) or (c) applies—is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate.

(2)  If a regulation made for the purposes of subsection (1) (c) or (5) (b) contains a reference to an award or a provision of an award and the award or provision, in so far as it relates to a particular worker, is subsequently varied or replaced, the reference shall, on and from the date of the variation or replacement, be deemed, in relation to that worker, to be a reference to:

(a)  the award or provision as so varied, or

(b)  the award or provision which replaced that award or provision,

      as the case may be.

(3)  For the purposes of subsection (1) (a), if a worker is not remunerated in respect of the work performed by the worker under an award fixing or providing for the fixing of a rate for a weekly or longer period but:

(a)  there is such an award under which the worker would be entitled to be remunerated if the worker performed that work under a contract of service—the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award, or

(b)  although paragraph (a) does not apply, there is an award fixing or providing for the fixing of a rate for a weekly or longer period which, having regard to the nature of that work, it would be fair and reasonable to apply to and in respect of that work—the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award.

(4)  Subject to subsections (6) and (7), if the amount of a part-time worker’s current weekly wage rate, as determined under subsection (1), exceeds the worker’s average weekly earnings, a reference in this Division to that worker’s current weekly wage rate is a reference to those average weekly earnings.

(5)  In subsection (4), the reference to a part-time worker:

(a)  includes a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph, and

(b)  does not include a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph.

(6)  In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:

(a)  in respect of shift work, overtime or other penalty rates,

(b)  under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or

(c)  to cover special expenses incurred by the worker because of the nature of the worker’s employment,

      is, except in so far as the regulations otherwise provide, to be disregarded.

(7)  A reference in this Division to the current weekly wage rate of a worker, being a worker who:

(a)  at the time of the worker’s injury, was employed under 2 or more contracts of service under which the worker worked at one time for one employer and at another time for another employer, and

(b)  is incapacitated from performing work under any 2 or more of those contracts,

      is a reference:

(c)  except as provided in paragraph (d)—to the sum of the current weekly wage rates applicable to the worker under subsection (1) or (4) as a worker employed by each of the employers by whom the worker was employed under the contracts referred to in paragraph (b), or

(d)  where the total of the worker’s ordinary weekly hours of work under the contracts referred to in paragraph (b) exceeded 40—to an amount that bears to the sum referred to in paragraph (c) the same proportion as 40 bears to that total,

      and the current weekly wage rate of such a worker, as determined under this section, shall be deemed to be the worker’s current weekly wage rate as a worker in the employment of the employer for whom the worker was working at the time of the worker’s injury to the exclusion of any other employers.

(7A)  If the application of subsection (7) to an injured worker results in the current weekly wage rate of the worker being less than the rate that would be determined under this section if regard was only had to employment with the employer for whom the worker was working at the time of the worker’s injury, a reference to the current weekly wage rate of the worker is, despite that subsection, a reference to that higher rate.

(8)  In this section:

appropriate period, for the purposes of the calculation of “average weekly earnings” in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.

average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:

(a)  the time of the injury concerned,

(b)  the time at which the relevant weekly payment of compensation is due,

      with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.

award means:

(a)  an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force,

(b)  an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991,

(c)  an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or

(d)  an award made by the Coal Industry Tribunal under the Coal Industry Act 1946,

(e)  (without limiting the above) includes a State industrial instrument,

      and includes any such award, industrial agreement or other agreement or instrument as from time to time amended.

prescribed proportion means 80 per cent or, if the regulations prescribe some other percentage for the purposes of this section, that other percentage.

43   Computation of average weekly earnings

(cf former s 14)

(1)  For the purposes of the provisions of this Act relating to “earnings” and “average weekly earnings” of a worker, the following rules shall be observed:

(a)  Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned:

(i)  by a person in the same grade, employed at the same work, by the same employer, or

(ii)  if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district.

(b)  If the worker has entered into concurrent contracts of service with 2 or more employers under which he or she worked at one time for one such employer, and at another time for another such employer, the worker’s average weekly earnings shall be computed as if the worker’s earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the time of the injury.

(c)  Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the time of the injury, uninterrupted by absence from work due to illness, strikes, lockouts, bad weather or any other unavoidable cause.

(d)  If the employer has been accustomed to pay to the worker a sum to cover any special expenses incurred by the worker because of the nature of the employment, the sum so paid shall not be reckoned as part of the earnings.

(e)  The average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker’s earnings under all his or her contracts of service, for a period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury.

(f)  If a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section:

(i)  in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater, and

(ii)  in the case of any other worker, be deemed to be not less than the full wage for a full normal working week of that worker.

(1A)  Any relevant rules provided by this section are also to be observed in determining the average weekly amount that a worker would be able to earn in suitable employment for the purposes of section 40. If there is an ordinary weekly rate of pay generally applicable to employment of that kind under industrial law, the average weekly amount is to be determined by reference to that rate of pay together with any other likely weekly payments which it would be proper to include in the circumstances of the case (such as overtime or other amounts payable under common industry or other practice).

(2)  An employer shall, within 28 days, or such other period as may be prescribed, after a request from the employer’s injured worker, supply to the worker, in writing and in accordance with any requirements of the regulations:

(a)  such details of the relevant award (“award” having the same meaning as in section 42) and such classification details as will enable the worker to determine his or her current weekly wage rate for the purposes of this Act,

(b)  such details of the earnings of the worker as will enable the worker to determine his or her weekly earnings for the purposes of this Act, or

(c)  such details of the earnings of at least 2 persons employed by the employer at the same or a comparable grade and work as the worker as will enable the worker to determine, for the purposes of section 36, 37, 40 or 55, the amount which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.

(2A)  An employer who fails without reasonable excuse to comply with subsection (2) is guilty of an offence.

Maximum penalty: 20 penalty units.

(2B)  The regulations may make provision for or with respect to:

(a)  the manner and form in which the details required to be provided by subsection (2) are to be provided, and

(b)  requiring an employer to certify as to the completeness and accuracy of details provided by the employer for the purposes of subsection (2).

(3)  In this section, basic wage means the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996, at the time of the computation.

43A   Suitable employment

(1)  For the purposes of sections 38, 38A and 40:

suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:

(a)  the nature of the worker’s incapacity and pre-injury employment,

(b)  the worker’s age, education, skills and work experience,

(c)  the worker’s place of residence,

(d)  the details given in the medical certificate supplied by the worker,

(e)  the provisions of any injury management plan for the worker,

(f)  any suitable employment for which the worker has received rehabilitation training,

(g)  the length of time the worker has been seeking suitable employment,

(h)  any other relevant circumstances.

(2)  In the case of employment provided by the worker’s employer, suitable employment includes:

(a)  employment in respect of which:

(i)  the number of hours each day or week that the worker performs work, or

(ii)  the range of duties the worker performs,

      is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and

(b)  if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:

(i)  by the employer at the workplace or elsewhere, or

(ii)  by any other person or body under arrangements made with the employer,

      but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned.

(3)  However, in any such case, suitable employment does not include:

(a)  employment that is merely of a token nature and does not involve useful work having regard to the employer’s trade or business, or

(b)  employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker’s other employment prospects.

(4)  A worker is to be regarded as suitably employed if:

(a)  the worker’s employer provides the worker with, or the worker obtains, suitable employment, or

(b)  the worker has been reinstated to the worker’s former employment under Part 7 of Chapter 2 of the Industrial Relations Act 1996.

44   Incapacitated worker reaching 21 years of age—special provision

(cf former s 9 (4A))

If:

(a)  a worker in receipt of weekly payments of compensation was under 21 years of age at the date of the injury,

(b)  the worker reaches the age of 21 years, and

(c)  the worker’s average weekly earnings are less than the weekly sum which the worker would probably have been earning on reaching 21 years of age if the worker had remained uninjured,

the weekly payment of compensation shall be increased to such amount as would have been payable if the average weekly earnings had been equivalent to that weekly sum.

45   Reduction of weekly payments to qualify for other benefits

(1)  The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment:

(a)  is not payable, or

(b)  is reduced to a specified amount or in a specified manner,

      if the worker, or any spouse or other person related to the worker, would as a result be qualified to receive any pension, allowance or other benefit under the Social Security Act 1991 of the Commonwealth or under any other Act or law.

(2)  Any such order has effect according to its tenor.

(3)  Any such order does not have effect for the purposes of determining (if applicable) the lump sum payable on the commutation of a weekly payment under this Act or the redemption of a weekly payment under section 15 of the former Act (as applied by Schedule 6 to this Act).

46   Reduction of weekly payments to prevent dual benefits

(cf former s 13)

(1)  The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.

(2)  Any such order shall have effect according to its tenor.

(3)  This section does not affect the operation of section 49 or 50.

47   Incapacity deemed to exist in certain cases

(cf former s 12A)

A worker who, as a result of injury, is unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment shall be deemed to be incapacitated for employment of that kind.

48   Compensation payable despite existing incapacity

(cf former s 7 (2A))

(1)  Compensation is payable under this Division in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work of the worker.

(2)  Any such compensation is payable as if total or partial incapacity for work had in fact resulted from the injury.

(3)  In this section:

existing incapacity means total incapacity for work by disease or other cause:

(a)  not entitling the worker to compensation under this Act, and

(b)  existing at the time when the total or partial incapacity for work would otherwise have resulted from the injury.

49   Weekly compensation payable despite holiday pay etc

(cf former s 7 (2B))

(1)  Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.

(2)  The amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive in respect of the period any such payment, allowance or benefit.

50   Weekly compensation and sick leave

(cf former s 7 (2C))

(1)  Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.

(2)  If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave:

(a)  that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and

(b)  the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.

(3)  If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period:

(a)  the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and

(b)  the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.

(4)  If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period:

(a)  if the worker has not also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or

(b)  if the worker has also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).

(5)  The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity.

(6)  In this section:

compensation means weekly payments of compensation under this Division.

wages means wages, salary, allowance or other payment.

51   (Repealed)

52   Termination of weekly payments on retiring age

(cf former s 60A)

(1)  In this section:

retiring age, in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.

(2)  If a person:

(a)  receives an injury before reaching the retiring age—a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring after the first anniversary of the date on which that person reaches the retiring age, or

(b)  receives an injury on or after reaching the retiring age—a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury.

(3)  This section has effect notwithstanding anything to the contrary in this Division.

(4)  This section does not apply to injuries received before 30 June 1985.

52A   Discontinuation of weekly payments for partial incapacity after 2 years

(1)  Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:

(a)  the worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),

(b)  the worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40 (2B)),

(c)  the worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).

(2)  The relevant time for the purposes of this section is the time at which the notice under section 54 of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.

(3)  A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.

(4)  The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.

(5)  The fact that the worker becomes totally incapacitated for work after the relevant time does not affect the operation of this section in respect of partial incapacity for work.

(6)  This section does not affect any entitlement to compensation under this Act in respect of any period of total incapacity for work.

(7)  A period of partial incapacity for work does not count as part of the 104 weeks referred to in subsection (1) unless the worker received or was entitled to receive compensation for that period. Separate periods during which the worker received or was entitled to receive those payments are to be aggregated.

(8)  If:

(a)  a claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or

(b)  proceedings before the Commission involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of the 104 week period,

      the notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.

(9)  This section does not apply to compensation for an injury received by a person as a worker employed in or about a mine.

52B   (Repealed)

53   Weekly payments—residence outside the Commonwealth

(cf former s 54)

(1)  If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.

(2)  If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.

54   Notice required before termination or reduction of payment of weekly compensation

(cf former s 54A)

(1)  If a worker:

(a)  has received weekly payments of compensation for a continuous period of at least 12 weeks, and

(b)  has provided the worker’s employer, or the employer’s insurer, with a certificate by a medical practitioner specifying the expected duration of the worker’s incapacity,

      the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation.

Maximum penalty: 50 penalty units.

(2)  If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that:

(a)  if no period of notice has been given—is equal to the amount of compensation, or additional compensation, that would have been payable during the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or

(b)  if less than the prescribed period of notice has been given—is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.

(3)  The prescribed period of notice referred to in this section is:

(a)  if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year—2 weeks, or

(b)  if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more—6 weeks.

(4)  The notice referred to in this section shall:

(a)  be given to the worker personally or by post, and

(b)  if the regulations so require, be in such form (or contain such information) as may be prescribed by the regulations.

(5)  This section is subject to section 58.

(6)  This section does not apply to a reduction in weekly compensation as a result only of the application of different rates of compensation after the expiration of earlier periods of incapacity for which higher rates were payable (whether under section 38 or otherwise).

(7)  The notice referred to in this section is to include information about the possible entitlements of the injured worker under section 38 and the requirements for the worker to obtain those entitlements if:

(a)  the notice relates to a reduction in the amount of the worker’s weekly compensation as a result of the application of section 40, and

(b)  the injured worker is not in receipt of earnings, and

(c)  the information has not been supplied to the worker under section 40A.

The giving of that information does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.

(8)  Before giving a notice under this section, an insurer must carry out an internal review of the decision to give the notice.

55   Review of weekly payments

(cf former s 60)

(1)  Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or of the Authority.

(2)  On any such review:

(a)  the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment), and

(b)  the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.

(2A)  If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Commission’s order on the review, the Commission may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.

(3)  On any such review, the amount of any weekly payment payable in respect of an injury may be increased to such an amount as would have been awarded if the worker had, at the time of the injury, been earning the wage or salary which the worker would probably have been earning, at the date of the review, if the worker had remained uninjured and continued to be employed in the same or some comparable employment.

(4)  A review under this section shall be given such priority as is reasonably practicable, and any necessary directions may be given to expedite the hearing of the matter.

(5)  (Repealed)

55A   Award of compensation may be for fixed period

The Commission may, under an award for weekly payments of compensation, direct that the payments are to be made for a specified period even though the period of incapacity is indefinite.

56   Award of compensation may be subject to supply of medical certificates etc

(1)  The Commission may, as a condition of any award for weekly payments of compensation, require the worker to supply to the employer or other specified person from time to time medical certificates relating to the incapacity for work to which the award relates.

(2)  Subject to any further order of the Commission, if any such certificate is not supplied in accordance with the terms of the award, weekly payments of compensation under the award may be suspended until the certificate is supplied.

(3)  This section applies to an interim payment direction by the Registrar for weekly payments of compensation in the same way as it applies to an award by the Commission for any such payments.

57   Worker to notify return to work etc with other employer

(1)  A worker who is in receipt of weekly payments of compensation shall forthwith notify the person making those payments of:

(a)  the worker’s commencing employment with some other person or in the worker’s own business, or

(b)  any change in that employment that affects the worker’s earnings.

Maximum penalty: 40 penalty units.

(2)  A worker is not guilty of an offence under this section if the worker satisfies the court that the person to whom the matter was to be notified failed to inform the worker of the obligation to notify that matter.

(3)  This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.

58   Refund of weekly payments paid after return to work etc

(1)  If, because of a worker’s return to employment or a change in employment that affects the worker’s earnings:

(a)  the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker, or

(b)  the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act (including under the former Act),

      the Commission may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment.

(2)  Any such refund may, in accordance with the terms of the Commission’s order, be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction.

(3)  This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.

(4)  Without limiting this section, the Commission may make such orders as the Commission thinks fit for the adjustment of weekly payments of compensation to a worker to take account of any overpayments made to the worker (whether or not in the circumstances referred to in subsection (1)) in respect of any previous period.

(5)  In this section:

(a)  a reference to the worker’s return to employment includes a reference to the worker’s commencing employment, and

(b)  a reference to employment includes a reference to employment in the worker’s own business.

(6)  A court before which proceedings for an offence under section 57 are taken against a person may, on the application of the Authority (whether or not the person is convicted of the offence), make any order that it is satisfied the Commission could make under this section as a result of the return to employment or change in employment to which the alleged offence relates. The standard of proof that applies in connection with an application under this subsection is proof on the balance of probabilities.

(7)  The power conferred on a court by subsection (6) is subject to the following limitations:

(a)  it does not authorise the making of an order providing for the refund to be deducted from any future weekly payments of compensation to the extent that they are payable under an award of the Commission,

(b)  it does not authorise the making of an order of the kind described in subsection (4).

(8)  An order under subsection (6) is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.

(9)  The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.

(10)  This section does not limit any other right of recovery that a person may have against another person in respect of any overpayment of compensation to that other person.

Division 3 Compensation for medical, hospital and rehabilitation expenses etc

59   Definitions

(cf former s 10 (2))

In this Division:

ambulance service includes any conveyance of an injured worker to or from a medical practitioner or hospital.

dental prosthetist has the same meaning it has in the Dental Technicians Registration Act 1975.

hospital treatment means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes:

(a)  the maintenance of the worker as a patient at the hospital or rehabilitation centre,

(b)  the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and

(c)  any other ancillary service,

but does not include ambulance service.

medical or related treatment includes:

(a)  treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a registered chiropractor or osteopath, a masseur, a remedial medical gymnast or a speech therapist,

(b)  therapeutic treatment given by direction of a medical practitioner,

(c)  (Repealed)

(d)  the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,

(e)  any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,

(f)  care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,

(f1)  domestic assistance services,

(g)  the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and

(h)  treatment or other thing prescribed by the regulations as medical or related treatment,

but does not include ambulance service, hospital treatment or occupational rehabilitation service.

medical practitioner means a duly registered medical practitioner under the Medical Practitioners Act 1938 or under any law of another State or a Territory of the Commonwealth.

occupational rehabilitation service means any of the following services provided by or on behalf of a provider accredited under section 52 of the 1998 Act or by a person, or a person of a class, prescribed by the regulations:

(a)  initial rehabilitation assessment,

(b)  functional assessment,

(c)  workplace assessment,

(d)  job analysis,

(e)  advice concerning job modification,

(f)  rehabilitation counselling,

(g)  vocational assessment,

(h)  advice or assistance concerning job-seeking,

(i)  advice or assistance in arranging vocational re-education or training,

(j)  preparation of a rehabilitation plan,

(k)  any other service prescribed by the regulations,

but does not include hospital treatment.

public hospital means:

(a)  a public hospital within the meaning of the Health Services Act 1997 controlled by an area health service or the Crown,

(b)  a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,

(c)  (Repealed)

(d)  a hospital or other institution (whether in this State or in another State or a Territory of the Commonwealth) that:

(i)  is prescribed by the regulations, or

(ii)  belongs to a class of hospitals or institutions prescribed by the regulations,

      for the purposes of this definition.

