Victorian Current Acts Victorian Current ActsS. 98C(1A) inserted by No. 9/2010 s. 54(1).
(1A) In this section—
S. 98C(1A) def. of relevant date inserted by No. 80/2010 s. 90(1).
"relevant date", in relation to the calculation of the amount of non-economic loss under subsection (2), (3) or (3A) means—
(a) if the worker's impairment benefit rating is not more than 70%, the date of the relevant injury;
(b) if the worker's impairment benefit rating is more than 70%, the date on which the calculation is made;
"spinal impairment" means a whole person impairment derived solely in accordance with section 3.3 of Chapter 3 of the A.M.A. Guides, without inclusion of any other impairment.
(1) A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
S. 98C(2) amended by No. 26/2000 s. 15(1), substituted by No. 95/2003 s. 8(1), amended by No. 102/2004 ss 18(1), 38(1)(q)–(y), substituted by No. 9/2010 s. 54(2) (as amended by No. 80/2010 s. 159(j)), amended by No. 80/2010 s. 90(2)(a).
(2) The amount of the non-economic loss in respect of permanent impairment (other than psychiatric impairment and industrial deafness in respect of a further injury) is to be calculated as at the relevant date as follows—
(a) if the worker's impairment benefit rating is less than 10%—the amount of the non-economic loss is zero;
(b) subject to section 265, if the worker's impairment benefit rating—
S. 98C(2)(b)(i) amended by Nos 80/2010 s. 82(x), 67/2013 s. 632(y).
(i) is a modified whole person impairment (within the meaning of subsection (2A)(a)(i)) and is not less than 10% and less than 11%—the amount of the non-economic loss is to be determined in accordance with the formula—
$11 670 + [(D – 10) × $9940];
S. 98C(2)(b)(ii) amended by Nos 80/2010 s. 82(x), 67/2013 s. 632(y).
(ii) is a modified spinal impairment (within the meaning of subsection (2A)(a)(ii)) and is not less than 10% and less than 11%—the amount of the non-economic loss is to be determined in accordance with the formula—
{$11 670 + [(D – 10) × $9940]} × 1·1;
(c) if the worker's impairment benefit rating—
S. 98C(2)(c)(i) amended by Nos 80/2010 s. 82(y), 67/2013 s. 632(z).
(i) is not less than 10% and not more than 30% and paragraph (b) does not apply to the worker—the amount of the non‑economic loss is to be determined in accordance with the formula—
$18 810 + [(D – 10) × $2830];
(ii) is a spinal impairment (within the meaning of subsection (2A)(a)(ii) or (iii)) and is not less than 10% and less than 30% and paragraph (b) does not apply to the worker—the amount of the non-economic loss is—
S. 98C(2)
(c)(ii)(A) amended by Nos 80/2010 s. 82(z),
67/2013 s. 632(za).
(A) the amount determined in accordance with the formula—
{$18 810 + [(D – 10) × $2830]} × 1·1; or
S. 98C(2)
(c)(ii)(B) amended by Nos 80/2010 s. 60(1), 67/2013
s. 632(za).
(B) the amount determined in accordance with the formula $18 810 + [20 × $2830]—
whichever is the lesser;
S. 98C(2)(d) amended by Nos 80/2010 s. 82(za), 67/2013 s. 632(zb).
(d) if the worker's impairment benefit rating is more than 30% and not more than 70%—the amount of the non-economic loss is to be determined in accordance with the formula—
$75 260 + [(D – 30) × $4700];
(e) if the worker's impairment benefit rating is more than 70% and not more than 80%—the amount of the non-economic loss is—
S. 98C(2)(e)(i) amended by Nos 80/2010 s. 82(zb), 67/2013 s. 632(zc).
(i) the amount determined in accordance with the formula—
$262 070 + [(D – 70) × $29 330]; or
S. 98C(2)(e)(ii) amended by Nos 80/2010 s. 82(zc), 67/2013 s. 632(zd).
(ii) $555 350—
whichever is the lesser;
S. 98C(2)(f) amended by Nos 80/2010 s. 82(zc), 67/2013 s. 632(zd).
(f) if the worker's impairment benefit rating is more than 80%—the amount of the non‑economic loss is $555 350—
where D is the worker's impairment benefit rating expressed as a number.
