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New South Wales
Workers Compensation Legislation
Amendment Bill 2012
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendments relating to weekly payments of compensation 3
Schedule 2 Amendments relating to lump sum compensation 34
Schedule 3 Amendments relating to damages for nervous shock 38
Schedule 4 Amendments relating to medical and related expenses 39
Schedule 5 Amendments relating to journey claims 42
Schedule 6 Amendments relating to heart attack and stroke 43
Schedule 7 Amendments relating to disease injuries 45
Schedule 8 Amendments relating to commutation of compensation 46
Schedule 9 Amendments relating to insurer licensing and transfer
of claims 48
Schedule 10 Amendments relating to WorkCover Independent
Review Officer 53
Schedule 11 Miscellaneous amendments 58
Schedule 12 Amendments relating to savings and transitional provisions 60
b2012-030-33.d16
New South Wales
Workers Compensation Legislation
Amendment Bill 2012
No , 2012
A Bill for
An Act to amend the Workers Compensation Act 1987 and other Acts with respect to
the reform of the NSW workers compensation scheme.
See also Safety, Return to Work and Support Board Bill 2012.
Clause 1 Workers Compensation Legislation Amendment Bill 2012
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Workers Compensation Legislation Amendment 3
Act 2012. 4
2 Commencement 5
(1) This Act commences on a day or days to be appointed by proclamation, 6
except as provided by subsection (2). 7
(2) The following provisions of this Act commence on the date of assent: 8
(a) Schedule 2 (Amendments relating to lump sum compensation), 9
(b) Schedule 3 (Amendments relating to damages for nervous 10
shock), 11
(c) Schedule 4 (Amendments relating to medical and related 12
expenses), except Schedule 4 [1], 13
(d) Schedule 5 (Amendments relating to journey claims), 14
(e) Schedule 6 (Amendments relating to heart attack and stroke), 15
(f) Schedule 7 (Amendments relating to disease injuries), 16
(g) Schedule 9 (Amendments relating to insurer licensing and 17
transfer of claims), 18
(h) Schedule 12 (Amendments relating to savings and transitional 19
provisions). 20
Note. Schedule 12 provides for some amendments to have operation on and 21
from 19 June 2012. 22
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
Schedule 1 Amendments relating to weekly 1
payments of compensation 2
1.1 Amendment of Workers Compensation Act 1987 No 70 3
[1] Section 22A Further provisions concerning apportionment of liability 4
under section 22 5
Omit section 22A (2). 6
[2] Part 3, Division 2 7
Insert before section 33: 8
Subdivision 1 Interpretation 9
32A Definitions 10
In this Division and in Schedule 3: 11
base rate of pay--see section 44G. 12
base rate of pay exclusion--see section 44G. 13
current weekly earnings--see section 44I. 14
current work capacity, in relation to a worker, means a present 15
inability arising from an injury such that the worker is not able to 16
return to his or her pre-injury employment but is able to return to 17
work in suitable employment. 18
fair work instrument means: 19
(a) a fair work instrument (other than an FWA order) within 20
the meaning of the Fair Work Act 2009 of the 21
Commonwealth, or 22
(b) a transitional instrument within the meaning of the Fair 23
Work (Transitional Provisions and Consequential 24
Amendments) Act 2009 of the Commonwealth. 25
first entitlement period, in relation to a claim for compensation 26
in the form of weekly payments made by a worker, means an 27
aggregate period not exceeding 13 weeks (whether or not 28
consecutive) in respect of which a weekly payment has been paid 29
or is payable to the worker. 30
maximum weekly compensation amount means the maximum 31
weekly compensation amount under section 34. 32
no current work capacity, in relation to a worker, means a 33
present inability arising from an injury such that the worker is not 34
able to return to work, either in the worker's pre-injury 35
employment or in suitable employment. 36
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
non-pecuniary benefit--see section 44F. 1
ordinary earnings--see section 44E. 2
ordinary hours of work--see section 44H. 3
pre-injury average weekly earnings--see section 44C. 4
relevant period--see section 44D. 5
second entitlement period, in relation to a claim for 6
compensation in the form of weekly payments made by a worker, 7
means an aggregate period of 117 weeks (whether or not 8
consecutive) after the expiry of the first entitlement period in 9
respect of which a weekly payment has been paid or is payable to 10
the worker. 11
seriously injured worker means a worker whose injury has 12
resulted in permanent impairment and: 13
(a) the degree of permanent impairment has been assessed for 14
the purposes of Division 4 to be more than 30%, or 15
(b) the degree of permanent impairment has not been assessed 16
because an approved medical specialist has declined to 17
make an assessment until satisfied that the impairment is 18
permanent and the degree of permanent impairment is 19
fully ascertainable, or 20
(c) the insurer is satisfied that the degree of permanent 21
impairment is likely to be more than 30%. 22
suitable employment, in relation to a worker, means employment 23
in work for which the worker is currently suited: 24
(a) having regard to: 25
(i) the nature of the worker's incapacity and the details 26
provided in medical information including, but not 27
limited to, any certificate of capacity supplied by the 28
worker (under section 44B), and 29
(ii) the worker's age, education, skills and work 30
experience, and 31
(iii) any plan or document prepared as part of the return 32
to work planning process, including an injury 33
management plan under Chapter 3 of the 1998 Act, 34
and 35
(iv) any occupational rehabilitation services that are 36
being, or have been, provided to or for the worker, 37
and 38
(v) such other matters as the WorkCover Guidelines 39
may specify, and 40
(b) regardless of: 41
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
(i) whether the work or the employment is available, 1
and 2
(ii) whether the work or the employment is of a type or 3
nature that is generally available in the employment 4
market, and 5
(iii) the nature of the worker's pre-injury employment, 6
and 7
(iv) the worker's place of residence. 8
work capacity assessment means a work capacity assessment 9
under section 44A. 10
work capacity decision--see section 43. 11
Subdivision 2 Entitlement to weekly compensation 12
[3] Sections 34-44 13
Omit the sections. Insert instead: 14
34 Maximum weekly compensation amount 15
(1) The maximum weekly compensation amount is $1,838.70. 16
(2) If the amount mentioned in subsection (1): 17
(a) is adjusted by the operation of Division 6, or 18
(b) is adjusted by an amendment of this section, 19
the maximum weekly compensation amount applicable to a 20
worker injured before the date on which the adjustment takes 21
effect is, for any period of incapacity for work occurring on and 22
after that date, to be determined by reference to that amount as so 23
adjusted. 24
(3) Such an adjustment does not apply to the extent that the liability 25
to make weekly payments of compensation in respect of any such 26
period of incapacity has been commuted. 27
35 Factors to determine rate of weekly payments 28
(1) For the purposes of the provisions of this Subdivision used to 29
determine the rate of weekly payments payable to an injured 30
worker in respect of a week: 31
AWE means the worker's pre-injury average weekly earnings. 32
D (or a deductible amount) means the sum of the value of each 33
non-pecuniary benefit (if any) that is provided by the employer to 34
a worker in respect of that week (whether or not received by the 35
worker during the relevant period), being a non-pecuniary benefit 36
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
provided by the employer for the benefit of the worker or a 1
member of the family of the worker. 2
E means the amount to be taken into account as the worker's 3
earnings after the injury, calculated as whichever of the following 4
is the greater amount: 5
(a) the amount the worker is able to earn in suitable 6
employment, 7
(b) the worker's current weekly earnings. 8
MAX means the maximum weekly compensation amount. 9
(2) If the determination of an amount for the purpose of determining 10
the rate of weekly payments payable to an injured worker results 11
in an amount that is less than zero, the amount is to be treated as 12
zero. 13
36 Weekly payments in first entitlement period (first 13 weeks) 14
(1) The weekly payment of compensation to which an injured worker 15
who has no current work capacity is entitled during the first 16
entitlement period is to be at the rate of: 17
(a) (AWE x 95%) - D, or 18
(b) MAX - D, 19
whichever is the lesser. 20
(2) The weekly payment of compensation to which an injured worker 21
who has current work capacity is entitled during the first 22
entitlement period is to be at the rate of: 23
(a) (AWE x 95%) - (E + D), or 24
(b) MAX - (E + D), 25
whichever is the lesser. 26
37 Weekly payments in second entitlement period (weeks 14-130) 27
(1) The weekly payment of compensation to which an injured worker 28
who has no current work capacity is entitled during the second 29
entitlement period is to be at the rate of: 30
(a) (AWE x 80%) - D, or 31
(b) MAX - D, 32
whichever is the lesser. 33
(2) The weekly payment of compensation to which an injured worker 34
who has current work capacity and has returned to work for not 35
less than 15 hours per week is entitled during the second 36
entitlement period is to be at the rate of: 37
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Amendments relating to weekly payments of compensation Schedule 1
(a) (AWE x 95%) - (E + D), or 1
(b) MAX - (E + D), 2
whichever is the lesser. 3
(3) The weekly payment of compensation to which an injured worker 4
who has current work capacity and has returned to work for less 5
than 15 hours per week (or who has not returned to work) is 6
entitled during the second entitlement period is to be at the rate 7
of: 8
(a) (AWE x 80%) - (E + D), or 9
(b) MAX - (E + D), 10
whichever is the lesser. 11
38 Special requirements for continuation of weekly payments after 12
second entitlement period (after week 130) 13
(1) A worker's entitlement to compensation in the form of weekly 14
payments under this Part ceases on the expiry of the second 15
entitlement period unless the worker is entitled to compensation 16
after the second entitlement period under this section. 17
(2) A worker who is assessed by the insurer as having no current 18
work capacity and likely to continue indefinitely to have no 19
current work capacity is entitled to compensation after the second 20
entitlement period. 21
(3) A worker who is assessed by the insurer as having current work 22
capacity is entitled to compensation after the second entitlement 23
period only if: 24
(a) the worker has applied to the insurer in writing (in the form 25
approved by the Authority) no earlier than 52 weeks before 26
the end of the second entitlement period for continuation 27
of weekly payments after the second entitlement period, 28
and 29
(b) the worker has returned to work (whether in 30
self-employment or other employment) for a period of not 31
less than 15 hours per week and is in receipt of current 32
weekly earnings (or current weekly earnings together with 33
a deductible amount) of at least $155 per week, and 34
(c) the worker is assessed by the insurer as being, and as likely 35
to continue indefinitely to be, incapable of undertaking 36
further additional employment or work that would increase 37
the worker's current weekly earnings. 38
(4) An insurer must, for the purpose of assessing an injured worker's 39
entitlement to weekly payments of compensation after the expiry 40
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Schedule 1 Amendments relating to weekly payments of compensation
of the second entitlement period, ensure that a work capacity 1
assessment of the worker is conducted: 2
(a) during the last 52 weeks of the second entitlement period, 3
and 4
(b) thereafter at least once every 2 years. 5
Note. An insurer can conduct a work capacity assessment of a worker 6
at any time. The WorkCover Guidelines can also require a work capacity 7
assessment to be conducted. 8
(5) An insurer is not to conduct a work capacity assessment of a 9
seriously injured worker unless the insurer thinks it appropriate 10
to do so and the worker requests it. An insurer can make a work 11
capacity decision about a seriously injured worker without 12
conducting a work capacity assessment. 13
(6) The weekly payment of compensation to which an injured worker 14
who has no current work capacity is entitled under this section 15
after the second entitlement period is to be at the rate of: 16
(a) (AWE x 80%) - D, or 17
(b) MAX - D, 18
whichever is the lesser. 19
(7) The weekly payment of compensation to which an injured worker 20
who has current work capacity is entitled under this section after 21
the second entitlement period is to be at the rate of: 22
(a) (AWE x 80%) - (E + D), or 23
(b) MAX - (E + D), 24
whichever is the lesser. 25
(8) A worker's entitlement to compensation under this section may 26
be reassessed at any time. 27
39 Cessation of weekly payments after 5 years 28
(1) Despite any other provision of this Division, a worker has no 29
entitlement to weekly payments of compensation under this 30
Division in respect of an injury after an aggregate period of 31
260 weeks (whether or not consecutive) in respect of which a 32
weekly payment has been paid or is payable to the worker in 33
respect of the injury. 34
(2) This section does not apply to an injured worker whose injury 35
results in permanent impairment if the degree of permanent 36
impairment resulting from the injury is more than 20%. 37
Note. For workers with more than 20% permanent impairment, 38
entitlement to compensation may continue after 260 weeks but 39
entitlement after 260 weeks is still subject to section 38. 40
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
(3) For the purposes of this section, the degree of permanent 1
impairment that results from an injury is to be assessed as 2
provided by section 65 (for an assessment for the purposes of 3
Division 4). 4
40 Entitlement after second entitlement period not affected by certain 5
circumstances 6
(1) A worker who receives weekly payments under section 38 does 7
not cease to be entitled to weekly payments under that section by 8
reason only that the worker occasionally, but not during more 9
than 4 weeks in the first period of 12 consecutive weeks 10
immediately after the worker first received weekly payments 11
under that section, or in any subsequent consecutive period of 12
12 weeks: 13
(a) has worked more hours during a week, or 14
(b) has worked fewer hours during a week (even if the number 15
of hours worked is less than 15), or 16
(c) has received higher current weekly earnings, or 17
(d) has received lower current weekly earnings (even if the 18
earnings are less than $155 per week), 19
than the hours worked, or the current weekly earnings received, 20
at the time of making the application for payments under 21
section 38. 22
(2) A reference in subsection (1) to hours of work does not include 23
hours of leave approved by the employer. 24
41 Compensation for incapacity after second entitlement period 25
resulting from surgery 26
(1) An injured worker who suffers incapacity resulting from injury 27
related surgery is entitled to weekly payments of compensation 28
(special compensation) as provided by this section in respect of 29
that incapacity when the incapacity occurs after the second 30
entitlement period. 31
(2) The special compensation provided for by this section is payable 32
at the rate provided under section 37, as if the period of incapacity 33
in respect of which the special compensation is payable occurred 34
during (not after) the second entitlement period. 35
(3) Special compensation is not payable in respect of any period of 36
incapacity that occurs: 37
(a) during the first 13 consecutive weeks after the end of the 38
second entitlement period, or 39
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
(b) more than 13 weeks after the surgery concerned, or 1
(c) during any period in respect of which the worker is 2
otherwise entitled to compensation after the second 3
entitlement period (under section 38). 4
(4) Surgery is injury related if it is surgery that the worker undergoes 5