60   Compensation for cost of medical or hospital treatment and rehabilitation etc

(1)  If, as a result of an injury received by a worker, it is reasonably necessary that:

(a)  any medical or related treatment (other than domestic assistance) be given, or

(b)  any hospital treatment be given, or

(c)  any ambulance service be provided, or

(d)  any occupational rehabilitation service be provided,

      the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

Note. Compensation for domestic assistance is provided for by section 60AA.

(2)  If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are:

(a)  the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and

(b)  if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.

(3)  Payments under this section are to be made as the costs are incurred, but only if properly verified.

(4)  The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.

60AA   Compensation for domestic assistance

(1)  If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:

(a)  a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and

(b)  the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and

(c)  the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and

(d)  the assistance is provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines.

(2)  Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:

(a)  it is provided for not more than 6 hours per week,

(b)  it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,

(c)  it is provided pursuant to the requirements of the relevant injury management plan.

(3)  Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.

(4)  Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.

(5)  The following requirements apply in respect of payments under this section:

(a)  payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,

(b)  payments are only to be made if those costs and the provision of the assistance is properly verified (and the WorkCover Guidelines may make provision for how the performance of those services is to be verified),

(c)  payments for gratuitous domestic assistance are to be made to the provider of the assistance.

(6)  In this section:

gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.

60A   Worker not liable for medical, hospital and rehabilitation charges above applicable rates

A worker is not liable to pay, and a person is not entitled to recover from a worker, any amount in respect of medical or related treatment, hospital treatment at a hospital or an occupational rehabilitation service, given or provided to the worker as a result of an injury, to the extent that the amount exceeds any applicable maximum, as follows:

(a)  in the case of a medical or related treatment for which a sum is fixed under section 61 (2), the applicable maximum is that fixed sum,

(b)  in the case of hospital treatment at a hospital, the applicable maximum is the amount calculated as fixed under section 62 (1) as the cost to the hospital of the treatment,

(c)  in the case of an occupational rehabilitation service for which a sum is fixed under section 63A (2), the applicable maximum is that fixed sum.

61   Rates applicable for medical or related treatment

(cf former s 10 (4), (5A))

(1)  The amount for which an employer is liable in respect of the medical or related treatment of a worker is such amount as is reasonably appropriate to the treatment given, having regard to the reasonable necessity for the treatment and the customary charge made in the community for the treatment to persons other than workers.

(2)  The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.

(3)  The maximum amount for which an employer is liable for medical or related treatment given to a worker in respect of the same injury (whether the treatment is given at different stages of the injury or not) is:

(a)  $50,000, or

(b)  where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.

(4)  Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (3).

(4A)  If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of medical or related treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

(5)  The amount for which an employer is liable for the care of a worker as referred to in paragraph (f) of the definition of medical or related treatment in section 59 is (subject to any maximum amount under this section) the reasonable cost of providing that care having regard to the extent to which care might be expected to be provided by the worker’s spouse or other person residing with the worker.

(6)  The amount for which an employer is liable for the modification of a worker’s home or vehicle as referred to in paragraph (g) of the definition of medical or related treatment in section 59 is the reasonable cost of carrying out those modifications.

(7)  Except as otherwise provided by the regulations, the maximum amount under subsection (3) does not apply to any liability of an employer referred to in subsection (6).

(8)  Any amount for which an employer is liable under this Division in respect of medical or related treatment may be recovered from the employer by the person who gave the treatment.

(9)  If the maximum amount referred to in subsection (3) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the medical or related treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.

Editorial note. For Orders under this section and section 62, see the Historical notes at the end of this Act.

62   Rates applicable for hospital treatment

(cf former s 10 (2A), (3))

(1)  The amount for which an employer is liable in respect of hospital treatment of a worker at a hospital is the cost to the hospital of the hospital treatment, calculated as determined by the Authority by order published in the Gazette.

(2)–(4)  (Repealed)

(5)  The maximum amount for which an employer is liable for hospital treatment given to a worker in respect of the same injury (whether the treatment is afforded at different stages of the injury or not) is:

(a)  $50,000, or

(b)  where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.

(6)  Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (5).

(6A)  If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

(7)  A hospital, or a duly authorised officer of the hospital, may recover from the employer any amount for which the employer is liable under this Division in respect of hospital treatment given by that hospital.

(8)  A determination under subsection (1) shall not be made without the concurrence of the Minister for Health.

(9)  If the maximum amount referred to in subsection (5) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the hospital treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.

Editorial note. For Orders under this section and section 61, see the Historical notes at the end of this Act.

63   Rates applicable for ambulance service

(cf former s 10 (5))

(1)  The maximum amount for which an employer is liable for any ambulance service provided to a worker is:

(a)  $10,000, or

(b)  where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.

(2)  An amount additional to that fixed by subsection (1) may be allowed on account of the distance travelled in any particular case.

(2A)  If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of ambulance services for the worker, such an allowance may be awarded by the Commission. If no such proceedings are before the Commission, such an allowance may be awarded by the Authority on application made in respect of the worker from time to time.

(2B)  If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of ambulance services provided to a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.

(3)  Any amount for which an employer is liable under this Division in respect of any ambulance service may be recovered from the employer by the person providing the ambulance service.

63A   Rates applicable for occupational rehabilitation services

(1)  The amount for which an employer is liable for any occupational rehabilitation service provided to or for the benefit of a worker is such amount as is reasonably appropriate to the service provided, having regard to the reasonable necessity for the service and any guidelines determined by the Authority by order published in the Gazette.

(2)  The maximum amount for which an employer is liable for any particular occupational rehabilitation service is such sum (if any) as may be fixed by the Authority in respect of that service by order published in the Gazette.

(3)  The maximum amount for which an employer is liable for any occupational rehabilitation services provided to or for the benefit of a worker in respect of the same injury (whether the same or different kinds of services, but not services excluded from this subsection by the regulations) is:

(a)  $1,200, or

(b)  where some greater amount has been prescribed by the regulations—that greater amount.

(4)  On application made from time to time by or on behalf of the worker concerned or of the provider of the services concerned, the Authority or other prescribed person may, subject to the regulations and any order of the Commission, direct that the employer is liable for a further amount to that prescribed by subsection (3).

(5)  The regulations may exempt an employer from liability under this Division for occupational rehabilitation services unless the services are approved in the manner, or provided in the circumstances, specified in the regulations.

(6)  Any amount for which an employer is liable under this Division in respect of occupational rehabilitation services may be recovered from the employer by the person who provided the service.

64   Rates applicable for car travel associated with treatment

(cf former s 10 (1B))

If the cost referred to in section 60 (2) (a) or the amount referred to in section 60 (2) (b) includes the cost of, or an amount for, travel by private motor vehicle, that cost or amount shall be calculated at:

(a)  the rate of 28 cents per kilometre, or

(b)  where some other rate has been fixed by the Authority by order published in the Gazette—that other rate.

Editorial note. For Orders under this section, see the Historical notes at the end of this Act.

64A   Compensation for cost of interpreter services

(1)  If it is reasonably necessary for a worker to obtain the assistance of an interpreter in connection with a claim for compensation under this Act, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the reasonable costs of any such assistance.

(2)  The Authority may by order published in the Gazette:

(a)  establish guidelines for determining the amount payable under this section, and

(b)  fix the maximum amount payable under this section.

(3)  Payments under this section are to be made as the costs are incurred, but only if properly verified.

(4)  The Authority may pay any such costs (whether or not liability to pay those costs has been determined) and recover the amount from any employer liable to pay them.

(5)  This section applies only to the costs of assistance provided in respect of a claim made after the commencement of this section.

Division 4 Compensation for non-economic loss

65   Determination of degree of permanent impairment

(1)  For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(2)  If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.

Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.

(3)  If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation or pain and suffering compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.

(4)  (Repealed)

65A   Special provisions for psychological and psychiatric injury

(1)  No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a secondary psychological injury.

Note. This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury).

(2)  In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

(3)  No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.

Note. If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.

(4)  If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:

(a)  the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),

(b)  the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),

(c)  the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.

Note. If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.

(5)  In this section:

primary psychological injury means a psychological injury that is not a secondary psychological injury.

psychological injury includes psychiatric injury.

secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.

66   Entitlement to compensation for permanent impairment

(1)  A worker who receives an injury that results in permanent impairment is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

(2)  The amount of permanent impairment compensation is to be calculated as follows:

(a)  if the degree of permanent impairment is not greater than 10%, the amount of permanent impairment compensation is to be calculated as follows:

(b)  if the degree of permanent impairment is greater than 10% but not greater than 20%, the amount of permanent impairment compensation is to be calculated as follows:

(c)  if the degree of permanent impairment is greater than 20% but not greater than 40%, the amount of permanent impairment compensation is to be calculated as follows:

(d)  if the degree of permanent impairment is greater than 40% but not greater than 75%, the amount of permanent impairment compensation is to be calculated as follows:

(e)  if the degree of permanent impairment is greater than 75%, the amount of permanent impairment compensation is $220,000,

      where D is the number derived by expressing the degree of permanent impairment as D%.

(2A)  To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%.

Example 1. A person suffers 10% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $13,750 (10 × $1,375). If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $13,750. Under this subsection, that $13,750 will be increased by 5%, yielding $14,437.50.

Example 2. A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $123,750 ($85,250 + (10 × $3,850)). If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $123,750, or $82,500. Under this subsection, that $82,500 will be increased by 5%, yielding $86,625. The total compensation payable for the impairment will therefore be $127,875.

(3)  The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.

66A   Agreements for compensation

(1)  In this section, complying agreement means a written agreement:

(a)  under which a worker who has received an injury, and an employer or insurer, agree as to either or both of the following:

(i)  the degree of permanent impairment that has resulted from the injury,

(ii)  the amount of pain and suffering compensation to which the worker is entitled in respect of the injury, and

(b)  in which there is a provision in which the employer or insurer certifies that it is satisfied that the worker has obtained independent legal advice before entering into the agreement.

(2)  If a worker enters into a complying agreement in relation to an injury:

(a)  the permanent impairment compensation to which the worker is entitled in respect of the injury is the compensation payable in respect of the degree of impairment so agreed, and

(b)  the pain and suffering compensation to which the worker is entitled in respect of the injury is the amount so agreed.

(3)  The Commission may award compensation additional to the compensation payable under subsection (2) by virtue of a complying agreement if it is established that:

(a)  the agreed degree of permanent impairment or the amount of pain and suffering compensation is manifestly too low, or

(b)  the worker has been induced to enter into the agreement as a result of fraud or misrepresentation, or

(c)  since the agreement was entered into, there has been an increase in the degree of permanent impairment beyond that so agreed.

(4)  Complying agreements, and the payments made under them, are to be recorded in accordance with the WorkCover Guidelines.

(5)  Subsection (2) has effect despite section 234 (No contracting out) of the 1998 Act.

(6)  Nothing in this section prevents a complying agreement from containing provision as to the payment of costs.

66B   No proceedings to enter up award on agreement for compensation

(1)  When a worker agrees to receive an amount of permanent impairment compensation or pain and suffering compensation, the Commission is not to entertain proceedings for entry of an award to give effect to the agreement unless the proceedings also relate to some dispute in connection with the worker’s claim for compensation under this Act.

(2)  The regulations may prescribe exceptions to this section.

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

(a)  requiring an application referring a matter to the Commission to be accompanied by evidence (in the form of a certificate or other information provided for by the regulations) that the proceedings are not prevented by this section from being entertained by the Commission, and

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

67   Compensation for pain and suffering

(1)  A worker who receives an injury that results in a degree of permanent impairment of 10% or more is entitled to receive from the worker’s employer as compensation for pain and suffering resulting from the permanent impairment an amount not exceeding $50,000. Pain and suffering compensation is in addition to any other compensation under this Act.

Note. Section 65A provides that pain and suffering compensation for permanent impairment arising from psychological injury is not payable unless the injury is a primary psychological injury (as defined in that section) and the degree of permanent impairment arising from the injury is 15% or more.

(1A)  (Repealed)

(2)  Because there is a distinction between injury and impairment resulting from an injury (and compensation is payable under this section only for pain and suffering resulting from impairment), the pain and suffering for which compensation is payable does not include pain and suffering that results from the injury but not from the impairment.

(3)  The maximum amount of compensation under this section is payable only in a most extreme case and the amount payable in any other case shall be reasonably proportionate to that maximum amount having regard to the degree and duration of pain and suffering and the severity of the permanent impairment.

(3A)  (Repealed)

(4)  The amount of compensation payable under this section in any particular case shall, in default of agreement, be determined by the Commission.

(4A)  (Repealed)

(5)  Compensation under this section is not payable after the death of the worker concerned.

(6)  If an amount mentioned in this section at any time after the commencement of this Act:

(a)  is adjusted by the operation of Division 6, or

(b)  is adjusted by an amendment of this section,

      the compensation payable under this section is to be calculated by reference to the amount in force at the date of injury.

(7)  In this section:

pain and suffering means:

(a)  actual pain, or

(b)  distress or anxiety,

      suffered or likely to be suffered by the injured worker, whether resulting from the permanent impairment concerned or from any necessary treatment.

67A   Special provisions for HIV/AIDS

(1)  For the purposes of the determination of the amount of pain and suffering compensation payable, HIV infection and AIDS are each considered to be a most extreme case, so that the maximum amount of pain and suffering compensation is payable.

(1A)  For the purposes of the determination of the amount of permanent impairment compensation payable, HIV infection and AIDS are each considered to result in a degree of permanent impairment of 100%.

(2)  Section 68 does not apply to a loss that is HIV infection or AIDS.

(3)  The regulations may make provision for methods for determining for the purposes of this Act whether a person is HIV infected or is suffering from AIDS. Regulations need not be made under this subsection and in the absence of regulations the determination of whether a person is HIV infected or suffering from AIDS is to be on the basis of medical opinion.

(4)  Permanent impairment compensation and pain and suffering compensation are not payable in respect of permanent impairment that is HIV infection or AIDS if the impairment resulted from voluntary sexual activity or illicit drug use. This subsection does not limit the operation of section 14 (Conduct of worker etc).

(5)  In this section HIV infection means infection by the Human Immunodeficiency Virus, and AIDS means Acquired Immune Deficiency Syndrome.

68, 68A   (Repealed)

68B   Deductions for previous injuries and pre-existing conditions—operation of sections 15, 16, 17 and 22

(1)  When determining the compensation payable in respect of permanent impairment for the purposes of the apportionment of liability under section 22, there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to an injury in respect of which liability is to be apportioned (but without affecting any deduction under that section for any proportion of the impairment that is due to any other injury or that is due to any pre-existing condition or abnormality).

(2)  When determining the compensation payable by an employer in a case in which section 15 applies (disease of such a nature as to be contracted by a gradual process), section 323 of the 1998 Act applies to that compensation subject to the following:

(a)  there is to be no deduction under section 323 of the 1998 Act for any proportion of the permanent impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,

(b)  for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 15 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),

(c)  in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.

(3)  When determining the compensation payable by an employer in a case in which section 16 applies (an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease), section 323 of the 1998 Act applies to that compensation subject to the following:

(a)  there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,

(b)  for the purposes of paragraph (a), previous relevant employment is employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration by a previous employer who is liable under section 16 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period),

(c)  in the case of permanent impairment of the back, neck or pelvis, a reference in this subsection to previous relevant employment is limited to employment after the commencement of this Act.

(4)  When determining the compensation payable by an employer in a case in which section 17 applies (loss or further loss of hearing), section 323 of the 1998 Act applies to that compensation subject to the following:

(a)  there is to be no deduction under section 323 of the 1998 Act for any proportion of the impairment that is due to the worker’s employment in previous relevant employment (as defined in paragraph (b)) except any such proportion for which compensation under this Division (as in force at any time) or section 16 of the former Act has been paid or is payable,

(b)  for the purposes of paragraph (a), previous relevant employment is employment to the nature of which the disease was due by a previous employer who is liable under section 17 to contribute in respect of the compensation being determined (or who would be so liable if the requirement to contribute were not limited to employers who employed the worker during a particular period).

69   (Repealed)

69A   No compensation for less than 6% hearing loss

(1)  In assessing, for the purpose of the determination of permanent impairment compensation, the degree of permanent impairment resulting from loss of hearing (the present loss) due to boilermakers deafness regard must not be had to any hearing loss due to boilermakers deafness unless the worker’s total hearing loss due to boilermakers deafness is at least 6%.

(2)  The worker’s total hearing loss is the aggregate of the present loss and all previous losses of hearing due to boilermakers deafness.

(3)  The fact that compensation is not payable in respect of a loss of hearing because of this section does not prevent notice of injury being given or a claim being made in respect of that loss, and does not affect the operation of section 17 in respect of that loss (if and when the worker’s total hearing loss reaches 6%).

(4)  An example of the operation of this section is as follows (assume that all hearing losses mentioned are due to boilermakers deafness and that no other injury is involved):

(a)  A worker suffers a hearing loss of 4% (the first hearing loss that the worker has suffered). No permanent impairment compensation is payable in respect of the loss because it is less than 6% and cannot be taken into account to assess the degree of permanent impairment, though notice of injury can be given or a claim can be made for the hearing loss.

