33Amendment of section 135A—"serious injury"

33 Amendment of section 135A—"serious injury" (3) This section does not affect the rights of the parties in any proceedings commenced and determined before 16 May 1996. [↑](#endnote-ref-34) 34. Pt 5 (Heading and ss 139–155): Pt 5 (Heading and ss 139–155) amended by Nos 48/1986 ss 24, 25, 83/1987 s. 76, 64/1989 ss 21, 22, 37(1)(d), 18/1991 s. 12(1)(k)–(m), 67/1992 s. 64(7)(a)(8)(c)(10), 83/1992 s. 184(Sch. 6 item 1), 50/1993 ss 103–108, 109(1)(2), 50/1994 ss 68–70, 71(1)(2), 72–75, 7/1996 ss 34–38, 47/1996 s. 22, 60/1996 ss 23, 24(1), 25(a), 46/1998 s. 7(Sch. 1), 52/1998 s. 311(Sch. 1 item 1.8), 81/1998 s. 31, 26/2000 s. 25(4), 11/2001 s. 3(Sch. item 2.3), 28/2005 ss 3–5, 10, 46/2005 s. 6, 34/2007 s. 3, substituted by No. 9/2010 s. 126 (as amended by No. 80/2010 s. 159(m)), amended by Nos 80/2010 ss 98–103, 104(a)–(g), 43/2012 s. 3(Sch. item 1.5), 82/2012 s. 283, repealed by No. 67/2013 s. 639. [↑](#endnote-ref-35) 35. Pt 6 (Heading and ss 156–178): Pt 6 (Heading and ss 156–178) amended by Nos 48/1986 s. 26, 83/1987 ss 77–82(6) (as amended by No. 64/1989 s. 37(3)(c))(7), 83–86, 18/1988 ss 5, 6(1)(2), 64/1989 ss 16(1), 17–19, 35(k)–(m), 18/1991 ss 8(a)(b), 12(1)(n)(o), repealed by No. 67/1992 s. 48, new Pt 6 (Heading and s. 156) inserted by No. 67/1992 s. 49, amended by No. 50/1993 ss 81(h), 92(3)(b), 109(3), substituted as Pt 6 (Heading and ss 156–164) by No. 50/1994 s. 76, amended by Nos 47/1996 s. 23, 107/1997 ss 30(11)(w)(x), 52, 55(2), 81/1998 s. 26(1), 95/2003 ss 10, 11(b), 12, 102/2004 s. 24(2), 24/2006 s. 6.1.2(Sch. 7 item 1.2), 69/2006 s. 224(Sch. 3 item 1), repealed by No. 9/2010 s. 131. [↑](#endnote-ref-36) 36. S. 253: The amendment proposed by section 24(Schedule 1 item 1) of the **Subordinate Legislation Amendment Act 2010**, No. 78/2010 is not included in this publication due to the earlier substitution of section 253 by section 123 of the **Transport Accident and Accident Compensation Legislation Amendment Act 2010**, No. 80/2010. —— **GROUNDS FOR TERMINATION OF WEEKLY AND MEDICAL AND LIKE BENEFITS (AS AN AID TO UNDERSTANDING)** This table is intended for reference purposes only and, in accordance with section 36 of the **Interpretation of Legislation Act 1984**, does not form part of the **Accident Compensation Act 1985**. For more specific detail on the operation of the provisions referenced in the table, refer to relevant sections of the Act. | **Grounds for Termination** | **AC Act section as at 1 July 2010** | | Worker is no longer entitled to weekly payments. This includes where worker is no longer incapacitated for pre-injury employment. | 14(2)(b) | | Worker obtained payments fraudulently. | 114(3) | | **Grounds for Termination** | **AC Act section as at 1 July 2010** | | Worker returns to work full time within first or second entitlement period. | 114(2)(c)(i) | | Worker leaves Victoria, has their employment terminated for misconduct, resigns or reduces the hours worked for reasons unrelated to their capacity and in circumstances that do not invoke the exception that operates in s.93CDA. | 114(2A) | | Weekly payments have been paid or are payable for a claimed injury for a total of {104/130)Error! Bookmark not defined. weeks (whether consecutive or not) and the worker is assessed by the Authority or self-insurer as:<br> • having a current work capacity; or<br> • having no current work capacity but this is not likely to continue indefinitely; or<br> • where the worker is a pre-12 November 1997 claimant, not to have sustained a serious injury. | 93C(1) | - Worker ceases to reside in Australia and cannot provide evidence that they have no work capacity and will continue to do so indefinitely 97(2) - Worker injured within 130 weeks of retirement age or after retirement age and has received payments for 130 weeks. 93E - Worker is beyond retirement age (and who doesn’t have an entitlement under section 93E) and has received weekly payments for 13 weeks due to incapacity which resulted from in patient hospital treatment.1 93EA(1), 93EA(3) - Worker receiving weekly payments for an incapacity arising from surgery after the second entitlement period.2 93CA and 114(9A) - Worker reaches retirement age, unless the injury was sustained within 130 weeks of retirement age or after retirement age (s.93E). 93F - Worker did not make reasonable efforts to actively participate and co-operate in planning for the worker’s return to work in co-operation with the employer, Authority or self-insurer. 205* and 200 - Worker did not use an occupational rehabilitation service provided in accordance with sections 99 and 99A (Division 2C) and co-operate with the provider of that service. 