South Australian Repealed Acts South Australian Repealed ActsThis legislation has been repealed.
36—Discontinuance of weekly payments
(1) Subject to this
Act, weekly payments to a worker who has suffered a compensable injury must
not be discontinued unless—
(a) the
worker consents to the discontinuance of weekly payments; or
(b) the
Corporation is satisfied, on the basis of a certificate of a
recognised medical expert, that the worker has ceased to be incapacitated for
work by the compensable injury; or
(c) the
worker has returned to work; or
(d) the
worker has obtained work as an employee, or as a self-employed contractor,
that is providing remuneration equal to or above the worker's
notional weekly earnings; or
(e) the
worker is dismissed from employment for serious and wilful misconduct; or
(f) the
worker breaches the obligation of mutuality; or
(g) the
worker is, without the Corporation's consent—
(i)
resident outside the State; or
(ii)
absent from the State for more than two months in any
continuous period of 12 months; or
(h) the
worker's entitlement to weekly payments ceases because of the passage of time;
or
(i)
the worker's entitlement to weekly payments ceases
because of the occurrence of some other event or the making of some other
decision or determination that, under another provision of this Act, brings
the entitlement to weekly payments to an end or the discontinuance of weekly
payments is otherwise authorised or required under another provision of this
Act.
(1a) A worker
breaches the "obligation of mutuality" if—
(a) the
Corporation has, by written notice to the worker, required the worker to
submit to an examination by a recognised medical expert nominated by the
Corporation and the worker fails to comply with the requirement within the
time allowed in the notice or obstructs the examination; or
(b) the
Corporation has, by written notice to the worker, required the worker to
submit to the Corporation a certificate from a recognised medical expert
certifying that the compensable injury continues, and the worker fails to
comply with the requirement within the time allowed in the notice; or
(c) the
worker refuses or fails to submit to proper medical treatment for the worker's
condition; or
(d) the
worker refuses or fails to participate in a rehabilitation program under this
Act or participates in a way that frustrates the objectives of the program; or
(e) the
worker fails to comply with an obligation under a rehabilitation and return to
work plan under this Act; or
(f) the
worker refuses or fails—
(i)
to undertake work that the worker has been offered and is
capable of performing; or
(ii)
to take reasonable steps to find or obtain suitable
employment,
or having obtained suitable employment, unreasonably discontinues the
employment; or
(fa) the
worker refuses or fails to participate in assessments of the worker's
capacity, rehabilitation progress or future employment prospects (including by
failing to attend); or
(g) the
worker does anything else that is, apart from this subsection, recognised as a
breach of the obligation of mutuality.
(1b) However, a worker
does not breach the obligation of mutuality—
(a) by
reasonably refusing surgery or the administration of a drug; or
(b)
where there is a difference of medical opinion about the appropriate treatment
for the worker's condition, or the possibility of choice between a number of
reasonable forms of treatment—by choosing one form of treatment in
preference to another.
(2) Subject to this
Act, weekly payments to a worker who has suffered a compensable injury shall
not be reduced unless—
(a) the
worker consents to the reduction of weekly payments; or
(b) the
Corporation is satisfied, on the basis of a certificate of a
recognised medical expert, that there has been a reduction in the extent the
worker is incapacitated for work by the compensable injury; or
(ba) the
reduction is necessary to correct an arithmetical or clerical error; or
(bb)
where the weekly payments include a component for overtime—the
Corporation is satisfied that if the worker had continued in the work in which
he or she was last employed before becoming incapacitated, he or she would not
have continued to work overtime or the pattern of overtime would have changed
so that the amount of overtime would have diminished; or
(c) the
worker has recommenced work as an employee or as a self-employed contractor,
or the worker has had an increase in remuneration as an employee or a
self-employed contractor; or
(d) the
worker's entitlement to weekly payments reduces because of the passage of
time; or
(e) the
worker's entitlement to weekly payments reduces because of the occurrence of
some other event or the making of some other decision or determination that,
under another provision of this Act, is expressed to result in a reduction to
an entitlement to weekly payments or the reduction of weekly payments is
otherwise authorised or required under another provision of this Act.
