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This is a Bill, not an Act. For current law, see the Acts databases.


ACCIDENT COMPENSATION (FURTHER AMENDMENT) BILL 1996

Clause                                                               Page

 Accident Compensation (Further Amendment) Act
                     1996
                                  Act No.


                        TABLE OF PROVISIONS
Clause                                                               Page

PART 1--PRELIMINARY                                                        1
  1.     Purpose                                                           1
  2.     Commencement                                                      1

PART 2--ACCIDENT COMPENSATION ACT 1985                                     3
  3.     Principal Act                                                     3
  4.     Definitions                                                       3
  5.     Delegation                                                        3
  6.     Contributions by self-insurers                                    4
  7.     Costs                                                             4
  8.     Medical panels                                                    5
  9.     New section 91 inserted                                           5
         91.      Assessment of impairment                             5
  10.    Amendment of section 93B                                          6
  11.    Impairment                                                        6
  12.    Notional earnings                                                 7
  13.    Superannuation and termination payments                           8
  14.    New section 98B inserted                                          9
         98B. Payment of compensation                                  9
  15.    Compensation for medical and like services                    12
  16.    Amendment of section 99                                       13
  17.    New section 99AAA inserted                                    13
         99AAA. Co-ordinated care programs                            14
  18.    References to section 99AAA                                   19
  19.    Amendment of section 100                                      19
  20.    Amendment of section 104A                                     19
  21.    New division 10 inserted in Part IV                           19
         DIVISION 10--AGENCY ARRANGEMENTS                              20
         138A. Arrangements between authorised insurer and employer   20
  22.    Indemnity by third party                                      21
  23.    Approval as self-insurer                                      21
  24.    Approval of self-insurers                                     22
  25.    Penalties                                                     23
  26.    New Part VIIA inserted                                        24



                                     i
531080B.I1-13/11/96                          BILL LA INTRODUCTION 13/11/96

 


 

Clause Page PART VIIA--PROHIBITED CONDUCT RELATING TO TOUTING FOR CLAIMS 24 179. Definitions 24 180. Prohibited conduct by agents 25 181. Offence of engaging in prohibited conduct 27 182. Consequences of prohibited conduct for recovery of fees by agents 27 183. Consequences of prohibited conduct for legal practitioners 28 184. Legal practitioner and agents can be requested to certify as to prohibited conduct 30 185. Power to restrict or ban recovery of costs by agents who engage in prohibited conduct 31 186. Power to restrict or ban agents who engage in prohibited conduct 32 187. Past conduct included in assessing persistent conduct 34 188. Duty of claimants to comply with requests for information about agents and legal practitioners 34 27. Warrants to enter search 34 28. Secrecy 35 29. Institution of prosecutions 35 30. Supreme Court-limitation of jurisdiction 35 PART 3--AMENDMENT OF OTHER ACTS 36 31. Section 18 substituted 36 18. Estimate of rateable remuneration 36 32. Amendment of Accident Compensation (WorkCover Insurance) Act 1993 37 22A. Reduction of premium where Division 10 agreement entered into 37 33. Accident Compensation (Occupational Health and Safety) Act 1996 37 34. Amendment of Transport Accident Act 1986 38 35. New section 46B 39 46B. Assessment of impairment 39 NOTES 39 ii 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