in the course of medical treatment provided to the worker as a 6
result of an injury (the initial injury) received by the worker 7
(being medical treatment for which the insurer has accepted 8
liability under this Part). 9
(5) The following requirements must be satisfied for a worker to be 10
eligible for the special compensation provided for by this section: 11
(a) the worker must have received weekly payments of 12
compensation in respect of the initial injury and have had 13
current work capacity prior to suffering the incapacity 14
resulting from the injury related surgery, 15
(b) the worker must have returned to work after the initial 16
injury (whether in self-employment or other employment) 17
for a period of not less than 15 hours per week and have 18
been in receipt of current weekly earnings (or current 19
weekly earnings together with a deductible amount) of at 20
least $155 per week. 21
(6) This section does not limit section 52 (Termination of weekly 22
payments on retiring age). 23
42 Application by worker to alter amount of weekly payments 24
(1) A worker who is receiving weekly payments of compensation 25
may apply in writing to the insurer for an increase or reduction in 26
the amount of the payments and must specify in the application 27
the reasons for so applying and provide with the application any 28
supporting evidence. 29
(2) Within 28 days after receiving an application, the insurer must: 30
(a) approve or reject the application, and 31
(b) give the worker and the employer written notice of its 32
decision, including, in the case of rejection, a statement of 33
the reasons for the decision. 34
Subdivision 3 Work capacity 35
43 Work capacity decisions by insurers 36
(1) The following decisions of an insurer (referred to in this Division 37
as work capacity decisions) are final and binding on the parties 38
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
and not subject to appeal or review except review under 1
section 44 or judicial review by the Supreme Court: 2
(a) a decision about a worker's current work capacity, 3
(b) a decision about what constitutes suitable employment for 4
a worker, 5
(c) a decision about the amount an injured worker is able to 6
earn in suitable employment, 7
(d) a decision about the amount of an injured worker's 8
pre-injury average weekly earnings or current weekly 9
earnings, 10
(e) any other decision of an insurer that affects a worker's 11
entitlement to weekly payments of compensation, 12
including a decision to suspend, discontinue or reduce the 13
amount of the weekly payments of compensation payable 14
to a worker on the basis of any decision referred to in 15
paragraphs (a)-(d). 16
(2) The following decisions are not work capacity decisions: 17
(a) a decision to dispute liability for weekly payments of 18
compensation, 19
(b) a decision that can be the subject of a medical dispute 20
under Part 7 of Chapter 7 of the 1998 Act. 21
(3) The Commission does not have jurisdiction to determine any 22
dispute about a work capacity decision of an insurer and is not to 23
make a decision in respect of a dispute before the Commission 24
that is inconsistent with a work capacity decision of an insurer. 25
44 Review of work capacity decisions 26
(1) An injured worker may refer a work capacity decision of an 27
insurer for review: 28
(a) by the insurer (an internal review) in accordance with the 29
WorkCover Guidelines within 30 days after an application 30
for internal review is made by the worker, or 31
(b) by the Authority (as a merit review of the decision), but not 32
until the dispute has been the subject of internal review by 33
the insurer, or 34
(c) to the Independent Review Officer (as a review only of the 35
insurer's procedures in making the work capacity decision 36
and not of any judgment or discretion exercised by the 37
insurer in making the decision), but not until the dispute 38
has been the subject of internal review by the insurer and 39
merit review by the Authority. 40
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Schedule 1 Amendments relating to weekly payments of compensation
(2) An application for review of a work capacity decision must be 1
made in the form approved by the Authority and specify the 2
grounds on which the review is sought. The worker must notify 3
the insurer in a form approved by the Authority of an application 4
made by the worker for review by the Authority or the 5
Independent Review Officer. 6
(3) The following provisions apply to the review of a work capacity 7
decision when the reviewer is the Authority or the Independent 8
Review Officer: 9
(a) an application for review must be made within 30 days 10
after the worker receives notice in the form approved by 11
the Authority of the insurer's decision on internal review 12
of the decision (when the application is for review by the 13
Authority) or the Authority's decision on a review (when 14
the application is for review by the Independent Review 15
Officer), 16
(b) an application for review by the Authority may be made 17
without an internal review by the insurer if the insurer has 18
failed to conduct an internal review and notify the worker 19
of the decision on the internal review within 30 days after 20
the application for internal review is made, 21
(c) the reviewer may decline to review a decision because the 22
application for review is frivolous or vexatious or because 23
the worker has failed to provide information requested by 24
the reviewer, 25
(d) the worker and the insurer must provide such information 26
as the reviewer may reasonably require and request for the 27
purposes of the review, 28
(e) the reviewer is to notify the insurer and the worker of the 29
findings of the review and may make recommendations to 30
the insurer based on those findings (giving reasons for any 31
such recommendation), 32
(f) the Independent Review Officer must also notify the 33
Authority of the findings of a review and the Authority 34
may make recommendations (giving reasons for any such 35
recommendations) to the insurer based on those findings, 36
(g) recommendations made by the Authority are binding on 37
the insurer and must be given effect to by the insurer, 38
(h) recommendations made by the Independent Review 39
Officer are not binding on the insurer or the Authority. 40
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Amendments relating to weekly payments of compensation Schedule 1
(4) A review of a work capacity decision does not operate to stay the 1
decision or otherwise prevent the taking of action based on the 2
decision. 3
(5) The Commission is not to make a decision in proceedings 4
concerning a dispute about weekly payments of compensation 5
payable to a worker while a work capacity decision by an insurer 6
about those weekly payments is the subject of a review under this 7
section. 8
(6) A legal practitioner acting for a worker is not entitled to be paid 9
or recover any amount for costs incurred in connection with a 10
review under this section of a work capacity decision of an 11
insurer. 12
44A Work capacity assessment 13
(1) An insurer is to conduct a work capacity assessment of an injured 14
worker when required to do so by this Act or the WorkCover 15
Guidelines and may conduct a work capacity assessment at any 16
other time. 17
(2) A work capacity assessment is an assessment of an injured 18
worker's current work capacity, conducted in accordance with 19
the WorkCover Guidelines. 20
(3) A work capacity assessment is not necessary for the making of a 21
work capacity decision by an insurer. 22
(4) An insurer is not to conduct a work capacity assessment of a 23
seriously injured worker unless the insurer thinks it appropriate 24
to do so and the worker requests it. 25
(5) An insurer may in accordance with the WorkCover Guidelines 26
require a worker to attend for and participate in any assessment 27
that is reasonably necessary for the purposes of the conduct of a 28
work capacity assessment. Such an assessment can include an 29
examination by a medical practitioner or other health care 30
professional. 31
(6) If a worker refuses to attend an assessment under this section or 32
the assessment does not take place because of the worker's 33
failure to properly participate in it, the worker's right to weekly 34
payments is suspended until the assessment has taken place. 35
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
44B Evidence as to work capacity 1
(1) A worker must provide to the insurer: 2
(a) certificates of capacity in accordance with this section in 3
respect of the period in respect of which the worker is 4
entitled to weekly payments, and 5
(b) a declaration in the form approved by the Authority as to 6
whether or not the worker is engaged in any form of 7
employment or in self-employment or voluntary work for 8
which he or she receives or is entitled to receive payment 9
in money or otherwise or has been so engaged at any time 10
since last providing a certificate under this section. 11
(2) If a decision to reject a claim for weekly payments or to terminate 12
weekly payments is set aside, a worker is not required to comply 13
with this section in respect of any period from the date that the 14
decision took effect until the day on which the decision is set 15
aside. 16
(3) A certificate of capacity must: 17
(a) be a certificate given by a medical practitioner in a form 18
approved by the Authority, and 19
(b) certify as to the worker's incapacity for work and whether 20
the worker has a current work capacity or has no current 21
work capacity during the period, not exceeding 28 days, 22
stated in the certificate, and 23
(c) specify the expected duration of the worker's incapacity. 24
(4) A certificate of capacity may cover a period exceeding 28 days if: 25
(a) the person giving the certificate states in the certificate the 26
special reasons why the certificate covers the longer 27
period, and 28
(b) the insurer is satisfied that, for the special reasons stated, 29
the certificate should be accepted. 30
(5) A certificate of capacity is of no effect to the extent that it relates 31
to a period that is more than 90 days before the certificate is 32
provided. 33
(6) The insurer may discontinue weekly payments of compensation 34
if the worker fails to comply with a requirement under this 35
section within 7 days after the requirement is communicated to 36
the worker by the insurer. 37
Note. Section 270 of the 1998 Act also allows an insurer to require 38
medical evidence and authorisations about incapacity for work when 39
weekly payments begin. 40
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Amendments relating to weekly payments of compensation Schedule 1
Subdivision 4 Interpretation 1
44C Definition--pre-injury average weekly earnings 2
(1) In this Division, pre-injury average weekly earnings, in respect 3
of a relevant period in relation to a worker, means the sum of: 4
(a) the average of the worker's ordinary earnings during the 5
relevant period (excluding any week during which the 6
worker did not actually work and was not on paid leave) 7
expressed as a weekly sum, and 8
(b) any overtime and shift allowance payment that is permitted 9
to be included under this section (but only for the purposes 10
of the calculation of weekly payments payable in the first 11
52 weeks for which weekly payments are payable). 12
(2) If a worker has been continuously employed by the same 13
employer for less than 4 weeks before the injury, pre-injury 14
average weekly earnings, in relation to that worker, may be 15
calculated having regard to: 16
(a) the average of the worker's ordinary earnings that the 17
worker could reasonably have been expected to have 18
earned in that employment, but for the injury, during the 19
period of 52 weeks after the injury expressed as a weekly 20
sum, and 21
(b) any overtime and shift allowance payment that is permitted 22
to be included under this section (but only for the purposes 23
of the calculation of weekly payments payable in the first 24
52 weeks for which weekly payments are payable). 25
(3) If a worker: 26
(a) was not a full time worker immediately before the injury, 27
and 28
(b) at the time of the injury was seeking full time employment, 29
and 30
(c) had been predominantly a full time worker during the 31
period of 78 weeks immediately before the injury, 32
pre-injury average weekly earnings, in relation to that worker, 33
means the sum of: 34
(d) the average of the worker's ordinary earnings while 35
employed during the period of 78 weeks immediately 36
before the injury (excluding any week during which the 37
worker did not actually work and was not on paid leave) 38
(the qualifying period), whether or not the employer is the 39
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
same employer as at the time of the injury expressed as a 1
weekly sum, and 2
(e) any overtime and shift allowance payment that is permitted 3
to be included under this section (but only for the purposes 4
of the calculation of weekly payments payable in the first 5
52 weeks for which weekly payments are payable). 6
(4) In relation to a worker of a class referred to in Column 2 of an 7
item in Schedule 3, pre-injury average weekly earnings means 8
the amount determined in accordance with Column 3 of that item, 9
expressed as a weekly sum. 10
(5) An overtime and shift allowance payment is permitted to be 11
included in the calculation of pre-injury average weekly earnings 12
(but only for the purposes of the calculation of weekly payments 13
payable in the first 52 weeks for which weekly payments are 14
payable) if: 15
(a) the worker worked paid overtime or carried out work that 16
attracted a shift allowance during the relevant period, and 17
(b) the worker would, but for the worker's injury, have been 18
likely, at any time during that 52 week period, to have 19
worked paid overtime or carried out work that attracted a 20
shift allowance. 21
(6) The amount of an overtime and shift allowance payment that is 22
permitted to be included is to be calculated in accordance with the 23
following formula: 24
A
---
-
B
where: 25
A is the total amount paid or payable to the worker for paid 26
overtime and shift allowances in respect of the relevant period. 27
B is the number of weeks during the relevant period during which 28
the worker worked or was on paid annual leave. 29
(7) If the amount of a worker's pre-injury average weekly earnings 30
is less than any minimum amount prescribed by the regulations 31
as applicable to the worker, the amount of the worker's pre-injury 32
average weekly earnings is deemed to be that minimum amount. 33
Different minimum amounts may be prescribed for different 34
classes of workers, including part-time and full-time workers. 35
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Amendments relating to weekly payments of compensation Schedule 1
44D Definitions applying to pre-injury average weekly earnings-- 1
relevant period 2
(1) Subject to this section, a reference to the relevant period in 3
relation to pre-injury average weekly earnings of a worker is a 4
reference to: 5
(a) in the case of a worker who has been continuously 6
employed by the same employer for the period of 52 weeks 7
immediately before the injury, that period of 52 weeks, or 8
(b) in the case of a worker who has been continuously 9
employed by the same employer for less than 52 weeks 10
immediately before the injury, the period of continuous 11
employment by that employer. 12
(2) The relevant period, in relation to pre-injury average weekly 13
earnings of a worker who, during the 52 weeks immediately 14
before the injury, voluntarily (otherwise than by reason of an 15
incapacity for work resulting from, or materially contributed to 16
by, an injury that entitles the worker to compensation under this 17
Act): 18
(a) alters the ordinary hours of work, or 19
(b) alters the nature of the work performed by the worker, 20
and, as a result, the worker's ordinary earnings are reduced, does 21
not include the period before the reduction takes effect. 22
(3) If, during the period of 52 weeks immediately before the injury, 23
a worker: 24
(a) is promoted, or 25
(b) is appointed to a different position, 26
(otherwise than on a temporary basis) and, as a result, the 27
worker's ordinary earnings are increased, the relevant period in 28
relation to the worker begins on the day on which the promotion 29
or appointment takes effect. 30
44E Definitions applying to pre-injury average weekly earnings-- 31
ordinary earnings 32
(1) Subject to this section, in relation to pre-injury average weekly 33