(b)  The worker suffers a further hearing loss of 4%, bringing the total loss to 8%. The total loss has now passed the 6% threshold and compensation is payable on the basis of the full 8%. Compensation in respect of the initial 4% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for that initial hearing loss.

(c)  The worker suffers a further hearing loss of 5%. The worker is entitled in the usual way to compensation in respect of the 5% further loss because the 6% threshold has already been passed (the total loss is now 13%).

(5)  For the purposes of determining the percentage of loss of hearing due to boilermakers deafness, that loss of hearing is to be determined as a proportionate loss of hearing of both ears, even if the loss is in one ear only. The regulations may prescribe a method for calculating the proportionate loss of hearing of both ears.

(6)  A legal practitioner or agent who acts for a worker on a claim for compensation for loss of hearing due to boilermakers deafness is not entitled to recover any costs from the worker or the employer in connection with acting on the claim if no compensation is payable on the claim because the worker’s total hearing loss due to boilermakers deafness is less than 6% (even if compensation subsequently becomes payable because the worker’s loss of hearing reaches 6% as a result of further hearing loss).

(7)  A worker who refuses or fails to submit himself or herself for, or who obstructs, an examination required under section 119 or 122 of the 1998 Act in connection with a claim for which no permanent impairment compensation is payable because of this section is (for the purposes of that claim) presumed in the absence of evidence to the contrary to have no hearing loss due to boilermakers deafness.

(8)  A reference in this section and in section 69B to boilermakers deafness includes a reference to any deafness of similar origin.

(9)  For the purposes of the operation of section 68B in relation to compensation for loss of hearing, a reference in that section to compensation that is payable under this Division includes a reference to compensation that would be payable were it not for the operation of this section.

69B   Employer’s responsibility to pay for hearing loss tests

(1)  An employer who would, but for the operation of section 69A, be liable to pay permanent impairment compensation in respect of a loss of hearing suffered by a worker, is not liable under Division 3 to pay the cost of a hearing test for that loss, except any of the following tests:

(a)  the test that is the first such test for that loss after the commencement of this section,

(b)  any test carried out not less than 3 years, or such other period as may be prescribed, after any previous test that the employer has paid the cost of obtaining,

(c)  any test that finds that the worker has suffered a total hearing loss due to boilermakers deafness of 6% or more,

(d)  (Repealed)

(e)  any test carried out after the worker has left the worker’s employment with the employer,

(f)  any test carried out in such circumstances as may be prescribed by the regulations.

(2)  The cost of a hearing test is the cost of obtaining a medical certificate, and any examination required for the certificate, as to the extent of the hearing loss concerned.

(3)  This section does not operate to require payment by an employer for the cost of obtaining any hearing test that the employer would not otherwise be liable to pay for under Division 3.

70–72A   (Repealed)

73   Reimbursement for costs of medical certificate and examination

(1)  The obtaining of a permanent impairment medical certificate and any examination required for the certificate are taken to be a medical or related treatment for the purposes of Division 3 if:

(a)  the medical practitioner has completed such training as the Authority may require in respect of the assessment of the degree of permanent impairment as provided by this Act, and

(b)  the worker has given the employer a copy of the certificate.

(2)  In this section:

permanent impairment medical certificate means a report or certificate of a medical practitioner that certifies:

(a)  that a worker has received an injury resulting in permanent impairment, and

(b)  the degree of permanent impairment (assessed as provided by this Act) resulting from the injury.

Division 5 Compensation for property damage

74   Damage to artificial limbs etc

(cf former s 10A (1), (2), (3))

(1)  A worker:

(a)  who has met with an accident arising out of or in the course of the worker’s employment, and

(b)  whose crutches, artificial members, eyes or teeth, other artificial aids, or spectacles, are damaged as a result of the accident,

      is entitled to receive, by way of compensation from the worker’s employer, the reasonable cost of repairing or, if necessary, replacing the articles so damaged.

(2)  Nothing in this section:

(a)  affects the liability of an employer under Division 3, or

(b)  entitles a worker to payments under this section as well as under Division 3 in respect of the same damage.

(3)  For the purposes of this section, the cost of repairing or replacing any article includes:

(a)  any fees and charges paid by the worker to medical practitioners, dentists or other qualified persons for such services by way of consultations, examinations or prescriptions as are reasonably rendered in connection with the repairing or replacing of the article, and

(b)  the amount of any wages lost by the worker by reason of the worker’s attendance at any place for the purpose of having, undergoing or obtaining any such consultation, examination or prescription.

75   Damage to clothing

(cf former s 10B (1))

A worker:

(a)  who has met with an accident arising out of or in the course of the worker’s employment, and

(b)  whose clothing has, as a result of the accident, been damaged,

is entitled to receive, by way of compensation from the worker’s employer, the reasonable cost of repairing or, if necessary, replacing the articles of clothing so damaged.

76   Maximum rate for damage to artificial limbs, spectacles

(cf former s 10A (1))

(1)  The maximum amount for which an employer is liable under section 74 in respect of damage resulting from an accident is:

(a)  $2,000, or

(b)  where some greater amount has been prescribed by the regulations—that greater amount.

(2)  Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that prescribed by subsection (1).

(3)  If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, damage to an item referred to in section 74 (1) (b), such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

(4)  If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or a regulation, the amount for which an employer is liable under section 74 in respect of damage resulting from an accident to a worker is to be calculated by reference to the maximum amount applicable to the worker at the time of the accident.

77   Maximum rate for damage to clothing

(cf former s 10B (1))

(1)  The maximum amount for which an employer is liable under section 75 in respect of damage resulting from an accident is:

(a)  $600, or

(b)  where some greater amount has been prescribed by the regulations—that greater amount.

(2)  Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that prescribed by subsection (1).

(3)  If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, damage to the worker’s clothing, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

(4)  If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or a regulation, the amount for which an employer is liable under section 75 in respect of damage resulting from an accident to a worker is to be calculated by reference to the maximum amount applicable to the worker at the time of the accident.

78   Miscellaneous provisions

(cf former ss 10A (1A), (1B), 10B (2), (3))

(1)  If it is proved that any damage for which compensation would otherwise be payable to a worker under this Division is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that damage.

(2)  Compensation is not payable under this Division in respect of any damage caused intentionally by the worker concerned.

(3)  The provisions of Part 5 (Common law remedies) apply to damage to which this Division applies in the same way as they apply to injuries.

(4)  For the purposes of this Division, an accident arises out of or in the course of employment if:

(a)  the accident occurred on a journey to which section 10 applies, and

(b)  the worker received an injury in that accident for which compensation is, because of that section, payable or, if the worker had been injured in that accident, compensation would have been so payable.

Division 6 Indexation of amounts of benefits

79   Definitions

(cf former s 9A (1))

In this Division:

adjustable amount means:

(a)  each of the amounts specified in sections 25, 35, 37 and 40, without regard to any adjustment under this Division, and

(b)  such of the amounts specified in section 66 or 67 as may be declared by the regulations to be an adjustable amount for the purposes of this Division, without regard to any adjustment under this Division.

adjustment date means 1 April or 1 October in each year.

base index number means:

(a)  in respect of an adjustable amount that is the amount specified in section 25 (1) (a)—the number 212.1, and

(b)  in respect of any adjustable amount that is an amount specified in section 66 or 67—the number declared by the regulations to be the base index number for that adjustable amount, and

(c)  in respect of any other adjustable amount—the number 130.8.

latest index number, in relation to an adjustment date, means:

(a)  where:

(i)  the adjustment date is 1 April in any year—the index number, relating to adult males in New South Wales, for the preceding month of December, or

(ii)  the adjustment date is 1 October in any year—the index number, relating to adult males in New South Wales, for the preceding month of June,

      shown in the first preliminary table in the award rates of pay indexes, Australia, being the table entitled “Wage and salary earners: indexes of weekly award rates of pay States and Territories”, published by the Australian Statistician, or

(b)  where there is, under paragraph (a), no latest index number in relation to an adjustment date—such number as may be prescribed by the regulations in respect of that date.

80   Adjustment of amounts of benefits according to award rate of pay index

(cf former s 9A (2), (4))

(1)  On and from each adjustment date and until immediately before the next following adjustment date, a reference in this Act to an adjustable amount shall be construed as a reference to an amount calculated as follows:

(2)  The amount so calculated is (if for any reason it would be less than the amount calculated in respect of the previous adjustment date) to be the same as the amount calculated in respect of the previous adjustment date.

81   Rounding off

(cf former s 9A (2A), (3))

(1)  If a reference to an adjustable amount (being an amount specified in section 25 (1) (a), 66 or 67) as construed in accordance with section 80 would, but for this section:

(a)  be expressed as including an amount in cents—that amount in cents shall be disregarded, or

(b)  be expressed as including a whole number of dollars that is not divisible by 50 without remainder—that number of dollars shall be reckoned as the next higher whole number of dollars that is divisible by 50 without remainder.

(2)  If a reference to any other adjustable amount as construed in accordance with section 80 would, but for this section, be expressed as including an amount in cents that is not a whole number of cents divisible by 10 without remainder, that amount:

(a)  shall be disregarded if it is less than 5 cents,

(b)  shall, if it is a whole number of cents divisible by 5 without remainder, be reckoned as the next higher whole number of cents that is divisible by 10 without remainder, or

(c)  shall, if it is not referred to in paragraph (a) or (b), be reckoned as the nearest whole number of cents that is divisible by 10 without remainder.

82   Publication of adjusted amounts

(cf former s 9A (4))

(1)  On or before each adjustment date, the Authority shall, by notice published in the Gazette, declare the amount at which each adjustable amount is to be construed in accordance with this Division on and from that adjustment date until immediately before the next following adjustment date.

(2)  However, an adjustment under section 80 is not affected by any failure (including a failure that occurred before the commencement of this subsection) to publish the notice referred to in subsection (1).

Editorial note. For declarations under this section see the Historical notes at the end of this Act.

Division 7 Payment of benefits

83   Manner of payment of compensation

(cf former ss 17, 56 (1))

(1)  Compensation payable under this Act to a worker shall be paid:

(a)  in cash,

(b)  by cheque, or

(c)  by means of direct credit to an account maintained with a financial institution by the worker (either alone or jointly or in common with another person).

(2)  Payment in cash shall be made by delivery to the worker at the employer’s usual place of payment of wages or at any other place agreed on between the employer and the worker.

(3)  Payment by cheque shall be made:

(a)  by delivery to the worker at any such place, or

(b)  by means of a letter containing the cheque sent by post to the worker’s address.

(4)  A payment of compensation by post shall be deemed to have been made when the letter is posted, but the liability to make the payment is not satisfied until the worker receives the payment.

(5)  Payment made by means of direct credit to an account shall be made only if the worker agrees to payment being made in that manner.

(6)  The Commission may authorise the payment of compensation in a particular case in such other manner as the Commission thinks fit.

(7)  This section does not apply to compensation paid to the Authority or the NSW Trustee under this Act.

(8)  In this section:

account includes a deposit account and a withdrawable share account.

financial institution means:

(a)  a bank,

(b)  a building society, or

(c)  a credit union.

worker includes any person to whom compensation is payable under this Act.

84   Times for payment of weekly compensation

(1)  A weekly payment of compensation is payable:

(a)  at the employer’s usual times of payment of wages to the worker,

(b)  at fortnightly or other shorter intervals, or

(c)  at such other intervals as are agreed on between the employer and the worker.

(2)  In this section:

weekly payment of compensation includes compensation payable under section 25 (1) (b) in respect of a dependent child of a deceased worker.

85   Payments to NSW Trustee for benefit of beneficiary

(cf former ss 15 (3), 57, 58, 61)

(1)  The following compensation shall be paid to the NSW Trustee in trust for the benefit of the persons entitled to the compensation:

(a)  compensation payable in respect of the death of a worker (unless paid to a worker’s legal personal representative or a particular person in accordance with this Act or an award),

(b)  compensation payable to a person who is mentally ill (unless the Commission otherwise orders),

(c)  compensation payable to a worker under the age of 18 years if the worker agrees or the Commission directs that the compensation be paid to the NSW Trustee,

(d)  a lump sum commutation payment which the worker agrees or the Commission orders to be paid to the NSW Trustee.

(2)  Any money so paid to the NSW Trustee may be invested, applied, paid out or otherwise dealt with by the NSW Trustee in such manner as the NSW Trustee thinks fit for the benefit of the persons entitled to the money.

(3)  If a widow or widower (over 18 years of age and not mentally ill) is the only person entitled to compensation paid to the NSW Trustee in respect of the death of a worker, the compensation shall be paid out to the widow or widower in one or more lump sums determined by the NSW Trustee.

(4)  A reference in subsection (3) to the widow or widower of a deceased worker includes a reference to a dependant of the worker who is the other party to a de facto relationship with the worker.

(5)  In the case of a lump sum commutation payment, the NSW Trustee shall exercise its powers under this section in accordance with the agreement or order under which it was paid to the NSW Trustee.

(6)  The Commission may, for any sufficient cause, vary the manner in which the NSW Trustee invests, applies, pays out or otherwise deals with money under this section.

(7)  The NSW Trustee may apply for any such variation.

(8)  The receipt of the NSW Trustee is sufficient discharge in respect of any money paid to the NSW Trustee under this section.

85A   Payment of benefits to beneficiaries

(1)  Despite section 85, the Commission may authorise the payment of compensation referred to in section 85 (1):

(a)  to the person who is entitled to the compensation, or

(b)  to such other person, for the benefit of the person entitled to the compensation, as the Commission thinks fit.

(2)  Any such payment is to be made in the manner authorised by the Commission.

86   NSW Trustee’s powers of investment

(1)  All amounts held by the NSW Trustee under this Act are to form part of a common fund established under the NSW Trustee and Guardian Act 2009 and are available for investment as provided by that Act.

(2)  A power conferred by this Division on the NSW Trustee to invest money for the benefit of a person includes a power to invest the money in any manner that the NSW Trustee is authorised under the NSW Trustee and Guardian Act 2009 to invest money held in trust by the NSW Trustee.

87   Unclaimed money

(cf former s 62B)

(1)  If:

(a)  any money paid at any time to the NSW Trustee has been invested by the NSW Trustee for the benefit of a person entitled to the money under this Act or the former Act, and

(b)  the whereabouts of the beneficiary has not been known to the NSW Trustee during any succeeding period of 10 years,

      the NSW Trustee may pay the money, together with accrued income from the investment of the money, to the credit of the WorkCover Authority Fund.

(2)  Money so credited to the WorkCover Authority Fund, together with accrued interest, shall:

(a)  be paid out on the application of any person who would have been entitled to have it paid out if it had not been credited to that Fund, and

(b)  at the request of the person for whose benefit it was invested before being credited to that Fund, or the legal personal representative of that person—again be so invested.

Division 8 Reduction of benefits where additional or alternative compensation payable

87A   Additional or alternative compensation to which Division applies

(1)  This Division applies to additional or alternative compensation prescribed by the regulations.

(2)  The regulations may prescribe any of the following as additional or alternative compensation:

(a)  payments to workers or their dependants in respect of injuries or deaths under any specified or class of contract of employment, industrial agreement, award or other arrangement (including payments as a supplement or an alternative to the periodic or lump sum payments of compensation under this Act),

(b)  damages for breaches of section 52, 53B or 55A of the Trade Practices Act 1974 of the Commonwealth,

(c)  any other payments in respect of injuries or deaths for which compensation is payable under this Act.

(3)  The regulations may prescribe additional or alternative compensation even though the arrangements under which it is paid were made before the commencement of this Division.

(4)  For the purposes of this Division, compensation is paid to a worker or other person if it is paid for the benefit or at the direction of the worker or other person.

87B   Reduction of compensation under this Act

(1)  If a person who is entitled to compensation under this Act has been paid additional or alternative compensation to which this Division applies, the amount of compensation payable under this Act is to be reduced by the amount of the additional or alternative compensation.

(2)  If any such additional or alternative compensation is paid after compensation has been paid under this Act, the relevant amount of compensation paid under this Act is to be refunded.

(3)  Any such refund may be deducted from any future payments of compensation under this Act or be recovered as a debt in a court of competent jurisdiction.

(4)  A reduction, refund or deduction under this section is to be made in accordance with the regulations and is not to be made in any case excluded by the regulations.

(5)  This section applies even though the compensation under this Act is payable under an award of the Commission.

87C   Employer etc to notify claim or payment of additional or alternative compensation

(1)  An employer (not being a self-insurer) or top-up insurer on whom a claim is made for additional or alternative compensation to which this Division applies (or who pays any such compensation) must, within 7 days after receipt of the claim or making the payment, notify the relevant workers compensation insurer of the details of the claim or payment.

(2)  For the purposes of this section:

(a)  the relevant workers compensation insurer is the insurer who the employer believes is liable to indemnify the employer in respect of a claim under this Act for compensation for the injury to the worker concerned, and

(b)  a top-up insurer is a person who indemnifies an employer against liability for additional or alternative compensation.

(3)  A person who contravenes this section is guilty of an offence.

Maximum penalty: 20 penalty units.

Division 9 Commutation of compensation

87D   Definition

In this Division:

commutation agreement means an agreement to commute a liability to a lump sum, as provided by section 87F.

87E   Compensation that may be commuted

(1)  A liability in respect of any of the following kinds of compensation under this Act or the former Act may be commuted to a lump sum as provided by this Division (and not otherwise):

(a)  weekly payments of compensation,

(b)  compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of this Act or section 10 of the former Act.

(2)  Such a liability cannot be commuted to a lump sum by an order or award of the Commission (but this subsection does not affect the operation of section 87G).