S. 98C(2A) inserted by No. 95/2003 s. 8(1), substituted by No. 9/2010 s. 54(2), amended by No. 80/2010 s. 90(2)(b).
(2A) For the purposes of this section, a worker's impairment benefit rating is—
(a) if the worker's degree of impairment consists of, or includes, a whole person impairment assessed in accordance with Chapter 3 of the A.M.A. Guides and that whole person impairment is not less than 5% and not more than 29%—
(i) subject to section 265, the modified whole person impairment set out in column 2 of Schedule 2 opposite the relevant whole person impairment as assessed in accordance with Chapter 3;
(ii) subject to section 265, the modified whole person impairment set out in column 2 of Schedule 2 opposite the relevant whole person impairment as assessed in accordance with Chapter 3 for a spinal impairment;
(iii) if subparagraph (ii) does not apply, the worker's degree of impairment as assessed in accordance with Chapter 3 for a spinal impairment;
(iv) the worker's degree of impairment—
whichever provides the worker with the higher amount for non-economic loss under subsection (2);
(b) in any other case, the worker's degree of impairment.
Note
Subsections (2)(b) and (2A)(a)(i) and (ii) do not apply with respect to injuries that occurred before the date of commencement of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 —see section 265.
S. 98C(3) amended by No. 26/2000 s. 15(2), substituted by No. 95/2003 s. 8(1), amended by No. 80/2010 s. 90(2)(c).
(3) The amount of the non-economic loss in respect of permanent psychiatric impairment is to be calculated as at the relevant date as follows—
(a) if the worker's degree of impairment is less than 30%—the amount of the non-economic loss is zero;
S. 98C(3)(b) amended by No. 102/2004 s. 38(2)(a)(b), substituted by No. 9/2010 s. 54(3), amended by Nos 80/2010 s. 82(zd), 67/2013 s. 632(ze).
(b) if the worker's degree of impairment is 30%—the amount of the non-economic loss is to be determined, subject to subsection (3AA), in accordance with the formula—
$18 810 + [(D – 10) × $2830];
S. 98C(3)(c) amended by No. 102/2004 s. 38(2)(c)(d), substituted by No. 9/2010 s. 54(3), amended by Nos 80/2010 s. 82(ze), 67/2013 s. 632(zf).
(c) if the worker's degree of impairment is more than 30% and not more than 70%—the amount of non-economic loss is the amount determined, subject to subsection (3AA) , in accordance with the formula—
$75 260 + [(D – 30) × $4700];
S. 98C(3)(d) amended by No. 102/2004 s. 38(2)(e)(f), substituted by No. 9/2010 s. 54(3).
(d) if the worker's degree of impairment is more than 70% and not more than 80%—the amount of the non-economic loss is—
S. 98C(3)(d)(i) amended by Nos 80/2010 s. 82(zf), 67/2013 s. 632(zg).
(i) the amount determined in accordance with the formula—
$262 070 + [(D – 70) × $29 330]; or
S. 98C(3)(d)(ii) amended by Nos 80/2010 s. 82(zg), 67/2013 s. 632(zh).
(ii) $555 350—
whichever is the lesser;
S. 98C(3)(e) amended by Nos 102/2004 s. 38(2)(g), 9/2010 s. 54(4), 80/2010 s. 82(zg), 67/2013 s. 632(zh).
(e) if the worker's degree of impairment is more than 80%—the amount of the non-economic loss is $555 350—
where D is the worker's degree of impairment expressed as a number.
S. 98C(3AA) inserted by No. 9/2010 s. 54(5), substituted by No. 80/2010 s. 90(3).
(3AA) In relation to a relevant injury sustained before 3 December 2003, a reference to an amount of dollars—
(a) in subsection (2)(c) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(b) as then in force;
(b) in subsection (2)(d) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(c) as then in force;
(c) in subsection (3)(b) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(b) as then in force in respect of permanent impairment;
(d) in subsection (3)(c) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(c) as then in force in respect of permanent impairment.