(3) Where the
Corporation decides to discontinue or reduce weekly payments in pursuance of
this section, the Corporation must give notice in writing to the worker
containing such information as the regulations may require as to the reasons
for the Corporation's decision and informing the worker of the worker's right
to have the decision reviewed.
(3a) The notice must
be given at least the prescribed number of days before the decision is to take
effect in any of the following cases:
(a)
where a decision to discontinue weekly payments is made, without the consent
of the worker, on the ground that—
(i)
the Corporation is satisfied that the worker has ceased
to be incapacitated for work by the compensable injury (although the worker
has not returned to work); or
(ii)
the worker has failed to submit to an examination by a
recognised medical expert or to provide a medical certificate as required by
the Corporation; or
(iii)
the worker has been dismissed from employment for serious
and wilful misconduct; or
(iv)
the worker has breached the obligation of mutuality; or
(b)
where a decision to reduce weekly payments is made, without the consent of the
worker, on the ground that—
(i)
the Corporation is satisfied that there has been a
reduction in the extent the worker is incapacitated for work by the
compensable injury; or
(ii)
the Corporation is satisfied, in the case of a worker
whose weekly payments include a component for overtime, that the worker would
not have continued to work overtime or the pattern of overtime would have
changed so that the amount of overtime would have diminished; or
(ba)
where a decision to reduce weekly payments is made on account of the end of
the first entitlement period or the second entitlement period under section 35A
; or
(bb)
where a decision to discontinue weekly payments is made on account of the end
of the third entitlement period under section 35A
; or
(bc)
where a decision to discontinue weekly payments is made on account of—
(i)
a review by the Corporation under section 35B(3)
; or
(ii)
a decision of the Corporation under section 35C(5)(a)
; or
(c)
where a decision to discontinue or reduce weekly payments is made under section 38
,
and in any other case the notice must be given as soon as practicable after
the decision is made (but not necessarily before it takes effect).
(3b) For the purposes
of subsection (3a)
, the prescribed number of days is—
(a) if
the worker has been receiving weekly payments under this Division (or
Division 7A
) for a period that is less than 52 weeks, or for 2 or more periods that
aggregate less than 52 weeks—14 days;
(b) in
any other case—28 days.
(4) Subject to
complying with subsection (3a)
, a discontinuance or reduction of weekly payments under this section takes
effect in accordance with the terms of the Corporation's notice under subsection (3)
.
(5) The effect of a
decision to discontinue or reduce weekly payments is not affected by the
worker lodging a notice of dispute under Part 6A
.
(5a) If a dispute is
resolved in favour of the worker at the reconsideration, conciliation or
judicial determination stage, or on an appeal, the worker is entitled to be
paid—
(a) in
the case of a reconsideration—the total amount that, under the terms of
the reconsideration, should have been paid to the worker between the date that
the disputed decision took effect and the date that the decision, as varied
under the reconsideration, takes effect (less any amount paid to the worker
under subsection (15)
);
(b) in
the case of a resolution at the conciliation stage—any amount payable
under the terms of the relevant settlement;
(c) in
the case of a judicial determination or determination or on appeal—the
amount that, under the terms of the determination or according to the outcome
of the appeal, would have constituted the worker's entitlements under this Act
had the weekly payments not been discontinued or reduced (as the case may be),
taking into account any amount paid to the worker under a preceding paragraph,
under subsection (15)
, or under another provision of this Act, and subject to the specific terms of
any determination or order made as a result of the judicial determination or
appeal (as the case may be).
(5b) An amount paid
under subsection (5a)
will be taken to be an amount in arrears under section 47
(with interest payable subject to the operation of section 47(2)
).