earnings, the ordinary earnings of a worker in relation to a week 34
during the relevant period are: 35
(a) if the worker's base rate of pay is calculated on the basis of 36
ordinary hours worked, the sum of the following amounts: 37
(i) the worker's earnings calculated at that rate for 38
ordinary hours in that week during which the worker 39
worked or was on paid leave, 40
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
(ii) amounts paid or payable as piece rates or 1
commissions in respect of that week, 2
(iii) the monetary value of non-pecuniary benefits 3
provided in respect of that week, or 4
(b) in any other case, the sum of the following amounts: 5
(i) the actual earnings paid or payable to the worker in 6
respect of that week, 7
(ii) amounts paid or payable as piece rates or 8
commissions in respect of that week, 9
(iii) the monetary value of non-pecuniary benefits 10
provided in respect of that week. 11
(2) A reference to ordinary earnings does not include a reference to 12
any employer superannuation contribution. 13
44F Definition of "non-pecuniary benefits" 14
(1) The following benefits provided in respect of a week to a worker 15
by the employer for the performance of work by the worker are 16
non-pecuniary benefits in respect of that week: 17
(a) residential accommodation, 18
(b) use of a motor vehicle, 19
(c) health insurance, 20
(d) education fees. 21
(2) Any amount that, under the worker's terms of employment, the 22
employer is required (for the performance of work by the worker) 23
to apply or deal with on behalf of the worker in accordance with 24
the worker's instructions is also a non-pecuniary benefit but this 25
does not include any amount that is a base rate of pay exclusion. 26
(3) Any amount that is excluded from base rate of pay as a base rate 27
of pay exclusion is not a non-pecuniary benefit. 28
(4) The monetary value of a non-pecuniary benefit referred to in 29
subsection (1) in respect of a week is: 30
(a) the value that would be the value as a fringe benefit for the 31
purposes of the Fringe Benefits Tax Assessment Act 1986 32
of the Commonwealth, calculated in accordance with 33
subsection (5), divided by 52, or 34
(b) in the case of residential accommodation that is not a 35
fringe benefit or is otherwise not subject to fringe benefits 36
tax, the amount that would reasonably be payable for that 37
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
accommodation, or equivalent accommodation in the same 1
area, in respect of that week if it were let on commercial 2
terms. 3
(5) Value as a fringe benefit is to be determined in accordance with 4
the formula: 5
1
TV × -----------------------------
-
1 - FBT rate
where: 6
TV is the value that would be the taxable value of the benefit as 7
a fringe benefit for the purposes of the Fringe Benefits Tax 8
Assessment Act 1986 of the Commonwealth. 9
FBT rate is the rate of fringe benefits tax imposed by the Fringe 10
Benefits Tax Assessment Act 1986 of the Commonwealth that 11
applies when the non-pecuniary benefit is provided. 12
44G Definition applying to pre-injury average weekly earnings and 13
current weekly earnings--base rate of pay 14
(1) In relation to pre-injury average weekly earnings and current 15
weekly earnings, a reference to a base rate of pay is a reference 16
to the rate of pay payable to a worker for his or her ordinary hours 17
of work but does not include any of the following amounts 18
(referred to in this Division as base rate of pay exclusions): 19
(a) incentive based payments or bonuses, 20
(b) loadings, 21
(c) monetary allowances, 22
(d) piece rates or commissions, 23
(e) overtime or shift allowances, 24
(f) any separately identifiable amount not referred to in 25
paragraphs (a) to (e). 26
(2) In relation to pre-injury average weekly earnings and current 27
weekly earnings, if, at the time of the injury: 28
(a) a worker's base rate of pay is prescribed by a fair work 29
instrument that applies to the worker, and 30
(b) the worker's actual rate of pay for ordinary hours is higher 31
than that rate of pay, 32
the worker's actual rate of pay is to be taken to be the worker's 33
base rate of pay. 34
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
44H Definition applying to pre-injury average weekly earnings and 1
current weekly earnings--ordinary hours of work 2
In relation to pre-injury average weekly earnings and current 3
weekly earnings, the ordinary hours of work: 4
(a) in the case of a worker to whom a fair work instrument 5
applies are: 6
(i) if the ordinary hours of work in relation to a week 7
are agreed or determined in accordance with a fair 8
work instrument between the worker and the 9
employer--those hours, or 10
(ii) in any other case, the worker's average weekly 11
hours (excluding any week during which the worker 12
did not actually work and was not on paid leave) 13
during the relevant period, or 14
(b) in the case of a worker to whom a fair work instrument 15
does not apply: 16
(i) if the ordinary hours of work are agreed between the 17
worker and the employer, those hours, or 18
(ii) in any other case, the worker's average weekly 19
hours (excluding any week during which the worker 20
did not actually work and was not on paid leave) 21
during the relevant period. 22
44I Definition--current weekly earnings 23
In this Act, current weekly earnings of a worker in relation to a 24
week means: 25
(a) if the worker's base rate of pay is calculated on the basis of 26
ordinary hours worked, the sum of the following amounts: 27
(i) the worker's earnings calculated at that rate for the 28
ordinary hours worked during that week, 29
(ii) amounts paid or payable for overtime or shift 30
allowances in respect of that week, 31
(iii) amounts paid or payable as piece rates or 32
commissions in respect of that week, or 33
(b) in any other case, the worker's actual earnings in respect of 34
that week but not including any amount that is a base rate 35
of pay exclusion unless it is: 36
(i) paid or payable for overtime or shift allowances in 37
respect of that week, or 38
(ii) paid or payable as piece rates or commissions in 39
respect of that week. 40
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
[4] Section 47 Incapacity deemed to exist in certain cases 1
Omit the section. 2
[5] Section 52 Termination of weekly payments on retiring age 3
Omit section 52 (2) (a). Insert instead: 4
(a) receives an injury before reaching the retiring age--a 5
weekly payment of compensation is not to be made in 6
respect of any resulting period of incapacity for work 7
occurring after the date on which that person reaches the 8
retiring age, or 9
[6] Section 52A Discontinuation of weekly payments for partial incapacity 10
after 2 years 11
Omit the section. 12
[7] Section 54 13
Omit the section. Insert instead: 14
54 Notice required before termination or reduction of payment of 15
weekly compensation 16
(1) If a worker has received weekly payments of compensation for a 17
continuous period of at least 12 weeks, the person paying the 18
compensation must not discontinue payment, or reduce the 19
amount, of the compensation without first giving the worker not 20
less than the required period of notice of intention to discontinue 21
payment of the compensation or to reduce the amount of the 22
compensation. 23
Maximum penalty: 50 penalty units. 24
(2) The required period of notice for the purposes of this section is: 25
(a) when the discontinuation or reduction is on the basis of any 26
reassessment by the insurer of the entitlement to weekly 27
payments of compensation resulting from a work capacity 28
decision of the insurer--3 months, or 29
(b) in any other case--2 weeks for a worker who has been 30
receiving weekly payments of compensation for a 31
continuous period of less than 1 year, or 6 weeks for a 32
worker who has been receiving weekly payments of 33
compensation for a continuous period of 1 year or more. 34
(3) If the payment of compensation to a worker is discontinued, or 35
the amount of compensation is reduced, by a person in 36
circumstances involving the commission by that person of an 37
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
offence under subsection (1), the worker may, whether or not that 1
person has been prosecuted for the offence, recover from the 2
person an amount of compensation that: 3
(a) if no period of notice has been given--is equal to the 4
amount of compensation, or additional compensation, that 5
would have been payable during the required period of 6
notice if payment of the compensation had not been 7
discontinued or if the amount of compensation had not 8
been reduced, or 9
(b) if less than the required period of notice has been given-- 10
is equal to the amount of compensation that would have 11
been payable during the balance of the required period of 12
notice if payment of the compensation had not been 13
discontinued or if the amount of the compensation had not 14
been reduced. 15
(4) The notice referred to in this section is to be given to the worker 16
personally or by post and (if the regulations so require) be in such 17
form or contain such information as may be prescribed by the 18
regulations. 19
(5) This section does not affect the operation of section 58 (Refund 20
of weekly payments paid after return to work etc). 21
(6) This section does not apply to a reduction in weekly 22
compensation as a result only of the application of different rates 23
of compensation after the expiration of earlier periods of 24
incapacity for which higher rates were payable. 25
[8] Sections 55, 55A and 56 26
Omit the sections. 27
[9] Section 79 Definitions 28
Omit paragraph (a) of the definition of adjustable amount. Insert instead: 29
(a) each of the amounts specified in sections 25, 34, 37 and 40, 30
or clause 2 of Part 19H of Schedule 6, without regard to 31
any adjustment under this Division, and 32
[10] Section 79, definition of "base index number" 33
Insert after paragraph (a) of the definition: 34
(a1) in respect of an adjustable amount that is the amount 35
specified in section 34 or clause 2 of Part 19H of 36
Schedule 6--the number 240.5, and 37
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
[11] Part 3, Division 6A 1
Insert after Division 6 of Part 3: 2
Division 6A Indexation of weekly payments 3
82A Indexation--weekly payments 4
(1) The amount of a weekly payment to a worker under Division 2 in 5
respect of an injury is to be varied on each review date after the 6
day on which the worker became entitled to weekly payments in 7
respect of that injury, by varying the amount of the worker's 8
pre-injury average weekly earnings for the purposes of the 9
calculation of the amount of the weekly payment in accordance 10
with the formula: 11
B
A × ---
-
C
where: 12
A is the amount of the worker's pre-injury average weekly 13
earnings within the meaning of Division 2 or, if that amount has 14
been varied in accordance with this section, that amount as last so 15
varied. 16
B is: 17
(a) the CPI for the December quarter immediately prior to the 18
review date when the review date is 1 April, or 19
(b) the CPI for the June quarter immediately prior to the 20
review date when the review date is 1 October. 21
C is: 22
(a) the CPI for the June quarter immediately prior to the 23
review date when the review date is 1 April, or 24
(b) the CPI for the December quarter immediately prior to the 25
review date when the review date is 1 October. 26
(2) In this section: 27
CPI means the consumer price index (All Groups Index) for 28
Sydney issued by the Australian Statistician. 29
review date means 1 April and 1 October in each year. 30
(3) A variation of an amount of a worker's pre-injury average weekly 31
earnings under this section does not take effect to the extent 32
(if any) to which it increases that amount to more than 100% of 33
the worker's ordinary earnings (calculated in accordance with 34
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
Division 2) expressed as a weekly sum to which the worker 1
would be entitled if he or she were employed in the same position 2
or positions (if it or they can be identified) as he or she was 3
employed in immediately before the injury, being the position or 4
positions on the basis of which the calculation of the worker's 5
pre-injury average weekly earnings was made. 6
(4) The Minister is, on or before each review date, to notify, by order 7
published on the NSW legislation website, the number that 8
equates to the factor B for the purposes of the variation required
---
- 9
C
for that review date under this section. 10
(5) A notification published on the NSW legislation website after a 11
review date for the purposes of the variation required for that 12
review date under this section has effect as if published before 13
that review date. 14
82B Indexation of certain amounts--according to average weekly 15
earnings 16
(1) The amount A is to be varied, in respect of the financial year 17
beginning on 1 July 2012 and each subsequent financial year, in 18
accordance with the formula: 19
B
A × ---
-
C
where: 20
A is the amount of $155 specified in sections 38, 40 and 41 or, if 21
that amount has been varied in accordance with this section, that 22
amount as last so varied. 23
B is the latest average weekly earnings as at 30 May in the 24
preceding financial year of all employees for NSW published by 25
the Australian Statistician in respect of the December quarter of 26
that financial year or, if that is not available, the latest available 27
quarter. 28
C is the average weekly earnings of all employees for NSW as at 29
30 May in the year preceding the preceding financial year 30
published by the Australian Statistician in respect of the quarter 31
preceding that 30 May corresponding to the quarter referred to 32
above. 33
(2) The Minister is to notify, by order published on the NSW 34
legislation website before the start of each financial year, the 35
amount that is to apply for that financial year as the amount 36
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
specified in sections 38, 40 and 41 as varied in accordance with 1
this section. 2
(3) A notification published on the NSW legislation website after the 3
start of a financial year and specifying an amount that is to apply 4
as the amount specified in sections 38, 40 and 41 for that financial 5
year is to apply and has effect for that financial year. 6
82C Indexation--no reduction 7
If the variation of an amount specified in section 82A or 82B by 8
operation of that section has the effect of reducing the amount: 9
(a) the variation is deemed not to have taken effect, except for 10
the purposes of the application of this section, and 11
(b) when the amount is varied and increased by operation of 12
this section in respect of the next or a subsequent financial 13
year, that variation has effect as an increase only to the 14
extent (if any) to which the amount of the increase exceeds 15
the amount of the reduction in respect of a preceding 16
financial year, or that part of such a reduction that has not 17
been set off against a previous increase. 18
82D Indexation--rounding 19
Where it is necessary for the purposes of this Division to 20
calculate an amount that consists of or includes a fraction of a 21
whole number, the amount is deemed to have been calculated in 22
accordance with this section if the calculation is made: 23
(a) if the amount is less than $1,000, to the nearest whole $1, 24
or 25
(b) if the amount is $1,000 or more, to the nearest whole $10. 26
[12] Section 87EA Preconditions to commutation 27
Omit section 87EA (1) (g). Insert instead: 28
(g) the injured worker has not had weekly payments of 29
compensation terminated under section 48A of the 1998 30
Act. 31
[13] Section 151I Calculation of past and future loss of earnings 32
Omit "section 35" wherever occurring. Insert instead "section 34". 33
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
[14] Schedule 3 1
Insert after Schedule 2: 2
Schedule 3 Pre-injury average weekly earnings 3
(Section 44C) 4
Column 1 Column 2 Column 3
Item Class of worker at Calculation of pre-injury average
time of injury weekly earnings
1 Worker who is: (a) Until the worker attains the age or
(a) under the age of stage or, but for the injury, would
21 years, or have attained the stage at which the
highest rate is payable--the worker's
(b) an apprentice, or pre-injury average weekly earnings
are the earnings that the worker
would have been entitled to receive
in respect of a relevant week if the
worker had not sustained the injury
and had continued in the
employment.