s. 2 A BILL to make further amendments to the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 1993 and certain other Acts and for other purposes. Accident Compensation (Further Amendment) Act 1996 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purpose The purpose of this Act is to amend the Accident Compensation Act 1985 and the Accident Compensation (WorkCover Insurance) Act 5 1993. 2. Commencement 1 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 Act No. (1) This Part and sections 3, 4(2), 5, 7, 8, 13, 16, 20, 22, 24, 27 and 31 come into operation on the day on which this Act receives the Royal Assent. (2) Section 33 is deemed to have come into operation on 28 June 1996. 5 (3) Sections 9, 11, 30, and 35 come into operation on 14 November 1996. (4) Sections 21, 23, 25 and 32 come into operation on a day or days to be proclaimed. (5) Subject to sub-section (5), the remaining 10 provisions of this Act come into operation on a day or days to be proclaimed. (6) If a provision referred to in sub-section (5) does not come into operation before 1 July 1997, it comes into operation on that day. 15 _______________ 2 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 3 Act No. PART 2--ACCIDENT COMPENSATION ACT 1985 3. Principal Act No. 10191. In this Part, the Accident Compensation Act Reprinted to 1985 is called the Principal Act. No. 42/1995 and subsequently amended by Nos 85/1995, 98/1995, 100/1995, 4. Definitions 5 7/1996 and 13/1996. (1) In section 5(1) of the Principal Act, after paragraph (f) of the definition of "medical question" insert-- "(g) a question whether a proposal under section 99AAA for a co-ordinated care program, or 10 an alteration of such a program should be approved or such a program should be cancelled.". (2) In section 5(1) of the Principal Act, in the definition of "notional earnings", after "whichever 15 is the greater" insert "but does not include an amount paid to the worker by the Authority in respect of an employment programme provided or arranged by the Authority for the purposes of this Act". 20 5. Delegation In section 21(10) of the Principal Act, after "other than" insert "a Director of the Board appointed under section 25 or 26 or". 25 3 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 6 Act No. 6. Contributions by self-insurers In section 33A(7) of the Principal Act, for "32(4)(c), (d) or (fa)" substitute "32(4)(d), (e), (f), (fa) or (i)". 7. Costs 5 (1) In section 50 of the Principal Act-- (a) in sub-section (2A), omit "Notwithstanding anything to the contrary in any court rules,"; (b) in sub-section (3), omit "Despite anything to the contrary in any other Act or law,". 10 (2) In section 50(4) of the Principal Act, for ", sub- sections (5) and (6) apply in respect of that settlement or compromise" substitute-- "(a) sub-sections (5) and (6) apply in respect of that settlement or compromise; and 15 (b) whether or not an agreement referred to in sub-section (5) is entered into, the worker or claimant or his or her legal practitioner is not entitled to receive either directly or indirectly from the other party to the 20 proceedings an amount for or in respect of the legal practitioner appearing for or acting on behalf of the worker or claimant in the proceedings that exceeds the amount the worker or claimant or legal practitioner 25 could have been awarded if the scale of costs applicable in the Magistrates' Court applied.". (3) After section 50(6) of the Principal Act insert-- "(7) This section has effect despite anything to 30 the contrary in any other Act or law.". (4) Section 50(4) of the Accident Compensation Act 1985 as amended by this section applies in respect 4 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 8 Act No. of a settlement or compromise made on or after the commencement of this section. 8. Medical panels In section 63(5) of the Principal Act, after "examine a worker" insert "(otherwise than in his 5 or her capacity as a member of a Medical Panel)". 9. New section 91 inserted After section 90 of the Principal Act insert-- "91. Assessment of impairment (1) In this Part, a reference to the assessment of 10 a degree of impairment in accordance with this section is a reference to an assessment-- (a) made in accordance with-- (i) unless regulations referred to in sub-paragraph (ii) are in force, the 15 American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition); or (ii) methods prescribed for the 20 purposes of this section-- and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and 25 (b) if the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who has successfully completed such a training course. 30 (2) In assessing a degree of impairment under sub-section (1), regard must not be had to any psychiatric or psychological injury, 5 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 10 Act No. impairment or symptoms arising as a consequence of, or secondary to, a physical injury.". 10. Amendment of section 93B (1) In section 93B(1) of the Principal Act, for 5 paragraph (a) substitute-- "(a) if the worker has a serious injury, the rate of-- (i) the difference between 90 per cent of the worker's pre-injury average weekly 10 earnings and 90 per cent. of the worker's notional earnings; or (ii) the difference between $664 and 90 per cent. of the worker's notional earnings-- 15 whichever is the lesser;". (2) In section 93B(2) of the Principal Act-- (a) paragraph (a) is repealed; (b) in paragraph (b), for "sub-section (1)(b)" substitute "sub-section (1)(a) or (b)". 20 11. Impairment (1) In section 93B of the Principal Act, for sub- section (5) substitute-- '(5) In this section-- "serious injury", in relation to a worker, 25 means an injury which entitles the worker to compensation under this Act and in respect of which the worker's degree of impairment, if assessed by the Authority, authorised insurer or 30 self-insurer in accordance with section 91, would be 30 per cent or more.'. 6 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 12 Act No. (2) In the Table to section 98(1) of the Principal Act, for paragraph (e) substitute-- "(e) the degree of impairment in the case of injuries to the back, neck or pelvis is to be assessed in accordance with section 91.". 5 (3) In section 135A(3) of the Principal Act, for "the American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition or any subsequent prescribed edition)" substitute "section 91". 10 (4) Section 98 of the Principal Act, as amended by sub-section (2), applies in respect of a claim for compensation under that section made on or after the commencement of that sub-section. (5) Section 135A of the Principal Act, as amended by 15 sub-section (3), applies in respect of proceedings brought on or after the commencement of that sub-section. 