Victorian Numbered Acts

ACCIDENT COMPENSATION AMENDMENT ACT 2010 (NO. 9 OF 2010) - SECT 71

After section 92C of the Accident Compensation Act 1985 insert —

    " 92D     Provisional payment

    (1)     Subject to subsection (7), if it appears to the Authority or self-insurer that a person may be entitled to compensation in respect of the death of the worker, the Authority or self-insurer may make provisional payments to the person as follows—

        (a)     weekly pension that may be payable under section 92B(3)(a) for a period of up to 12 weeks from the date of death of the worker;

        (b)     medical and other costs that may be payable under section 99(1)(a) up to a maximum of $7500;

        (c)     family counselling services costs that may be payable under section 99(1)(aa) up to the maximum prescribed in that section;

        (d)     the costs of the deceased worker's burial or cremation that may be payable under section 99(1)(b) up to the maximum amount determined as reasonable costs by the Authority under section 99(2).

    (2)     Except as provided by subsection (3), a provisional payment made under a paragraph in subsection (1) may be paid to more than one person however the total paid in respect of a deceased worker must not exceed the maximum set out in the relevant paragraph under that subsection regardless of how many persons receive provisional payments.

    (3)     Only one partner of a deceased worker may receive provisional payments under subsection (1)(a).

    (4)     A provisional payment made under this section is not a payment of compensation under this Act except for the purposes of—

        (a)     calculating employer premiums;

        (b)     contributions under Division 6A of Part IV;

        (c)     the reduction of common law damages under section 135C(7)(a);

        (d)     seeking indemnity from a third party under section 138;

        (e)     seeking a refund of payments under section 249A.

    (5)     A decision made by the Authority or self-insurer to make provisional payments under this section is not an admission of liability to pay compensation under this Act.

    (6)     If liability to pay compensation in respect of the death of a worker is accepted, or determined by a court to be payable, after a provisional payment has been made to a person—

        (a)     under subsection (1)(a), any liability the Authority or self-insurer has to the person to whom the payment was made under section 92B(3)(a) or 92B(4)(a) is discharged to the extent of that payment;
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        (b)     under subsection (1)(b), any liability the Authority or self-insurer has under section 99(1)(a) is discharged to the extent of that payment;

        (c)     under subsection (1)(c), any liability the Authority or self-insurer has under section 99(1)(aa) is discharged to the extent of that payment;

        (d)     under subsection (1)(d), any liability the Authority or self-insurer has under section 99(1)(b) is discharged to the extent of that payment.

    (7)     The Authority or self-insurer must not make provisional payments to a person under this section in respect of the death of the worker in the following circumstances—

        (a)     if it appears to the Authority or self-insurer that the worker's death resulted from or was materially contributed to by a heart attack injury, disease or a stroke injury unless at the time of the worker's death—

              (i)     the Authority or the self-insurer had already accepted a claim for compensation made by the worker before his or her death in respect of that injury; and

              (ii)     the worker was receiving compensation payments in respect of that injury before the worker's death;

        (b)     the worker committed suicide;

        (c)     if the provisional payment would have to be made to a court-appointed guardian because the person is a minor or person under a disability.
s. 71

    (8)     The Authority may issue guidelines for the purposes of this section relating to the process to be observed by the Authority or self-insurer when acting under this section.

    (9)     Proceedings must not be brought in respect of any question or matter arising out of a decision of the Authority or self-insurer under this section.

    (10)     In subsection (9), proceedings includes—

        (a)     the inquiry into, hearing and determination of any question or matter under this Act;

        (b)     seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto, or the grant of a declaration of right or an injunction;

        (c)     seeking any order under the Administrative Law Act 1978 ;

        (d)     any other action or proceeding.".