Workers Compensation Act 1951

Schedule 1 Compensation for permanent injuries 264

Schedule 2 Adjacent areas for States and Territories 267 2.1 Definitions—sch 2 267 2.2 Adjacent areas for States and the Northern Territory 267

Schedule 3 DI fund advisory committee 269 3.1 Definitions—sch 3 269 3.2 Establishment of DI fund advisory committee 269 3.3 Functions of committee 269 3.4 Membership of committee 269 3.5 When DI fund manager not member of committee 270 3.6 Ending of members’ appointments 270 3.7 Committee chair 271 3.8 Honesty, care and diligence of members 271 3.9 Conflicts of interest by members 271 3.10 Agenda to require disclosure of interest item 271 3.11 Disclosure of interests by members 272 3.12 Reporting of disclosed committee interests to Minister 274 3.13 Protection of members from liability 275 3.14 Time and place of committee meetings 275 3.15 Presiding member at committee meetings 275 3.16 Quorum at committee meetings 275 3.17 Voting at committee meetings 276 3.18 Conduct of committee meetings etc 276 Dictionary 277 1 About the endnotes 290 2 Abbreviation key 290 3 Legislation history 291

Page contents 17 4 Amendment history 310 5 Earlier republications 389 6 Renumbered provisions 397 7 Expired transitional or validating provisions 397

An Act relating to compensation to workers for injuries arising out of or in the course of their employment, and for other purposes

1 Name of Act This Act is the Workers Compensation Act 1951.

Interpretation generally Chapter 2

2 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain words and expressions used in this Act, and includes references (signpost definitions) to other words and expressions defined elsewhere in this Act or in other legislation. For example, the signpost definition ‘injury—see section 4 (Meaning of injury).’ means that injury is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

3A Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

4 Meaning of injury injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury. mental injury (including stress) does not include a mental injury (including stress) completely or mostly caused by reasonable action taken, or proposed to be taken, by or on behalf of an employer in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker or the provision of an employment benefit to a worker.

5 Meaning of employer employer includes— (a) an entity; and (b) the legal personal representative of a dead employer; and (c) if the services of the worker are temporarily lent or let on hire to someone else (the temporary employer) by the person (the original employer) with whom the worker has entered into a contract of service or apprenticeship—the original employer is, for this Act, taken to continue to be the employer of the worker while the worker is working for the temporary employer.

Interpretation generally Chapter 2

6 Meaning of totally incapacitated For this Act, an injured worker is totally incapacitated for work if— (a) there is no suitable paid employment reasonably available to the worker that the worker can do because of a functional impairment caused by the injury; or (b) the worker is taken, or declared, to be totally incapacitated under section 35 (When is a worker taken to be totally incapacitated?).

7 Meaning of partially incapacitated For this Act, an injured worker is partially incapacitated for work if, because of a functional impairment caused by the injury, the worker— (a) cannot do all the work the worker could do before the injury; and (b) is not totally incapacitated.

7A Meaning of total wages total wages means total wages worked out as prescribed by regulation. (2) The Legislation Act, section 47 (3) does not apply to a regulation

Notes about ch 3 Note 1 Working out who is a worker The following chart is a guide for working out if a person (X) is a worker for this Act.Yes No No No Yes Yes No Yes Yes No Yes Yes No No Yes No Is X taken to be a worker under this chapter?  regular contractor (s 11)  labour hire (s 12)  trainee (s 14)  outworker (s 15)  timber contractor (s 16)  family day care educator (s 16A)  religious worker (s 17)  commercial voluntary worker (s 18)  public interest voluntary worker (s 19) • Does X work under a contract of service (s 8) Is X a public servant (ACT/Cwlth)? (s 9 (1)) Is X an unnotified working family member? (s 9 (2), (3)) Is X a casual employee under s 10 (1)? Was X’s work found through an employment agent? (s 10 (2)) Is X otherwise a worker under this chapter? (s 10 (1) (b), (c)) Is X an unnotified working family member? (s 9 (2), (3))

Note 2 Payment for work Most people who are workers under this chapter are employed or engaged under a contract with someone else. At common law, a contract cannot exist unless there is a valuable exchange between the people on both sides of the contract, by which— • the employee (or contractor) provides labour to the employer (or principal); and • the employer (or principal), in exchange, provides payment to the employee (or contractor), including non-monetary rewards (eg payment in kind). The exceptions under this chapter are those who are taken to be workers under s 14 (Trainees), s 16A (Family day care educators), s 17 (Religious workers), s 18 (Commercial voluntary workers) and s 19 (Public interest voluntary workers). Trainees and religious workers may or may not be paid for their labour. Voluntary workers (under s 18 and s 19) are those that are paid only for expenses (if that). Note 3 Subcontracting and labour hire (effect of s 13) The Act applies in a special way to subcontracting arrangements, by which— • a worker is engaged to work for a person who is the employer of the worker (under this chapter); and • the employer has engaged the worker to fulfil a contract the employer has with someone else (in this note, a principal) to do work for the principal’s trade or business. Under s 13, the principal is liable to pay compensation to the worker if the worker is injured. The principal may, however, recover the compensation paid from the employer. These situations may be complicated by the involvement of labour hirers, who may in some circumstances be taken to be the employer of workers engaged to do work for a principal (see s 12). Here are 3 illustrations of different subcontracting arrangements: Arrangement 1 No labour hirer A bricklayer’s labourer (the worker) is employed by a bricklayer (the employer) to assist the bricklayer to fulfil a contract between the bricklayer and a builder (the principal). The bricklayer is the labourer’s employer.