12. Notional earnings (1) In section 93DA of the Principal Act, before "For 20 the purposes of" insert "(1)". (2) At the end of section 93DA of the Principal Act insert-- '(2) For the purposes of assessing the notional earnings of a worker who has a serious 25 injury, in the calculation of that worker's weekly payments any notional earnings of the worker within the meaning of paragraph (b) of the definition of "notional earnings" in section 5(1) are not to be taken into account 30 during any period or periods during which the worker is incapacitated for work and in which any of the following circumstances apply-- 7 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 13 Act No. (a) the employer has failed to provide the worker with suitable employment and the worker is complying with the requirements of section 93B relating to returning to work in suitable 5 employment; (b) the worker is participating in an occupational rehabilitation service or return to work plan.'. 13. Superannuation and termination payments 10 (1) In section 96 of the Principal Act, for sub-section (1) substitute-- "(1) The amount of any weekly payment payable to a worker under this Part must be reduced by the weekly amount of-- 15 (a) any disability, retirement or superannuation pension received by the worker; and (b) any redundancy or severance payment received by the worker-- 20 which relates to the worker's retirement from, or the cessation or termination of, the employment out of, or in the course of which, or due to the nature of which, the injury arose.". 25 (2) In section 96(2) of the Principal Act, for paragraphs (a) and (b) substitute-- "(a) receives a lump sum amount on termination, by reason of redundancy or severance, of the employment out of, or in the course of 30 which, or due to the nature of which, the injury arose; or (b) receives a superannuation or retirement benefit lump sum amount-- 8 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 14 Act No. (i) that relates to the worker's retirement from, or the cessation or termination of, the employment out of, or in the course of which, or due to the nature of which, the injury arose; and 5 (ii) that is an eligible termination payment for the purposes of the Income Tax Assessment Act 1936 of the Commonwealth-- which has not been deposited with a 10 complying superannuation fund or a complying approved deposit fund or used to purchase an eligible annuity within the meaning of section 27A(1) of that Act; or". (3) Section 96(1) and (2) of the Principal Act as in 15 force after the commencement of this section applies to and in respect of all weekly payments payable to a worker on or after the commencement of this section. 14. New section 98B inserted 20 After section 98A of the Principal Act insert-- "98B. Payment of compensation (1) If an amount payable under section 98 in respect of an injury exceeds $5000, that amount, and any amount payable under 25 section 98A, must be paid by 60 equal instalments in accordance with this section. (2) The amount of each instalment is the amount calculated in accordance with the formula-- AxF 30 60 where-- (a) A is-- 9 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 14 Act No. (i) if amounts are payable under sections 98 and 98A, the sum of those amounts; or (ii) the amount payable under section 98 (if any); or 5 (iii) the amount payable under section 98A (if any)-- as the case requires. (b) F is 1.2 or such other number, being not less than 1, as is determined for the 10 time being by the Minister, by notice published in the Government Gazette, as the factor to be applied for the purposes of this section. (3) If the amount calculated under sub-section 15 (2) includes a fraction of a whole number, the amount shall be deemed to have been calculated in accordance with this section if the calculation is made-- (a) if the amount is less than $1000, to the 20 nearest whole $1; or (b) if the amount is $1000 or more, to the nearest whole $10. (4) In determining a factor for the purposes of sub-section (2), the Minister must have 25 regard to prevailing interest rates. (5) The payment of the first instalment of an amount payable by instalments in accordance with this section must be made within 14 days after the amounts payable 30 under sections 98 and 98A are determined or agreed and each subsequent instalment is payable on the first day of each following month and must be paid within 7 days. 10 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 14 Act No. (6) A payment of an instalment may be made by post by properly addressing, prepaying and posting to the worker a letter containing a cheque for the amount of the instalment. (7) A payment of an instalment made in 5 accordance with sub-section (6) is deemed to have been made when the letter was posted. (8) The liability to a worker is not satisfied until the worker receives the instalment. (9) If the Authority, employer, authorised 10 insurer or self-insurer fails to make a payment of an instalment before the end of the period within which it is required by this section to be made, the Authority, employer, authorised insurer or self-insurer must pay 15 the instalment together with interest calculated at the prescribed rate in respect of the period beginning when the instalment was first payable and ending on the day before the payment was made. 20 (10) If a worker dies before all instalments payable to the worker in accordance with this section have been paid, an amount equal to the sum of the outstanding instalments is payable on application by the personal 25 representative of the worker. (11) This section applies to the payment of amounts under sections 98 and 98A if the amount payable under section 98 is determined or agreed on or after the 30 commencement of this section, irrespective of when the injury occurred.". 11 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 15 Act No. 15. Compensation for medical and like services (1) In section 99 of the Principal Act, for sub-sections (2) and (2A) substitute-- '(2) In sub-section (1), "reasonable costs", in relation to a service, burial or cremation 5 means an amount-- (a) that is determined by the Authority, employer, authorised insurer or self- insurer as a reasonable amount in relation to that service, burial or 10 cremation; and (b) that does not exceed the amount (if any) specified in, or an amount determined in accordance with a method specified in, an Order of the 15 Governor in Council made on the recommendation of the Authority and published in the Government Gazette, as the maximum amount of costs payable in respect of a service of that 20 kind or a burial or cremation and which maximum amount in the case of a service must not be less than the amount of the fee specified in a Table within the meaning of the Health 25 Insurance Act 1973 of the Commonwealth applicable in respect of a service of that kind provided in Victoria; and (c) that is determined by the Authority, 30 employer, authorised insurer or self- insurer as a reasonable cost of the service, burial or cremation having regard to-- 12 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 16 Act No. (i) the service or provision actually rendered; and (ii) the necessity of the service or provision in the circumstances; and 5 (iii) any guidelines issued by the Authority in respect of services or provision of that kind. (2A) Guidelines issued by the Authority for the purposes of sub-section (2)(d) apply in 10 relation to the cost of a service provided or a burial or cremation carried out after the issue of the Guidelines, irrespective of the date of the injury.'