(c) working under a (b) On and after the worker attains the
contract of age or stage or, but for the injury,
employment would have attained the age or stage
under which the at which the highest rate is payable--
worker is the worker's pre-injury average
required to weekly earnings are to be calculated
undergo as if, at the time of the injury, the
training, worker were being paid at the highest
instruction or rate applicable to that age or stage.
examination in (c) If (a) or (b) applies but there is no
order to become rate applicable to a worker who has
qualified to attained the age of 21 years, the
carry on an worker's pre-injury average weekly
occupation, earnings are the maximum weekly
and who, but for the compensation amount.
injury, would have been
entitled to increments in
earnings at certain ages
or stages during the
course of employment
to become qualified.
Page 26
Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
Column 1 Column 2 Column 3
Item Class of worker at Calculation of pre-injury average
time of injury weekly earnings
2 Worker employed by 2 The worker's pre-injury average weekly
or more employers and earnings are to be calculated in accordance
who works for one of with Division 2 of Part 3 with reference to
those employers for at the work for the employer for whom the
least the ordinary hours worker works for at least the ordinary hours
fixed in any applicable fixed in the fair work instrument.
fair work instrument.
3 Worker employed by 2 The worker's pre-injury average weekly
or more employers who earnings are to be calculated in accordance
works for one of those with Division 2 of Part 3 with reference to
employers for at least the work for the employer for whom the
the prescribed number worker works for at least the prescribed
of hours each week and number of hours.
to whom no fair work
instrument is
applicable.
4 Worker employed by 2 The worker's pre-injury average weekly
or more employers for earnings are to be calculated in accordance
at least the ordinary with Division 2 of Part 3 with reference to
hours fixed in any the work which yields the higher weekly
applicable fair work ordinary earnings.
instrument.
5 Worker employed by 2 The worker's pre-injury average weekly
or more employers who earnings are to be calculated in accordance
works for one of those with Division 2 of Part 3 with reference to
employers for at least the work which yields the higher weekly
the ordinary hours fixed ordinary earnings.
in an applicable fair
work instrument and
works for another of
those employers for at
least the prescribed
number of hours each
week.
6 Worker employed by 2 The worker's pre-injury average weekly
or more employers for earnings are to be calculated in accordance
at least the prescribed with Division 2 of Part 3 with reference to
number of hours each the work which yields the higher weekly
week and to whom no ordinary earnings.
fair work instrument is
applicable.
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
Column 1 Column 2 Column 3
Item Class of worker at Calculation of pre-injury average
time of injury weekly earnings
7 Worker employed by 2 The worker's pre-injury average weekly
or more employers who earnings are to be calculated in accordance
sustains an injury that with Division 2 of Part 3 with reference to
results in an incapacity earnings from work with all the employers.
to work for one or more
of those employers but
not for all those
employers.
8 Worker employed by 2 The worker's pre-injury average weekly
or more employers in earnings are the worker's average ordinary
circumstances other earnings expressed as an amount per hour
than those described in for all work carried out by the worker for all
the preceding employers multiplied by:
provisions of this (a) the prescribed number of hours per
Schedule. week, or
(b) the total of the worker's ordinary
hours per week,
whichever is the lesser.
9 Worker who, during the The worker's pre-injury average weekly
period of 52 weeks earnings are to be calculated in accordance
immediately before the with Division 2 of Part 3 with reference to
injury, receives advice the amount that is the average of the
in writing from the earnings expressed as a weekly sum that the
employer that the worker could reasonably be expected to
worker is to be have earned after the promotion or
promoted or otherwise appointment had taken effect as if the
appointed to a new promotion or appointment had taken effect
position (otherwise than 52 weeks before the injury.
on a temporary basis)
with the effect that the
worker's ordinary
earnings will be
increased but has not
been so promoted or
appointed.
Page 28
Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
1.2 Amendment of Workplace Injury Management and Workers 1
Compensation Act 1998 No 86 2
[1] Chapter 3, Part 1, heading 3
Insert before section 41: 4
Part 1 Preliminary 5
[2] Section 42 Definitions 6
Insert at the end of the definition of injury management plan: 7
An injury management plan can provide for the treatment, 8
rehabilitation and retraining to be given or provided to the injured 9
worker. 10
[3] Chapter 3, Part 2, heading 11
Insert before section 42A: 12
Part 2 Obligations of insurers, employers and 13
workers 14
[4] Sections 48 and 48A 15
Omit section 48. Insert instead: 16
48 Return to work obligations of worker 17
(1) A worker who has current work capacity must, in co-operation 18
with the employer or insurer, make reasonable efforts to return to 19
work in suitable employment or pre-injury employment at the 20
worker's place of employment or at another place of 21
employment. 22
(2) For the purposes of this section, a worker is to be treated as 23
making a reasonable effort to return to work in suitable 24
employment or pre-injury employment during any reasonable 25
period in which: 26
(a) the worker is waiting for the commencement of a 27
workplace rehabilitation service that is required to be 28
provided under an injury management plan for the worker, 29
or 30
(b) the worker is waiting for a response to a request for 31
suitable employment or pre-injury employment made by 32
the worker and received by the employer, or 33
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
(c) if the employer's response is that suitable employment or 1
pre-injury employment will be provided at some time, the 2
worker is waiting for suitable employment or pre-injury 3
employment to commence. 4
48A Failure to comply with return to work obligations of worker 5
(1) If a worker does not comply with an obligation of the worker 6
imposed under section 48, the insurer may in accordance with 7
this section: 8
(a) suspend the payment of compensation in the form of 9
weekly payments to the worker, or 10
(b) terminate the payment of compensation in the form of 11
weekly payments to the worker, or 12
(c) cease and determine the entitlement of the worker to 13
compensation in the form of weekly payments in respect of 14
the injury under this Act. 15
(2) If the insurer seeks to suspend payments of compensation under 16
subsection (1) (a), the insurer must give written notice to the 17
worker stating: 18
(a) the reason for the giving of the notice, and 19
(b) that unless the worker complies with the obligation under 20
section 48 specified in the notice, weekly payments to the 21
worker will be suspended from the date specified in the 22
notice which must be a date at least 14 days after notice is 23
given but no more than 60 days after notice is given, and 24
(c) the consequences of failing to comply as specified in the 25
notice. 26
(3) If the worker fails to comply with a written notice under 27
subsection (2), the insurer may suspend the payment of weekly 28
payments to the worker for a period of 28 days after the date 29
specified in the notice referred to in subsection (2) (b). 30
(4) If the worker complies with the obligation specified in the notice 31
under subsection (2) during the period that weekly payments are 32
suspended under subsection (3), the insurer must, subject to and 33
in accordance with this Act, resume the payment of weekly 34
payments with effect from the date on which the worker 35
complied with the obligation. 36
(5) If subsection (4) applies, the worker forfeits any compensation in 37
the form of weekly payments that would otherwise have been 38
made during the period of suspension until the worker complied 39
with the obligation and that period is included in determining the 40
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
first or second entitlement period under Division 2 of Part 3 of the 1
1987 Act. 2
(6) If the worker does not comply with the obligation specified in the 3
notice under subsection (2) for the entire period that weekly 4
payments are suspended under subsection (3), the insurer may 5
terminate the payment of compensation in the form of weekly 6
payments to the worker in respect of the injury by written notice 7
stating the reasons for giving the notice. 8
(7) If the worker: 9
(a) does not comply with the obligation specified in the notice 10
under subsection (2) for the entire period that weekly 11
payments are suspended under subsection (3), and 12
(b) has within the last 12 months prior to the giving of the 13
notice referred to in paragraph (a): 14
(i) been issued 2 notices under subsection (2) without a 15
subsequent suspension of weekly payments, or 16
(ii) had compensation in the form of weekly payments 17
suspended once under subsection (3), 18
the insurer may cease and determine the entitlement to 19
compensation in the form of weekly payments in respect of the 20
injury to the worker under this Act by written notice stating the 21
reasons for giving the notice. 22
[5] Section 49 Employer must provide suitable work 23
Insert at the end of section 49 (1): 24
Maximum penalty: 50 penalty units. 25
[6] Section 57 Compliance by worker 26
Omit the section. 27
[7] Chapter 3, Part 3 28
Insert after section 59: 29
Part 3 Employer improvement notices 30
59A Authorisation of inspectors 31
In this Part: 32
inspector means a member of staff who is an inspector for the 33
purposes of section 238 (Powers of entry and inspection by 34
officers of Authority). 35
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Workers Compensation Legislation Amendment Bill 2012
Schedule 1 Amendments relating to weekly payments of compensation
59B Issue of improvement notices 1
(1) This section applies if an inspector reasonably believes that an 2
employer: 3
(a) is contravening a provision of this Chapter, or 4
(b) has contravened a provision of this Chapter in 5
circumstances that make it likely that the contravention 6
will continue or be repeated. 7
(2) The inspector may issue an improvement notice requiring the 8
employer to: 9
(a) remedy the contravention, or 10
(b) prevent a likely contravention from occurring, or 11
(c) remedy the things or operations causing the contravention 12
or likely contravention. 13
59C Contents of improvement notices 14
(1) An improvement notice must state: 15
(a) that the inspector believes the employer: 16
(i) is contravening a provision of this Chapter, or 17
(ii) has contravened a provision in circumstances that 18
make it likely that the contravention will continue or 19
be repeated, and 20
(b) the provision the inspector believes is being, or has been, 21
contravened, and 22
(c) briefly, how the provision is being, or has been, 23
contravened, and 24
(d) the day by which the person is required to remedy the 25
contravention or likely contravention. 26
(2) An improvement notice may include directions concerning the 27
measures to be taken to remedy the contravention or prevent the 28
likely contravention, or the matters or activities causing the 29
contravention or likely contravention, to which the notice relates. 30
(3) The day stated for compliance with the improvement notice must 31
be reasonable in all the circumstances. 32
59D Compliance with improvement notice 33
The person to whom an improvement notice is issued must 34
comply with the notice within the period specified in the notice. 35
Maximum penalty: 100 penalty units. 36
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to weekly payments of compensation Schedule 1
59E Extension of time for compliance with improvement notices 1
(1) An inspector may, by written notice given to the person, extend 2
the compliance period for an improvement notice issued under 3
this Part. 4
(2) However, the inspector may extend the compliance period only if 5
the period has not ended. 6
(3) In this section: 7
compliance period means the period stated in the improvement 8
notice, and includes that period as extended under this section. 9
[8] Section 105 Jurisdiction of Commission and Compensation Court 10
Insert at the end of section 105 (1): 11
Note. The Commission does not have jurisdiction to determine any 12
dispute about a work capacity decision of an insurer and is not to make 13
a decision in respect of a dispute before the Commission that is 14
inconsistent with a work capacity decision of an insurer. See section 43 15
of the 1987 Act. 16
[9] Section 270 Obligations of worker to provide authorisations and medical 17
evidence 18
Insert at the end of the section: 19
Note. This section does not limit the obligations of a worker under 20
section 44B (Evidence as to work capacity) of the 1987 Act. 21
[10] Section 297 Directions for interim payment of weekly payments or 22
medical expenses compensation 23
Insert after section 297 (1): 24
(1A) An interim payment direction is not to be made when the dispute 25
concerns a decision by the insurer to discontinue or reduce 26
weekly payments of compensation on the basis of a work 27
capacity decision under Division 2 of Part 3 of the 1987 Act. 28
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Workers Compensation Legislation Amendment Bill 2012
Schedule 2 Amendments relating to lump sum compensation
Schedule 2 Amendments relating to lump sum 1
compensation 2
2.1 Amendment of Workers Compensation Act 1987 No 70 3
[1] Section 65 Determination of degree of permanent impairment 4
Omit "or pain and suffering compensation" from section 65 (3). 5
[2] Section 65A Special provisions for psychological and psychiatric injury 6
Omit "(either as permanent impairment compensation or pain and suffering 7
compensation)" from section 65A (1). 8
[3] Section 65A (1), note 9
Omit the note. 10
[4] Section 65A (3) 11
Omit "(either as permanent impairment compensation or pain and suffering 12
compensation)". 13
[5] Section 66 Entitlement to compensation for permanent impairment 14
Omit section 66 (1). Insert instead: 15
(1) A worker who receives an injury that results in a degree of 16
permanent impairment greater than 10% is entitled to receive 17