87EA   Preconditions to commutation

(1)  A liability in respect of an injury may not be commuted to a lump sum under this Division unless the Authority is satisfied that, and certifies that it is satisfied that:

(a)  the injury has resulted in a degree of permanent impairment of the injured worker that is at least 15% (assessed as provided by Part 7 of Chapter 7 of the 1998 Act), and

(b)  permanent impairment compensation and pain and suffering compensation to which the injured worker is entitled in respect of the injury has been paid, and

(c)  a period of at least 2 years has elapsed since the worker’s first claim for weekly payments of compensation in respect of the injury was made, and

(d)  all opportunities for injury management and return to work for the injured worker have been fully exhausted, and

(e)  the worker has received weekly payments of compensation in respect of the injury regularly and periodically throughout the preceding 6 months, and

(f)  the worker has an existing and continuing entitlement to weekly payments of compensation in respect of the injury (whether the incapacity concerned is partial or total), and

(g)  the injured worker has not had weekly payments of compensation discontinued under section 52A or reduced under section 38A.

(2)  The Authority may give directions as to the circumstances in which it will be considered that all opportunities for injury management and return to work for an injured worker have or have not been fully exhausted.

(3)  For the purposes of determining the degree of permanent impairment of an injured worker, the Authority may refer the matter for assessment under Part 7 of Chapter 7 of the 1998 Act. That Part applies in respect of such an assessment as if the matter referred for assessment were a dispute.

(4)  The Authority may delegate to an insurer any of the Authority’s functions under this section in respect of an injury that is an injury for which the insurer is liable to pay compensation.

(5)  This section does not apply to the commutation of a liability in respect of compensation under the former Act.

87F   Commutation by agreement

(1)  A liability may be commuted to a lump sum with the agreement of the worker.

(2)  A commutation agreement must not be entered into unless (before the agreement is entered into):

(a)  a legal practitioner instructed independently of the insurer and the employer has certified in writing that the legal practitioner has advised the worker:

(i)  on the full legal implications of the agreement, including implications with respect to any entitlement of the worker to compensation under this Act or to benefits under any other law (including a law of the Commonwealth), and

(ii)  on the desirability of the worker obtaining independent financial advice, before the worker enters into the agreement, as to the financial consequences of the agreement, and

(b)  the worker has confirmed in writing that the worker has been given and understands the advice referred to in paragraph (a).

(3)  A commutation agreement (including an agreement purporting to be a commutation agreement) is not subject to review or challenge in proceedings before the Commission or a court.

(4)  The worker has 14 days after entering into a commutation agreement in which to withdraw from the agreement by giving notice in writing to the insurer. Withdrawal from the agreement by the worker makes the agreement a nullity.

(5)  A liability cannot be commuted under this section if the worker is legally incapacitated because of the worker’s age or mental capacity.

Note. Section 87G provides for the commutation of a liability when the worker is legally incapacitated.

(6)  A commutation agreement is of no effect unless and until it is registered as provided by this Part. Registration of the agreement removes the liability to which the agreement relates.

(7)  The amount payable under an agreement is payable within 7 days after the agreement is registered or within such longer period as the agreement may provide. Interest calculated at the rate prescribed by the regulations is payable on any amount due and unpaid. The amount payable under a commutation agreement and any interest payable on that amount is recoverable as a debt in a court of competent jurisdiction.

(8)  As part of a commutation agreement, a worker may agree that payment of a lump sum removes any liability to make a payment under Division 4 of Part 3 (or section 16 of the former Act) in respect of the injury concerned. This Division applies to the agreement for payment of that lump sum as if it were an agreement to commute the liability to pay that compensation to a lump sum. Payment of the lump sum removes any liability to which the agreement of the worker relates.

87G   Commutation when worker legally incapacitated

(1)  If a worker is legally incapacitated because of the worker’s age or mental capacity, a liability in respect of compensation may be commuted to a lump sum by determination by the Commission made having regard to:

(a)  any dispute as to liability to pay compensation under this Act, and

(b)  the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury, and

(c)  the worker’s diminished ability to compete in an open labour market, and

(d)  other benefits that the worker may be entitled to from any other source.

(2)  The Commission is not to determine a lump sum for the purposes of this section unless satisfied that the termination of liability concerned is in the best interests of the worker.

(3)  Payment of the lump sum to which a liability has been commuted under this section removes the liability.

(4)  A determination under this section may include a determination as to the payment of a lump sum to remove any liability to make a payment under Division 4 of Part 3 in respect of the injury concerned. Payment of that lump sum removes any liability to which the determination relates.

87H   Registration of commutation agreements

(1)  A party to a commutation agreement may apply to the Registrar for registration of the agreement by the Registrar.

Note. Section 87F (6) provides that a commutation agreement is of no effect unless and until it is registered.

(2)  The Registrar must refuse to register a commutation agreement unless satisfied that the requirements of section 87F (2) have been complied with in respect of the agreement.

(3)  Before registering a commutation agreement, the Registrar may (on the application of a party to the agreement or of the Registrar’s own motion) refer the agreement for review by the Commission. The Registrar is not to register the agreement if the Commission recommends that the agreement not be registered.

(4)  The Commission reviewing a commutation agreement may recommend to the Registrar that the agreement not be registered if the Commission considers that the agreement is inaccurate or that the lump sum to which a liability has been commuted by the agreement is inadequate.

(5)  In reviewing a commutation agreement, the Commission may have regard to the following matters:

(a)  any dispute as to liability to pay compensation under the Workers Compensation Acts,

(b)  the injury, the age of the worker, the general health of the worker, and the occupation of the worker at the time of the occurrence of the injury,

(c)  the worker’s diminished ability to compete in an open labour market,

(d)  other benefits that the worker may be entitled to from any other source.

(6)  The registration of a commutation agreement may not be cancelled except within such period after the agreement is registered, and in such manner, as may be authorised by the regulations.

(7)  This section has effect despite section 234 of the 1998 Act (No contracting out).

(8)  This section does not prevent a commutation agreement containing provision as to the payment of costs.

87I   Payment

(1)  If a liability in respect of compensation is only partially commuted under this Division, the balance of the compensation continues to be payable under and subject to this Act.

(2)  (Repealed)

(3)  The annual report of the Authority is to include a statement as to trends in the commutation of liabilities under this Act.

87J   Other commutation agreements invalid

(1)  Neither agreement as to the commutation of a payment to a lump sum nor payment of the sum payable under the agreement exempts the person by whom the payment is payable from any liability under this Act, except as provided by this Division.

(2)  This section does not affect the operation of section 51 in respect of a liability commuted under that section before the commencement of this section.

(3)  This section does not affect the operation of section 66A.

87K   Commutation payment taken to be payment of compensation

Payment of a lump sum to which liability in respect of any weekly payment of compensation has been wholly or partially commuted under this Division or section 51, or redeemed under section 15 of the former Act (as applied by Schedule 6 to this Act), is taken for the purposes of this Act, the 1998 Act and the former Act (as applied by this Act) to be payment of the compensation concerned in pursuance of the liability to pay the compensation concerned.

Part 4 Uninsured liabilities

Editorial note. See now Workplace Injury Management and Workers Compensation Act 1998 No 86.

Divisions 1A–5

87D–137 (Repealed)

Division 6 Uninsured liabilities

138   Definitions

(cf former s 18C (35))

In this Division:

employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.

the relevant time, in relation to an injured worker, means the time of the happening of that worker’s injury.

139   (Repealed)

140   Persons eligible to make claims

(cf former s 18C (2)–(6))

(1)  A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if:

(a)  the employer is uninsured, or

(b)  the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.

(2)  An employer is considered to be uninsured if the employer:

(a)  had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer’s liability under this Act in respect of the injured worker at the relevant time, or

(b)  having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer’s own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit).

(2A)  A claim may not be made under this Division in respect of a claim for work injury damages against a person who is an employer as a result of being a principal within the meaning of section 20 who is liable to pay compensation to the worker.

(2B)  The regulations may prescribe the searches and inquiries necessary to constitute due search and inquiry to identify an employer for the purposes of this section.

(3)  If a payment is made by the Nominal Insurer in respect of a claim under this Division and the employer is subsequently identified, the Nominal Insurer may recover the amount paid from the employer or the employer’s insurer in the manner provided by this Division.

(4)  A claim shall not be made under this Division if the person claiming the compensation is entitled under section 20 to claim compensation against a principal within the meaning of section 20.

(5)  If a person is entitled to claim compensation against a principal within the meaning of section 20 and the principal was not maintaining in force a policy of insurance for the full amount of the principal’s liability under this Act at the relevant time:

(a)  the person may make to the Authority a claim for compensation under this Division, and

(b)  the Authority may deal with any such claim as it thinks fit.

141   Making of claims

(cf former s 18C (7)–(9))

(1)  Claims under this Division shall be made in the form and manner for the time being determined by the Nominal Insurer.

(2)  The Nominal Insurer may, by notice, require an employer to furnish to the Authority within the period (being not less than 7 days) specified in the notice any information described in the notice which:

(a)  is available to the employer, and

(b)  is required by the Nominal Insurer in order for it to deal with a claim under this Division.

(3)  An employer shall comply with a notice given under subsection (2).

Maximum penalty: 20 penalty units.

(4)  In this section:

employer includes any person whom the Nominal Insurer has reason to suspect is an employer.

141A   (Repealed)

142   Publication of claims etc

(cf former s 18C (10)–(13))

(1)  The Nominal Insurer may, before considering a claim under this Division, publish a notice of the claim in such manner as the Nominal Insurer considers appropriate.

(2)  If notice of a claim is so published, any person who, without reasonable cause, fails to notify the Nominal Insurer within the time specified in the notice that the person is the insurer of the liability in respect of the claim of any person who is an employer within the meaning of this Division in respect of the claimant, or who fails to supply the Nominal Insurer with any information it has which may be material to the matter:

(a)  is liable to reimburse the Insurance Fund such amount as the Nominal Insurer has paid out in respect of the claim and any costs incurred in connection with the claim, and

(b)  is guilty of an offence and liable to a penalty not exceeding 100 penalty units.

(3)  If, in respect of a claim under this Division, a licensed insurer with whom the Nominal Insurer considers the injured worker’s employer had a relevant policy of insurance at the relevant time is located, the following provisions apply:

(a)  the Nominal Insurer shall supply the insurer with all relevant details of the claim,

(b)  the insurer shall, within 14 days of being advised of the claim, either accept or deny liability to indemnify the employer,

(c)  if the insurer accepts liability to indemnify the employer, the Nominal Insurer shall:

(i)  inform the claimant of the existence of the insurance, and

(ii)  transfer the claim documents to the insurer,

(d)  if the insurer denies liability to indemnify the employer, or does not either accept or deny liability to indemnify the employer within 14 days of being advised of the claim, the Nominal Insurer shall deal with the claim in the manner provided by this Division.

(4)  For the purposes of subsection (3), licensed insurer means a specialised insurer or self-insurer.

142A   Nominal Insurer becomes insurer for claims

(1)  Subject to this section and the regulations, the provisions of this Act and the 1998 Act apply to and in respect of a claim under this Division as if the Nominal Insurer were the insurer under this Act of the relevant employer at the relevant time.

(2)  The regulations may prescribe modifications to the provisions of this Act and the 1998 Act for the purposes of their application under this section to and in respect of a claim under this Division.

(3)  A claim under this Division for work injury damages cannot be made until a claim under this Division for lump sum compensation in respect of the injury has been made and determined.

142B   Proceedings before Commission on claim for compensation

(1)  On an application to the Commission for a determination of a claim for compensation under this Division, or on the commencement of proceedings in a court in respect of a claim for work injury damages under this Division:

(a)  the applicant must name the employer by whom the applicant alleges compensation is payable and the Nominal Insurer as respondents to, or defendants in, the proceedings, and

(b)  the Nominal Insurer may, by service of a notice on any person who, in the opinion of the Nominal Insurer, may be liable to pay to the applicant compensation under this Act (or may have insured that liability), join that person as a party to the proceedings.

(2)  The Commission may make orders providing for the reimbursement of the Insurance Fund under section 145.

143–144A   (Repealed)

145   Employer or insurer to reimburse Insurance Fund

(cf former s 18C (21)–(26))

(1)  The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was:

(a)  in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or

(b)  an insurer under this Act of such an employer,

      a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.

(2)  The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that:

(a)  the amount is beyond the capacity of the employer to pay,

(b)  the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,

(c)  the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,

(d)  the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,

(e)  the employer, being a corporation, has been dissolved, or

(f)  it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.

(3)  A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.

(4)  The Commission may hear any such application and may:

(a)  make such determination in relation to the application, and

(b)  make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,

      as the Commission thinks fit.

(5)  In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that:

(a)  the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and

(b)  a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,

      is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.

(6)  The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.

(7)  An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.

145A   Recovery from directors of corporations liable to reimburse Insurance Fund

(1)  If a corporation is liable to reimburse the Insurance Fund an amount for a payment made in respect of a claim under this Division and the amount is not recoverable from the corporation, the Nominal Insurer is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time.

(2)  A corporation is considered to be liable to reimburse the Nominal Insurer an amount for such a payment if the Nominal Insurer is entitled to recover the amount either under section 145 or under an order of the Commission made on application under that section, even if the corporation has ceased to exist.

(3)  An amount is considered to be not recoverable from a corporation if the Nominal Insurer certifies that it will be unable or unlikely to recover the amount from the corporation by reasonable efforts at recovery, whether because the corporation is being wound up and is unable to pay its debts, or otherwise.

(4)  A person is a culpable director of a corporation at the relevant time if:

(a)  the corporation contravened section 155 (Compulsory insurance for employers) in respect of a policy of insurance that would have covered the corporation for the liability to which the payment made in respect of the claim under this Division related (whether or not the corporation has been proceeded against or convicted of an offence for the contravention), and

(b)  at the time of the contravention the person was a director of the corporation.

(5)  A person is not a culpable director of a corporation if the person establishes that:

(a)  the corporation contravened section 155 without the person’s knowledge, or

(b)  the person was not in a position to influence the conduct of the corporation in relation to that contravention, or

(c)  the person, being in such a position, used all due diligence to prevent the contravention by the corporation.

(6)  If there is a right of recovery against more than one director of a corporation in respect of the same amount, the right is a right against all those directors jointly and severally.

(7)  A director from whom an amount is recovered under this section is entitled to recover the amount from the corporation.

146   Commutation of weekly payments

(1)  (Repealed)

(2)  A liability in respect of a claim under this Division may not be commuted to a lump sum with the agreement of the worker unless the Nominal Insurer:

(a)  has given the employer notice of the proposed agreement and has given the employer a reasonable opportunity to make submissions to the Nominal Insurer with respect to the matter, and

(b)  has taken into account any submissions so made to the Nominal Insurer.

(3)  Subsection (2) does not apply if the worker has been unable, after due search and inquiry, to identify the relevant employer.

(4)  In the case of commutation by determination of the Commission under section 87G (Commutation when worker legally incapacitated), the Commission may on the application of the employer, if the Commission thinks fit, refuse to make such a determination in respect of a liability that is the subject of a claim under this Division.

(5)  The making of such an application by the employer in no way fetters the discretion of the Commission to make the determination, and a commutation made in consequence of the determination is binding on the employer whether or not the employer has made such an application.

(6)  The Nominal Insurer may apply for registration of a commutation agreement under section 87H as a party to the agreement.

147   Miscellaneous provisions

(cf former ss 18C (30)–(34), 18D)

(1)  If an award of compensation or work injury damages is made that is the subject of a claim under this Division, the Nominal Insurer may cause to be made such inquiries as it thinks fit to determine the genuineness of the grounds on which the award is sought or was based if:

(a)  the employer did not appear and defend the proceedings for the award of compensation or work injury damages, or

(b)  the award of compensation or work injury damages was made before the making of the claim under this Division and was obtained in default of appearance by the employer, or by consent of the worker and the employer, or

(c)  the Nominal Insurer thinks that any such inquiries should be made for any reason it thinks fit.

(2)  The Commission or a court before which the proceedings are taken may adjourn proceedings referred to in subsection (1) or, if an award has been made, may reopen the proceedings and order some fit person to take and defend the proceedings in substitution for the employer, and for those purposes all the rights of the employer are subrogated to that person.

(3)  A lump sum payable to a claimant in respect of a claim under this Division may by agreement with the Nominal Insurer, or by order of the Commission or a court, be paid to the Nominal Insurer to be invested, applied, paid out or otherwise dealt with as agreed upon or ordered or, subject to any such agreement or order, as provided by section 85.

(4)  In any proceedings before the Commission or a court under this Division, the Nominal Insurer or its representative (being a barrister, solicitor, officer of the Authority or other person) may appear before the Commission or court and exercise in respect of any matters and questions arising out of the application the same powers, rights and authorities as an employer may exercise in respect of a claim between a worker and an employer under this Act.

(5)  The following matters are declared to be excluded matters for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the provisions of sections 471B and 500 (2) of that Act:

(a)  an application by a person for an award of compensation or work injury damages,

(b)  a person proceeding with such an application.

Note. In the absence of this subsection, sections 471B and 500 (2) of the Corporations Act 2001 of the Commonwealth would require the leave of a Court to make or proceed with an application for compensation or work injury damages against certain companies that are being externally administered. This section ensures that section 5F of that Act will operate to ensure that those sections will not require the leave of the Court directing the external administration before an application can be made or proceeded with.

(6)  Any award of compensation or work injury damages made pursuant to an application authorised by this section has effect only for the purposes of this Division and not otherwise.

148   Application of other provisions of Act

(1)  For the purposes of section 13 (3), the Nominal Insurer is to have the same entitlement to recover payments it has made to a worker in respect of a claim under this Division as an employer has in respect of payments the employer has made to a worker under section 13.