205* and 201 - Worker did not, when requested to do so by the employer, Authority or self-insurer, actively participate and co-operate in any assessment of— (a) capacity for work, (b) rehabilitation progress, (c) future employment prospects. 205* and 202 - Worker did not make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker’s place of employment or at another place of employment, in co-operation with the employer, Authority or self-insurer. 205* and 203 - Worker did not participate in an interview with the representative of the Authority or self-insurer for the purpose of enhancing the worker’s opportunities to return to work, and actively participate and co‑operate in the interview to comply with his or her obligations under Division 3 of Part VIIB, and as required by the Authority or self-insurer. 205* and 204 - Judgment is obtained, or a compromise or settlement made in respect of common law proceedings and pecuniary loss damages are awarded.3 134AB(36)/135(18) - ***Reduction of weekly payment amount*** - Worker returns to work full time within first or second entitlement period. 114(2)(c)(i) - Worker who does not have capacity for pre injury employment but has returned to work in some capacity and changes their hours of work (subject to 114(2A)). 114(2)(c)(ii) - Payments for regular overtime or shift allowances are no longer included in PIAWE. 114(2)(c)(iii) - ***Non-entitlement period*** - Worker temporarily absent from Australia for more than 28 days.4 97(2A) - Worker imprisoned. 97(7) - Worker is in receipt of any disability, retirement or superannuation pension or receives income from superannuation or retirement benefit lump sum amount that has not been deposited with a complying superannuation fund or a complying approved deposit fund.5 96 - ***Suspension of weekly payments*** - Worker unreasonably refuses to submit to or unreasonably obstructs a medical examination. s 67(4) & 67(5), s 112(2) & (4) - Expenses claimed are not reasonable and/or necessary. 99(1), 99(2) | **Grounds to Terminate Entitlement to Medical and Like Expenses** | **AC Act Section as at 1 July 2010** | | Services claimed are not for an injury which creates an entitlement to compensation under the Act. | 99(1) | | 52 weeks after entitlement to weekly payments has ceased unless:<br> • Worker has received a common law settlement or award of pecuniary loss damages under this act or section 93 of the Transport Accident Act 1986 or accepts a voluntary settlement of weekly payments; | | | • The worker has returned to work and could not remain at work unless the medical and like service was provided, the worker requires surgery or the worker is assessed as having a serious injury under s.91E of the Act; | 99(11), 99(12), 99(13) | | **Grounds to Terminate Entitlement to Medical and Like Expenses** | **AC Act Section as at 1 July 2010** | | • The worker requires modification of a prosthesis;<br> • The medical and like services is essential to ensuring the worker’s health or ability to undertake necessary tasks of daily living does not significantly deteriorate. | | 1 Not technically a ground for termination as section 93EA(3) makes it clear a worker is entitled to a limited period of payments only (13 weeks) if this section applies. No termination is required however a worker’s entitlement ceases after the period specified. 2 As above, not a ground for termination but this section limits the period of payments and a worker’s entitlement ceases after the period specified. * Section 205 establishes a multi stage process where a worker does not comply with their return to work obligations imposed under sections 200, 201, 202, 203 and 204 (Division 3). The procedure is designed to encourage workers to return to work and section 205 provides the Authority or self insurer may either suspend or terminate weekly payments or cease and determine entitlement. See section 205 for details on the operation of this provision. 3 Entitlement ceases but no notice of termination is required. 4 Non entitlement period applies after 28 days. 5 Section 96(2) relates to a lump sum and section 96(6) relates to a pension. These sections may also apply to reduce weekly payment amount. [↑](#endnote-ref-37) 37. Table of Amendments: The amendment proposed by section 53 of the **Road Safety Amendment Act 2014**, No. 49/2014 is not included in this publication due to the earlier repeal of sections 239AAA, 239AAB and 239AAC by section 640 of the **Workplace Injury Rehabilitation and Compensation Act 2013**, No. 67/2013. Section 53 reads as follows: