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WORKERS REHABILITATION AND COMPENSATION (SCHEME REVIEW) AMENDMENT ACT 2008 (NO 17 OF 2008) - SECT 24

24—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.



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