(2)  If a worker has received payments in respect of a claim under this Division, the payments are to be treated as compensation or work injury damages (as appropriate) recovered by the worker for the purposes of:

(a)  section 64 of the former Act as continued in operation by clause 1 (2) of Part 14 of Schedule 6 to this Act, and

(b)  section 151Z of this Act.

(3)  The regulations may provide for the application (with such modifications as may be prescribed) of other provisions of this Act with respect to any matter arising under this Division.

148A   Nominal Insurer’s right of subrogation

If the Nominal Insurer has paid or is liable to pay an amount as compensation for which an employer is liable under this Act or the former Act or an amount of work injury damages for which an employer is liable, the Nominal Insurer is subrogated to any right of the employer and any insurer of the employer to recover any amount from any other person in respect of that payment (had the payment been made by the employer or insurer), whether the right arises by way of a liability for contribution, apportionment of liability or otherwise.

Division 7

148B–148L (Repealed)

Part 5 Common law remedies

Division 1 Preliminary

149   Definitions

(1)  In this Part:

damages includes:

(a)  any form of monetary compensation, and

(b)  without limiting paragraph (a), any amount paid under a compromise or settlement of a claim for damages (whether or not legal proceedings have been instituted),

      but does not include:

(c)  compensation under this Act, or

(d)  additional or alternative compensation to which Division 8 of Part 3 applies, or

(e)  an award of compensation or direction for compensation under Part 2 or Part 4 of the Victims Compensation Act 1996, or

(f)  a sum required or authorised to be paid under a State industrial instrument, or

(g)  any sum payable under a superannuation scheme or any life or other insurance policy, or

(h)  any amount paid in respect of costs incurred in connection with legal proceedings, or

(i)  damages of a class which is excluded by the regulations from this definition.

(2)  A reference in this Part to compensation payable under this Act includes a reference to compensation that would be payable under this Act if a claim for that compensation were duly made.

150   Reference to worker’s employer includes fellow workers etc

A reference in this Part to a worker’s employer includes a reference to:

(a)  a person who is vicariously liable for the acts of the employer, and

(b)  a person for whose acts the employer is vicariously liable.

Division 1A Choice of law

150A   The applicable substantive law for work injury claims

(1)  If compensation is payable (whether or not it has been paid) under the statutory workers compensation scheme of a State in respect of an injury to a worker, the substantive law of that State is the substantive law that governs:

(a)  whether or not a claim for damages in respect of the injury can be made, and

(b)  if it can be made, the determination of the claim.

(2)  This Division does not apply if compensation is payable in respect of the injury under the statutory workers compensation scheme of more than one State.

(3)  For the purposes of this section, compensation is considered to be payable under a statutory workers compensation scheme of a State in respect of an injury if compensation in respect of it:

(a)  would have been payable but for a provision of the scheme that excludes the worker’s right to compensation because the injury is attributable to any conduct or failure of the worker that is specified in that provision, or

(b)  would have been payable if a claim for that compensation had been duly made, and (where applicable) an election to claim that compensation (instead of damages) had been duly made.

(4)  A reference in this section to compensation payable in respect of an injury does not include a reference to compensation payable on the basis of the provisional acceptance of liability.

(5)  In this Division:

State includes Territory.

150B   Claims to which Division applies

(1)  This Division applies only to a claim for damages against a worker’s employer in respect of an injury that was caused by:

(a)  the negligence or other tort (including breach of statutory duty) of the worker’s employer, or

(b)  a breach of contract by the worker’s employer.

(2)  Subsection (1) (a) applies even if damages resulting from the negligence or other tort are claimed in an action for breach of contract or other action.

(3)  A reference in this Division to a worker’s employer includes a reference to:

(a)  a person who is vicariously liable for the acts of the employer, and

(b)  a person for whose acts the employer is vicariously liable.

150C   What constitutes injury and employment and who is employer

For the purposes of this Division:

(a)  injury and employer include anything that is within the scope of a corresponding term in the statutory workers compensation scheme of another State, and

(b)  the determination of what constitutes employment or whether or not a person is the worker’s employer is to be made on the basis that those concepts include anything that is within the scope of a corresponding concept in the statutory workers compensation scheme of another State.

150D   Claim in respect of death included

For the purposes of this Division, a claim for damages in respect of death resulting from an injury is to be considered as a claim for damages in respect of the injury.

150E   Meaning of “substantive law”

In this Division:

a State’s legislation about damages for a work related injury means:

(a)  for this State—Part 5 of this Act and Chapter 7 of the 1998 Act, and any other provision of this Act or the 1998 Act providing for the interpretation of anything in that Part or Chapter, and

(b)  for any other State—any provisions of a law of the State that is declared by the regulations to be the State’s legislation about damages for a work related injury.

substantive law includes:

(a)  a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action, and

(b)  a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time), and

(c)  a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit, and

(d)  a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered, and

(e)  a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered, and

(f)  a law expressed as a presumption, or rule of evidence, that affects substantive rights, and

(g)  a provision of a State’s legislation about damages for a work related injury, whether or not it would be otherwise regarded as procedural in nature,

but does not include a law prescribing rules for choice of law.

150F   Availability of action in another State not relevant

(1)  It makes no difference for the purposes of this Division that, under the substantive law of another State:

(a)  the nature of the circumstances is such that they would not have given rise to a cause of action had they occurred in that State, or

(b)  the circumstances on which the claim is based do not give rise to a cause of action.

(2)  In this section:

another State means a State other than the State with which the injury is connected.

Division 2 Common law and other remedies generally

151   Common law and other liability preserved

This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.

151A   Effect of recovery of damages on compensation

(1)  If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act then (except to the extent that subsection (2), (3) or (4) covers the case):

(a)  the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and

(b)  the amount of any weekly payments of compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and

(c)  the person ceases to be entitled to participate in any injury management program provided for under this Act or the 1998 Act.

(2)  If damages in respect of an injury are recovered from the employer liable to pay compensation under this Act, pursuant to a cause of action that survives for the benefit of the estate of a deceased worker under the Law Reform (Miscellaneous Provisions) Act 1944, the following amounts of compensation are to be repaid out of the estate of the deceased worker to the person who paid the compensation:

(a)  the amount of any weekly payments of compensation already paid in respect of the injury concerned,

(b)  the amount of any permanent impairment compensation and pain and suffering compensation already paid in respect of the injury concerned.

(3)  If damages are recovered in an action under the Compensation to Relatives Act 1897 in respect of the death of a worker from the employer liable to pay compensation under this Act in respect of the death:

(a)  the amount of any compensation under Division 1 of Part 3 paid in respect of the death is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation, and

(b)  a person recovering those damages ceases to be entitled to any further compensation under this Act in respect of the death of the worker.

(4)  If a person recovers motor accident damages in respect of an injury from the employer liable to pay compensation under this Act:

(a)  the person ceases to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid), and

(b)  the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation.

151B   (Repealed)

151C   6-months delay before commencement of court proceedings against employer for damages

(1)  A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.

(2)  Despite subsection (1), the person is entitled to commence court proceedings against the employer if either of the following occurs:

(a)  the employer wholly denies liability in respect of the injury,

(b)  the employer admits partial liability in respect of the injury but the person is dissatisfied with the extent to which liability is admitted.

(3)  This section does not limit or otherwise affect the operation of Part 6 of Chapter 7 of the 1998 Act.

Note. Part 6 of Chapter 7 of the 1998 Act imposes restrictions on the commencement of court proceedings for damages.

151D   Time limit for commencement of court proceedings against employer for damages

(1)  (Repealed)

(2)  A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3)  The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

(4)  This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999.

151DA   Time not to run for commencement of proceedings in certain cases

(1)  Time does not run for the purposes of section 151D:

(a1)  while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or

Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.

(a)  while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or

(a2)  during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or

(a3)  while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or

(b)  while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.

(2)  A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first.

(3)  The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act.

(4)  The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker.

(5)  A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.

(6)  The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias.

Division 3 Modified common law damages

151E   Application—modified common law damages

(1)  This Division applies to an award of damages in respect of:

(a)  an injury to a worker, or

(b)  the death of a worker resulting from or caused by an injury,

      being an injury caused by the negligence or other tort of the worker’s employer.

(2)  This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies.

Note. However, this Division will generally apply in the case of an injury to a coal miner if the injury is caused by an off-road motor accident and there is no motor accident insurer on risk (see section 3D of the Motor Accidents Act 1988 and section 3B of the Motor Accidents Compensation Act 1999).

(3)  This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker’s employer even though the damages are recovered in an action for breach of contract or in any other action.

(4)  Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection.

151F   General regulation of court awards

A court may not award damages to a person contrary to this Division.

151G   Only damages for past and future loss of earnings may be awarded

(1)  The only damages that may be awarded are:

(a)  damages for past economic loss due to loss of earnings, and

(b)  damages for future economic loss due to the deprivation or impairment of earning capacity.

(2)  This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897.

151H   No damages unless permanent impairment of at least 15%

(1)  No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%.

Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together.

(2)  In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%):

(a)  impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and

(b)  in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and

(c)  the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%.

Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other.

(3)  In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury.

(4)  The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

(5)  In this section:

psychological injury includes psychiatric injury.

secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.

151I   Calculation of past and future loss of earnings

(1)  In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount).

(2)  The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits).

(3)  This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35.

151IA   Retirement age

In awarding damages for future economic loss due to deprivation or impairment of earning capacity or (in the case of an award of damages under the Compensation to Relatives Act 1897) loss of expectation of financial support, the court is to disregard any earning capacity of the injured worker after age 65.

151J   Damages for future economic loss—discount rate

(1)  For the purposes of an award of damages, the present value of future economic loss is to be qualified by adopting the prescribed discount rate.

(2)  The prescribed discount rate is:

(a)  a discount rate of the percentage prescribed by the regulations, or

(b)  if no percentage is so prescribed, a discount rate of 5 per cent.

(3)  Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages.

151K, 151KA   (Repealed)

151L   Mitigation of damages

(1)  In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages.

(2)  In particular, the court must consider the following matters:

(a)  whether the injured worker has undergone appropriate medical treatment,

(b)  whether the injured worker has promptly sought suitable employment from the employer or, if necessary, suitable alternative employment,

(c)  whether the injured worker has duly complied with the worker’s obligations under Chapter 3 of the 1998 Act (Workplace injury management),

(d)  whether the injured worker has sought appropriate rehabilitation training.

(3)  In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. However, the person claiming damages does not have the onus of establishing that the steps referred to in paragraphs (b)–(d) of subsection (2) have been taken, and the court assessing damages does not have to take the matters referred to in those paragraphs into account, unless it is established that before those steps could reasonably be expected to have been taken the worker was made aware by the employer or insurer that the worker was required to take those steps.

(4)  In any proceedings for damages, a written report by a person who provided medical or rehabilitation services to the injured worker is admissible as evidence of any such steps taken by that worker.

151M   Payment of interest

(1) Limited statutory entitlement
A plaintiff has only such right to interest on damages as is conferred by this section.

(2), (3)  (Repealed)

(4) 

(a)  Interest is not payable (and a court cannot order the payment of interest) on damages unless:

(i)  information that would enable a proper assessment of the plaintiff’s claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or

(ii)  the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff’s full entitlement to all damages of any kind but has not made such an offer, or

(iii)  the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.

(b)  The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff’s full entitlement to all damages of any kind.

(c)  For the purposes of this subsection, an offer of settlement must be in writing.

(5) Calculation of interest
If a court is satisfied that interest is payable under subsection (4) on damages:

(a)  the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and

(b)  the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section.

(6) Rate of interest
The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 for the period concerned.

(7) Judgment debts
Nothing in this section affects the payment of interest on a debt under a judgment or order of a court.

151N   Contributory negligence—generally

(1)  The common law and enacted law as to contributory negligence apply to awards of damages, except as provided by this section.

(2)  Damages for deprivation or impairment of earning capacity are not to be reduced because of contributory negligence below the amount that the court estimates would have been payable by way of a commutation of weekly payments of compensation under Division 9 of Part 3 if the person concerned were eligible to be paid a lump sum under that Division.

(3)  In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person’s share in the responsibility for the damages.

(4)  Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 applies to an action for damages referred to in subsection (3).

(5)  In an action for the award of damages under the Compensation to Relatives Act 1897, section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of the deceased person.

151O   Defence of voluntary assumption of risk

The defence of volenti non fit injuria is not available in an action for the award of damages but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety.

151P   Damages for psychological or psychiatric injury

No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:

(a)  the injured worker, or

(b)  a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction.

151Q   Structured settlements

(1)  This section applies to an award of damages if the plaintiff requests that it apply. In making an order under this section the court is to give preference to the views of the injured worker.

(2)  If this section applies to an award of damages, the court:

(a)  may separately determine the amount of damages for future economic loss and the amount of damages for past economic loss, and

(b)  may order that any damages determined by the court for future economic loss are to be paid in accordance with such arrangements as the court determines or approves.

(3)  In making an order under this section, the court is required to have regard to the following matters:

(a)  the ability of the plaintiff to manage and invest any lump sum award of damages,

(b), (c)  (Repealed)

(d)  the views of the defendant in relation to the proposed order,

(e)  such other matters as the court considers appropriate.

(4)  In making an order under this section relating to damages for impairment of earning capacity, the court may order the damages to be used to purchase an annuity for the plaintiff on such terms as the court considers appropriate.

(5)  (Repealed)

(6)  Arrangements determined or approved under this section may include provision that payments of damages for impairment of earning capacity are to be made at intervals of not more than 12 months.

(7)  A party to any arrangements determined or approved under this section may apply to the court at any time for an order varying or terminating the arrangements.

(8)  The court may, on an application under subsection (7), make such order as it considers appropriate, having regard to the provisions of this section.

(9)  The regulations may make provision for or with respect to any matter dealt with in this section and, in particular, may impose conditions or limitations on the orders that may be made under this section or otherwise regulate the making of those orders.

151R   Exemplary or punitive damages

A court may not award exemplary or punitive damages to a person in an award of damages.

151S   Court to apportion damages etc

(1)  If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.

(2)  In any such case the court is required to apportion any costs awarded.

151T   Costs

(1)  Subject to the rules of court, if a court awards costs to a plaintiff by reference to the amount recovered by the plaintiff, that amount is to be taken to be the amount recovered as qualified, or after making any deduction or reduction, in accordance with this Division.

(2)  (Repealed)

Division 4 Retrospective restoration of modified common law

151U   Modified common law to apply from 30 June 1987

(1)  This Part applies to a cause of action in respect of:

(a)  an injury received by a worker at or after 4 pm on 30 June 1987, or

(b)  the death of a worker resulting from or caused by such an injury.

(2)  This Part has effect as if sections 149 and 150, as originally enacted, had never been enacted.

151V   Election provisions not to apply

(1)  Section 151A (Election—damages or “Table of Disabilities” compensation) does not apply:

(a)  in respect of an injury received before 4 pm on 30 June 1989, or

(b)  in respect of an injury received at or after that time and before the commencement of section 151A (but that section does apply in respect of any such injury if the person concerned accepts payment of permanent loss compensation after the commencement of that section).

(2)  If a person commences proceedings to recover damages, or accepts payment of damages, in respect of an injury to which section 151A does not so apply:

(a)  the person is not entitled to any permanent loss compensation claimed but not yet received, and

(b)  the amount of any such compensation previously paid is to be deducted from those damages.

(3)  (Repealed)

151W   Time limit for commencement of court proceedings extended

In the application of section 151D to an injury received before the date of assent to the Workers Compensation (Amendment) Act 1991, the injury is to be taken to have been received on that date.

151X   Insurance policies to cover retrospective claims

(1)  A policy of insurance issued or renewed under this Act before the commencement of this section extends (and is to be taken to have always extended) to the employer’s liability independently of this Act for which the employer is required to obtain a policy of insurance under section 155.

(2)  Any liability to which a policy of insurance extends because of this section is also a liability to which any corresponding policy of re-insurance extends.

151Y   Funding of self-insurers, government employers etc for retrospective claims

(1)  This section applies to the following employers:

(a)  self-insurers,

(b)  employers who obtained a policy of insurance from a specialised insurer,

(c)  Government employers insured under a policy of insurance from the Government Insurance Office,

(d)  employers who obtained a policy of insurance under the former Act for a period that extended beyond 4 pm on 30 June 1987 (not being a policy assigned to a licensed insurer under clause 10 of Part 15 of Schedule 6).

(2)  The Authority may establish a special account within the Authority’s Fund for the purposes of this section.

(3)  The Authority may require licensed insurers and former licensed insurers to pay into the special account such amounts as the Authority may direct by notice served on the insurers concerned.

(3A)  Amounts paid into the special account may be refunded for the purposes of making necessary adjustments.

(4)  The Authority may recover as a debt in a court of competent jurisdiction any payment which an insurer does not pay in accordance with a direction under this section.

(5)  The Authority may from the special account pay such amounts as it considers appropriate to fund the liability of employers for the relevant part of retrospective claims (being employers who, at the time of the injury giving rise to the claim, were employers to whom this section applies).

(6)  For the purposes of this section:

(a)  retrospective claims are claims for damages to which those employers have become liable because of the enactment of the Workers Compensation (Benefits) Amendment Act 1989 in respect of injuries received by workers after 4 pm on 30 June 1987 and before 4 pm on 30 June 1989, and

(b)  the relevant part of a retrospective claim is that part that the Authority estimates represents the amount of damages (and associated expenses) in excess of the amount of workers compensation which was or would have been payable in respect of the injury concerned.

(7)  The Authority is not obliged to fund a liability of an employer under this section and may impose conditions on the making of payments under this section.

(8)  The Authority is not to fund an employer in respect of any liability for which the employer is already indemnified under a policy of insurance (or re-insurance) to which this Act does not apply.