Arrangement 2 Labour hirer as employer A cleaner (the worker) is engaged by a labour hirer (the employer) to fulfil a contract between the labour hirer and the owner of a retail store (the principal) for the cleaning of the store. The labour hirer is taken (under s 12) to be the employer of the cleaner, because the cleaner has no contractual relationship with the owner of the store. The labour hirer is the cleaner’s employer. Arrangement 3 Labour hirer as employment agent A keyboard operator (the worker) is employed by an information technology consultant (the employer) to fulfil a contract between the consultant and a government agency (the principal). The consultant recruits the operator through a labour hirer acting as an employment agent. The consultant is the operator’s employer. Under all of these arrangements, the worker may claim compensation from either the employer or the principal (see s 13 (2) and (4)). If the principal pays compensation to the worker, the principal may claim repayment from the employer (see s 13 (3)). But in the 3rd arrangement (Labour hirer as employment agent), the worker may not claim compensation from the labour hirer, and the principal may not seek repayment of compensation from the labour hirer.

8 Who is a worker? (1) In this Act (subject to this chapter): worker means an individual who— (a) works under a contract of service, whether the contract is express or implied, oral or written; or (b) works under a contract, or at piecework rates, for labour only or substantially for labour only; or (c) works for another person under a contract (whether or not a contract of service) unless— (i) the individual— (A) is paid to achieve a stated outcome; and (B) has to supply the plant and equipment or tools of trade needed to carry out the work; and (C) is, or would be, liable for the cost of rectifying any defect in the work carried out; or (ii) a personal services business determination is in effect for the person carrying out the work under the Income Tax Assessment Act 1997 (Cwlth), section 87-60. (2) A reference in this Act to a worker after the date of an injury includes a reference to a former worker. (3) The Minister may determine categories of workers for the following provisions: (a) section 155 (7), definition of employer’s estimate, paragraphs (a) and (b) (Information for licensed insurers on application for issue or renewal of policies); (b) section 190 (1) (b) (Provision of information to inspectors).

(4) A determination is a notifiable instrument.

9 Who is not a worker? (1) In this Act (despite anything else in this chapter), worker does not include— (a) a public servant; or (b) an employee within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cwlth). (2) In this Act (despite anything else in this chapter), worker does not include an individual who would, apart from this section, be a worker employed by an employer, if the individual is a member of the employer’s family and lives in the employer’s home. (3) However, subsection (2) does not apply to an individual if the employer tells the licensed insurer who insures the employer against liability under this Act the name, nature of employment and estimated wages of the individual— (a) when the employment begins; and (b) whenever the insurance is renewed.

10 Casuals not employed for trade or business (1) In this Act, worker does not include an individual (the casual employee) employed by someone (the principal) on a casual basis to perform work for the principal other than work that is for (or incidental to) the principal’s trade or business unless the casual employee is taken to be a worker under any of the following provisions: (a) subsection (2) (which deals with casual employment found through employment agencies);

(b) section 11 (Regular contractors and casuals); (c) section 17 (Religious workers). (2) If the casual employee’s employment was found for the employee by a person who carries on the business of an employment agent, for this Act the casual employee is taken to be a worker employed by the employment agent. Examples of casual employees who are not workers 1 A gardener irregularly employed by the occupier of residential premises to work in the garden of the premises (unless engaged through an employment agent—see example 4). 2 A babysitter irregularly employed by the parents of young children (unless engaged through an employment agent—see example 4). Examples of casual employees who are workers 3 A gardener regularly employed by the owner of a business to work on the grounds of the premises where the employer’s business is carried on. The gardener is taken to be a worker employed to perform work incidental to the principal’s business (see s (1)). 4 A babysitter irregularly employed by the parents of young children who is engaged through an employment agent. The babysitter is taken to be a worker employed by the agent rather than the parents (see s (1) (a) and s (2)). 5 A babysitter regularly and systematically employed (for example, once a week over a 6 month period) by the parents of young children. The babysitter is taken to be a worker employed by the parents under s 11 (Regular contractors and casuals)—see s (1) (b).

11 Regular contractors and casuals (1) This section applies to the engagement of an individual by a person (the principal) if— (a) the individual has been engaged by the principal— (i) under a contract for services to work for the principal (whether or not on a casual basis); or

(ii) on a casual basis under a contract of service to perform work for the principal other than work that is for (or incidental to) the principal’s trade or business (unless section 10 (2) applies, which deals with casual employment found through employment agencies); and (b) the individual personally does part or all of the work; and (c) if the principal is a corporation—the individual is not an Note for par (a) (ii) Section 10 (2) provides that if a casual worker employed other than for the employer’s trade or business is engaged through an employment agent, the casual worker is a worker employed by the agent. (2) For this Act, the individual is taken to be a worker employed by the (a) the engagement, under the contract or similar contracts, has been on a regular and systematic basis; or (b) the individual has (or, apart from any injury, would have had) a reasonable expectation of the engagement continuing on a regular and systematic basis (under the contract or similar contracts), even if the engagement has not been on a regular or systematic basis; or (c) the engagement of the individual is under a contract or similar contracts prescribed by regulation, even if the engagement has not been on a regular or systematic basis. (3) To work out whether an engagement has been on a regular and systematic basis, or whether there is (or would have been) a reasonable expectation of an engagement continuing on that basis, relevant matters include (but are not limited to) the following: (a) the terms of all relevant contracts; (b) the working relationship between the principal and the individual and all associated circumstances;

