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WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013 - SECT 325

Definitions

    (1)     In this Division—

"determination date", in relation to an injury, means—

        (a)     if the worker is assessed under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 to have a degree of impairment of 30 per cent or more, the date on which the worker receives advice under section 330(1)(a); or

        (b)     the date on which the Authority or self‑insurer issues a certificate under section 335(2)(c) consenting to the bringing of proceedings; or

        (c)     if the Authority or self-insurer fails to advise the worker in writing as required by section 330(1) within the period referred to in section 330(1), the date on which, under section 330(3), the injury is deemed to be a serious injury; or

        (d)     the date—

              (i)     unless subparagraph (ii) applies, on which a court gives leave under section 335(2)(d); or

              (ii)     on which an appeal by the Authority, self-insurer or worker in relation to a decision of a court under section 335(2)(d) is determined—

whichever is the later date;

"medical report" means—

        (a)     a statement in writing on medical matters concerning the worker, made by a medical practitioner; and

        (b)     includes any document which the medical practitioner intends should be read with the statement, whether the document—

              (i)     was in existence at the time the statement was made; or

              (ii)     was a document which he or she obtained or caused to be brought into existence subsequently;

"pain and suffering "includes loss of amenities of life or loss of enjoyment of life;

"pecuniary loss damages" means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;

"response date" means the date on which the period of 28 days after the determination date expires;

"serious injury" means—

        (a)     permanent serious impairment or loss of a body function; or

        (b)     permanent serious disfigurement; or

        (c)     permanent severe mental or permanent severe behavioural disturbance or disorder; or

        (d)     loss of a foetus.

    (2)         For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—

        (a)     the following definitions apply—

"foetus" has the same meaning as in section 214(2);

"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986 ;

        (b)     the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—

              (i)     pain and suffering; or

              (ii)     loss of earning capacity—

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

        (c)     an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—

              (i)     the pain and suffering consequence; or

              (ii)     the loss of earning capacity consequence—

is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

        (d)     a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless—

              (i)     the pain and suffering consequence; or

              (ii)     the loss of earning capacity consequence—

is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

        (e)     if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—

              (i)     at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and

              (ii)     the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;

        (f)     for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—

              (i)     the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—

    (A)     earning, whether in suitable employment or not; or

    (B)     capable of earning in suitable employment—

as at that date, whichever is the greater, and—

              (ii)     the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;

        (g)     a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—

              (i)     has; or

              (ii)     after rehabilitation or retraining, would have—

a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;

        (h)     the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

              (i)     the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;

        (j)     the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;

        (k)     the monetary thresholds and statutory maximums specified by or under section 340 must be disregarded for the purposes of the assessment of serious injury.



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