from the worker's employer compensation for that permanent 18
impairment as provided by this section. Permanent impairment 19
compensation is in addition to any other compensation under this 20
Act. 21
Note. No permanent impairment compensation is payable for a degree 22
of permanent impairment of 10% or less. 23
(1A) Only one claim can be made under this Act for permanent 24
impairment compensation in respect of the permanent 25
impairment that results from an injury. 26
[6] Section 66 (2) (a) 27
Omit the paragraph. 28
[7] Section 66 (2A) 29
Omit Example 1. Insert instead: 30
Example 1. A person suffers 12% permanent impairment. Under 31
subsection (2), the amount of permanent impairment compensation to 32
which he or she is entitled is $17,050 ($13,750 + [2 × $1,650]). If the 33
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to lump sum compensation Schedule 2
whole of the impairment is to the back, the compensation payable in 1
relation to the back will be the whole $17,050. Under this subsection, that 2
$17,050 will be increased by 5%, yielding $17,902.50. 3
[8] Section 66A Agreements for compensation 4
Omit section 66A (1) (a). Insert instead: 5
(a) under which a worker who has received an injury, and an 6
employer or insurer, agree as to the degree of permanent 7
impairment that has resulted from the injury, and 8
[9] Section 66A (1) (b) 9
Omit the paragraph. Insert instead: 10
(b) in which there is a provision in which the employer or 11
insurer certifies that it is satisfied that the worker has 12
obtained independent legal advice, or has waived the right 13
to obtain independent legal advice, before entering into the 14
agreement. 15
[10] Section 66A (2) 16
Omit the subsection. Insert instead: 17
(2) If a worker enters into a complying agreement in relation to an 18
injury, the permanent impairment compensation to which the 19
worker is entitled in respect of the injury is the compensation 20
payable in respect of the degree of impairment so agreed. 21
[11] Section 66A (3) (a) 22
Omit "or the amount of pain and suffering compensation". 23
[12] Section 66B No proceedings to enter up award on agreement for 24
compensation 25
Omit "or pain and suffering compensation" from section 66B (1). 26
[13] Section 67 Compensation for pain and suffering 27
Omit the section. 28
[14] Section 67A Special provisions for HIV/AIDS 29
Omit section 67A (1). 30
[15] Section 67A (4) 31
Omit "and pain and suffering compensation are". Insert instead "is". 32
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Workers Compensation Legislation Amendment Bill 2012
Schedule 2 Amendments relating to lump sum compensation
[16] Sections 69A and 69B 1
Omit the sections. 2
[17] Section 87EA Preconditions to commutation 3
Omit "and pain and suffering compensation" from section 87EA (1) (b). 4
2.2 Amendment of Workplace Injury Management and Workers 5
Compensation Act 1998 No 86 6
[1] Section 263 Lump sum compensation claims to be made at same time 7
Omit "or pain and suffering compensation" from section 263 (1). 8
[2] Section 280B Lump sum compensation to be paid before damages 9
recovered 10
Omit "and pain and suffering compensation" wherever occurring. 11
[3] Section 314 What constitutes threshold dispute 12
Insert after section 314 (2): 13
(3) For the purposes of this Part, acceptance by the person on whom 14
a claim for work injury damages is made of the degree of 15
permanent impairment of the injured worker for the purposes of 16
a claim against the person by the injured worker for permanent 17
impairment compensation also constitutes acceptance of the 18
degree of permanent impairment for the purposes of the claim for 19
work injury damages. 20
[4] Section 322A 21
Insert after section 322: 22
322A One assessment only of degree of permanent impairment 23
(1) Only one assessment may be made of the degree of permanent 24
impairment of an injured worker. 25
(2) The medical assessment certificate that is given in connection 26
with that assessment is the only medical assessment certificate 27
that can be used in connection with any further or subsequent 28
medical dispute about the degree of permanent impairment of the 29
worker as a result of the injury concerned (whether the 30
subsequent or further dispute is in connection with a claim for 31
permanent impairment compensation, the commutation of a 32
liability for compensation or a claim for work injury damages). 33
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to lump sum compensation Schedule 2
(3) Accordingly, a medical dispute about the degree of permanent 1
impairment of a worker as a result of an injury cannot be referred 2
for, or be the subject of, assessment if a medical dispute about 3
that matter has already been the subject of assessment and a 4
medical assessment certificate under this Part. 5
(4) This section does not affect the operation of section 327 (Appeal 6
against medical assessment). 7
2.3 Amendment of Civil Liability Act 2002 No 22 8
Section 26I Non-economic loss damages limited to workers 9
compensation amount 10
Omit section 26I (2). Insert instead: 11
(2) When determining the total amount to which a worker would be 12
entitled as compensation under a provision of the Workers 13
Compensation Act 1987, the amount is to be determined under 14
the provision as it was in force when the injury to the offender 15
was received. 16
Page 37
Workers Compensation Legislation Amendment Bill 2012
Schedule 3 Amendments relating to damages for nervous shock
Schedule 3 Amendments relating to damages for 1
nervous shock 2
Amendment of Workers Compensation Act 1987 No 70 3
[1] Section 151P Damages for psychological or psychiatric injury 4
Omit the section. 5
[2] Section 151AD 6
Insert after section 151AC: 7
151AD No damages for nervous shock injury to non-workers 8
(1) No damages for pure mental harm may be awarded against an 9
employer liable to pay compensation under this Act in respect of 10
the death of or injury to a worker if the pure mental harm arises 11
wholly or partly from mental or nervous shock in connection with 12
the death of or injury to the worker unless the pure mental harm 13
is a work injury (that is, an injury to the worker or to another 14
worker). 15
Note. This section prevents a claim for damages for nervous shock 16
when the nervous shock is not a work injury. It prevents claims for 17
damages by relatives of an injured or deceased worker because their 18
injuries are not work injuries. 19
(2) In this section, pure mental harm has the same meaning as in 20
Part 3 of the Civil Liability Act 2002. 21
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to medical and related expenses Schedule 4
Schedule 4 Amendments relating to medical and 1
related expenses 2
Amendment of Workers Compensation Act 1987 No 70 3
[1] Section 59A 4
Insert after section 59: 5
59A Limit on payment of compensation 6
(1) Compensation is not payable to an injured worker under this 7
Division in respect of any treatment, service or assistance given 8
or provided more than 12 months after a claim for compensation 9
in respect of the injury was first made, unless weekly payments 10
of compensation are or have been paid or payable to the worker. 11
(2) If weekly payments of compensation are or have been paid or 12
payable to the worker, compensation is not payable under this 13
Division in respect of any treatment, service or assistance given 14
or provided more than 12 months after the worker ceased to be 15
entitled to weekly payments of compensation. 16
(3) If a worker becomes entitled to weekly payments of 17
compensation after ceasing to be entitled to compensation under 18
this Division, the worker is once again entitled to compensation 19
under this Division but only in respect of any treatment, service 20
or assistance given or provided during a period in respect of 21
which weekly payments are payable to the worker. 22
(4) This section does not apply to a seriously injured worker (as 23
defined in Division 2). 24
[2] Section 60 Compensation for cost of medical or hospital treatment and 25
rehabilitation etc 26
Insert after section 60 (2): 27
(2A) The worker's employer is not liable under this section to pay the 28
cost of any treatment or service (or related travel expenses) if: 29
(a) the treatment or service is given or provided without the 30
prior approval of the insurer (not including treatment 31
provided within 48 hours of the injury happening and not 32
including treatment or service that is exempt under the 33
WorkCover Guidelines from the requirement for prior 34
insurer approval), or 35
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Workers Compensation Legislation Amendment Bill 2012
Schedule 4 Amendments relating to medical and related expenses
(b) the treatment or service is given or provided by a person 1
who is not appropriately qualified to give or provide the 2
treatment or service, or 3
(c) the treatment or service is not given or provided in 4
accordance with any conditions imposed by the 5
WorkCover Guidelines on the giving or providing of the 6
treatment or service, or 7
(d) the treatment is given or provided by a health practitioner 8
whose registration as a health practitioner under any 9
relevant law is limited or subject to any condition imposed 10
as a result of a disciplinary process, or who is suspended or 11
disqualified from practice. 12
(2B) The worker's employer is not liable under this section to pay 13
travel expenses related to any treatment or service if the treatment 14
or service is given or provided at a location that necessitates more 15
travel than is reasonably necessary to obtain the treatment or 16
service. 17
(2C) The WorkCover Guidelines may make provision for or with 18
respect to the following: 19
(a) establishing rules to be applied in determining whether it 20
is reasonably necessary for a treatment or service to be 21
given or provided, 22
(b) limiting the kinds of treatment and service (and related 23
travel expenses) that an employer is liable to pay the cost 24
of under this section, 25
(c) limiting the amount for which an employer is liable to pay 26
under this section for any particular treatment or service, 27
(d) establishing standard treatment plans for the treatment of 28
particular injuries or classes of injury, 29
(e) specifying the qualifications or experience that a person 30
requires to be appropriately qualified for the purposes of 31
this section to give or provide a treatment or service to an 32
injured worker (including by providing that a person is not 33
appropriately qualified unless approved or accredited by 34
the Authority). 35
[3] Section 61 Rates applicable for medical or related treatment 36
Omit "and the customary charge made in the community for the treatment to 37
persons other than workers" from section 61 (1). 38
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to medical and related expenses Schedule 4
[4] Section 61 (2A) 1
Insert after section 61 (2): 2
(2A) An order under subsection (2) may provide for the maximum 3
amount fixed in respect of any particular medical or related 4
treatment to vary by reference to different factors of a specified 5
kind (for example, a higher maximum amount could be fixed for 6
a treatment when provided by a provider accredited by the 7
Authority). 8
[5] Section 63A Rates applicable for workplace rehabilitation services 9
Insert after section 63A (2): 10
(2A) An order under subsection (2) may provide for the maximum 11
amount fixed in respect of any particular service to vary by 12
reference to different factors of a specified kind (for example, a 13
higher maximum amount could be fixed for a service when 14
provided by a provider approved or accredited by the Authority). 15
Page 41
Workers Compensation Legislation Amendment Bill 2012
Schedule 5 Amendments relating to journey claims
Schedule 5 Amendments relating to journey claims 1
Amendment of Workers Compensation Act 1987 No 70 2
[1] Section 10 Journey claims 3
Omit section 10 (3) (a). 4
[2] Section 10 (3) (b) 5
Omit "place of abode, or place of employment,". 6
Insert instead "place of employment". 7
[3] Section 10 (3) (e)-(g) 8
Omit the paragraphs. 9
[4] Section 10 (5) 10
Omit the subsection. 11
Page 42
Workers Compensation Legislation Amendment Bill 2012
Amendments relating to heart attack and stroke Schedule 6
Schedule 6 Amendments relating to heart attack and 1
stroke 2
Amendment of Workers Compensation Act 1987 No 70 3
Section 9B 4
Insert after section 9A: 5
9B No compensation for heart attack or stroke unless nature of 6
employment results in significantly greater risk 7
(1) No compensation is payable under this Act in respect of an injury 8
that consists of, is caused by, results in or is associated with a 9
heart attack injury or stroke injury unless the nature of the 10
employment concerned gave rise to a significantly greater risk of 11
the worker suffering the injury than had the worker not been 12
employed in employment of that nature. 13
(2) In this section: 14
heart attack injury means an injury to the heart, or any blood 15
vessel supplying or associated with the heart, that consists of, is 16
caused by, results in or is associated with: 17
(a) any heart attack, or 18
(b) any myocardial infarction, or 19
(c) any myocardial ischaemia, or 20
(d) any angina, whether unstable or otherwise, or 21
(e) any fibrillation, whether atrial or ventricular or otherwise, 22
or 23
(f) any arrhythmia of the heart, or 24
(g) any tachycardia, whether ventricular, supra ventricular or 25
otherwise, or 26
(h) any harm or damage to such a blood vessel or to any 27
associated plaque, or 28
(i) any impairment, disturbance or alteration of blood, or 29
blood circulation, within such a blood vessel, or 30
(j) any occlusion of such a blood vessel, whether the 31
occlusion is total or partial, or 32
(k) any rupture of such a blood vessel, including any rupture 33
of an aneurism of such a blood vessel, or 34
(l) any haemorrhage from such a blood vessel, or 35
(m) any aortic dissection, or 36
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Workers Compensation Legislation Amendment Bill 2012
Schedule 6 Amendments relating to heart attack and stroke
(n) any consequential physical harm or damage, including 1
harm or damage to the brain, or 2
(o) any consequential mental harm or damage. 3
stroke injury means an injury to the brain, or any of the blood 4
vessels supplying or associated with the brain, that consists of, is 5
caused by, results in or is associated with: 6
(a) any stroke, or 7
(b) any cerebral infarction, or 8
(c) any cerebral ischaemia, or 9
(d) any rupture of such a blood vessel, including any rupture 10