(c) the period of the engagement, or the periods of the engagement if it has not been continuous; (d) the frequency of work under the contract or similar contracts; (e) the number of hours worked under the contract or similar contracts; (f) the type of work; (g) normal arrangements for someone engaged to perform that type of work. Examples of individuals who are workers 1 Payment by commission A sales representative engaged under a 3 month contract for payment by commission that forms part of a regular and systematic pattern of similar contracts to work for a real estate agency, canvasser or retailer, even if there is no express or implied guarantee of continuing work. 2 IT consultant—engagement under indefinite retainer An information technology consultant engaged on a retainer under which it is agreed that the consultant will be regularly and systematically available, on call by the principal, to offer advice or attend at short notice, even if the consultant was only recently engaged. 3 Owner-driver of a truck—regular engagement An owner-driver of a truck engaged by a local ACT carrier for an overnight trip (leaving regularly on the same day each week), even if any (or all) of the following apply: • there is occasionally no work for the driver; • the driver also works (or is free to work) for other carriers; • the driver was only recently engaged by the carrier. 4 Building contractor—exclusive engagement A bricklayer engaged under contracts for services by a particular builder for some years, who has worked for almost no-one else over that time, even if there is no express or implied guarantee of continuing work.

5 Regular casual worker A gardener engaged by a householder (under contracts of service or for services) on a regular and systematic basis over a number of years to work in the grounds of the house. The gardener’s engagement may be found to be ‘regular and systematic’ even if any (or all) of the following apply: • there is no express or implied guarantee of continuing work; • the gardener also works (or is free to work) for other households; • there have been occasional periods during which the gardener has not worked for the householder. Examples of individuals who are not workers 6 Payment by commission—no guarantee of future work A sales representative engaged under a 3 month contract for services with a real estate agency, canvasser or retailer, and who is paid by commission, if— • the contract does not form part of a regular and systematic pattern of similar contracts; and • there is no express or implied guarantee that any further similar contract will be offered, whether in a document or by inference from the working relationship between the principal and the individual. 7 IT consultant—occasional engagement An information technology consultant who is occasionally engaged by a small business for a week or more at a time under a contract for services, but not on a regular basis. 8 Owner-driver of a truck—irregular engagement An owner-driver of a truck engaged under contracts for services with a furniture retailer whenever available, who has made deliveries every day of the week at times (for example, just before Christmas), but at other times may go for months without working for the retailer. 9 Building contractor—irregular engagement A bricklayer engaged under contracts for services by a particular builder several times a year, but who is not regularly engaged by the builder.

10 Irregular casual worker A tree surgeon engaged by a householder on an irregular basis (under contracts of service or for services) to prune the trees around a house. The engagement may be found not to be ‘regular and systematic’ even if the tree surgeon has been occasionally engaged by the householder for many years. (However, if the tree surgeon is engaged through an employment agent, the tree surgeon is a worker employed by the agent (see s 10 (2).)

12 Labour hire arrangements For this Act, an individual is taken to be a worker employed by a person (the labour hirer) if— (a) the individual has been engaged by the labour hirer under a contract for services to work for someone other than the labour hirer; and (b) there is no contract to perform the work between the individual and the person for whom the work is to be performed; and (c) the individual personally does part or all of the work; and (d) if the labour hirer is a corporation—the individual is not an Note 1 This section does not make an employment agent the employer of those for whom the agency finds work if the workers are engaged directly by the person for whom the work is to be performed. It makes the labour hirer the employer only if there is no contractual relationship between the worker and the person for whom the work is to be performed (see par (b)). Note 2 Under s 13 (Subcontracting), the person for whom the work is to be performed may be liable as ‘principal’ to pay compensation to the worker, as well as the labour hirer under this section. The ‘principal’ may then recover compensation from the labour hirer (see s 13 (3)). See also note 3 at the beginning of this chapter.

13 Liability of principal for uninsured contractor’s injured (a) a person carrying on a business (the principal) enters into a contract with another person (the contractor) to carry out work that is part of the principal’s business (the contracted work); and (b) a worker employed by the contractor becomes an injured worker (the injured worker) while carrying out the contracted work; and (c) the contractor is uninsured. (2) The principal is liable to pay to the injured worker any compensation that the principal would have been liable to pay if the worker was employed by the principal. (3) If this section is relied on to make a claim for compensation, or bring any other proceeding, against a principal, then, in the application of this Act to the claim or proceeding— (a) a reference in this Act to an employer is taken to be a reference to the principal; but (b) any calculation of the earnings of the injured worker must be based on the earnings paid or payable to the worker by the contractor that employed the worker. (4) If a principal is liable under this section to pay compensation to an injured worker, the principal is entitled to be indemnified by— (a) if the principal is uninsured within the meaning of paragraph (a) of the definition of uninsured—any person, other than the DI fund manager, who would have been liable to pay compensation to the worker independently of this section; or

(b) if the principal is uninsured within the meaning of paragraph (b) of the definition of uninsured—any person, including the DI fund manager, who would have been liable to pay compensation to the worker independently of this section. (5) Nothing in this section prevents a worker claiming compensation— (a) against a contractor instead of a principal; or (b) if both the contractor and principal are uninsured—against the DI fund. uninsured, in relation to a principal or a contractor, means the principal or contractor— (a) does not have a compulsory insurance policy in force that applies to an injured worker mentioned in subsection (1) in relation to an injury; or (b) has a compulsory insurance policy in force that applies to the injured worker in relation to the injury but the policy was issued by a licensed insurer that— (ii) has been wound up.