(9)  This section does not limit the liability of a specialised insurer, the Self Insurance Corporation or any other insurer under a policy of insurance to which section 151X applies.

Division 5 Miscellaneous provisions

151Z   Recovery against both employer and stranger

(1)  If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:

(a)  the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

(b)  if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker’s injury under this Act, and the worker is not entitled to any further compensation,

(c)  if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act,

(d)  if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),

(e)  if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages,

(e1)  if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment,

(f)  all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission.

(2)  If, in respect of an injury to a worker for which compensation is payable under this Act:

(a)  the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b)  the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

      the following provisions have effect:

(c)  the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d)  the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

(e)  if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:

(i)  if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and

(ii)  if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.

(3)  This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury.

(4)  If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses.

(5)  For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement.

151AA   Abolition of doctrine of common employment

(1)  It is not a defence to an employer who is sued in respect of any personal injury caused by the negligence of a person employed by the employer that the person so employed was, at the time the personal injury was caused, in common employment with the person injured.

(2)  This section applies to every case in which the relation of employer and employee exists, whether the contract of employment is made before or after the commencement of this section, and whether or not the employment is one to which the other provisions of this Act apply.

(3)  In this section:

employer includes the Crown but does not include any person who by any provision of this Act is deemed to be an employer.

personal injury includes:

(a)  death, and

(b)  any disease, and

(c)  any impairment of the physical or mental condition of a person.

151AAA   Special provision for common law liabilities under pre-1995 policies

(1)  A policy of insurance issued before 1 September 1995 (including a policy issued under the former Act) operates in respect of a liability of the employer for an injury to a worker that arises independently of this Act or the former Act as if the liability arose at the time of injury.

Note. 1 September 1995 was the commencement date of the Workers Compensation (General) Regulation 1995 which adopted a new form of workers compensation insurance policy that made it clear that the policy covered a common law liability of the employer for an injury to a worker received during the term of the policy even if liability in respect of the injury arose after the period for which the policy was in force.

(2)  This section does not apply to a liability in respect of an occupational disease within the meaning of section 151AB.

151AB   Special insurance provisions relating to occupational diseases

(1)  If an employer is liable independently of this Act for damages for an occupational disease contracted by a worker, the following provisions have effect for the purposes of any policy of insurance obtained by the employer:

(a)  the liability is taken to have arisen when the worker was last employed by the employer in employment to the nature of which the disease was due, subject to paragraph (b),

(b)  if the worker was employed by the employer in employment to the nature of which the disease was due both before and after the relevant commencement, the liability is taken to have arisen both when the worker was last employed by the employer in employment to the nature of which the disease was due before the relevant commencement and when the worker was last employed by the employer in employment to the nature of which the disease was due after the relevant commencement.

(2)  In a case in which subsection (1) (b) applies, 2 insurers will be liable under policies of insurance to indemnify the employer (or pay damages to the worker) and the following provisions apply with respect to those insurers (referred to in this subsection as the responsible insurers):

(a)  Of the responsible insurers, the one that is the insurer in respect of the employer’s liability that arose after the relevant commencement is to be the insurer primarily responsible for the claim.

(b)  The responsible insurers can however agree as to which of them is to be primarily responsible for the claim or the court can order that one of them is to be the insurer primarily responsible, and any such agreement or order overrides paragraph (a).

(c)  The insurer who is primarily responsible for the claim is to act for both the responsible insurers in respect of any claim for the damages and has sole liability for the claim (that is, it is to indemnify the employer for the full amount of the damages or is to pay the full amount of damages to the worker, without any right to a contribution from any other insurer, except as provided by paragraph (d)).

(d)  The insurer who is primarily responsible is entitled to recover from the other responsible insurer half of the amount paid as damages to the worker, half of the amount paid in respect of the worker’s legal costs and half of such reasonable amount as the insurer primarily responsible may have incurred in respect of its own legal expenses in the matter.

(3)  If 2 or more employers are jointly or severally liable for damages referred to in this section, the provisions of this section apply separately to each employer.

(4)  This section does not affect the amount of damages recoverable by a worker.

(5)  This section applies to any liability arising before or after the commencement of this Act and to any policy of insurance issued before or after that commencement.

(6)  In sections 151AB and 151AC:

occupational disease means a disease of such a nature as to be contracted by a gradual process, and includes:

(a)  a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942, and

(b)  total or partial loss of sight which is of gradual onset, and

(c)  the condition known as “boilermaker’s deafness” or any deafness of similar origin.

relevant commencement means:

(a)  except as provided by paragraph (b)—4 pm on 30 June 1987, or

(b)  in the case of an employer who was insured under a policy of insurance that was assigned as referred to in clause 10 of Part 15 of Schedule 6 to this Act—the commencement of the period of insurance of the policy so assigned.

151AC   Further special insurance provisions relating to dust diseases

(1) Application of this section
This section applies in relation to an employer who is liable independently of this Act for damages for a dust disease as defined by the Workers’ Compensation (Dust Diseases) Act 1942 contracted by a worker, where there is a dispute as to which of 2 or more insurers in a category of insurers is liable to indemnify the employer under any of the provisions of section 151AB.

(2) Designated insurer to be responsible pending resolution of dispute
For the purposes of section 151AB, and pending resolution of the dispute, the insurer who is the designated insurer in the relevant category under this section is to be treated as being the insurer who is so liable to indemnify the employer. Section 151AB has effect, and is to be construed, accordingly.

(3) Identification of designated insurer
The following provisions have effect for the purpose of determining which insurer among the following categories of insurers is the designated insurer for the purposes of this section:

(a)  If, in the case of a liability that arose before the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.

(b)  If, in the case of a liability that arose after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed after that commencement by that employer is the designated insurer.

(c)  If, in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose before that commencement, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed before that commencement by that employer is the designated insurer.

(d)  If, in the case of a liability that arose partly before and partly after the relevant commencement, there is a dispute as to which of 2 or more insurers is liable to indemnify the employer under section 151AB in respect of any liability that arose after that commencement, the insurer who was the last of those insurers to be the employer’s insurer while the worker was employed after that commencement by that employer is the designated insurer.

(4)  However, the insurers in a category may agree as to which of them is to be the designated insurer or the Dust Diseases Tribunal can order that any one of them is to be the designated insurer, and any such agreement or order overrides subsection (3).

(5) Designated insurer to act for other insurers
In addition to the provisions of section 151AB:

(a)  where subsection (3) (a) or (b) applies—the designated insurer who is the insurer liable under section 151AB (1) is to act for all the insurers in the relevant category in the carriage of the insurance aspects of the claim, and

(b)  where subsection (3) (c) or (d) applies—the designated insurer who is the insurer who is primarily responsible under section 151AB (2) is to act for all the insurers in the 2 relevant categories in the carriage of the insurance aspects of the claim.

(6) Other insurers can make submissions as to damages
Despite subsection (5), if the damages payable to or in respect of the worker have not been assessed, any of the other insurers in dispute may, with the leave of the Dust Diseases Tribunal, make submissions to the Tribunal relating to the amount of damages payable.

(7) Methods of resolving dispute
The dispute may be resolved by such processes as the parties to the dispute agree or as are otherwise available.

(8) Arbitration under special provisions
However, if the dispute has not been resolved by the relevant time, it is to be resolved by arbitration under section 38 of the Dust Diseases Tribunal Act 1989, unless the Dust Diseases Tribunal otherwise orders (whether before or after the arbitration commences). The relevant time is:

(a)  subject to paragraph (b), the time when the total amount of damages is assessed and payable, or

(b)  if the designated insurer pays the total amount of damages assessed, together with all costs payable, to or in respect of the worker, such later time as one of the parties to the dispute notifies to the other party or parties to the dispute.

(9) Nature of resolution of dispute
For the purposes of this section, the dispute is not resolved until it has been determined which of the insurers in dispute was the insurer when the worker was last employed at the relevant time by the employer in an employment to the nature of which the disease was due. That insurer is referred to in the following provisions of this section as an insurer who is liable.

(10) Adjustment after resolution of dispute
If, on resolution of the dispute, it is determined that a designated insurer is not an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:

(a)  is liable to reimburse or indemnify the designated insurer for any amounts already paid by the designated insurer in that capacity (including any amounts paid on an interim basis), and

(b)  is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and

(c)  is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and

(d)  without affecting the generality of paragraph (c), is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute (other than the designated insurer) incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker.

(11)  If, on resolution of the dispute, it is determined that a designated insurer is an insurer who is liable, then (in addition to any other liabilities) the insurer who is liable:

(a)  is liable to reimburse or indemnify the employer for any costs of the worker already ordered by the Dust Diseases Tribunal, and

(b)  is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in earlier proceedings before the Tribunal because the insurer who is liable disputed liability (thereby giving rise wholly or in part to the dispute), and

(c)  without affecting the generality of paragraph (b), is (subject to any order of the Dust Diseases Tribunal) liable to pay the reasonable costs of any of the insurers in dispute incurred in any such earlier proceedings in making submissions to the Tribunal relating to the amount of damages payable to or in respect of the worker.

(12) Parties to dispute
An insurer may be or become a party to the dispute even though the insurer was not a party to or represented in the original proceedings before the Dust Diseases Tribunal. Without limiting the foregoing, an insurer becomes a party to the dispute on being joined as a party to an arbitration under section 38 of the Dust Diseases Tribunal Act 1989.

(13) Rules
This section has effect subject to orders of the Dust Diseases Tribunal under rules referred to in section 33 (4) (n) of the Dust Diseases Tribunal Act 1989.

(14) Transitional
This section applies to causes of action arising before or after the commencement of this section, and extends to proceedings instituted before that commencement but only if no hearing in the proceedings has started before that commencement.

(15) Definition
In this section:

category of insurers means the category consisting of the insurers in dispute as referred to in a paragraph of subsection (3).

Part 6

152–154 (Repealed)

Part 7 Insurance

Division 1A Provisions relating to Nominal Insurer, Insurance Fund and scheme agents

Subdivision 1 Nominal Insurer

154A   Establishment of Nominal Insurer

(1)  There is established by this Act a Workers Compensation Nominal Insurer.

(2)  The Nominal Insurer:

(a)  is a legal entity, and

(b)  may take proceedings and be proceeded against in the name of the Workers Compensation Nominal Insurer, and

(c)  may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, and

(d)  may do and suffer all other things that persons may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions.

(3)  The Nominal Insurer is not and does not represent the State or any authority of the State.

154B   Functions of Nominal Insurer

(1)  The Nominal Insurer is taken to be a licensed insurer as if it were the holder of a licence in force under Division 3 of Part 7 and as if that licence were not subject to any conditions.

(2)  The Nominal Insurer has such functions as may be necessary or convenient for enabling the Nominal Insurer to function and operate to the fullest extent as a licensed insurer.

(3)  Without limiting subsection (2), the Nominal Insurer may issue directions to any employer with respect to the insurance arrangements of the employer.

(4)  The Nominal Insurer has such other functions as may be conferred or imposed on the Nominal Insurer by or under this or any other Act or law or by the regulations.

(5)  The liabilities of the Nominal Insurer as insurer under a policy of insurance can only be satisfied from the Insurance Fund and are not liabilities of the State, the Authority or any authority of the State.

154C   Authority to act for Nominal Insurer

(1)  The Authority acts for the Nominal Insurer and anything done or omitted to be done by the Authority on behalf of or in the name of the Nominal Insurer is taken to have been done or omitted by the Nominal Insurer.

(2)  In acting for the Nominal Insurer, the Authority has and may exercise all the functions of the Authority under this Act, the 1998 Act or any other Act or law.

(3)  A liability incurred by the Authority when acting for the Nominal Insurer is a liability of the Nominal Insurer and not a liability of the Authority or the State.

(4)  To remove doubt, it is declared that the provisions of Division 2A of Part 3 of the Public Finance and Audit Act 1983 extend to authorise a performance audit by the Auditor-General under that Division in respect of any activities of the Authority when acting for the Nominal Insurer.

Subdivision 2 Insurance Fund

154D   Establishment and operation of Insurance Fund

(1)  There is established a fund to be known as the “Workers Compensation Insurance Fund”.

(2)  The assets of the Insurance Fund are subject to a statutory trust to be held on trust for the purposes to which assets of the Insurance Fund are authorised or required to be applied by or under this Act and for the benefit of workers and employers as provided by this Act.

(3)  The Nominal Insurer is responsible for managing the operation of the Insurance Fund, including the investment of the assets of the Insurance Fund. The assets of the Insurance Fund may be invested in such manner as the Nominal Insurer thinks fit, subject to the investment policies determined by the Investment Board.

(4)  Employers are entitled to participate in the distribution of any surplus in the Insurance Fund, and are responsible for meeting any deficit in the Insurance Fund, by means of the fixing of premiums, levies and contributions as provided by this Act.

(5)  The assets of the Insurance Fund cannot be applied for the purpose of enabling any payment as a dividend to the credit of the Consolidated Fund, whether by virtue of a direction of the Minister under this Act or the 1998 Act or pursuant to a requirement under section 59B of the Public Finance and Audit Act 1983, or otherwise.

(6)  For the purposes of this Act and any other Act or law, each of the State, the Nominal Insurer, the Authority and any authority of the State:

(a)  has no beneficial interest in or entitlement to the assets of the Insurance Fund, and

(b)  has no liability to meet any deficit in the Insurance Fund and no entitlement to any surplus in the Insurance Fund, and

(c)  is not trustee of the Insurance Fund.

(7)  The regulations may make provision for or with respect to the manner in which the financial statements of, or relating to, the Insurance Fund are to be prepared.

154E   Assets of Insurance Fund

(1)  The following amounts are to be paid to, and become the assets of, the Insurance Fund:

(a)  premiums received by the Nominal Insurer for policies of insurance issued under this Act,

(b)  other amounts paid to the Nominal Insurer in connection with any such policy of insurance, including:

(i)  any amount paid by the Authority under section 175, and

(ii)  any late payment fee paid by an employer for the late payment of a premium, and

(iii)  any amount repaid by an employer pursuant to section 160, and

(iv)  any money recovered under section 151Z (or under section 64 of the former Act), and

(v)  any money recovered under a re-insurance contract or arrangement,

(c)  income (including realised and unrealised capital gains) arising from the investment of the assets of the Insurance Fund,

(d)  any other money authorised to be paid into the Insurance Fund by or under this Act or the regulations.

(2)  The assets of the Insurance Fund may be applied for the following purposes only:

(a)  meeting claims under policies of insurance issued (or taken to have been issued) by the Nominal Insurer,

(b)  the payment of direct expenses associated with any such claims (not being expenses of a class excluded by the regulations from this paragraph),

(c)  the payment to the Authority or to persons employed by or acting for the Authority of management expenses relating to the Insurance Fund (not exceeding such amount as the Minister may from time to time determine),

(d)  the provision of rebates or refunds (including interest) to employers by the Nominal Insurer for overpayment of premiums for policies of insurance issued (or taken to have been issued) by the Nominal Insurer or for any other reason that the Nominal Insurer considers appropriate,

(e)  the payments required for any contract or arrangement for re-insurance in respect of liabilities under policies of insurance issued (or taken to have been issued) by the Nominal Insurer,

(f)  meeting the costs of any actuarial investigation of the Insurance Fund,

(g)  meeting the costs of any management, consultancy or auditing fees incurred in connection with the exercise of the functions of the Nominal Insurer,

(h)  the payment by the Nominal Insurer of contributions under this Act to the Guarantee Fund or the Terrorism Re-insurance Fund as referred to in section 239AE,

(h1)  the payment to the WorkCover Authority Fund of amounts approved by the Minister under section 35 of the 1998 Act,

(i)  the payments authorised or required to be made by the Nominal Insurer to scheme agents under their agency arrangements,

(j)  exercising any other functions of the Nominal Insurer,

(k)  making any other payment authorised by or under this Act or the regulations.

154F   Auditing of Insurance Fund

(1)  The Auditor-General is to inspect and audit the accounts and records of financial transactions of or relating to the Insurance Fund at least once during each financial year.

(2)  The Auditor-General is to report to the Minister as to the result of any such inspection and audit and as to such irregularities or other matters as in the judgment of the Auditor-General call for special notice.

(3)  The Auditor-General is to include a reference to any audit conducted under this section in the report referred to in section 52 (1) of the Public Finance and Audit Act 1983 or in any special report that the Auditor-General may at any time think fit to make under section 52 (3) of that Act.

(4)  The Nominal Insurer must pay to the Auditor-General out of the Insurance Fund such amounts, at such times, as the Minister decides towards defraying the costs and expenses of any inspection and audit under this section.

Note. The Auditor-General has powers under section 36 of the Public Finance and Audit Act 1983 in respect of an inspection and audit under this section.

Subdivision 3 Scheme agents

154G   Agents of Nominal Insurer

(1)  The Nominal Insurer may enter into arrangements (agency arrangements) by contract or otherwise for the appointment of persons to act as agent (a scheme agent) for the Nominal Insurer in connection with the exercise of any functions of the Nominal Insurer.

(2)  A scheme agent is, in the exercise of functions under an agency arrangement, subject to the direction and control of the Nominal Insurer as provided by the terms of the agency arrangement.

(3)  A person incurs no personal liability for or in connection with a liability incurred by the person as agent for the Nominal Insurer in the exercise of functions in good faith with due care and skill and within the scope of the agent’s actual authority to act.

(4)  This section does not limit the power of the Authority to act for the Nominal Insurer.

154H   Authority’s functions not limited by agency arrangement

Nothing in an agency arrangement limits or otherwise affects the exercise by the Authority of any function of the Authority with respect to licensed insurers or scheme agents.