. (2) Section 99 of the Principal Act as amended by this 15 section applies in respect of services provided and burials and cremations carried out on or after the commencement of this section. 16. Amendment of section 99 After section 99(3) of the Principal Act insert-- 20 "(3A) A worker shall be entitled to receive an occupational rehabilitation service referred to in sub-section (1)-- (a) if the Authority, employer, authorised insurer or self-insurer offers or provides 25 that service from a provider approved by the Authority, from that provider; or (b) if the Authority, employer, authorised insurer or self-insurer does not so offer or provide, from a provider approved 30 by the Authority of the worker's choice.". 17. New section 99AAA inserted After section 99 of the Principal Act insert-- 13 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 17 Act No. "99AAA. Co-ordinated care programs (1) The Authority, an authorised insurer or a self-insurer may, in accordance with guidelines issued by the Authority, by notice in writing given to a worker with an injury 5 which entitles the worker to compensation, require the worker to submit a proposal in writing for a co-ordinated care program to the Authority, authorised insurer or self- insurer within a period specified in the notice 10 but not less than 28 days after the notice was given. (2) The proposal under sub-section (1)-- (a) must be prepared by a medical practitioner nominated by the worker; 15 (b) must specify the medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services that the medical practitioner considers are required by 20 the worker because of the injury; (c) must specify such details as the Authority, authorised insurer or self- insurer requests of the type and extent of those services, or frequency of their 25 provision, or as are necessary to define the proposal; (d) may, subject to section 99(3A)(a), specify the provider or providers who are to provide those services. 30 (3) If a worker does not comply with a requirement under sub-sections (1) and (2), the Authority, authorised insurer or self- insurer may appoint a medical practitioner to 14 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 17 Act No. prepare a proposal in writing for a co-ordinated care program which-- (a) specifies the medical, hospital, nursing, personal and household, occupational rehabilitation and ambulance services 5 that the medical practitioner considers are required by the worker because of the injury; and (b) specifies such details as the Authority, authorised insurer or self-insurer 10 requests of the type and extent of those services, or frequency of their provision, or as are necessary to define the proposal; (c) if the medical practitioner so 15 determines, may, subject to section 99(3A)(a), specify the provider or providers who are to provide those services. (4) A proposal under sub-section (3) must be 20 submitted by the medical practitioner to the Authority, authorised insurer or self-insurer within the period specified by the Authority or self-insurer when the medical practitioner was appointed. 25 (5) For the purposes of preparing a proposal under sub-section (3), the medical practitioner-- (a) may require the worker to submit to examinations by the medical 30 practitioner; and (b) may require the worker and any provider of a medical, hospital, nursing, personal and household or occupational rehabilitation service to the worker to 35 15 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 Act No. provide to the medical practitioner relevant information and documents. 16 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 17 Act No. (6) If-- (a) a worker unreasonably fails to submit to, or unreasonably obstructs, an examination by a medical practitioner appointed under sub-section (3); or 5 (b) a worker or provider of a service unreasonably fails to comply with a requirement of such a medical practitioner under sub-section (5)(b)-- the Authority, employer, authorised insurer 10 or self-insurer is not liable to pay compensation under section 99 in respect of services received by the worker because of the relevant injury, being services provided after the failure or obstruction and before the 15 examination takes place or after the making of the requirement and before it is met. (7) The Authority, authorised insurer or self- insurer must determine whether to approve, or refuse to approve, a proposal for a co- 20 ordinated care program submitted under this section and must give notice in writing to the worker of its determination. (8) The Authority, authorised insurer or self- insurer must not make a determination under 25 sub-section (7) to refuse to approve a proposal under sub-section (1) unless-- (a) the Authority, authorised insurer or self-insurer has referred the proposal to a medical practitioner (other than the 30 medical practitioner who prepared the proposal or a medical practitioner who is employed by the Authority, authorised insurer or self-insurer (as the case requires)); and 35 17 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 17 Act No. (b) that medical practitioner, after consultation with the medical practitioner who prepared the proposal, has made a recommendation that a determination should be made to refuse 5 to approve the proposal. (9) If the Authority, authorised insurer or self- insurer refuses to approve a proposal under sub-section (1), the Authority, employer, authorised insurer or self-insurer is not liable 10 to pay compensation under section 99 in respect of a service received by the worker because of the relevant injury, being a service provided after the refusal and, if a later proposal for a co-ordinated care 15 program for that worker in respect of that injury is approved, before that approval. (10) If the Authority, authorised insurer or self- insurer approves a proposal for a co-ordinated care program, the Authority, 20 employer, authorised insurer or self-insurer is not liable to pay compensation under section 99 in respect of a service provided to the worker on or after the date of that approval in respect of the injury (whether the 25 injury occurred before or after the commencement of section 17 of the Accident Compensation (Further Amendment) Act 1996) unless the service is provided in accordance with the program. 30 (11) The Authority, authorised insurer or self- insurer, on its own motion, or on the application of the worker-- (a) may approve an alteration of a co- ordinated care program approved under 35 this section if satisfied that the alteration is necessary to improve the 18 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 18 21 Act No. care and treatment provided to the worker by the services; (b) may cancel the co-ordinated care program if satisfied that services are no longer required to be provided to the 5 worker in respect of the injury in accordance with the program. (12) A co-ordinated care program under this section ceases to have effect at the end of the period for which it is approved or on 31 10 December 1998, whichever first occurs, unless it is sooner cancelled. (13) This section ceases to have effect on 1 January 1999.". 18. References to section 99AAA 15 In the Principal Act-- (a) in section 39(2)(a), after "99," insert "99AAA,"; (b) in section 41, after "99," insert "99AAA,"; (c) in section 99AA(1), after "99," insert 20 "99AAA,". 19. Amendment of section 100 After section 100(6)(d) of the Principal Act, insert-- "; or 25 (e) an amount of an instalment under section 98B.". 20. Amendment of section 104A In section 104A of the Principal Act, for "resolution of disputes in connection with" 30 substitute "determination of". 21. New division 10 inserted in Part IV 19 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 Act No. After section 138 of the Principal Act insert-- 'DIVISION 10--AGENCY ARRANGEMENTS 138A. Arrangements between authorised insurer and employer 5 (1) Subject to sub-section (2), an authorised insurer and an employer may, in accordance with any guidelines issued by the Authority, enter into an arrangement in writing under which the authorised insurer appoints the 10 employer as its agent in relation to the carrying out of specified functions and powers of the authorised insurer under the provisions of this Act referred to in sub- section (8). 15 (2) Sub-section (1) does not apply to an authorised insurer if the Authority, by notice in writing given to the authorised insurer, determines that the authorised insurer may not enter into arrangements under this 20 section. (3) A copy of an arrangement under sub-section (1) must be lodged with the Authority. (4) An arrangement under sub-section (1)-- (a) comes into force on the date specified 25 in it or on the day on which a copy of it is lodged with the Authority, whichever is the later; (b) continues in force until revoked by the parties or terminated under this section 30 by the Authority. (5) The Authority may, by notice in writing given to the authorised insurer and the employer-- 20 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 22 23 Act No. (a) vary; or (b) terminate-- an arrangement entered into under this section. (6) An arrangement in force under this section 5 has effect according to its tenor. (7) Nothing in this section, or in an arrangement under this section, affects the liability of an authorised insurer or employer under this Act or the Accident Compensation 10 (WorkCover Insurance) Act 1993. (8) For the purposes of sub-section (1), the provisions of this Act are-- (a) the definitions of "medical service" and "notional earnings" in section 5(1); 15 (b) sections 9 and 10; (c) this Part, other than this Division and sections 106, 108, 114D, 114F, 123, 127, 128(2), Divisions 6A and 6B, sections 134, 135A, 135B and 138.'. 20 22. Indemnity by third party In section 138(3)(b) of the Principal Act-- (a) for the formula substitute-- X "[A - (B + C)] x "; 100 (b) after "the amount of damages" insert 25 "(disregarding the extent, if any, whereby any other person's act, default or negligence caused or contributed to the injury or death)". 23. Approval as self-insurer 30 21 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 Act No. (1) In section 141 of the Principal Act, for sub-section (2) substitute-- "(2) A body corporate shall not make an application under sub-section (1) unless it satisfies the prescribed minimum 5 requirements as to financial strength and viability.". (2) In the Principal Act-- (a) sub-sections (4) and (5) of section 141 are repealed; 10 (b) sub-section (2) of section 141A is repealed. (3) After section 142B(3) of the Principal Act insert-- "(3A) A partnership must not make an application under sub-section (3) unless it satisfies the 15 prescribed minimum requirements as to financial strength and viability.". (4) Sub-sections (4) and (6) of section 142B of the Principal Act are repealed. 24. Approval of self-insurers 20 (1) In the Principal Act-- (a) in section 142(1), for "the Minister may, on the recommendation of the Authority" substitute "the Authority may"; (b) in section 142A(1), for "the Minister may, on 25 the recommendation of the Authority" substitute "the Authority may"; (c) in section 142C(1), for "the Minister may, on the recommendation of the Authority" substitute "the Authority may"; 30 22 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 25 Act No. (d) in section 144-- (i) for "Minister" substitute "Authority"; (ii) for "recommend that the Minister refuse" substitute "refuse"; (e) in section 148(4), for "Minister may, on the 5 recommendation of the Authority, by Order" substitute "Authority may"; (f) in section 148(5) for "Minister" substitute "Authority"; (g) in section 149(1), for "Minister may, on the 10 recommendation of the Authority, by Order" substitute "Authority may"; (h) in section 149(2), for "Minister" substitute "Authority"; (i) in section 151(2) and (3)(b), for "Minister" 15 substitute "Authority". (2) The Principal Act, as amended by this section, applies in respect of all approvals, refusals and revocations made on or after the commencement of this section. 20 25. Penalties In the Principal Act-- (a) in the penalty at the foot of section 155(1), for "10" substitute "100"; (b) in the penalty at the foot of section 242A, for 25 "10" substitute "100"; (c) in the penalty at the foot of section 243(1), for "10" substitute "100"; (d) in the penalty at the foot of section 244(1), for "10" substitute "100". 30 23 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. 26. New Part VIIA inserted After section 164 of the Principal Act insert-- 'PART VIIA--PROHIBITED CONDUCT RELATING TO TOUTING FOR CLAIMS 179. Definitions 5 (1) In this Part-- "agent" means a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not 10 (unless the regulations otherwise provide) include a legal practitioner; "claim" means a claim for compensation under this Act; "prohibited conduct" has the same 15 meaning as in section 180; "protected claim" means-- (a) a claim under section 98 for loss of hearing; and (b) any other claim that is declared by 20 the regulations to be a protected claim for the purposes of this section. (2) Each of the following activities is considered to constitute acting as agent for a person in 25 connection with a claim-- (a) advising the person with respect to the making of a claim; (b) assisting the person to complete or prepare, or completing or preparing on 30 behalf of the person, any form, 24 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. correspondence or other document concerning a claim; (c) making arrangements for any test or medical examination or medical certificate to determine the person's 5 entitlement to compensation; (d) arranging referral of the person to a legal practitioner for the performance of legal work in connection with a claim; 10 (e) any prescribed activity. (3) The regulations may provide that persons who engage in specified activities are not to be regarded as agents for the purposes of this Part. 15 180. Prohibited conduct by agents (1) The following conduct by an agent is prohibited conduct for the purposes of this Part-- (a) making a statement to a person, 20 knowing that the statement is false or misleading in a material particular, for the purpose of encouraging the person or any other person to make a protected claim and to use (in connection with the 25 protected claim) the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim; (b) using information obtained by the agent 30 in connection with a claim to contact any other person for the purpose of encouraging that other person to make a protected claim and to use (in connection with the protected claim) 35 25 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. the services of the agent or of some other person from whom the agent receives any payment in connection with the protected claim; (c) seeking to obtain information from a 5 client of the agent for the purpose of using that information as described in paragraph (b); (d) inducing or attempting to induce a client of the agent to encourage any 10 other person to make a claim (whether or not it is a protected claim) and to use (in connection with the claim) the services of the agent or of some other person from whom the agent receives 15 any payment in connection with the claim; (e) making any unsolicited contact by telephone, personal approach or other prescribed means with a person who is 20 not a client of the agent, for the purpose of encouraging the person to make a protected claim and to use (in connection with the protected claim) the services of the agent or of some 25 other person from whom the agent receives any payment in connection with the protected claim; (f) such other conduct as is prescribed by the regulations as prohibited conduct 30 for the purposes of this section. (2) The regulations may specify circumstances in which conduct that would otherwise be prohibited conduct under sub-section (1) is not to be regarded as prohibited conduct for 35 the purposes of this Part. 26 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. (3) For the purposes of this Part any conduct engaged in by a person on behalf of an agent, or that an agent has caused or procured the person to engage in, is taken to have been engaged in by the agent. 5 181. Offence of engaging in prohibited conduct An agent must not engage in prohibited conduct. Penalty: For a first offence, 20 penalty units. 10 For a second or subsequent offence, 50 penalty units. 182. Consequences of prohibited conduct for recovery of fees by agents (1) An agent is not entitled to recover from a 15 person any fees, costs or other charges that would otherwise be payable by the person in connection with services made use of by the person if the services were made use of as a result of prohibited conduct engaged in by 20 the agent, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct. (2) If prohibited conduct engaged in by an agent 25 involved encouraging a person to make use of services and the person makes use of those services after the conduct is engaged in, it is to be presumed for the purposes of this section that the services were made use 30 of as a result of that prohibited conduct, unless the agent concerned establishes otherwise. (3) If the services of an agent were made use of as a result of prohibited conduct engaged in 35 27 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. by the agent in connection with a claim under section 98 for loss of hearing, it is to be presumed for the purposes of this section that any services of the agent made use of in connection with a subsequent claim for 5 further loss of hearing made by the same worker (whether or not made against the same employer) were made use of as a result of prohibited conduct engaged in by the agent, unless the agent concerned establishes 10 otherwise. (4) A person who has paid any amount in respect of fees, costs or other charges to an agent that the agent would not have been entitled to recover because of this section is 15 entitled to recover the amount from the agent as a debt in a court of competent jurisdiction. 183. Consequences of prohibited conduct for legal practitioners (1) A legal practitioner who acts for a person on 20 a claim must not include in any bill given to the person, and must not otherwise seek to recover from the person, any amount by way of disbursements for fees paid to an agent in connection with referral of the person to the 25 legal practitioner by the agent if the legal practitioner knows or has reasonable cause to suspect that the agent engaged in prohibited conduct that involved encouraging the person to make the claim, regardless of 30 whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct. Penalty: For a first offence, 20 penalty units. 35 For a second or subsequent offence, 50 penalty units. 28 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. (2) A legal practitioner who acts for a person on a claim is not entitled to recover from any person any amount by way of disbursements for fees paid to an agent in connection with the claim if the claim was made as a result of 5 prohibited conduct engaged in by the agent, regardless of whether the agent has been proceeded against or convicted for an offence in respect of that prohibited conduct. (3) If prohibited conduct engaged in by an agent 10 involved encouraging a person to make a claim and the person makes a claim after the conduct is engaged in, it is to be presumed for the purposes of sub-section (2) that the claim was made as a result of that prohibited 15 conduct unless the legal practitioner establishes otherwise. (4) If a claim under section 98 for loss of hearing was made as a result of prohibited conduct engaged in by an agent, it is to be 20 presumed for the purposes of sub-section (2) that any subsequent claim for further loss of hearing made by the same worker (whether or not made against the same employer) in connection with which that agent performed 25 any service was made as a result of prohibited conduct engaged in by that agent, unless the legal practitioner concerned establishes otherwise. (5) A person who has paid any amount in 30 respect of disbursements to a legal practitioner that the legal practitioner would not have been entitled to recover because of sub-section (2) is entitled to recover the amount from the legal practitioner as a debt 35 in a court of competent jurisdiction. 