14 Trainees (1) For this Act, an individual is taken to be a worker employed by a person (the principal) if— (a) the individual is engaged under an arrangement (whether or not under contract) by which training or on-the-job experience is provided to the individual; and (b) the training or experience is in relation to work that is for (or incidental to) the principal’s trade or business; and

(c) the individual performs work that is for (or incidental to) the principal’s trade or business while so engaged; and (d) if the principal is a corporation—the individual is not an (2) An individual may be taken to be a worker under subsection (1) even if the individual receives no payment for the engagement. (3) However, an individual is taken not to be a worker employed by the (a) the engagement of the individual by the principal is arranged by an educational institution where the individual is enrolled; and (b) the engagement is part of a work experience program (however described) run by the educational institution. Example of work experience program work placement program (4) An individual is also taken not to be a worker employed by the (a) the individual is an adult with a disability; and (b) the engagement of the individual by the principal is arranged by a specialist disability employment service provider; and (c) the engagement is part of a work experience program (however described) organised by the provider to help adults with disabilities to work. Example of work experience program work placement program adult with a disability means a person who— (a) is 16 years old or older; and (b) has a physical, intellectual or psychiatric disability; and

(c) is likely to suffer from the disability permanently or for an extended period. educational institution means— (a) a school, college or other educational institution established or maintained on behalf of the Territory; or (b) a non-government school under the Education Act 2004; or (c) an educational institution established under a territory law or a law of the Commonwealth or a State. specialist disability employment service provider means an organisation (whether or not the organisation is incorporated) that— (a) provides employment services for people with disabilities; and (b) is not carried on for the financial benefit of the organisation’s members.

15 Outworkers (1) This section applies to an individual (the outworker) who is engaged by a person (the principal) under a contract for services to treat or manufacture articles or materials, or to perform other services— (a) in the outworker’s own home; or (b) on other premises not under the control or management of the principal. (2) To remove doubt, the outworker is taken to be a worker employed by the principal if— (a) the outworker is taken to be a worker employed by the principal under section 11 (Regular contractors and casuals); or

(b) the outworker is taken to be a worker employed by the principal under section 12 (Labour hire arrangements). Example of an outworker A keyboard operator engaged under a contract for services by an information technology firm to undertake data conversion for the firm (or for another firm) in the operator’s home.

16 Timber contractors (1) This section applies to an individual (the timber contractor) who is engaged by a person (the principal) under a contract for services to do any of the following work: (a) logging (including, for example, felling, crosscutting, snigging, loading, carting, bundling and debarking); (b) felling or cutting trees for firewood; (c) delivering timber or firewood; (d) clearing timber, cutting scrub, preparing land for tree planting, planting trees, pruning trees or coppice cleaning. (2) The timber contractor is taken to be a worker employed by the (a) the work is for (or incidental to) the principal’s trade or business; and (b) the timber contractor personally does part or all of the work; and (c) if the principal is a corporation—the timber contractor is not an (3) This section applies whether the work is to be performed by the timber contractor— (a) for the principal; or (b) for someone (other than the principal) with whom the timber contractor has no contract to perform the work.

16A Family day care educators (1) An educator engaged by an approved family day care service is taken to be a worker of the service. (2) Also, the Minister may make a declaration for this section— (a) if requested by an approved family day care service; or (b) on the Minister’s own initiative, if the Minister considers that people engaged by an approved family day care service should be treated as workers of the service. (3) For this Act— (a) an individual included in a class of individuals declared by the Minister is taken to be a worker employed by the person stated in the declaration to be the employer of individuals in that class; and (b) the individual’s employment is taken to be as stated in the declaration for individuals in the class. (4) A declaration is a notifiable instrument. approved family day care service—see the Education and Care Services National Law (ACT), section 5 (1). educator—see the Education and Care Services National Law (ACT), section 5 (1). Note The Education and Care Services National Law (ACT) Act 2011, s 6 applies the Education and Care Services National Law set out in the Education and Care Services National Law Act 2010 (Vic), schedule as if it were an ACT law called the Education and Care Services National Law (ACT).

17 Religious workers (1) The Minister may make a declaration for this section in accordance with a request by— (a) a religious organisation; or (b) a person acting on behalf of a religious organisation. (2) For this Act— (a) an individual included in a class of individuals declared by the Minister is taken to be a worker employed by the person stated in the declaration to be the employer of individuals in that class; and (b) the individual’s employment is taken to be as stated in the declaration for individuals in the class. (3) A declaration is a notifiable instrument.

17A Volunteers To remove any doubt, an individual who is engaged to perform work for someone else, and who receives no payment for the work (apart from any payment for expenses), is taken not to be a worker unless the individual is taken to be a worker under any of the following sections: • section 14 (Trainees) • section 17 (Religious workers) • section 18 (Commercial voluntary workers) • section 19 (Public interest voluntary workers).

18 Commercial voluntary workers (a) an individual (a commercial volunteer) is engaged under an arrangement by which the commercial volunteer performs work that is for (or incidental to) an enterprise, trade or business carried on by someone else (the principal); and (b) the principal carries on the enterprise, trade or business for— (i) if the principal is an individual—the financial benefit of the principal; or (ii) if the principal is a corporation—the financial benefit of the corporation’s members; and (c) the commercial volunteer receives no payment for the work (apart from any payment for expenses). 1 The Very Big Motocross Event Company (a corporation incorporated under the Corporations Act) promotes an event known as the ‘Mega Motocross’. The corporation engages a number of motocross enthusiasts as marshals for the event, but the marshals are volunteers (they are not paid). The Mega Motocross is an ‘enterprise, trade or business’ carried on for the financial benefit of the corporation’s members. The marshals are therefore commercial volunteers to whom this section applies. 2 The Motorboat and Jet-ski Club of Canberra Inc. (a not-for-profit body incorporated under the Associations Incorporation Act 1991) promotes an annual event known as the ‘Big Splash’. The club engages a number of enthusiasts as marshals for the event, but the marshals are volunteers (they are not paid). The Big Splash is not an ‘enterprise, trade or business’ carried on for the financial benefit of the club’s members. The marshals are therefore not commercial volunteers to whom this section applies. 3 The Homeless Trust is an organisation incorporated under statute whose only object is to assist the homeless in Canberra. The trust runs an opportunity shop in Tuggeranong, which earns a small profit. The shop is staffed by unpaid volunteers. The shop’s profits are used to assist the homeless. The shop is an ‘enterprise, trade or business’, but it is not carried on for the financial benefit of the trust’s members. The volunteer staff of the shop are therefore not commercial volunteers to whom this section applies.