154I   Authority’s functions extended to scheme agents

Subject to this Act, any function conferred on the Authority with respect to licensed insurers (or insurers generally) by or under a provision of this Act, the 1998 Act or the regulations under either Act may be exercised in relation to scheme agents, and for that purpose:

(a)  a reference to a licensed insurer or insurer in a provision conferring such a function is to be read as including a reference to a scheme agent, and

(b)  a reference to the conditions of a licence of a licensed insurer is to be read as including a reference to the conditions of a scheme agent’s agency arrangement with the Nominal Insurer.

154J   Refusal of insurance by scheme agents

(1)  A scheme agent who is authorised to issue policies of insurance on behalf of the Nominal Insurer must not refuse to issue a policy of insurance to any employer or to renew a policy of insurance issued to an employer, except with the consent of the Nominal Insurer or as required or permitted by an express provision of the agency arrangement.

Maximum penalty: 1,000 penalty units.

(2)  The WorkCover Guidelines under the 1998 Act may provide for the circumstances in which the consent of the Nominal Insurer as referred to in subsection (1) may be given.

154K   Ownership of records

(1)  Subject to the regulations, all records and other documents made and kept, or received and kept, by a scheme agent in the exercise of functions on behalf of the Nominal Insurer are the property of the Nominal Insurer.

(2)  The Nominal Insurer may give directions to a scheme agent with respect to possession, custody and control of, and the granting of access to, those records and other documents.

(3)  A scheme agent must comply with any such directions given by the Nominal Insurer to the scheme agent.

Maximum penalty: 1,000 penalty units.

(4)  A reference in this section to a scheme agent includes a reference to a person who was formerly (but is no longer) a scheme agent.

154L   Remuneration of scheme agents

(1)  A scheme agent is entitled to payment by the Nominal Insurer of remuneration (whether as fees, commission or otherwise) as provided by or under the relevant agency arrangement.

(2)  The remuneration of scheme agents is payable by the Nominal Insurer out of the Insurance Fund.

154M   Certain provisions extended to scheme agents

(1)  A reference in section 163, 164 or 169 to a licensed insurer or insurer includes, in the application of the section to any matter concerning the Nominal Insurer, a reference to a scheme agent acting on behalf of the Nominal Insurer in connection with that matter.

(2)  Except as may otherwise be provided by the regulations, a reference in any of the following provisions of the 1998 Act to a licensed insurer or insurer includes, in the application of the provision to any matter concerning the Nominal Insurer, a reference to a scheme agent acting on behalf of the Nominal Insurer in connection with that matter:

Sections 43, 45, 47, 50, 52, 56–59, 65, 66, 69, 71–75, 76, 107, 108, 113, 117, 118, 126, 136, 141, 232, 235A, 235B, 238, 260, 261, 264, 266–272, 274–276, 279, 280, 281, 282, 284, 287, 291, 295, 301, 308, 330, 337, 345 and 356.

154N   Regulations

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

(a)  requiring the making and keeping of records by scheme agents and the giving of access to those records by scheme agents,

(b)  the obligations of scheme agents with respect to confidentiality and disclosure of information (including personal information),

(c)  the ownership, custody and control of records and other documents made and kept, or received and kept, by scheme agents.

(2)  The regulations may create offences, punishable by a penalty not exceeding 200 penalty units, for a contravention by a person of an obligation imposed on the person by or under an agency arrangement.

(3)  A reference in this section to a scheme agent includes a reference to a person who was formerly (but is no longer) a scheme agent.

Division 1 Insurance policies

155   Compulsory insurance for employers

(cf former s 18 (1), (5), (6))

(1)  An employer (other than a self-insurer) shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this Division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act (but not including a liability for compensation in the nature of workers compensation arising under any Act or other law of another State, a Territory or the Commonwealth or a liability arising under the law of another country) for any injury to any such worker.

Maximum penalty: 500 penalty units or imprisonment for 6 months, or both.

(1AA)  An employer must not at any one time maintain in force more than one policy of insurance for the purposes of subsection (1) (ignoring any policy of insurance effected by the employer for the purposes of compliance with section 31 of the Coal Industry Act 2001).

Maximum penalty: 500 penalty units.

(1A)  In subsection (1), injury includes a dust disease as defined in the Workers’ Compensation (Dust Diseases) Act 1942 and the aggravation, acceleration, exacerbation or deterioration of a dust disease as so defined.

(1B)  A policy of insurance (whether issued before, on or after the commencement of this subsection) does not, subject to the regulations, insure an employer’s liability for GST payable on the settlement of a claim and the employer’s uninsured liability for GST in these circumstances is not a liability to which subsection (1) applies.

A regulation made for the purposes of this subsection may apply to a policy of insurance whether issued before, on or after the commencement of this subsection, as the regulation may provide.

In this subsection, employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.

Note. An employer may incur liability for GST on the settlement of a claim if the employer has failed to notify the insurer of the employer’s entitlement to an input tax credit for a premium paid by the employer for the policy of insurance issued by the insurer.

(2)  Where several persons may become liable in respect of an injury to the same worker:

(a)  it shall be sufficient to obtain a joint policy of insurance in respect of that liability, and

(b)  the premium chargeable in respect of the policy shall not exceed the current rates for insurance of an employer’s liability in respect of workers engaged in the same industry, trade or business.

(3)  In any proceedings for an offence against subsection (1), proof:

(a)  that an employer, not being a self-insurer, who has been served pursuant to section 161 (1) with a notice requiring the employer to produce for inspection (or to supply particulars, specified in the notice, of) a policy of insurance obtained by the employer and in force at a specified date or between specified dates has not so produced (or so supplied specified particulars of) any such policy so in force, and

(b)  that the time for compliance with the notice has expired,

      shall be sufficient evidence, unless the contrary is proved, that at that date or between those dates the employer had failed to comply with subsection (1).

(3A)  It is a defence to a prosecution for an offence under this section concerning an employer’s liability in respect of a worker if the court is satisfied that at the time of the alleged offence:

(a)  the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 9AA the worker’s employment was not connected with this State, and

(b)  the employer had workers compensation cover in respect of the worker’s employment under the law of the State or Territory with which the employer believed on reasonable grounds the worker’s employment was connected under section 9AA.

(3B)  In subsection (3A), workers compensation cover means insurance or registration required under the law of a State or Territory in respect of liability for statutory workers compensation under that law.

(4)  The Authority may undertake not to prosecute a person for an offence under this section in respect of a failure by the person to obtain or maintain in force a policy of insurance on condition that the person pays to the Authority the amount that the Authority is entitled to recover under section 156 in respect of the failure or such lesser amount as the Authority may determine to accept. If the person pays the amount in compliance with any terms and conditions of the undertaking, the person is not liable to be proceeded against or convicted for an offence under this section in respect of the failure concerned.

(5)  The regulations may make provision for or with respect to an amnesty for contraventions of this section, such that a person who satisfies the conditions of the amnesty is not liable to be prosecuted for an offence under this section in respect of such a contravention and is not liable to recovery under section 156 in respect of such a contravention.

155AA   Exempt employers not required to obtain policy of insurance

(1)  An employer is an exempt employer during a financial year while the employer has reasonable grounds for believing that the total amount of wages that will be payable by the employer during the financial year to workers employed by the employer will be not more than the exemption limit for that financial year.

(2)  An employer is not an exempt employer whenever the employer:

(a)  is a member of a group constituted under Division 2A, or

(b)  employs a person under a training contract (within the meaning of the Apprenticeship and Traineeship Act 2001).

Note. A training contract is a contract entered into for the purpose of establishing an apprenticeship or traineeship.

(3)  An employer who is an exempt employer for the whole or any part of a financial year is deemed to have obtained from the Nominal Insurer (and the Nominal Insurer is deemed to have issued) a policy of insurance in compliance with section 155 (an exempt employer policy) for any period for which the employer is an exempt employer during the financial year. No premium is payable for an exempt employer policy.

(4)  An exempt employer policy covers the employer for any period for which the employer is an exempt employer but does not cover the employer for any period for which the employer has actually obtained a policy of insurance under section 155.

(5)  An administration fee of an amount prescribed by the regulations is payable to the Nominal Insurer by an employer in respect of each claim made against the employer in respect of an injury to a worker received during any period for which an exempt employer policy covers the employer.

(6)  The regulations may make provision for or with respect to the payment of an administration fee, including provision for or with respect to any of the following:

(a)  the period within which an administration fee must be paid,

(b)  the payment of a late payment fee if an administration fee is not paid within the required period,

(c)  the full or partial waiver or refund of an administration fee or late payment fee.

(7)  The Nominal Insurer is entitled to recover as a debt in a court of competent jurisdiction an administration fee payable by an employer together with any late payment fee payable.

(8)  In this section:

exemption limit for a financial year means $7,500 or such other amount as may be fixed by an insurance premiums order as the exemption limit for that financial year.

financial year means a period of 12 months commencing on 1 July in any year.

wages means wages as defined in section 174 and includes any distribution to a worker as a beneficiary under a trust that would (under section 174AA) constitute wages for the purposes of section 174.

155A   Policies to be for 12 month periods

A policy of insurance issued after the commencement of this section must be issued for a period of 12 months, unless the Authority otherwise approves in a particular case or class of cases.

156   Recovery of double premiums for contravention of insurance requirements

(1)  If an employer fails to obtain or maintain in force a policy of insurance as required by section 155 (1) in respect of any period, the Authority may recover from the employer in a court of competent jurisdiction as a debt due to the Authority a sum equal to twice the amount of the premium that would have been payable for the issue of a policy of insurance to the employer in respect of that period or such lesser amount as the Authority may agree to accept in any particular case.

(1A)  If an employer maintains in force at any one time more than one policy of insurance for the purposes of section 155 (1) (in contravention of section 155 (1AA)), the Authority may:

(a)  determine an amount as the amount of premium that the employer has avoided by maintaining more than one policy of insurance, and

(b)  recover from the employer in a court of competent jurisdiction as a debt due to the Authority a sum equal to twice the amount determined under paragraph (a) or such lesser amount as the Authority may agree to accept in any particular case.

(2)  The Authority may recover a sum from an employer under this section whether or not the employer has been proceeded against or been convicted for any relevant offence against section 155 (1) or (1AA).

(3)  Any such sum recovered by the Authority shall be paid into the WorkCover Authority Fund.

(4)  A certificate executed by the Authority and certifying that a sum specified in the certificate is the sum equal to twice the amount of premium that would have been payable for the issue of a policy of insurance to an employer so specified in respect of a period so specified is (without proof of its execution by the Authority) admissible in any proceedings and is evidence of the matters specified in the certificate.

(4A)  A certificate executed by the Authority and certifying that a sum specified in the certificate is the sum equal to twice the amount of premium that an employer has avoided by maintaining more than one policy of insurance in contravention of section 155 (1AA) is (without proof of its execution by the Authority) admissible in any proceedings and is evidence of the matters specified in the certificate.

(5)  In the absence of information that would enable the Authority to accurately determine the premium that would have been payable for the issue of a particular policy of insurance, the following provisions have effect:

(a)  the Authority is entitled to make an estimate of that premium (based on the information available to the Authority),

(b)  the Authority’s estimate is presumed to be accurate as to the premium that would have been payable and cannot be challenged on the basis that insufficient information was available to enable the making of an accurate assessment, but can be challenged by the provision of information that enables a more accurate estimate to be made,

(c)  if the Authority’s estimate is successfully challenged and as a result a more accurate estimate is substituted, the proceedings are not open to challenge merely because of the inaccurate estimate and may continue to be heard and be determined on the basis of the substituted assessment.

(6)  A court that convicts an employer of an offence under section 155 may, on the application of the Authority, order the employer to pay to the Authority the amount that the court is satisfied the Authority is entitled to recover from the employer under this section in respect of the failure to which the offence relates. Any amount paid by an employer under such an order is taken to have been recovered from the employer under subsection (1) or (1A) and is to be dealt with accordingly.

(6A)  For the purposes of subsection (6), a court that makes a finding that an employer is guilty of an offence under section 155 without proceeding to a conviction is taken to have convicted the employer of the offence.

(7)  The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.

(8)  Despite any other provision of this section, if the Authority is satisfied that:

(a)  the reason for the employer not being insured against liability to pay compensation to the worker is that the employer believed on reasonable grounds that the employer could not be liable under this Act in respect of the worker because under section 9AA the worker’s employment was not connected with this State, and

(b)  the employer had workers compensation cover in respect of the worker’s employment under the law of the State or Territory with which the employer believed on reasonable grounds the worker’s employment was connected under section 9AA,

      the employer is not liable under this section in respect of that liability.

(9)  In subsection (8), workers compensation cover means insurance or registration required under the law of a State or Territory in respect of liability for statutory workers compensation under that law.

156A   Misleading conduct by insurers and insurance intermediaries

(1)  In this section:

insurance intermediary means:

(a)  a person who arranges contracts of insurance in New South Wales:

(i)  for reward, or

(ii)  as an agent for a person carrying on a business of insurance, or

(iii)  as an agent for the Nominal Insurer, or

(b)  a financial services licensee (as defined in section 761A of the Corporations Act 2001 of the Commonwealth) whose licence covers arranging contracts of insurance as an agent for a person carrying on a business of insurance, or

(c)  a regulated principal (as defined in section 1430 of the Corporations Act 2001 of the Commonwealth) when carrying on business as an insurance broker as authorised by Subdivision D of Division 1 of Part 10.2 of that Act.

insurer means a person who carries on insurance business as defined in the Insurance Act 1973 of the Commonwealth.

(2)  An insurer or insurance intermediary must not make a representation with respect to any insurance (whether by means of an advertisement or otherwise) that could reasonably be expected to cause an employer to believe that the insurance is comprehensive for business needs, unless:

(a)  the insurance includes the insurance required by this Act or the 1998 Act, or

(b)  the representation includes a clear statement to the effect that the insurance does not include workers compensation insurance and that workers compensation insurance is compulsory for employers.

(3)  An insurer or insurance intermediary who contravenes this section is guilty of an offence.

Maximum penalty: 200 penalty units.

(4)  In any action under section 144, 145, 145A or 156 in respect of a failure by an employer to obtain or maintain in force a policy of insurance, the court hearing the action may order that a specified insurer or insurance intermediary be joined as a party in the proceedings if the court thinks that the insurer or insurance intermediary may be culpable in the matter.

(5)  An insurer or insurance intermediary is culpable in a matter if it appears that the insurer or insurance intermediary has engaged in conduct that constitutes a contravention of this section (whether or not the insurer or insurance intermediary has been prosecuted for or convicted of an offence in respect of the contravention) and that conduct caused or contributed significantly to the failure by the employer to obtain or maintain the insurance concerned.

(6)  In any proceedings in which an insurer or insurance intermediary is joined as a party under this section the court hearing the proceedings may, if satisfied that the insurer or insurance intermediary is culpable in the matter, order that the insurer or insurance intermediary is to be jointly and severally liable with any other party in respect of any amount ordered to be paid by that other party in the proceedings or is to be separately liable, in place of that other party, as to the whole or a specified part of any amount that the other party might be ordered to pay in the proceedings.

(7)  (Repealed)

156B   Recovery from directors of corporation—insurance requirements

(1)  If the Authority is entitled to recover an amount from a corporation under section 156 (even if the corporation has ceased to exist) and the amount is not recoverable from the corporation, the Authority is entitled to recover the amount from a person who was a culpable director of the corporation at the relevant time.

(2)  An amount is considered to be not recoverable from a corporation if the Authority certifies that it will be unable or unlikely to recover the amount from the corporation by reasonable efforts at recovery, whether because the corporation is being wound up and is unable to pay its debts, or otherwise.

(3)  A person is a culpable director of a corporation at the relevant time if the person was a director of the corporation at any time during the contravention to which the entitlement of the Authority relates (whether or not the corporation has been proceeded against or convicted of an offence in respect of that contravention).

(4)  A person is not a culpable director of a corporation if the person establishes that:

(a)  the contravention by the corporation occurred without the person’s knowledge, or

(b)  the person was not in a position to influence the conduct of the corporation in relation to the contravention, or

(c)  the person, being in such a position, used all due diligence to prevent the contravention by the corporation.

(5)  If there is a right of recovery against more than one director of a corporation in respect of the same amount, the right is a right against all those directors jointly and severally.

(6)  A director from whom an amount is recovered under this section is entitled to recover the amount from the corporation.

(7)  This section does not apply to an entitlement of the Authority under section 156 that arises from the failure by a corporation to obtain or maintain insurance in respect of any period before the commencement of this section.

157   Insurers not to refuse insurance

(cf former s 18 (2))

(1)  A licensed insurer shall not, except with the consent of the Authority, refuse to issue a policy of insurance to any employer or to renew a policy of insurance issued to an employer.

(2)  Without affecting the generality of subsection (1), the Authority may consent to any such refusal in order that the licensed insurer does not contravene any condition of the licence.

(3)  This section does not apply:

(a)  to a specialised insurer, or

(b)  in any case where the employer has not complied with any conditions prescribed by this Act or the regulations in respect of the issue or renewal of the policy of insurance.

Maximum penalty: 100 penalty units.

158   (Repealed)

159   Provisions of policies of insurance

(cf former s 18 (3) (a), (a1), (3A), (3B), (3C))

(1)  A policy of insurance shall, in so far as it relates to any liability under this Act, contain only such provisions as are prescribed by the regulations, but (subject to the regulations) may contain such other provisions relating to any liability at common law or under any Act or Commonwealth Act as are appropriate to any particular case.

(1A)  The regulations may prescribe different provisions for different classes of policies. The regulations may also authorise the Authority to approve different provisions for policies of insurance issued by a specialised insurer in respect of domestic or similar workers.

(2)  A policy of insurance shall provide that:

(a)  the insurer as well as the employer is directly liable to any worker insured under the policy and, in the event of the worker’s death, to the dependants or other persons to pay the compensation under this Act or other amount independently of this Act for which the employer is liable, and

(b)  the insurer is bound by and subject to any judgment, order, decision or award given or made against the employer of any such worker in respect of the injury for which the compensation or amount is payable.

