(1) Unless it does not
apply because of subsection (2), subsection (3) applies if —
(a) on
or before 30 September 2001, a worker —
(i)
sought to refer a question to the Director under
section 93D(5); and
(ii)
in order to satisfy section 93D(6), produced to the
Director anything that, even though it may not have constituted evidence of
the kind required by that subsection, was accepted by the Director as evidence
of that kind;
and
(b) the
Director treated the question as having been referred under section 93D(5),
after which, for a reason based on a failure to satisfy the requirements of
section 93D(6) for a referral under section 93D(5) —
(i)
a review officer did not deal with the substance of the
question; or
(ii)
a court set aside or quashed a decision of a review
officer that dealt with the substance of the question.
(2) If the question is
whether the worker’s degree of disability is not less than 16%,
subsection (3) does not apply unless the production of what was produced as
referred to in subsection (1)(a)(ii) and the purported referral of the
question both occurred —
(a) not
less than 21 days before the termination day; or
(b)
before a day fixed under section 93E(7) by the Director.
(3) If this subsection
applies, the worker may, within the time limited by subsection (4)(b) and
otherwise in accordance with subsection (4), refer to the Director under
section 93D(5) the same question as is mentioned in subsection (1)(a)(i),
relating to the same injury and only that injury.
(4) A question can
only be referred under subsection (3) if —
(a) the
referral is made in writing in a form specified in the regulations stating
that the worker is also acting under subsection (3); and
(b) the
referral is made —
(i)
within the period of 3 months commencing after the day on
which section 10 of the Workers’ Compensation (Common Law Proceedings)
Act 2004 comes into operation (called the commencement day in subparagraph
(ii)); or
(ii)
if subsection (1)(b)(ii) applies and the decision is set
aside or quashed after the commencement day, within the period of 3 months
commencing after the day on which the decision is set aside or quashed;
and
(c) when
referring the question to the Director, the worker produces to the Director
evidence relating to the injury that complies with section 93D(6), or
satisfies the Director that complying evidence has already been produced to
the Director.
(5) If a worker seeks
to make a referral under section 93D(5) stating that it is also made under
subsection (3) of this section, the Director is required, as soon as
practicable, to notify the worker and the employer, in accordance with the
regulations —
(a)
whether or not the Director is of the opinion that evidence complying with
section 93D(6) has been produced and in all other respects the referral is
properly made; and
(b) if
the Director —
(i)
is of that opinion, that the referral is accepted and
section 93E(6a), if relevant, and section 93EC apply;
(ii)
is not of that opinion, that the referral sought to be
made by the worker is not accepted.
[Section 93EA inserted: No. 35 of 2004 s. 10;
amended: No. 42 of 2004 s. 147.]