4 If the Homeless Trust described in example 3 were an unincorporated group of individuals (or a single individual), but carried on the same activities for the same single purpose, the shop concerned would be an ‘enterprise, trade or business’, but would not be carried on for the financial benefit of the individuals (or individual) by whom the trust is constituted (who would be the principals, or principal). The volunteer staff of the shop would therefore also not be commercial volunteers to whom this section applies. (2) A commercial volunteer is taken to be a worker employed by the principal, unless the principal is exempt from the application of this subsection in relation to the volunteer under a certificate given under (3) On application by the principal, the Minister may give the principal a certificate (a volunteer exemption certificate) exempting the principal from the application of subsection (2) in relation to the commercial volunteers mentioned in the certificate if the Minister considers it appropriate, having regard to the interests of the principal and the commercial volunteers mentioned. (4) A volunteer exemption certificate must state— (a) which commercial volunteers (or class of commercial volunteers) it applies to; and (b) the work it applies to; and (c) the period, or the event, it applies to. (5) A volunteer exemption certificate is a notifiable instrument.

19 Public interest voluntary workers (1) The Minister may make a declaration for this section in relation to work (public interest voluntary work) undertaken for a stated entity if the Minister considers that making the declaration is necessary or desirable in the public interest. As noted in section 18 (1), example 2, the volunteer marshals for the annual Big Splash event described in that example would not be ‘commercial volunteers’ to whom section 18 applies. Therefore, apart from section 19, they would not be taken to be workers for this Act (see s 17A (Volunteers)). The club promoting the event would therefore not normally be required to take out compulsory workers compensation insurance under this Act to cover the work of the marshals. However, the Big Splash is potentially very dangerous for the volunteer marshals, as they must be present in their own boats on Lake Burley Griffin while the participants perform difficult stunts in motorboats and jet skis at high speed nearby. In previous years, volunteer marshals have been seriously injured at the event, and the Minister considers that the club did not take out adequate insurance cover for the work of the marshals. Taking these matters into account, the Minister may consider that it is necessary or desirable in the public interest that the work of the volunteer marshals be declared to be public interest voluntary work for this section. (2) For this Act, an individual is taken to be a worker employed by the entity stated in the declaration, or a person (the principal) named in the declaration on behalf of the entity, if the individual— (a) performs public interest voluntary work for the entity or the principal; and (b) receives no payment for the work (apart from any payment for expenses). (3) A declaration under this section is a disallowable instrument.

20 Meaning of cpi indexed and awe indexed awe indexed, for an amount, means the amount as adjusted in line with any adjustment in the AWE after the commencement of the provision in which the amount appears. CPI means the All Groups Consumer Price Index (Canberra) issued by the Australian statistician. Note In June 2001, this was series 6401.0. cpi indexed, for an amount, means the amount as adjusted in line with any adjustment in the CPI since the commencement of the provision in which the amount appears. Note AWE is defined in the dict. (2) However, if an amount to be awe indexed or cpi indexed would, if adjusted in line with the adjustment (the negative adjustment) to the AWE or CPI, become smaller, the amount is not reduced in line with the negative adjustment. (3) An amount that, in accordance with subsection (2), is not reduced may be increased in line with an adjustment in the AWE or CPI that would increase the amount only to the extent that the increase, or part of the increase, is not one that would cancel out the effect of the negative adjustment.

(4) Subsection (3) does not apply to a negative adjustment once the effect of the negative adjustment has been offset against an increase in line with an adjustment in the AWE or CPI. Example of adjustments An amount in a section is $100 cpi indexed. There is a 20% increase in the CPI after the section commences. The amount in the section becomes $120 (100 + 20%). There is then a 10% drop in the CPI. The amount does not change from $120 (although if it had changed it would be $108). There is a 20% increase in the CPI. The 20% increase is not to the $120, but to the $108. $108 + 20% = $129.60. So the $120 becomes $129.60. This is the amount ($120) increased by so much of the 20% increase that did not cancel out the effect of the adjustment down to $108.

21 Working out average pre-incapacity weekly earnings for non-contractor (1) In working out average pre-incapacity weekly earnings for a worker who is not a contractor— (a) if the worker was, immediately before the injury, employed by 2 or more employers—the worker’s earnings from all employment must be taken into account; and (b) the actual weekly earnings of the worker may be taken into account over— (i) a period of 1 year before the injury; or (ii) if the worker has not been employed for 1 year—the period of employment.

(2) However, if it is not possible to work out fair average pre-incapacity weekly earnings for the worker under subsection (1) because the worker has only been employed for a short time, because of the terms of the worker’s employment or for some other reason, the worker’s average pre-incapacity weekly earnings may be worked out by reference to the average weekly amount being earned by— (a) others in the same employment who perform similar work at the same grade as the worker; or (b) if there is no-one mentioned in paragraph (a) in the same employment—others in the same class of employment as the worker, who perform similar work at the same grade as the

22 Working out average pre-incapacity weekly earnings for contractor In working out average pre-incapacity weekly earnings for a worker who is a contractor, the worker’s average pre-incapacity weekly earnings are to be worked out— (a) as if the worker were an employee; and (b) if there is an award or industrial agreement applying to the class and grade of work in which the worker was engaged—by reference to the award or industrial agreement.