(3)  A policy of insurance issued to a person shall, in addition to containing any other provisions required under this section, contain such provisions as are prescribed by the regulations for or in relation to:

(a)  the insurance of the person, in the event of the person being, or becoming, a principal under a contract as referred to in section 20 (1), against a liability arising under section 20,

(b)  providing that the insurer, as well as the person, shall, while that person is a principal under a contract as referred to in section 20 (1), be directly liable to pay to a worker employed by a contractor under that contract and, in the event of the worker’s death, the dependants or other persons, the compensation for which that person is liable under section 20 (1), and

(c)  providing that the insurer is bound by, and subject to, any judgment, order, decision or award given or made against the person in respect of any liability arising under section 20.

(4)  A policy of insurance obtained by an employer in respect of workers in any trade or business shall, notwithstanding anything contained in that policy, apply to and have effect in respect of all workers employed by the employer in that trade or business.

(5)  A liability, under a policy of insurance, of an insurer to a worker under a provision inserted in the policy under subsection (2) or (3) is enforceable as if the worker were a party to the policy.

(6)  A contravention of subsection (1), (2) or (3) does not annul a policy of insurance or affect the liability of the insurer to the person insured under the policy.

(7)  A licensed insurer shall not issue a policy of insurance in contravention of subsection (1), (2) or (3).

Maximum penalty (subsection (7)): 50 penalty units.

160   Recovery of excess from employer

(cf former s 18 (3) (a2))

(1)  In this section:

prescribed excess amount, in respect of a weekly compensation claim paid under a policy of insurance, means the prescribed excess amount specified by the relevant insurance premiums order that applies to that policy.

small business employer, in relation to a policy of insurance, means an employer who, under the policy, is liable to pay premiums not exceeding such amount as is prescribed by the regulations (the calculation of that liability being determined in the manner so prescribed).

weekly compensation claim means a claim for weekly payments of compensation payable to a worker in respect of any period of total or partial incapacity for work.

(2)  An employer is required to repay to the insurer under a policy of insurance that the employer has obtained under section 155:

(a)  the prescribed excess amount in respect of each weekly compensation claim that the insurer has paid under the policy, or

(b)  if the amount that the insurer has paid in respect of any such claim is less than the prescribed excess amount—the amount so paid.

(3)  An employer is not required to comply with subsection (2) to the extent that:

(a)  the employer has paid an amount of money directly to an injured worker in relation to a period that is the subject of a weekly compensation claim made by the worker, and

(b)  the amount paid by the employer is an amount or is included in an amount for which the employer’s insurer is liable under the relevant policy of insurance to indemnify the employer in respect of the claim, and

(c)  the employer’s insurer has offset against the amount payable under that policy in respect of the claim the amount referred to in paragraph (a).

(4)  An employer who, in relation to a period that is the subject of a weekly compensation claim made by an injured worker:

(a)  has paid no money to the worker, or

(b)  has paid an amount to the worker that is less than the amount which the employer would, but for this subsection, be required to repay under subsection (2),

      is nevertheless not required to comply with that subsection to the extent that the employer’s insurer has debited against any amount standing to the employer’s credit in respect of the premiums payable for the relevant policy of insurance:

(c)  in the case referred to in paragraph (a)—the amount that the employer would otherwise be required to repay under that subsection, or

(d)  in the case referred to in paragraph (b)—the difference between the amounts referred to in that paragraph.

(4A)  Subsection (2) applies to a small business employer who has obtained a policy of insurance under section 155 only to the extent that the employer and the insurer have agreed that the employer is required to repay to the insurer the prescribed excess amount (or such smaller amount as is agreed on) in respect of each weekly compensation claim paid by the insurer under the policy.

(4AA)  For the purposes of this section, the amount of a weekly compensation claim paid under a policy of insurance is the total amount of weekly payments made to the claimant in respect of the injury concerned, and that amount does not include any other payments associated with the claim.

(4B)  If liability for a claim is apportioned between 2 or more successive insurers of an employer, the amount repayable by the employer is to be similarly apportioned.

(5)  An amount repayable under this section may be recovered by the insurer as a debt in a court of competent jurisdiction.

(6)  The following policies of insurance are exempt from this section:

(a)  (Repealed)

(b)  policies of insurance in respect of domestic or similar workers,

(c)  policies of insurance of any class exempted from this section by the regulations.

(7)  (Repealed)

(8)  This section does not apply to:

(a)  a weekly compensation claim made in respect of a worker who receives an injury on a journey to which section 10 applies, or

(b)  a weekly compensation claim of any other class prescribed by the regulations for the purposes of this subsection.

(9)  Without limiting the operation of that provision, an insurance premiums order referred to in the definition of prescribed excess amount in subsection (1) may specify different amounts (or no amount) according to the period within which the employer gave notice of the injury concerned.

161   Inspection of policies

(cf former s 18A)

(1)  The Authority or a person authorised by the Authority may, by notice in writing, require an employer to do either or both of the following:

(a)  to produce for inspection (or to supply specified particulars of) the policy of insurance obtained by the employer and in force at a specified date or between specified dates,

(b)  to supply such particulars of matters relating to the policy as the Authority or person may consider necessary.

(2)  A worker who has received an injury, or has met with an accident in circumstances giving rise to a claim for compensation under this Act, or a solicitor for the time being authorised by the worker to act on behalf of the worker in relation to the claim, or a representative of a union to which the worker belongs, may, by notice in writing, require the employer to make available for inspection a policy of insurance in force in respect of the worker at the time (whether before or after the commencement of this section) when the injury was received or the accident happened.

(3)  A person on whom a notice is served under subsection (1) or (2) shall comply with the notice:

(a)  within 21 days after service or such longer period as may be specified, or

(b)  if the Authority otherwise than in the notice allows a further period for compliance—within the further period.

Maximum penalty: 50 penalty units.

(3A)  A person is not liable to be prosecuted both for an offence under section 155 of failing to obtain and maintain in force a policy of insurance and for an offence under this section in respect of a failure to produce that policy of insurance for inspection.

(4)  An employer who obtains a policy of insurance shall retain the policy in his or her possession in good order and condition until:

(a)  there are no longer any workers in respect of whom the policy is in force, or

(b)  the policy is at least 7 years old,

      whichever occurs later.

Maximum penalty: 50 penalty units.

(5)  In this section:

employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.

representative means an officer of an industrial organisation of employees for the time being authorised under Part 7 of Chapter 5 of the Industrial Relations Act 1996 to exercise powers under that section.

specified means specified in the notice concerned.

union means an industrial organisation of employees within the meaning of the Industrial Relations Act 1996.

162   Death of employer

(cf former s 49A)

(1)  The Commission may, on application by a worker and if satisfied as to the matter sought to be declared, declare that an employer has entered into a contract with an insurer, named in the declaration, in respect of any liability under this Act to that worker and that the employer:

(a)  being a natural person, has died, or is permanently resident outside the Commonwealth of Australia and its Territories, or cannot after due inquiry and search be found,

(b)  being a corporation (other than a company which has commenced to be wound up), has ceased to exist,

(c)  being a company, corporation, society, association or other body (other than a company which has commenced to be wound up), was at the time when it commenced to employ the worker incorporated outside the Commonwealth of Australia and its Territories and registered as a foreign company under the laws of any State or Territory of the Commonwealth of Australia and is not at the time of the declaration so registered under any such law, or

(d)  being a company, has commenced to be wound up after entering into the contract with the insurer.

(2)  Where the Commission makes a declaration under subsection (1), the Commission may make an award of compensation for an injury to the worker (being, in the case referred to in subsection (1) (d), an injury that took place before the commencement of the winding up of the employer) and such an award shall, for the purposes of section 159, be deemed to be an award against an employer of the worker with whom the insurer referred to in the declaration entered into a contract with respect to any liability under this Act to that worker.

163   Register to be kept by insurers

(cf former s 18A (2A)–(2C))

(1)  A licensed insurer shall keep a register of all policies of insurance issued or renewed by the insurer containing the following particulars in respect of each policy:

(a)  the name and address of the policy holder,

(b)  the number of the policy,

(c)  any premium rate classification under an insurance premiums order,

(d)  the date of issue or renewal of the policy,

(e)  such other particulars as may be prescribed by the regulations.

(2)  A person who ceases to be a licensed insurer shall deliver the register to the Nominal Insurer.

(3)  An insurer shall retain in good order and condition for at least 7 years all the insurer’s records that relate to the issue, renewal or discontinuance of policies of insurance and the receipt, administration and payment of claims under this Act.

(4)  In subsection (3):

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

Maximum penalty: 1,000 penalty units.

163A   Certificate of currency

(1)  In this section:

certificate of currency means a certificate issued to an employer by the insurer under a policy of insurance obtained by the employer that certifies the period (not exceeding 4 months or such other period as may be prescribed by the regulations) from the date of its issue during which the employer is insured under the policy, being a certificate that:

(a)  is in the form (if any) approved by the Authority, and

(b)  states the nature of the business and the number of workers of the employer, and the amount of the wages estimated to be payable by the employer, in respect of which the premium for the policy was determined by the insurer, and

(c)  states such other matters as the Authority may direct from time to time by notice in writing to insurers.

(2)  An employer who is required to obtain a policy of insurance must, within 5 days of a request to do so by a person authorised under this section to make the request, produce a certificate of currency for inspection by the person that certifies that the employer is insured under the policy at that time.

Maximum penalty: 50 penalty units.

(3)  The following persons are authorised to request an employer to produce the employer’s certificate of currency:

(a)  an authorised officer (within the meaning of section 238 of the 1998 Act) or any other officer of the Authority authorised by the Authority to make such a request,

(b)  an authorised industrial officer (within the meaning of Part 7 of Chapter 5 of the Industrial Relations Act 1996),

(c)  any person who has, in the course of or for the purposes of the person’s trade or business, contracted with the employer for the employer to carry out the whole or part of any work that the person has undertaken, or who proposes to enter into such a contract.

Note. Section 20 makes a principal liable to pay compensation for injured workers of a contractor if the contractor has not taken out a policy of insurance.

(4)  The insurer under a current policy of insurance must, at the request of the employer insured under the policy, issue to the employer a certificate of currency with respect to the policy free of charge. The insurer may refuse to issue the certificate if the premium (or instalment of premium) for the policy is due and payable pursuant to a written demand for payment and has not been paid, or the employer is otherwise in default under the policy.

(5)  A person who is insured under a policy of insurance at the time a request is made under subsection (2) for the production of a certificate of currency does not commit an offence against that subsection if the person satisfies the court that an attempt to obtain a certificate within 5 days of the request for production was not successful.

(6)  A person who fraudulently alters a certificate of currency issued under this section is guilty of an offence.

Maximum penalty: 50 penalty units.

(7)  An employer to whom a certificate of currency is issued under this section must notify the insurer within 7 days after the certificate is issued if the certificate contains an error as to the nature of the business, or the number of workers of the employer, in respect of which the premium for the policy was determined by the insurer.

Maximum penalty: 50 penalty units.

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

(a)  requiring the supply by an employer to an insurer of information relevant to the issue of a certificate of currency to the employer (including information relevant to the calculation of premium), and

(b)  providing that an insurer is not required to issue a certificate of currency to an employer who has failed to supply information to the insurer as required by the regulations.

(9)  A certificate of currency issued under this section is evidence of the matters that it certifies.

163B   Issue of stop work order to uninsured employer

(1)  The Authority or an authorised officer may issue a stop work order in writing to an employer (other than an employer who is a self-insurer) if the Authority or authorised officer reasonably suspects that the employer does not have a policy of insurance that complies with this Division.

(2)  A stop work order takes effect at the beginning of the fifth working day after the day on which it is given to the employer and may be withdrawn at any time by the Authority or an authorised officer.

(3)  A stop work order is to be withdrawn by the Authority or an authorised officer as soon as practicable after the employer to whom the order has been issued produces a certificate of currency in accordance with section 163A.

(4)  After a stop work order takes effect, the employer to whom it has been issued must (until the order is withdrawn) ensure that no work is performed for the employer by any worker of the employer.

Maximum penalty: 500 penalty units or imprisonment for 6 months, or both.

(5)  In this section:

authorised officer has the same meaning as in section 238 of the 1998 Act.

164   Employer—offences relating to policies of insurance

(cf former cl 2 of General Regulations)

An employer shall not:

(a)  supply any information to a licensed insurer which the employer knows is false or misleading in a material particular with the object of procuring the issue or renewal of a policy of insurance, or

(b)  wilfully fail to observe any of the terms of a policy of insurance obtained by the employer.

Maximum penalty: 100 penalty units.

Division 2 Insurance premiums

165–167   (Repealed)

168   Insurance premiums orders

(cf former s 30AB)

(1)  The Governor may, by an order made on the recommendation of the Authority and published in the Gazette, fix the manner in which the premium payable by an employer (or a person who proposes to become an employer) for a policy of insurance shall be calculated, whether by reference only to annual rates or otherwise.

Editorial note. For orders under this subsection see the Historical notes at the end of this Act.

(2)  An insurance premiums order shall:

(a)  take effect on and from the date of its publication in the Gazette or a later date specified in the order, and

(b)  apply to and in respect of policies of insurance which are to be or have been issued or renewed so as to take effect while the order is in force.

(3)  An insurance premiums order may:

(a)  apply generally or be limited in its application by reference to specified exceptions or factors,

(b)  apply differently according to different factors of a specified kind, or

(c)  authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,

      or may do any combination of those things.

(3A)  Without limiting the generality of subsection (3), an insurance premiums order may provide for the payment of increased premiums by employers who (under any specified or class of contract of employment, industrial agreement, award or other arrangement) are or may become liable to make payments to workers or their dependants in respect of injuries or deaths (including payments as a supplement or an alternative to the periodic or lump sum payments of compensation under this Act).

(4)  The following policies of insurance are exempt from insurance premiums orders:

(a), (b)  (Repealed)

(c)  policies of insurance of any class exempted by the regulations from orders under this section.

(5)  (Repealed)

168A   Optional alternative method of calculating premium for large employers

(1)  An insurance premiums order may fix (as an optional alternative method) an alternative method for calculating the premium payable for a policy of insurance by an employer who is classified under the order as a large employer (or a person who proposes to become such an employer).

(2)  An optional alternative method for calculating premium applies to an employer only if:

(a)  the employer satisfies any criteria established by the insurance premiums order for eligibility for the optional alternative method, and

(b)  the Nominal Insurer has, on the application of the employer, approved of the optional alternative method applying to the employer for the time being.

(3)  The Nominal Insurer may revoke an approval under this section at any time.

(4)  If an optional alternative method applies to an employer, that method applies for the purpose of calculating the relevant premium payable by the employer instead of any method that would otherwise apply to the employer under the insurance premiums order.

169   Premiums to be calculated in accordance with insurance premiums order

(cf former s 30AC)

(1)  The premium payable by an employer (or a person who proposes to become an employer) for a policy of insurance to which an insurance premiums order applies shall be calculated in the manner fixed by the order.

(2)  An insurer breaches an insurance premiums order if the insurer demands or receives:

(a)  for the issue of a policy of insurance to which the order applies, or

(b)  for the renewal of any such policy,

      an amount which is, or amounts the sum of which is, different from a premium which is payable in accordance with subsection (1) by the employer (or the person who proposes to become an employer) to whom the policy relates.

(3)  An insurer who wilfully breaches an insurance premiums order is guilty of an offence and liable to a penalty not exceeding 1,000 penalty units.

170   Action by employer where premium not in accordance with insurance premiums order

(cf former s 18AA)

(1)  An employer from whom an insurer has demanded a premium for the issue or renewal of a policy of insurance may dispute an aspect of the insurer’s determination of that premium on the basis that it is not in accordance with the relevant insurance premiums order. The employer may apply to the Authority for a review by the Authority of that aspect (the disputed aspect) of the insurer’s determination.

(2)  Any such application must be made within 1 month after the date of the demand for the premium concerned, or within such further period as the Authority may, in special circumstances, approve in relation to the application.

(3)  When any such application is made, the Authority:

(a)  shall notify the insurer of the making of the application,

(b)  shall consider the application and may have regard to such oral or written evidence or representations as it thinks fit,

(c)  must dismiss the application if the Authority decides that:

(i)  the policy is not a policy to which a relevant insurance premiums order applies, or

(ii)  the disputed aspect was determined by the insurer in accordance with the relevant insurance premiums order,

      or must in any other case determine the disputed aspect in accordance with the relevant insurance premiums order, and

(d)  shall, in such manner as it thinks fit, inform the employer and the insurer of its dismissal of the application or its determination, as the case may require.

(3A)  The Authority’s determination of the disputed aspect is to be made as a review of the insurer’s determination and accordingly is to be made as if it were the determination required to be made by the insurer at the time of the determination of the premium concerned.

(3B)  When the Authority makes a determination on a review under this section, the insurer must redetermine the relevant premium in accordance with the Authority’s determination.

(4)  Where:

(a)  the insurer redetermines a premium following the Authority’s determination, and

(b)  the employer has already paid to the insurer the premium to which the application relates,

      the employer may recover from the insurer, in a court of competent jurisdiction as a debt due to the employer, so much of the premium paid as exceeds the premium as redetermined, together with interest on the amount of premium recoverable calculated at the prescribed rate.

(5)  Where:

(a)  the Authority makes a determination,

(b)  the insurer does not within 1 month after the date of the determination of the Authority:

(i)  in the case of the issue of a policy of insurance—issue to the employer a policy of insurance having effect for such period (not exceeding 1 year) and from such date as the Authority determines, or

(ii)  in the case of the renewal of a policy of insurance—effect the renewal