S. 98C(3AB) inserted by No. 9/2010 s. 54(5), substituted by No. 80/2010 s. 90(3).
(3AB) In relation to a relevant injury sustained on or after 3 December 2003 and before 1 July 2010, a reference to an amount of dollars—
(a) in subsection (2)(b) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(b) as then in force;
(b) in subsection (2)(c) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(c) as then in force;
(c) in subsection (3)(b) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(c) as then in force in respect of permanent impairment;
(d) in subsection (3)(c) is a reference to the corresponding amount in dollars applying at the time of the injury under section 98C(2)(d) as then in force in respect of permanent impairment.
S.
98C
(3AC)(3AD) inserted by No. 9/2010 s. 54(5), repealed by No.
80/2010 s. 90(3).
* * * * *
S. 98C(3A) inserted by No. 102/2004 s. 18(2), substituted by No. 28/2005 s. 19, amended by No. 80/2010 s. 90(2)(d).
(3A) Despite subsection (1), the amount of non‑economic loss in respect of industrial deafness in respect of a further injury is to be calculated as at the relevant date as follows—
S. 98C(3A)(a) amended by Nos 80/2010 s. 82(zh), 67/2013 s. 632(zi).
(a) if T is not less than 10% and not more than 30% and P is less than 10%—the amount of the non-economic loss is to be determined in accordance with the formula—
[( T − 10) × $2830] + [(10 − P ) × $1860];
S. 98C(3A)(b) amended by Nos 80/2010 s. 82(zi), 67/2013 s. 632(zj).
(b) if T is not less than 10% and not more than 30% and P is not less than 10%—the amount of the non-economic loss is to be determined in accordance with the formula—
[( T − P ) × $2830];
S. 98C(3A)(c) amended by Nos 80/2010 s. 82(zj), 67/2013 s. 632(zk).
(c) if T is more than 30% and P is less than 10%—the amount of the non-economic loss is to be determined in accordance with the formula—
[( T − 30) × $4700] + [(30 − 10) × $2830] + [(10 − P ) × $1860];
S. 98C(3A)(d) amended by Nos 80/2010 s. 82(zk), 67/2013 s. 632(zl).
(d) if T is more than 30% and P is not less than 10% and is less than 30%—the amount of the non-economic loss is to be determined in accordance with the formula—
[( T − 30) × $4700] + [(30 − P ) × $2830];
S. 98C(3A)(e) amended by Nos 80/2010 s. 82(zl), 67/2013 s. 632(zm).
(e) if T is more than 30% and P is not less than 30%—the amount of the non-economic loss is to be determined in accordance with the formula—
[( T − P ) × $4700]—
where—
"T" is the percentage referred to in section 89(3)(a) rounded up to the next whole number, after that percentage has been converted in accordance with section 91(3);
"P" is the total percentage referred to in section 89(3)(b) rounded up to the next whole number, after that percentage has been converted in accordance with section 91(3A).
S. 98C(3B) inserted by No. 10/2022 s. 6.
(3B) Despite subsection (1), the amount of non-economic loss in respect of impairment resulting from an injury referred to in section 90D is to be calculated as at the relevant date in accordance with the formula—
where—
"T" is the percentage referred to in section 90D(2)(a);
"P" is the percentage referred to in section 90D(2)(b).
S. 98C(4) amended by Nos 26/2000 s. 15(3), 95/2003 s. 8(2)(a), 102/2004 s. 38(2)(h), 80/2010 s. 82(zm), 67/2013 s. 632(zn).
(4) The amount of the non-economic loss in respect of an injury resulting in the loss of a foetus or of the loss of more than one foetus is $67 660.
(5) For the purposes of subsection (4), "foetus" means the conceptus beyond the sixteenth week of development.
(6) If the compensation payable under this section is for industrial deafness, the amount of compensation is to be calculated—
(a) if the date of injury is deemed under section 88 to be the last day of the worker's employment out of which or in the course of which the injury arose—as at that day; or
(b) if the date of injury is deemed under section 88 to be the date of the claim—as at the day on which the compensation is determined.