23 Working out average pre-incapacity weekly hours for non-contractor (1) In working out average pre-incapacity weekly hours for a worker who is not a contractor— (a) if the worker was, immediately before the injury, employed by 2 or more employers—the worker’s work hours from all employment must be taken into account; and

(b) the actual weekly work hours of the worker over a period of up to 1 year before the injury may be taken into account. (2) However, if it is not possible to work out fair average pre-incapacity weekly hours for the worker under subsection (1) because the worker has only been employed for a short time, because of the terms of the worker’s employment or for some other reason, the worker’s average pre-incapacity weekly hours may be worked out by reference to the average weekly hours being worked by— (a) others in the same employment who perform similar work at the same grade as the worker; or (b) if there is no-one mentioned in paragraph (a) in the same employment—others in the same class of employment as the worker, who perform similar work at the same grade as the

24 Working out average pre-incapacity weekly hours for contractor In working out average pre-incapacity weekly hours for a worker who is a contractor, the worker’s average pre-incapacity weekly hours are to be worked out as if the worker were an employee.

25 Overtime—hours and wages (1) This section applies to a component of the worker’s earnings or hours attributable to overtime. (2) The overtime is to be taken into account in working out average pre- incapacity weekly earnings or average pre-incapacity weekly hours only if— (a) the worker worked overtime in accordance with a regular and established pattern; and

(b) the pattern was substantially uniform as to the number of hours of overtime worked; and (c) the worker would have continued to work overtime in accordance with the established pattern if the worker had not been injured.

26 Gradual onset of incapacity (1) This section applies if, because of the gradual onset of a worker’s injury, it appears that the level of the worker’s average pre-incapacity weekly earnings, or average pre-incapacity weekly hours, have been affected. (2) The worker’s average pre-incapacity weekly earnings, or average pre- incapacity weekly hours, must be set at an amount that fairly represents the weekly amount that the worker would have been earning or working if the level had not been affected.

27 Compensation for death or incapacity through disease (1) If— (a) a worker contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and (b) any employment of the worker by the worker’s employer was a substantial contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment; subsections (2) to (5) have effect.

(2) If the worker dies or is totally or partially incapacitated for work as a result of the disease, or the worker received medical treatment in relation to the disease, then, for this Act, unless the contrary intention appears— (a) the contraction of the disease, or the aggravation, acceleration or recurrence of the disease is a personal injury to the worker arising out of the employment of the worker by the worker’s (b) the date of the injury is the earliest of the following: (i) the date of the death; (ii) the date of the start of the incapacity; (iii) the date when the medical treatment was first received. (3) If a liability of an employer in relation to a disease of a worker arises under this section, any other employer who, before that liability so arising, employed the worker in any employment that caused or contributed to the disease is, subject to subsection (4), liable to pay to the employer from whom compensation is recoverable the contribution that is, in default of agreement, settled by arbitration. (4) An employer is not liable under subsection (2) or (3) in relation to a disease if the worker, at the time of entering the employment of that employer, made a wilful and false representation that the worker did not suffer, or had not previously suffered, from that disease. (5) A claimant for compensation under this section in relation to a worker’s disease must, if so required, give the employer who is liable to pay compensation to the claimant with the information about the names and addresses of the worker’s other employers that the claimant possesses.

28 Employment-related diseases Without limiting by implication the operation of section 27, if— (a) a worker has suffered, or is suffering from a disease, or the death of a worker results from a disease; and (b) the disease is a disease of a kind specified by regulation as a disease that is related to employment of a kind so specified; and (c) the worker was, at any time before symptoms of the disease first became apparent, engaged in employment of that kind; then, for this Act, unless the contrary is established, the employment in which the worker was so engaged is taken to have been a substantial contributing factor to the disease.

29 Compensation for disease (1) Any employment in which a worker who has contracted a disease was engaged at any time before symptoms of the disease first became apparent is, unless the contrary is established, taken for this Act to have been a substantial contributing factor to the worker’s contracting the disease if the incidence of the disease among people who have engaged in that kind of employment is significantly greater than the incidence of the disease among people who have engaged in employment generally in the place where the worker was ordinarily employed.

(2) Any employment in which a worker who has suffered an aggravation, acceleration or recurrence of a disease was engaged at any time before symptoms of the aggravation, acceleration or recurrence first became apparent is, unless the contrary is established, taken for this Act to have been a substantial contributing factor to the aggravation, acceleration or recurrence if the incidence of the aggravation, acceleration or recurrence of the disease among people suffering from the disease who have engaged in that kind of employment is significantly greater than the incidence of the aggravation, acceleration or recurrence of the disease among people suffering from the disease who have engaged in employment generally in the place where the worker was ordinarily employed. (3) The death of a worker is taken for this Act to have been substantially contributed to by a disease if, apart from that disease, the death of the worker would have happened at a significantly later time. (4) An incapacity for work or facial disfigurement of a worker is taken for this Act to have been substantially contributed to by a disease if, apart from the disease— (a) the incapacity or disfigurement would not have happened; or (b) the incapacity would have begun, or the disfigurement would have happened, at a significantly later time; or (c) the extent of the incapacity or disfigurement would have been significantly less. (5) This section does not limit the operation of section 27.