(5c) If a dispute is
ultimately resolved in favour of the Corporation and the worker has been paid
an amount in excess of the amount of the worker's lawful entitlements to
weekly benefits on account of the operation of subsection (5a)(c)
or (15)
, the Corporation may, at the Corporation's discretion (but subject to the
regulations)—
(a)
recover the amount of the excess (together with any interest on that amount
paid by the Corporation) from the worker as a debt; or
(b) set
off the amount recoverable under paragraph (a)
against liabilities of the Corporation to make payments to the worker under
this Act.
(6) If the Corporation
makes a weekly payment to a worker on the assumption that the worker is
incapacitated for work but the worker has in fact returned to work, the
Corporation may, subject to the regulations, recover the amount of the payment
as a debt.
(7) If the Corporation
overpays a worker by way of weekly payments in consequence of—
(a) an
arithmetical or clerical error; or
(b) an
assumption, subsequently found to be incorrect, that a particular pattern of
overtime would have continued if the worker had continued in the work in which
he or she was last employed before becoming incapacitated,
the Corporation may, subject to and in accordance with the regulations,
recover the amount overpaid as a debt.
(8) An employer who
believes that reasonable grounds exist for the discontinuance or reduction of
weekly payments under this section to a worker employed by, or formerly
employed by, the employer may, in a manner determined by the Corporation,
request the Corporation to review the circumstances of the case and to
discontinue or reduce the weekly payments.
(9) The Corporation
must carry out the review as soon as practicable after receipt of the request
unless the request is, in the Corporation's opinion, unreasonable.
(10) If the
Corporation declines to carry out a review in pursuance of a request under subsection (8)
, or it appears that there has been undue delay in carrying out the review,
the Tribunal may, on application by the employer, direct the Corporation to
carry out the review, or give such directions as appear reasonable in the
circumstances to expedite the review (as the case may require).
(11) The Corporation
must comply, or take steps to ensure compliance, with such a direction.
(12) On completing the
review, the Corporation must give the employer notice in writing—
(a) of
the Corporation's decision on the review, and the reasons for its decision;
and
(b) of
the employer's right to have the Corporation's decision reviewed.
(13) This section does
not apply in relation to the discontinuance of payments pursuant to Division 4A
.
(14) In connection
with the operation of subsection (1)
(and to avoid doubt), a worker is required—
(a) to
take reasonable steps to attend any appointment reasonably required for the
purposes of this Division; and
(b) to
take reasonable steps to comply with any requirement reasonably required under
a rehabilitation program or a rehabilitation and return to work plan,
(and a failure to comply with these requirements constitutes a ground for the
discontinuance of payments under this section).
(15) Despite subsections (4)
and (5)
, if—
(a) a
worker who has—
(i)
received a notice of discontinuance of weekly payments
under this section; and
(ii)
lodged a notice of dispute under Part 6A
,
applies to the WorkCover Ombudsman for a review of the decision to discontinue
weekly payments; and
(b) on
the application for review it appears to the WorkCover Ombudsman that it was
not reasonably open to the Corporation to decide to discontinue the payments
having regard to the circumstances of the case,
the WorkCover Ombudsman may suspend the operation of the decision to
discontinue weekly payments.
(16) Weekly payments
reinstated under subsection (15)
will continue until—
(a) the
notice of dispute is withdrawn; or
(b) the
matter is resolved on reconsideration by the Corporation or at conciliation
(or otherwise between the parties); or
(c) the
Tribunal—
(i)
determines the matter in the exercise of its judicial
function; or
(ii)
pending its determination of the matter—orders that
the worker should no longer have the benefit of the weekly payments due to
some unreasonable act, omission or delay on the part of the worker in
connection with the proceedings.
(17) In connection
with the operation of subsection (15)
—
(a) the
WorkCover Ombudsman should seek to consider an application for review under subsection (15)(a)
as expeditiously as is reasonably practicable; and
(b) the
WorkCover Ombudsman has an absolute discretion as to whether or not the worker
or the Corporation will be heard on the review; and
(c) a
decision of the WorkCover Ombudsman on a review is not subject to appeal or
review under this or any other Act or law.