29 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. 184. Legal practitioner and agents can be requested to certify as to prohibited conduct (1) If the Authority, an authorised insurer, employer or self-insurer is liable to pay a legal practitioner or agent any fees, costs or 5 other charges incurred in connection with a protected claim made by a person, the Authority, authorised insurer, employer or self-insurer is entitled to request (in writing) the legal practitioner or agent to provide a 10 certificate under this section about the claim (unless the legal practitioner or agent has already provided it). (2) A certificate under this section is a certificate that to the best of the legal practitioner's or 15 agent's knowledge, no agent has engaged in prohibited conduct that involved encouraging that person to make the claim or any previous claim, except as may be disclosed in the certificate. 20 (3) If a certificate is requested-- (a) the legal practitioner or agent is not entitled to be paid by or recover from the Authority, employer, authorised insurer or self-insurer any fees, costs or 25 other charges incurred in connection with the claim concerned until the certificate is provided (even if the fees, costs or other charges are payable under an award or order of a court); and 30 (b) no interest that might otherwise be payable on those fees, costs or other charges is payable for the period from when the certificate is requested until it is provided (despite any order or award 35 30 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. of a court for the payment of that interest). (4) A legal practitioner or agent can provide the Authority, an authorised insurer, employer or self-insurer with a certificate under this 5 section even if the Authority, authorised insurer or self-insurer has not requested it. (5) A legal practitioner or agent who gives a certificate under this section about a claim made by a person is guilty of an offence if 10 the legal practitioner or agent-- (a) knew or had reasonable cause to suspect that an agent had engaged in prohibited conduct that involved encouraging the person to make the 15 claim; and (b) did not disclose that fact in the certificate. Penalty applying to this sub-section: For a first offence, 20 penalty units. 20 For a second or subsequent offence, 50 penalty units. 185. Power to restrict or ban recovery of costs by agents who engage in prohibited conduct (1) The Authority may by notification given to 25 authorised insurers and self-insurers direct that an agent specified in the notification is not entitled to recover any fees, costs or other charges in connection with any claims or in connection with a class of claims 30 specified in the notification, or is not so entitled unless specified conditions have been complied with. (2) Such a notification cannot be given unless the Authority is satisfied that-- 35 31 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. (a) the agent has persistently engaged in conduct that constitutes or may constitute a contravention of section 181; or (b) in the case of an agent that is a 5 corporation, a director of the corporation or other person concerned in the management of the corporation has persistently engaged in any such conduct. 10 (3) Before the Authority gives such a notification, it must give the agent a reasonable opportunity to make written submissions to the Authority on the matter. (4) The effect of a notification under this section 15 is that the agent specified in the notification is not entitled to recover fees, costs or other charges (as provided by the notification) in respect of services performed while the notification is in force. 20 (5) An agent aggrieved by a notification under this section may apply to the Administrative Appeals Tribunal for review of the decision to give the notification. (6) A notification remains in force until it is 25 withdrawn and may be withdrawn at any time by the Authority by giving notice of withdrawal in writing to authorised insurers and self-insurers and to the agent to whom it applies. 30 186. Power to restrict or ban agents who engage in prohibited conduct (1) The Authority may by direction in writing given to an agent prohibit either absolutely or in specified circumstances the agent from 35 32 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 26 Act No. acting for any person in connection with any claims or in connection with specified types of claims. (2) Such a direction must not be given unless-- (a) the Authority is satisfied that the agent 5 concerned has persistently engaged in conduct that constitutes or may constitute a contravention of section 181(5) and as a result is not a fit and proper person to act in connection with 10 claims to which the direction relates; and (b) the Authority has given the agent a reasonable opportunity to make written submission to the Authority on the 15 matter. (3) An agent must not act in contravention of a direction given under this section. Penalty: 200 penalty units. (4) An agent who acts in contravention of a 20 direction given under this section is not entitled to recover any fees, costs or other charges from a person for anything done by the agent in contravention of the direction. (5) A person aggrieved by a direction under this 25 section may apply to the Administrative Appeals Tribunal for review of the decision to give the direction. (6) A direction remains in force until it is withdrawn and may be withdrawn at any 30 time by the Authority by giving written notice of withdrawal to the agent concerned. 33 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 27 Act No. 187. Past conduct included in assessing persistent conduct (1) A reference in sections 185 and 186 to conduct that constitutes or may constitute a contravention of section 181 includes a 5 reference to conduct engaged in by a person before the commencement of section 26 of the Accident Compensation (Further Amendment) Act 1996 that, if engaged in after that commencement, would have 10 constituted a contravention of the provision. (2) A person cannot be considered to have persistently engaged in conduct that constitutes or may constitute a contravention of section 181 unless at least one instance of 15 that conduct occurred after the commencement of this section. 