Part 4.2 Compensation for personal injury

31 General entitlement to compensation for personal injury (1) An employer is liable to pay compensation under this Act if a worker of the employer suffers personal injury arising out of, or in the course of, the worker’s employment. (2) However, if the injury is caused by a disease, the injury is taken to have arisen out of, or in the course of, the worker’s employment only if the employment substantially contributes to the injury. (3) Also, an injury suffered by a worker partly or completely because the worker had any of the following pre-existing conditions is taken to have arisen out of, or in the course of, the worker’s employment only if the employment substantially contributes to the injury: (a) diseased heart valve; (b) coronary artery disease; (c) aortic aneurism; (d) cerebral aneurism; (e) any other condition prescribed by regulation for this section. (4) Further, this section is subject to the following provisions: (a) part 4.2A (Employment connection with ACT or State); (b) section 34 (Injury outside Australia); (c) part 4.8 (Exceptions to entitlements to compensation); (d) in relation to the entitlement to weekly compensation— (i) section 37 (What if the worker is dead?); (ii) section 113 (Compliance by workers).

Compensation for personal injury Part 4.2

32 Amounts of compensation under Act cumulative An amount of compensation payable under a provision of this Act in relation to an injury is, unless otherwise expressly stated, in addition to any amount of compensation paid or payable under any other provision of this Act.

33 Payments to people with legal disabilities (1) If compensation under this Act is payable to someone with a legal disability, the Magistrates Court may make any order about the payment of the compensation that it considers appropriate to protect the person or the person’s interests. person with a mental disability means a person who is not legally competent to conduct the person’s legal affairs because of a mental disability whether or not a guardian has not been appointed for the person under the Guardianship and Management of Property Act 1991. someone with a legal disability means someone who is— (a) a child; or (b) a person with a mental disability.

34 Injury outside Australia Compensation is payable in relation to an injury to a territory worker suffered while the worker is outside Australia only if compensation would be payable in relation to the injury if the worker suffered the injury in Australia.

35 When is a worker taken to be totally incapacitated? (1) In this Act, a worker is taken to be totally incapacitated for work if— (a) a doctor certifies that the worker is partially incapacitated for work; and

(b) the partial incapacity prevents the worker from performing the duties the worker performed before becoming incapacitated; and (c) the employer cannot provide appropriate alternative (d) the worker cannot find appropriate alternative employment. (2) For subsection (1), the worker is taken to be totally incapacitated from the time when the worker became partially incapacitated until 1 of the following happens: (a) the worker becomes totally incapacitated; (b) the employer provides the worker with appropriate alternative employment; (c) the worker finds appropriate alternative employment.

36 Journey claims (1) A personal injury received by a worker on an employment-related journey is, for this Act, an injury arising out of, or in the course of, the worker’s employment. Note Compensation may be payable for an injury arising out of, or in the course of, employment under s 31 (General entitlements to compensation for personal injury). (2) The following are employment-related journeys for the worker: (a) a journey between the worker’s home and workplace; (b) a journey between the worker’s home and an educational institution that the worker is attending for an employment-related purpose;

Compensation for personal injury Part 4.2 (c) a journey between the worker’s home or workplace and another place if the purpose of the journey is to obtain 1 or more of the following in relation to a previous injury for which the worker is entitled to compensation under this Act: (i) a medical certificate; (ii) medical advice, attention or treatment; (iii) compensation. (3) However, subsection (1) applies to an injury received during or after a non employment-related interruption of, or deviation from, an otherwise employment-related journey only if the risk of injury was not materially increased because of the interruption or deviation. (4) For this section— (a) an employment-related journey to the worker’s home is taken to end at the boundary of the premises where the worker’s home is located; and (b) an employment-related journey from the worker’s home is taken to begin at the boundary of the premises where the worker’s home is located. home, for a worker, means the place where the worker usually lives. workplace, for a worker, means the worker’s place of employment.

Part 4.2A Employment connection with ACT or State

36A Meaning of Territory or State of connection etc Territory or State of connection, in relation to the employment of a worker, means— (a) the Territory or State with which the employment of the worker is connected, as determined under this part; and (b) if this Act mentions the Territory or State of connection determined under the law of a State for that employment—the State of connection for that employment, or the Territory or State of connection for that employment, within the meaning of the law of the State. (2) In this part: employer, in relation to a Territory or State, includes an employer employment, in relation to a Territory or State, includes employment worker, in relation to a Territory or State, includes a worker within the meaning of the workers compensation law of the Territory or State.

36B Employment connection test (1) Compensation under this Act is only payable if the ACT is the Territory or State of connection. (2) The fact that a worker is outside the ACT when injured does not prevent compensation being payable under this Act if the ACT is the Territory or State of connection. (3) A worker’s employment is connected with— (a) the Territory or State where the worker usually works in the employment; or (b) if no Territory or State, or no single Territory or State, is identified by paragraph (a)—the Territory or State where the worker is usually based for the purposes of the employment; or (c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)—the Territory or State where the employer’s principal place of business in Australia is located. (4) For a worker working on a ship, if no Territory or State, or no single Territory or State, is identified by subsection (3), the worker’s employment is, while working on the ship, connected with— (a) the Territory or State where the ship is registered; or (b) if the ship is registered in more than 1 Territory or State—the Territory or State where the ship most recently became registered.