of an aneurism of such a blood vessel, or 11
(e) any subarachnoid haemorrhage, or 12
(f) any haemorrhage from such a blood vessel, or 13
(g) any harm or damage to such a blood vessel or to any 14
associated plaque, or 15
(h) any impairment, disturbance or alteration of blood, or 16
blood circulation, within such a blood vessel, or 17
(i) any occlusion of such a blood vessel, whether the 18
occlusion is total or partial, or 19
(j) any consequential physical harm or damage, including 20
neurological harm or damage, or 21
(k) any consequential mental harm or damage. 22
Page 44
Workers Compensation Legislation Amendment Bill 2012
Amendments relating to disease injuries Schedule 7
Schedule 7 Amendments relating to disease injuries 1
Amendment of Workers Compensation Act 1987 No 70 2
[1] Section 4 Definition of "injury" 3
Omit paragraph (b) of the definition of injury. Insert instead: 4
(b) includes a disease injury, which means: 5
(i) a disease that is contracted by a worker in the course 6
of employment but only if the employment was the 7
main contributing factor to contracting the disease, 8
and 9
(ii) the aggravation, acceleration, exacerbation or 10
deterioration in the course of employment of any 11
disease, but only if the employment was the main 12
contributing factor to the aggravation, acceleration, 13
exacerbation or deterioration of the disease, and 14
[2] Section 9A No compensation payable unless employment substantial 15
contributing factor to injury 16
Insert "(other than a disease injury)" after "an injury" in section 9A (1). 17
[3] Section 9A (1) 18
Insert at the end of the subsection: 19
Note. In the case of a disease injury, the worker's employment must be 20
the main contributing factor. See section 4. 21
Page 45
Workers Compensation Legislation Amendment Bill 2012
Schedule 8 Amendments relating to commutation of compensation
Schedule 8 Amendments relating to commutation of 1
compensation 2
Amendment of Workers Compensation Act 1987 No 70 3
[1] Section 87EA Preconditions to commutation 4
Insert after section 87EA (1): 5
(1A) Despite subsection (1), a liability in respect of an injury may be 6
commuted to a lump sum under this Division in a particular case 7
if the Authority is satisfied and certifies to the effect that: 8
(a) the case is of a class that is prescribed by the regulations as 9
a class to which this subsection applies, and 10
(b) the circumstances of the case satisfy any requirements 11
prescribed by the regulations as requirements that must be 12
satisfied for the purposes of this subsection, and 13
(c) unless the regulations otherwise provide, the lump sum to 14
which the liability will be commuted is not inadequate and 15
not excessive. 16
(1B) In considering whether the lump sum to which a liability will be 17
commuted is not inadequate and not excessive, the Authority 18
may have regard to the following matters: 19
(a) any dispute as to liability to pay compensation under the 20
Workers Compensation Acts, 21
(b) the injury, the age of the worker, the general health of the 22
worker, and the occupation of the worker at the time of the 23
occurrence of the injury, 24
(c) the worker's diminished ability to compete in an open 25
labour market, 26
(d) other benefits that the worker may be entitled to from any 27
other source. 28
[2] Section 87EA (6) 29
Insert after section 87EA (5): 30
(6) The WorkCover Guidelines may make provision for the 31
procedure for applying for certification by the Authority under 32
subsection (1) or (1A) and the information and documents to be 33
provided in support of such an application. 34
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to commutation of compensation Schedule 8
[3] Section 87F Commutation by agreement 1
Insert after section 87F (2): 2
(2A) Compliance with subsection (2) is not required if the 3
commutation agreement contains a provision in which the 4
employer or insurer certifies that it is satisfied that the worker has 5
waived the right to obtain independent legal advice and 6
independent financial advice before entering into the agreement. 7
[4] Section 87H Registration of commutation agreements 8
Omit section 87H (2). Insert instead: 9
(2) The Registrar must refuse to register a commutation agreement 10
unless satisfied that the Authority has certified as provided by 11
section 87EA (1) or (1A) in respect of the agreement. 12
Page 47
Workers Compensation Legislation Amendment Bill 2012
Schedule 9 Amendments relating to insurer licensing and transfer of claims
Schedule 9 Amendments relating to insurer 1
licensing and transfer of claims 2
9.1 Amendment of Workers Compensation Act 1987 No 70 3
[1] Section 154E Assets of Insurance Fund 4
Insert "other than a claim transferred pursuant to a claims transfer agreement 5
under Division 6" after "Nominal Insurer" in section 154E (2) (a). 6
[2] Section 154E (2) (j1) 7
Insert after section 154E (2) (j): 8
(j1) the transfer of assets of the Insurance Fund to a claim agent 9
pursuant to a claims transfer agreement under Division 6, 10
[3] Section 176 Licences to be re-granted only to existing licence holders 11
Omit the section. 12
[4] Section 208 Contributions by licensed insurers to Insurance Fund 13
Omit "specialised insurer" wherever occurring. 14
Insert instead "licensed insurer". 15
[5] Part 7, Division 6 16
Insert after Division 5 of Part 7: 17
Division 6 Transfer of claims 18
217 Definition 19
In this Division: 20
transferred claim means a claim that is the subject of a claims 21
transfer agreement under this Division. 22
218 Agreements for transfer of claims to insurers 23
(1) The Authority may enter into an agreement (a claims transfer 24
agreement) with a corporation for the transfer to the corporation 25
of the liabilities of the Nominal Insurer in respect of a claim under 26
a policy of insurance for which the Nominal Insurer is the insurer. 27
(2) A claims transfer agreement can relate to particular claims or 28
classes of claims. 29
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to insurer licensing and transfer of claims Schedule 9
(3) A claims transfer agreement entered into with a corporation may 1
include provision for the following: 2
(a) the transfer to the corporation of any assets of the 3
Insurance Fund in connection with the liabilities 4
transferred by the agreement, 5
(b) requirements for the giving of notice to the person who is 6
the employer in respect of a transferred claim. 7
219 Effect of claims transfer agreement 8
(1) A claims transfer agreement operates to transfer to the 9
corporation concerned (the claim agent) the rights and liabilities 10
of the Nominal Insurer in connection with a transferred claim, 11
and for that purpose the following transitional arrangements 12
have effect: 13
(a) a transferred claim is deemed to have been made against 14
the claim agent, 15
(b) any act, matter or thing done or omitted to be done by the 16
Nominal Insurer in connection with a transferred claim 17
before the transfer is taken to have been done or omitted by 18
the claim agent, 19
(c) the Nominal Insurer ceases to be the insurer in respect of 20
the policy of insurance to which the transferred claim 21
relates, but only for the purposes of the rights, obligations 22
and liabilities of the insurer in connection with the 23
transferred claim, 24
(d) the claim agent is deemed to be the insurer in respect of the 25
policy of insurance to which the transferred claim relates, 26
but only for the purposes of the rights, obligations and 27
liabilities of the insurer in connection with the transferred 28
claim, 29
(e) if the claim agent is not a licensed insurer, the claim agent 30
is deemed to be a licensed insurer in respect of the policy 31
of insurance to which the transferred claim relates, 32
(f) any proceedings commenced by or against the Nominal 33
Insurer in connection with a transferred claim and pending 34
immediately before the transfer are deemed to be 35
proceedings by or against the claim agent, 36
(g) all records that are the property of the Nominal Insurer and 37
that relate to a transferred claim (or a judgment or award 38
made in respect of a transferred claim) become the 39
property of and are to be transferred to the claim agent. 40
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Workers Compensation Legislation Amendment Bill 2012
Schedule 9 Amendments relating to insurer licensing and transfer of claims
(2) The transitional arrangements are subject to the terms of the 1
claims transfer agreement. 2
(3) The regulations may make provision for or with respect to the 3
entering into and operation of claims transfer agreements, 4
including by prescribing additional transitional arrangements for 5
the operation of claims transfer agreements. 6
220 Conditions of claims transfer agreement 7
(1) A claims transfer agreement is subject to the following 8
conditions: 9
(a) such conditions as may be included in the agreement, 10
(b) such conditions as the Authority may from time to time 11
notify to the claim agent during the currency of the 12
agreement, 13
(c) any conditions prescribed by the regulations. 14
(2) A condition of a claims transfer agreement also operates as a 15
condition of the insurer's licence (or the insurer's licence that the 16
claim agent is deemed to hold in respect of a policy of insurance 17
to which a transferred claim relates). 18
(3) A corporation that is a party to a claims transfer agreement must 19
comply with any conditions to which the claims transfer 20
agreement is subject. 21
Maximum penalty: 100 penalty units. 22
[6] Schedule 6 Savings, transitional and other provisions 23
Omit clause 2 (Licensing of insurers) of Part 19A. 24
9.2 Amendment of Workplace Injury Management and Workers 25
Compensation Act 1998 No 86 26
[1] Section 35 Payments into and from Fund 27
Omit "and self-insurers" from section 35 (1) (a). 28
Insert instead ", self-insurers and deemed insurers". 29
[2] Section 37 Definitions 30
Insert in alphabetical order: 31
deemed insurer means a corporation (other than a licensed 32
insurer) that is a party to a claims transfer agreement under 33
Division 6 (Transfer of claims) of Part 7 of the 1987 Act. 34
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to insurer licensing and transfer of claims Schedule 9
[3] Section 38 Assessment by Authority of amount to be contributed to 1
Fund 2
Omit "specialised insurers, self-insurers" from section 38 (c). 3
Insert instead "insurers, deemed insurers". 4
[4] Section 38 (d) 5
Omit "specialised insurers, self-insurers". 6
Insert instead "insurers, deemed insurers". 7
[5] Section 38 (e) 8
Omit "specialised insurers, self-insurers". 9
Insert instead "insurers, deemed insurers". 10
[6] Section 39 Contributions to Fund by insurers and self-insurers 11
Omit "Each specialised insurer" from section 39 (1). 12
Insert instead "Each insurer, deemed insurer". 13
[7] Section 39 (2) and (5) 14
Omit "a specialised insurer" wherever occurring. Insert instead "an insurer". 15
[8] Section 39 (2) and (5) 16
Omit "the specialised insurer" wherever occurring. 17
Insert instead "the insurer". 18
[9] Section 39 (3A) 19
Insert after section 39 (3): 20
(3A) The contribution to be paid by a deemed insurer, in respect of 21
each financial year (being a financial year during the whole or 22
part of which the person was a deemed insurer), is an amount 23
determined by the Authority in accordance with the regulations. 24
[10] Section 39 (4) 25
Omit "by specialised insurers" and "all specialised insurers". 26
Insert instead "by insurers" and "all insurers" respectively. 27
[11] Section 39 (6) 28
Insert "or deemed insurer" after "self-insurer" wherever occurring. 29
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Workers Compensation Legislation Amendment Bill 2012
Schedule 9 Amendments relating to insurer licensing and transfer of claims
[12] Section 39 (6B) 1
Omit "by specialised insurers". Insert instead "by insurers". 2
[13] Section 39 (7) 3
Omit "a specialised insurer or a self-insurer". 4
Insert instead "an insurer or deemed insurer". 5
[14] Section 39 (7) (a) 6
Omit "the specialised insurer or self-insurer". 7
Insert instead "the insurer or deemed insurer". 8
[15] Section 39 (9) 9
Omit "a specialised insurer or self-insurer". 10
Insert instead "an insurer, self-insurer or deemed insurer". 11
[16] Section 39 (10) 12
Insert "or deemed insurer" after "self-insurer" wherever occurring. 13
Page 52
Workers Compensation Legislation Amendment Bill 2012
Amendments relating to WorkCover Independent Review Officer Schedule 10
Schedule 10 Amendments relating to WorkCover 1
Independent Review Officer 2
10.1 Amendment of Workplace Injury Management and Workers 3
Compensation Act 1998 No 86 4
[1] Section 4 Definitions 5
Insert in alphabetical order in section 4 (1): 6
Independent Review Officer means the WorkCover Independent 7
Review Officer appointed under Part 3 of Chapter 2. 8
[2] Chapter 2, Part 3 9
Insert after Part 2 of Chapter 2: 10
Part 3 WorkCover Independent Review Officer 11
Division 1 Administrative arrangements 12
24 Appointment of Independent Review Officer 13
(1) The Governor may appoint a WorkCover Independent Review 14
Officer. 15
(2) The Independent Review Officer holds office for such term not 16
exceeding 5 years as may be specified in the instrument of 17
appointment, but is eligible (if otherwise qualified) for 18
re-appointment. 19
(3) The office of Independent Review Officer is a full-time office 20
and the holder of the office is required to hold it on that basis, 21
except to the extent permitted by the Governor. 22
(4) The Independent Review Officer is entitled to be paid: 23
(a) remuneration in accordance with the Statutory and Other 24
Offices Remuneration Act 1975, and 25
(b) such travelling and subsistence allowances as the Minister 26
may from time to time determine. 27
(5) The Public Sector Employment and Management Act 2002 does 28
not apply to the appointment of the Independent Review Officer, 29
and the holder of that office is not, as holder, subject to that Act. 30
(6) The staff of the Independent Review Officer are to be employed 31
under Chapter 1A of the Public Sector Employment and 32
Management Act 2002. 33
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Workers Compensation Legislation Amendment Bill 2012
Schedule 10 Amendments relating to WorkCover Independent Review Officer
25 Vacancy in office 1
(1) The office of Independent Review Officer becomes vacant if the 2
holder: 3
(a) dies, or 4
(b) completes a term of office and is not re-appointed, or 5
(c) resigns the office by instrument in writing addressed to the 6
Governor, or 7
(d) becomes bankrupt, applies to take the benefit of any law 8