S. 98C(6A) inserted by No. 9/2010 s. 54(6).
(6A) Subject to subsections (6B) and (6C), if a worker sustains an injury, other than industrial deafness, that occurs by way of gradual process over time, the injury is deemed to have been sustained on the last day on which the worker was—
(a) performing duties; or
(b) exposed to conditions—
by reason of which the injury was due to the nature of the worker's employment or arose out of or in the course of the worker's employment.
S. 98C(6B) inserted by No. 9/2010 s. 54(6), amended by No. 80/2010 s. 60(2).
(6B) Subject to subsection (6C), if a worker sustains an injury, other than industrial deafness, that occurs by way of gradual process over time and on the day on which the worker gives, serves or lodges a claim for compensation in respect of the injury, the worker is still—
(a) performing duties; or
(b) exposed to conditions—
by reason of which the injury is due to the nature of the worker's employment or arises out of or in the course of employment, the injury is deemed to have been sustained on that day.
S. 98C(6C) inserted by No. 9/2010 s. 54(6).
(6C) For the purposes of subsections (6A) and (6B), the Minister may make guidelines specifying considerations and circumstances to be considered in determining whether subsection (6A) or (6B) applies in respect of an injury that occurs by way of gradual process over time.
S. 98C(6D) inserted by No. 9/2010 s. 54(6).
(6D) Guidelines made under subsection (6C) must be published—
(a) in the Government Gazette; and
(b) on a Government Internet website.
S. 98C(7) amended by Nos 26/2000 s. 15(4), 95/2003 s. 8(2)(b), 102/2004 s. 38(2)(g), 9/2010 s. 54(7), 80/2010 s. 82(zn), 67/2013 s. 632(zo).
(7) If a worker suffers on the same occasion more than one injury which entitles the worker to compensation under subsection (1), the worker is not entitled to receive as compensation for non‑economic loss more than $555 350.
S. 98C(8) amended by Nos 26/2000 s. 15(4), 95/2003 s. 8(2)(b), 102/2004 s. 38(2)(g), 9/2010 s. 54(7), 80/2010 s. 82(zn), 67/2013 s. 632(zo), substituted by No. 67/2013 s. 630(4).
(8) If a worker suffers an injury which entitles the worker to compensation for non-economic loss of more than one kind as specified in subsection (2), (3) or (4), the worker is not entitled to receive as compensation for non-economic loss under this section more than $555 350.
(9) Where compensation has been paid under this section for an impairment resulting from an injury or under section 98 or 98A in respect of an injury, that compensation must be deducted from any compensation payable under this section in respect of any impairment resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has previously been paid under this section or section 98 or 98A.
S. 98C(9A) inserted by No. 102/2004 s. 18(3).
(9A) If compensation has been paid for non-economic loss in respect of a prior injury or prior hearing loss, that prior injury or prior hearing loss must be taken into account in accordance with sections 88, 89, 91 and this section in determining the amount of compensation payable under this section.
S. 98C(10) amended by No. 49/2018 s. 40(1).
(10) Except as provided in subsection (10A), compensation under this section is not payable after the death of the worker concerned.
S. 98C(10A) inserted by No. 49/2018 s. 40(2).
(10A) If—
(a) a worker suffers an injury which entitled the worker to compensation under this Division; and
(b) the worker has made a claim for compensation under this section; and
(c) the worker has received the decision of the Authority or self-insurer in relation to liability for the claim, or liability for the claim has been determined by a court; and
(d) the worker has received an assessment or assessments in accordance with section 91 as to the degree of impairment (if any) resulting from the injury; and
(e) the most recent assessment determines the worker has a degree of impairment that entitles the worker to compensation under this section or section 98E; and
(f) the worker dies before the compensation is fully paid—
any unpaid compensation is payable to the worker's estate.
S. 98C(11) inserted by No. 9/2010 s. 54(8).
(11) Despite anything to the contrary in this section or section 98E, a worker is not entitled to an amount of compensation for non-economic loss under this section or section 98E or both that exceeds the maximum amount payable under this section as in force at the date of the relevant injury.
S. 98D inserted by No.
107/1997
s. 36.