South Australian Numbered Acts South Australian Numbered Acts24—Substitution of section 43
Section 43—delete the section and substitute:
43—Lump sum compensation
(1) Subject to this
Act, if a worker suffers a compensable disability resulting in permanent
impairment as assessed in accordance with section 43A, the worker is
entitled (in addition to any entitlement apart from this section) to
compensation for non-economic loss by way of a lump sum.
(2) Subject to this
section, the lump sum will be an amount that represents a portion of the
prescribed sum calculated in accordance with the regulations.
(3) Regulations made
for the purposes of subsection (2) must provide for compensation that at
least satisfies the requirements of Schedule 3 taking into account the
assessment of whole of person impairment under this Division.
(4) An entitlement
does not arise under this section if the worker's degree of permanent
impairment is less than 5%.
(5) An entitlement
does not arise under this section in relation to a psychiatric impairment.
(6) If a worker
suffers 2 or more compensable disabilities arising from the same
trauma—
(a) the
disabilities may together be treated as 1 disability to the extent set out in
the WorkCover Guidelines (and assessed together using any combination or other
principle set out in the WorkCover Guidelines); and
(b) the
worker is not entitled to receive compensation by way of lump sum under
subsection (2) in respect of those disabilities in excess of the
prescribed sum.
(7) If—
(a) a
compensable disability consists of the aggravation, acceleration,
exacerbation, deterioration or recurrence of a prior compensable disability;
and
(b)
compensation by way of lump sum has been previously paid under this section,
or a corresponding previous enactment,
there will be a reduction of the lump sum payable under this section in
respect of the disability by the amount of the previous payment unless such a
reduction is incorporated into the provisions of the WorkCover Guidelines.
(8) For the purposes
of this section, the "prescribed sum" is—
(a)
unless a regulation has been made under paragraph (b)—$400 000
(indexed); or
(b) a
greater amount prescribed by regulation for the purposes of this definition.
(9) In connection with
the operation of subsection (8)—
(a) the
amount to be applied with respect to a particular disability is the amount
applying under that subsection at the time of the occurrence of that
disability; and
(b) an
amount prescribed by regulation under paragraph (b) of that subsection
must be indexed so as to provide annual adjustments according to changes in
the Consumer Price Index.
(10) For the purposes
of this section, any degree of impairment will be assessed in accordance with
section 43A (and the WorkCover Guidelines).
(11) Compensation is
not payable under this section after the death of the worker concerned.
(12) In this
section—
"WorkCover Guidelines" means the guidelines published under section 43A.
43A—Assessment of impairment
(1) This section sets
out a scheme for assessing the degree of impairment that applies to a
compensable disability that results in permanent impairment.
(2) An
assessment—
(a) must
be made in accordance with the WorkCover Guidelines; and
(b) must
be made by a legally qualified medical practitioner who holds a current
accreditation issued by the Corporation for the purposes of this section.
(3) The Minister will
publish guidelines (the "WorkCover Guidelines") for the purposes of
section 43 and this section.
(4) The guidelines
under subsection (3)—
(a) must
be published in the Gazette; and
(b) may
adopt or incorporate the provisions of other publications, whether with or
without modification or addition and whether in force at a particular time or
from time to time; and
(c) must
incorporate a methodology that arrives at an assessment of the degree of
impairment of the whole person; and
(d) may
specify procedures to be followed in connection with an assessment for the
purposes of this Division; and
(e) may
have effect on a day specified by the Minister by notice in the Gazette; and
(f) may
be amended or substituted by the Minister from time to time.
(5) The Minister must,
before publishing or amending the WorkCover Guidelines, consult with—
(a) the
Australian Medical Association (South Australia) Incorporated; and
(b) any
other prescribed body.
(6) The Corporation
will establish an accreditation scheme for the purposes of
subsection (2)(b).
(7) The accreditation
scheme—
(a) may
provide for a term or period of accreditation, and for the suspension or
cancellation of accreditation on specified grounds; and
(b) may
specify terms or conditions of accreditation; and
(c) may
be amended or substituted by the Corporation from time to time.
(8) An assessment of
the degree of impairment resulting from a disability for the purposes of this
Division must—
(a) be
made after the disability has stabilised; and
(b)
subject to subsection (9), be based on the worker's current impairment as
at the date of assessment, including any changes in the signs and symptoms
following any medical or surgical treatment undergone by the worker in respect
of the disability.
(9) An assessment must
take into account the following principles:
(a) if a
worker presents for assessment in relation to disabilities which occurred on
different dates, the impairments are to be assessed chronologically by date of
disability;
(b)
impairments from unrelated disabilities or causes are to be disregarded in
making an assessment;
(c)
assessments are to comply with any other requirements specified by the
WorkCover Guidelines or prescribed by the regulations.
(10) An amendment or
substitution in relation to the WorkCover Guidelines under
subsection (4)(d) will only apply in respect of a disability occurring on
or after the date the amendment or substitution takes effect.
(11) A number
determined under the WorkCover Guidelines with respect to a value of a
person's degree of impairment may be rounded up or down according to any
principle set out in the WorkCover Guidelines.
43B—No disadvantage—compensation table
(1) If—
(a) a
worker suffers a compensable disability that gives rise to an entitlement to
compensation under sections 43 and 43A; and
(b) the
compensable disability is a loss mentioned in the table in Schedule 3A; and
(c) the
amount of compensation payable under sections 43 and 43A in respect of
that disability is less than the amount applying under the table in
Schedule 3A in respect of that disability,
then the worker is entitled to compensation equal to the amount applying under
the table (and, if relevant, subsection (2)) instead of the compensation
payable under sections 43 and 43A.
(2) If a worker
suffers 2 or more disabilities mentioned in the table in Schedule 3A arising
from the same trauma, the worker is not entitled in any case to receive
compensation under this section in excess of $254 100 (indexed) (despite
the operation of subsection (1) and the table).
(3) Compensation is
not payable under this section after the death of the worker concerned.