for the relief of bankrupt or insolvent debtors, compounds 9
with his or her creditors or makes an assignment of his or 10
her remuneration for their benefit, or 11
(e) becomes a mentally incapacitated person, or 12
(f) is convicted in New South Wales of an offence that is 13
punishable by imprisonment for 12 months or more or is 14
convicted elsewhere than in New South Wales of an 15
offence that, if committed in New South Wales, would be 16
an offence so punishable, or 17
(g) is removed from office under this section. 18
(2) The Governor may remove the Independent Review Officer from 19
office: 20
(a) for misbehaviour, or 21
(b) for incapacity, or 22
(c) if the Independent Review Officer is absent from duty for 23
a period in excess of his or her leave entitlement as 24
approved by the Governor unless the absence is caused by 25
illness or other unavoidable cause. 26
(3) If the office of Independent Review Officer becomes vacant, a 27
person is, subject to this Act, to be appointed to fill the vacancy. 28
26 Appointment of acting Independent Review Officer 29
(1) The Minister may, from time to time, appoint a person to act in 30
the office of the Independent Review Officer during the illness or 31
absence of the Independent Review Officer or during a vacancy 32
in the office of the Independent Review Officer. The person, 33
while so acting, has all the functions of the Independent Review 34
Officer and is taken to be the Independent Review Officer. 35
(2) The Minister may, at any time, remove a person from office as 36
acting Independent Review Officer. 37
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Amendments relating to WorkCover Independent Review Officer Schedule 10
(3) An acting Independent Review Officer is entitled to be paid such 1
remuneration (including travelling and subsistence allowances) 2
as the Minister may from time to time determine. 3
Division 2 Functions 4
27 Functions of Independent Review Officer 5
The Independent Review Officer has the following functions: 6
(a) to deal with complaints made to the Independent Review 7
Officer under this Division, 8
(b) to review work capacity decisions of insurers under 9
Division 2 (Weekly compensation by way of income 10
support) of Part 3 of the 1987 Act, 11
(c) to inquire into and report to the Minister on such matters 12
arising in connection with the operation of the Workers 13
Compensation Acts as the Independent Review Officer 14
considers appropriate or as may be referred to the 15
Independent Review Officer for inquiry and report by the 16
Minister, 17
(d) to encourage the establishment by insurers and employers 18
of complaint resolution processes for complaints arising 19
under the Workers Compensation Acts, 20
(e) such other functions as may be conferred on the 21
Independent Review Officer by or under the Workers 22
Compensation Acts or any other Act. 23
27A Complaints about insurers 24
(1) A worker may complain to the Independent Review Officer about 25
any act or omission (including any decision or failure to decide) 26
of an insurer that affects the entitlements, rights or obligations of 27
the worker under the Workers Compensation Acts. 28
(2) The Independent Review Officer deals with a complaint by 29
investigating the complaint and reporting to the worker and the 30
insurer on the findings of the investigation, including the reasons 31
for those findings. The Independent Review Officer's findings 32
can include non-binding recommendations for specified action to 33
be taken by the insurer or the worker. 34
(3) The Independent Review Officer is to deal with a complaint 35
within a period of 30 days after the complaint is made unless the 36
Independent Review Officer notifies the worker and the insurer 37
within that period that a specified longer period will be required 38
to deal with the complaint. 39
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Workers Compensation Legislation Amendment Bill 2012
Schedule 10 Amendments relating to WorkCover Independent Review Officer
(4) The Independent Review Officer may decline to deal with a 1
complaint on the basis that it is frivolous or vexatious or should 2
not be dealt with for such other reason as the Independent Review 3
Officer considers relevant. 4
27B Requirement to provide information 5
(1) The Independent Review Officer may require an insurer or a 6
worker who has applied for review of a work capacity decision of 7
an insurer to provide specified information that the Independent 8
Review Officer reasonably requires for the purposes of the 9
exercise of any function of the Independent Review Officer. 10
(2) It is a condition of an insurer's licence that the insurer comply 11
with a request for the provision of information under this section. 12
(3) The Independent Review Officer can decline to deal with a 13
complaint if the worker who makes the complaint fails to comply 14
with a request to provide information to the Independent Review 15
Officer. 16
(4) The Authority must provide the Independent Review Officer 17
with such information as the Independent Review Officer 18
reasonably requires and requests for the purposes of the exercise 19
of any function of the Independent Review Officer. 20
27C Annual report 21
(1) As soon as practicable after 30 June (but before 31 December) in 22
each year, the Independent Review Officer is to prepare and 23
forward to the Minister a report on his or her activities for the 24
12 months ending on 30 June in that year. 25
(2) The report is to be tabled in Parliament and for that purpose the 26
Minister is to lay the report or cause it to be laid before both 27
Houses of Parliament as soon as practicable after receiving the 28
report. 29
(3) The Minister is to give the Authority and insurers an opportunity 30
to comment on the report before it is tabled in Parliament and 31
may include with the report when it is tabled a statement as to the 32
comments of the Authority and insurers. 33
(4) The report is to include the following information: 34
(a) the number and type of complaints made and dealt with 35
under this Division during the year, 36
(b) the sources of those complaints, 37
(c) the number and type of complaints that were made during 38
the year but not dealt with, 39
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Amendments relating to WorkCover Independent Review Officer Schedule 10
(d) information on the operation of the process for review of 1
work capacity decisions of insurers during the year and 2
any recommendations for legislative or other 3
improvements to that process, 4
(e) such other information as the Independent Review Officer 5
considers appropriate to be included or as the Minister 6
directs to be included. 7
(5) Matters included in a report must not identify individual workers. 8
27D Delegation of functions 9
The Independent Review Officer may delegate the exercise of 10
any function of the Independent Review Officer (other than this 11
power of delegation) to: 12
(a) any member of staff of the Independent Review Officer, or 13
(b) any person, or any class of persons, authorised for the 14
purposes of this section by the regulations. 15
[3] Section 35 (2) (c) 16
Insert after section 35 (2) (b): 17
(c) the remuneration of the Independent Review Officer and 18
staff of the Independent Review Officer and costs incurred 19
in connection with the exercise of the functions of the 20
Independent Review Officer, 21
10.2 Amendment of Statutory and Other Offices Remuneration 22
Act 1975 (1976 No 4) 23
Schedule 1 Public offices 24
Insert at the end of Schedule 1: 25
WorkCover Independent Review Officer 26
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Workers Compensation Legislation Amendment Bill 2012
Schedule 11 Miscellaneous amendments
Schedule 11 Miscellaneous amendments 1
Amendment of Workplace Injury Management and Workers 2
Compensation Act 1998 No 86 3
[1] Section 74 4
Omit the section. Insert instead: 5
74 Insurers to give notice and reasons when liability disputed 6
(1) If an insurer disputes liability in respect of a claim or any aspect 7
of a claim, the insurer must give notice of the dispute to the 8
claimant. 9
(2) The notice must contain the following: 10
(a) a concise and readily understandable statement of the 11
reason the insurer disputes liability and of the issues 12
relevant to the decision (indicating, in the case of a claim 13
for compensation, any provision of the workers 14
compensation legislation on which the insurer relies to 15
dispute liability), 16
(b) such other information as the regulations may prescribe. 17
(3) The regulations may make provision for the form of and for other 18
information to be included in or to accompany a notice under this 19
section. The regulations may require an insurer to give a copy of 20
a notice under this section to the claimant's employer. 21
(4) The regulations may create offences in connection with any 22
failure to comply with this section. 23
Note. A dispute as to liability to commence weekly payments within the 24
requisite period after a claim for compensation is made must be notified 25
in accordance with this section (see section 93 and the offence arising 26
under section 94). 27
(5) Notice is not required to be given under this section with respect 28
to a dispute if notice has been given under section 54 of the 1987 29
Act with respect to the dispute and that notice contained the 30
statements and information that a notice under this section is 31
required to contain. 32
(6) This section does not apply to a dispute based on a work capacity 33
decision of an insurer under Division 2 of Part 3 of the 1987 Act. 34
[2] Section 238 Powers of entry and inspection of Authority inspectors 35
Omit "authorised officer" wherever occurring. Insert instead "inspector". 36
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Workers Compensation Legislation Amendment Bill 2012
Miscellaneous amendments Schedule 11
[3] Section 238A Search warrant 1
Omit "An authorised officer under this Act" from section 238A (1). 2
Insert instead "An inspector". 3
[4] Section 238A (1) and (2) (c) 4
Omit "the officer" wherever occurring. Insert instead "the inspector". 5
[5] Section 238A (2) 6
Omit "the authorised officer under this Act". Insert instead "the inspector". 7
[6] Section 238A (4) 8
Omit "authorised officer". Insert instead "inspector". 9
[7] Section 238AA Power to obtain information, documents and evidence 10
Omit "authorised officer" wherever occurring. Insert instead "inspector". 11
[8] Section 238B Protection from incrimination 12
Omit "authorised officer" from section 238B (3) (b) wherever occurring. 13
Insert instead "inspector". 14
[9] Section 238C Inspector may request assistance 15
Omit "authorised officer" and "authorised officer's" wherever occurring. 16
Insert instead "inspector" and "inspector's" respectively. 17
[10] Section 238C (2) 18
Omit "the officer" and "the officer's" wherever occurring. 19
Insert instead "the inspector" and "the inspector's" respectively. 20
[11] Section 341 Costs to be determined by Commission 21
Omit section 341 (4) and (5). Insert instead: 22
(4) Subject to this Division, if the Commission makes any order as to 23
costs, the Commission is to order that the costs follow the event 24
unless it appears to the Commission that some other order should 25
be made as to the whole or any part of the costs, or as the 26
regulations otherwise provide. 27
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Workers Compensation Legislation Amendment Bill 2012
Schedule 12 Amendments relating to savings and transitional provisions
Schedule 12 Amendments relating to savings and 1
transitional provisions 2
Amendment of Workers Compensation Act 1987 No 70 3
[1] Schedule 6, Part 19H 4
Insert after Part 19G: 5
Part 19H Provisions consequent on enactment of 6
Workers Compensation Legislation 7
Amendment Act 2012 8
Division 1 Preliminary 9
1 Definitions 10
In this Part: 11
2012 amending Act means the Workers Compensation 12
Legislation Amendment Act 2012. 13
benefits amendments means the amendments made by 14
Schedules 1-7 to the 2012 amending Act. 15
existing recipient of weekly payments means an injured worker 16
who is in receipt of weekly payments of compensation 17
immediately before the commencement of the weekly payments 18
amendments. 19
first 26 weeks of incapacity has the meaning it had under section 20
34 of the 1987 Act, as in force before the weekly payments 21
amendments. 22
introduction date means the date of introduction into Parliament 23
of the Bill for the 2012 amending Act. 24
seriously injured worker has the same meaning as in Division 2 25
of Part 3 of the 1987 Act. 26
transitional amount has the meaning given by clause 2. 27
weekly payments amendments means the amendments made by 28
the 2012 amending Act to Division 2 (Weekly compensation by 29
way of income support) of Part 3 of the 1987 Act, other than the 30
amendment made to section 52 (Termination of weekly payments 31
on retiring age) of the 1987 Act. 32
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2 Transitional amount 1
(1) The transitional amount is $906.25. 2
Note. The transitional amount is used as the deemed amount of the 3
pre-injury average weekly earnings of an injured worker for the purpose 4
of determining the weekly payments of compensation payable to existing 5
recipients of weekly payments after they become subject to the weekly 6
payments amendments. 7
(2) If the transitional amount is adjusted by operation of Division 6 8
(Indexation of certain amounts) of Part 3 of the 1987 Act, a 9
weekly payment of compensation payable to a worker injured 10
before the date on which the adjustment takes effect is, for any 11
period of incapacity occurring on and after that date, to be 12
determined by reference to that amount as so adjusted. 13
3 Application of amendments generally 14
(1) Except as provided by this Part or the regulations, an amendment 15
made by the 2012 amending Act extends to: 16
(a) an injury received before the commencement of the 17
amendment, and 18
(b) a claim for compensation made before the commencement 19
of the amendment, and 20
(c) proceedings pending in the Commission or a court 21
immediately before the commencement of the amendment. 22
(2) An amendment made by the 2012 amending Act does not apply 23
to compensation paid or payable in respect of any period before 24
the commencement of the amendment, except as otherwise 25
provided by this Part. 26
4 Application of benefits amendments to other Workers 27
Compensation Acts 28
The benefits amendments do not apply for the purposes of the 29
Workers' Compensation (Dust Diseases) Act 1942 or the 30