188. Duty of claimants to comply with requests for information about agents and legal practitioners 20 (1) A person who makes a protected claim must comply with a request from the Authority, authorised insurer or self-insurer concerned for information as to whether the person made use of the services of an agent or legal 25 practitioner in respect of the claim and how the person came to make use of those services. (2) The regulations may make provision for limiting the operation of this section with 30 respect to legal practitioners.'. 27. Warrants to enter search In section 240A(1) of the Principal Act, for "are being contravened" substitute "are being or have been contravened". 35 34 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 28 Act No. 28. Secrecy After section 243(2)(aa) of the Principal Act insert-- "(ab) producing a document or divulging information to a medical practitioner 5 nominated or appointed under section 99AAA to prepare a proposal for a co- ordinated care program;". 29. Institution of prosecutions After section 252(1)(d) of the Principal Act 10 insert-- "(da) any provision of Part VIIA may be filed in the name of the Authority by the Authority or a person authorised by the Authority to file charges on behalf of the Authority;". 15 30. Supreme Court-limitation of jurisdiction (1) In section 63(1)(d) of the Accident Compensation (WorkCover) Act 1992 after "1996" insert "and as amended by section 11 of the Accident Compensation (Further 20 Amendment) Act 1996". (2) In section 85(9) of the Constitution Act 1975 after "1996" insert "and as amended by section 30 of the Accident Compensation (Further Amendment) Act 1996". 25 _______________ 35 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 31 Act No. PART 3--AMENDMENT OF OTHER ACTS 31. Section 18 substituted For section 18 of the Accident Compensation (WorkCover Insurance) Act 1993 substitute-- "18. Estimate of rateable remuneration 5 (1) If-- (a) an employer receives a notice from an authorised insurer with which the employer holds, or to which the employer has applied for the issue of, a 10 WorkCover insurance policy; and (b) the notice includes an estimate of rateable remuneration that the employer will be liable to pay to workers during the period not exceeding 12 months 15 specified in the notice-- the estimate is deemed for the purposes of this Act to be the estimate provided by the employer unless the employer, within 28 days after receiving the notice, or such 20 longer period as may be specified in the notice, provides to the authorised insurer another estimate of rateable remuneration in a form approved by the Authority which the employer estimates that the employer will be 25 liable to pay to workers during the period referred to in paragraph (b). (2) If-- (a) an employer receives a notice from an authorised insurer with which the 30 employer holds, or to which the employer has applied for the issue of, a WorkCover insurance policy; and 36 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 32 Act No. (b) the notice does not include an estimate of rateable remuneration referred to in sub-section (1)(b)-- the employer must, within 28 days after receiving the notice, or such longer period as 5 is specified in the notice, provide to the authorised insurer an estimate of rateable remuneration in a form approved by the Authority which the employer estimates that the employer will be liable to pay to workers 10 during the period not exceeding 12 months specified in the notice. Penalty: 20 penalty units.". 32. Amendment of Accident Compensation (WorkCover Insurance) Act 1993 15 After section 22 of the Accident Compensation (WorkCover Insurance) Act 1993 insert-- "22A. Reduction of premium where Division 10 agreement entered into If an arrangement under Division 10 of Part 20 IV of the Accident Compensation Act 1985 is in force between an authorised insurer and an employer, the authorised insurer may, in accordance with guidelines issued by the Authority, reduce the premium payable by 25 the employer for a WorkCover insurance policy by an amount not exceeding the amount, or an amount calculated by a method, determined by the Authority.". 33. Accident Compensation (Occupational Health and 30 Safety) Act 1996 After section 2(3) of the Accident Compensation (Occupational Health and Safety) Act 1996 insert-- 37 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 34 Act No. "(4) The day fixed by proclamation for the commencement of the remaining provisions of this Act is 2 July 1996.". 34. Amendment of Transport Accident Act 1986 In section 3(1) of the Transport Accident Act 5 1986, for the definition of "reasonable" substitute-- ' "reasonable", in respect of costs, expenses or fees of a service or provision means reasonable having regard to-- 10 (a) costs, expenses or fees determined by the Commission as a reasonable amount in relation to that service or provision; and (b) the amount (if any) specified in, or an 15 amount determined in accordance with a method specified in, an Order of the Governor in Council made on the recommendation of the Commission and published in the Government 20 Gazette, as the maximum amount of costs, expenses or fees payable in respect of that service or provision, which maximum amount must not be less than the amount of the fee 25 specified in a Table within the meaning of the Health Insurance Act 1973 of the Commonwealth applicable in respect of a service or provision of that kind provided in Victoria; and 30 (c) the determination by the Commission of reasonable costs or expenses of, or fees for, the service or provision having regard to-- 38 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 s. 35 Act No. (i) the service or provision actually rendered; and (ii) the necessity of the service or provision, or of the incurring of the expense, in the 5 circumstances.'. 35. New section 46B After section 46A of the Transport Accident Act 1986 insert-- "46B. Assessment of impairment 10 (1) In determining a degree of impairment of a person, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical 15 injury. (2) Sub-section (1) applies to a determination of a degree of impairment under this Act made on or after the commencement of section 35 of the Accident Compensation (Further 20 Amendment) Act 1996, other than a determination made by the Administrative Appeals Tribunal in respect of an application for review under section 77 of this Act made before that commencement.". 25 39 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

Accident Compensation (Further Amendment) Act 1996 Notes Act No. NOTES By Authority. Government Printer for the State of Victoria. 40 531080B.I1-13/11/96 BILL LA INTRODUCTION 13/11/96

 


 

 


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