Workers Compensation (Bush Fire, Emergency and Rescue 31
Services) Act 1987 and a reference in either of those Acts to a 32
provision of the Workers Compensation Acts is a reference to the 33
provision without regard to any amendment made by the benefits 34
amendments. 35
5 Savings and transitional regulations 36
(1) Regulations under Part 20 of this Schedule that contain 37
provisions of a saving or transitional nature consequent on the 38
enactment of the 2012 amending Act may, if the regulations so 39
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Workers Compensation Legislation Amendment Bill 2012
Schedule 12 Amendments relating to savings and transitional provisions
provide, take effect as from a date that is earlier than the date of 1
assent to the 2012 amending Act. 2
(2) Clause 1 (3) of Part 20 does not limit the operation of this clause. 3
(3) A provision referred to in subclause (1) has effect, if the 4
regulations so provide, despite any other provision of this Part. 5
(4) The power in Part 20 to make regulations that contain provisions 6
of a saving or transitional nature consequent on the enactment of 7
the 2012 amending Act extends to authorise the making of 8
regulations whereby the provisions of the Workers 9
Compensation Acts are deemed to be amended in the manner 10
specified in the regulations. 11
Division 2 Weekly payments 12
6 Application of weekly payments amendments to existing 13
claimants 14
An existing recipient of weekly payments remains entitled to 15
compensation under Division 2 of Part 3 of the 1987 Act as if the 16
weekly payments amendments had not been made, but only until 17
the weekly payments amendments apply to the compensation 18
payable to the person as provided by this Division. 19
7 Termination of weekly payments on retiring age 20
The amendment made by the 2012 amending Act to section 52 of 21
the 1987 Act does not apply in respect of the compensation 22
payable to a person who reached the retiring age referred to in 23
that section before the commencement of the amendment. 24
8 Work capacity assessment of existing recipients of weekly 25
payments 26
(1) A work capacity assessment of an existing recipient of weekly 27
payments is to be conducted as provided by this clause for the 28
purposes of facilitating the application of the weekly payments 29
amendments to the worker. 30
(2) The insurer who is liable to make weekly payments of 31
compensation to an existing recipient of weekly payments must 32
conduct a work capacity assessment of the worker no later than 33
12 months (or such longer period as may be prescribed by the 34
regulations) after the commencement of the weekly payments 35
amendments. 36
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to savings and transitional provisions Schedule 12
(3) If an existing recipient of weekly payments is a seriously injured 1
worker, the insurer is not to conduct a work capacity assessment 2
of the worker under this clause. 3
(4) The WorkCover Guidelines may make provision for the staged 4
implementation of the requirement under this clause for a work 5
capacity assessment. 6
(5) A work capacity assessment can be conducted before the 7
commencement of Schedule 1 to the 2012 amending Act, as if 8
that Schedule had commenced on the date of assent to the 2012 9
amending Act. For that purpose the WorkCover Guidelines can 10
make provision for work capacity assessments before the 11
commencement of Schedule 1 to the 2012 amending Act. 12
9 Weekly payments amendments to apply after work capacity 13
assessment 14
(1) On the expiration of a period of 3 months after an insurer first 15
conducts a work capacity assessment of an existing recipient of 16
weekly payments (as required under this Division or otherwise), 17
the weekly payments amendments apply to the compensation 18
payable under Division 2 of Part 3 of the 1987 Act to the worker 19
in respect of any period of incapacity after the expiration of that 20
period. 21
(2) However, the weekly payments amendments do not apply to the 22
compensation payable under Division 2 of Part 3 of the 1987 Act 23
to the worker in respect of any period of incapacity during the 24
first 26 weeks of incapacity. 25
(3) For the purposes of the application under this clause of the 26
weekly payments amendments to a worker, the worker's 27
pre-injury average weekly earnings are deemed to be equal to the 28
transitional amount. 29
Note. The transitional amount is initially $906.25 and is indexed 30
annually. 31
(4) For the purposes of the application of the weekly payments 32
amendments to the compensation payable under Division 2 of 33
Part 3 of the 1987 Act to a worker in respect of any period of 34
incapacity after the commencement of those amendments, a 35
reference in that Division to a period in respect of which a weekly 36
payment has been paid or is payable to a worker includes such a 37
period that occurred before the commencement of those 38
amendments (or before the application of those amendments to 39
the compensation payable to the worker). 40
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Workers Compensation Legislation Amendment Bill 2012
Schedule 12 Amendments relating to savings and transitional provisions
10 Special provision for seriously injured workers 1
(1) The weekly payments amendments apply from the 2
commencement of those amendments to the compensation 3
payable under Division 2 of Part 3 of the 1987 Act to an existing 4
recipient of weekly payments who is a seriously injured worker. 5
(2) For the purposes of the application under this clause of the 6
weekly payments amendments to a seriously injured worker, the 7
worker's pre-injury average weekly earnings are deemed to be 8
equal to the transitional amount. 9
Note. The transitional amount is initially $906.25 and is indexed 10
annually. 11
11 Special provision for workers receiving section 38 benefits 12
(1) An existing recipient of weekly payments who is in receipt of 13
weekly payments under section 38 of the 1987 Act immediately 14
before the commencement of the weekly payments amendments 15
remains entitled to compensation under that section in respect of 16
the injury concerned but only for the period provided by that 17
section. 18
(2) The weekly payments amendments do not apply to the 19
compensation payable to the worker during the period for which 20
the worker remains entitled to compensation under section 38 21
pursuant to this clause. 22
12 Odd lot rule workers 23
An order of the Commission for the payment of compensation to 24
a worker under section 39 (Incapacity treated as total-- "odd-lot" 25
rule) of the 1987 Act that is in force immediately before the 26
commencement of the weekly payment amendments does not 27
limit or prevent the application of the weekly payments 28
amendments to the worker as provided by this Part. 29
13 Earlier periods of incapacity not counted towards 5 year limit on 30
payments 31
For the purposes of the application of section 39 (Cessation of 32
weekly payments after 5 years) of the 1987 Act, as substituted by 33
the 2012 amending Act, to the compensation payable after the 34
commencement of that section in respect of an injury that 35
happened before that commencement, no regard is to be had to 36
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to savings and transitional provisions Schedule 12
any period before that commencement in respect of which a 1
weekly payment has been paid or is payable to the worker. 2
Note. Section 39 limits the payment of weekly payments of 3
compensation to a period of 5 years. Weekly payments made before the 4
commencement of the weekly payments amendments are not counted 5
towards the 5 years. 6
14 Jurisdiction of Commission 7
Sections 43 (3) and 44 (5) as inserted by the 2012 amending Act 8
extend to proceedings pending in the Commission when a 9
relevant work capacity decision is made. 10
Division 3 Miscellaneous 11
15 Lump sum compensation 12
An amendment made by Schedule 2 to the 2012 amending Act 13
extends to a claim for compensation made on or after 19 June 14
2012, but not to such a claim made before that date. 15
16 Damages for nervous shock 16
An amendment made by Schedule 3 to the 2012 amending Act 17
extends to a claim for damages in respect of harm suffered before 18
19 June 2012 but does not apply to a claim for damages if the 19
claimant commenced court proceedings for the recovery of work 20
injury damages before 19 June 2012. 21
17 Medical, hospital and rehabilitation expenses 22
(1) An amendment made by the 2012 amending Act to section 60 of 23
the 1987 Act does not apply in respect of any treatment or service 24
provided before the commencement of the amendment. 25
(2) In the application of section 59A (Limit on payment of 26
compensation) of the 1987 Act in respect of a claim for 27
compensation made before the commencement of that section: 28
(a) the claim is deemed to have been made immediately before 29
the commencement of that section, and 30
(b) no regard is to be had to any weekly payment of 31
compensation paid or payable to the worker before the 32
commencement of that section (for the purpose of 33
determining when a worker ceased to be entitled to weekly 34
payments of compensation). 35
Note. Section 59A limits the payment of compensation to a period of 36
12 months after a claim for compensation is made or 12 months after 37
weekly payments of compensation cease. Subclause (2) ensures that 38
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Workers Compensation Legislation Amendment Bill 2012
Schedule 12 Amendments relating to savings and transitional provisions
for existing claims the 12 month period will commence no earlier than the 1
commencement of the section. 2
18 Journey claims 3
An amendment made by Schedule 5 to the 2012 amending Act 4
extends to an injury received on or after 19 June 2012 but does 5
not apply to an injury received before that date. 6
19 Heart attack and stroke injuries 7
Section 9B extends to an injury received on or after 19 June 2012 8
but does not apply to an injury received before that date. 9
20 Disease injuries 10
An amendment made by Schedule 7 to the 2012 amending Act 11
extends to an injury received on or after 19 June 2012 but does 12
not apply to an injury received before that date. 13
21 Costs in proceedings 14
An amendment made by the 2012 amending Act to section 341 15
(Costs to be determined by Commission) of the 1998 Act does 16
not apply in respect of proceedings commenced in the 17
Commission before the commencement of the amendment. 18
22 Commutation 19
(1) The Authority may defer consideration of an application for 20
registration of a commutation agreement under Division 9 of 21
Part 3 of the 1987 Act that is made on or after the introduction 22
date (a transitional commutation agreement) until 3 months 23
after a work capacity assessment of the injured worker is 24
conducted. 25
(2) If the amount of compensation payable to an existing recipient of 26
weekly payments of compensation changes as a result of an 27
amendment made by the 2012 amending Act, the change applies 28
for the purposes of the commutation of a liability for that 29
compensation under Division 9 of Part 3 pursuant to a transitional 30
commutation agreement. 31
23 Assessment of permanent impairment 32
(1) For the purposes of determining the degree of permanent 33
impairment of an injured worker whose injury happened before 34
1 January 2002, the worker or the insurer may refer the matter for 35
assessment under Part 7 of Chapter 7 of the 1998 Act. That Part 36
applies in respect of such an assessment as if the matter referred 37
for assessment were a dispute. 38
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Workers Compensation Legislation Amendment Bill 2012
Amendments relating to savings and transitional provisions Schedule 12
(2) This clause does not apply to a worker in respect of an injury if 1
the degree of permanent impairment of the worker resulting from 2
the injury has been assessed before the commencement of this 3
clause. 4
24 Inspectors 5
(1) An authorisation of a person that is in force for the purposes of 6
section 238 of the 1998 Act immediately before the amendment 7
of that section by the 2012 amending Act is deemed to be an 8
authorisation of the person as an inspector for the purposes of that 9
section. 10
(2) A search warrant issued under section 238A of the 1998 Act to a 11
person as an authorised officer and in force immediately before 12
the amendment of that section by the 2012 amending Act is 13
deemed to have been issued to the person as an inspector. 14
(3) Any act, matter or thing done or omitted to be done by a person 15
as an authorised officer for the purposes of section 238AA of the 16
1998 Act is, to the extent that it relates to matters arising after the 17
amendment of that section by the 2012 amending Act, deemed to 18
have been done or omitted by the person as an inspector under 19
that section. 20
25 Police officers 21
The benefits amendments do not apply to or in respect of an 22
injury received by a police officer (before or after the 23
commencement of this clause), and the Workers Compensation 24
Acts (and the regulations under those Acts) apply to and in 25
respect of such an injury as if those amendments had not been 26
enacted. 27
26 Coal miners 28
(1) The benefits amendments do not apply to or in respect of an 29
injury received by a coal miner (before or after the 30
commencement of this clause), and the Workers Compensation 31
Acts (and the regulations under those Acts) apply to and in 32
respect of such an injury as if those amendments had not been 33
enacted. 34
(2) In this clause: 35
coal miner means a worker employed in or about a mine. 36
27 Review of amendments 37
(1) The Minister is to conduct a review of the amendments made by 38
the 2012 amending Act to determine whether the policy 39
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Workers Compensation Legislation Amendment Bill 2012
Schedule 12 Amendments relating to savings and transitional provisions
objectives of those amendments remain valid and whether the 1
terms of the Workers Compensation Acts remain appropriate for 2
securing those objectives. 3
(2) The review is to be undertaken as soon as possible after the period 4
of 5 years from the date of assent to the 2012 amending Act. 5
(3) A report on the outcome of the review is to be tabled in each 6
House of Parliament within 12 months after the end of the period 7
of 5 years. 8
[2] Schedule 6, Part 20 Savings and transitional regulations 9
Insert at the end of clause 1 (1): 10
any other Act that amends this Act 11
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