(5) If no Territory or State is identified for a worker by subsection (3) or (4), the worker’s employment is connected with the ACT if— (a) the worker is in the ACT when injured; and (b) the worker is not entitled to compensation in relation to the injury under the workers compensation law of an external Territory, or a place outside Australia. (6) In deciding whether a worker usually works in a Territory or State— (a) regard must be had to the following: (i) the worker’s work history with the employer over the previous 12 months; (ii) the worker’s proposed future working arrangements; (iii) the intentions of the worker and employer; (iv) any period during which the worker worked in a Territory or State (a relevant place) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but

(b) regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months. Example—worker usually works in a single jurisdiction Emma is employed as an electrical trades assistant with a NSW-based employer. Emma performs all of her employment duties on worksites in the ACT, taking her own vehicle to work and providing her own tools and equipment. Emma does not attend her employer’s premises in NSW in the course of her day-to-day duties and receives all of her instructions from the relevant project manager on sites in the ACT. For s (3) (a), Emma usually performs work for her employer in the ACT and her Territory or State of connection is the ACT. Example—worker usually works in more than one jurisdiction An employer carries on business as an interstate bus operator from premises in the ACT. Ray is engaged by the employer as a bus driver, mainly driving buses between Canberra and Sydney, NSW, but also driving buses between Canberra and Melbourne, VIC. Occasionally Ray drives charter buses entirely within the ACT for the employer. For s (3) (a), Ray usually works in the ACT, NSW and VIC. As s (3) (a) does not decide Ray’s Territory or State of connection, s (3) (b) needs to be considered. (7) In deciding whether a worker is usually based in a Territory or State regard must be had to the following: (a) if the employer provides a place from which the worker is expected to operate—that place; (b) if a place is stated in the worker’s contract of employment with the employer—that place; (c) the place from which the worker routinely receives day-to-day instructions from the employer; (d) the place where the worker attends to collect material for the purposes of their employment;

(e) the place where the worker reports for administrative, human resource and other issues related to the workers’ employment with the employer. Example—worker usually based in a single jurisdiction Jenny is a sales representative for XYZ. Each morning Jenny is required to attend a warehouse in NSW to collect her employer’s products, which she is then required to distribute to various retail outlets in NSW and the ACT. Jenny uses a vehicle supplied by her employer, which she garages at her home in NSW. At the end of each day Jenny is required to return any unsold merchandise to the warehouse in NSW. Jenny works without day-to-day supervision. Jenny’s immediate manager is located in XYZ’s ACT office and is the person to whom she is required to send reports and time sheets and to whom she reports verbally by telephone from time to time. Jenny sends all written correspondence to her manager via a fax located at her home in NSW. All invoice books which Jenny needs to carry out her duties are mailed to her home in NSW from where she prepared all documentation related to her employment. For s (3) (b), Jenny is usually based in NSW for the purposes of her employment with XYZ. The employer’s NSW warehouse is the place provided by XYZ that Jenny is expected to operate from. Example—worker is usually based in more than one jurisdiction Paul is employed by an interstate trucking company that transports textiles across Australia. Paul is supplied with a truck for the purposes of his employment and is permitted to garage it at his home in the ACT while not in use. Paul transports goods between the ACT, NSW and QLD. His contract of employment states that he is employed to undertake transporting services across each of these jurisdictions. Paul routinely receives instructions from each of the depots he stops at in the ACT, NSW and QLD and receives ad hoc instructions via radio while in transit. For s (3) (b), Paul is not usually based in any single Territory or State. As s (3) (b) does not decide Paul’s Territory or State of connection, s (3) (c) needs to be considered. (8) In deciding where the employer’s principle place of business in Australia is located regard must be had to the following: (a) the place where the employer conducts the main part or majority of its business;

(b) the address registered on the Australian Business Register in connection with the employer’s ABN; (c) if the employer is not registered for an ABN—the Territory or State registered by ASIC as the jurisdiction in which the employer’s business or trade is carried out; (d) if the employer is not registered for an ABN or with ASIC—the employer’s business mailing address. (9) Compensation under this Act is not payable in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker’s employment. (10) In this section: ABN—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41. ASIC means the Australian Securities and Investments Commission under the Australian Securities and Investments Commission Act 2001 (Cwlth). Australian Business Register—see the A New Tax System (Australian Business Number) Act 1999 (Cwlth), section 41. ship means any kind of vessel used in navigation by water, however propelled or moved, and includes all of the following if used wholly or primarily in navigation by water: (a) a barge, lighter or other floating vessel; (b) an air-cushioned vehicle, or other similar craft. Territory or State, in a geographical sense, includes a Territory’s or State’s relevant adjacent area as described in schedule 2.

36C Determination of Territory or State of connection in workers compensation proceedings (1) If the question of whether the ACT is the Territory or State of connection arises in a proceeding in a court in relation to a claim for compensation under this Act, the court must determine the Territory or State of connection in accordance with section 36B (Employment connection test). (2) Subsection (1) does not apply if there is a determination of the Territory or State of connection that is to be recognised under section 36E (Recognition of previous determinations of Territory or State of connection).

36D Determination of Territory or State of connection by Magistrates Court (1) If a claim for compensation under this Act has been made, a party to the claim may apply to the Magistrates Court for a determination of the question of which Territory or State is the Territory or State of connection. (2) The Magistrates Court must determine the Territory or State of connection in accordance with section 36B (Employment connection test). (3) However, an application may not be made or heard if there is a determination of the Territory or State of connection that is to be recognised under section 36E.

36E Recognition of previous determinations of Territory or State of connection (1) This section applies if a determination of the Territory or State of connection has been made by any of the following courts or tribunals: (a) an ACT court under section 36C or 36D;

(b) a court or tribunal of a State under a provision of a law of the State corresponding to section 36C or 36D; (c) an ACT court or a court of a State in a proceeding on a damages claim to which part 9.2 (Choice of law) applies, or to which provisions of a law of a State corresponding to part 9.2 apply. (2) The Territory or State determined as mentioned in subsection (1) is to be recognised for this Act as the Territory or State of connection. (3) This section does not prevent any appeal relating to a determination of a court. (4) If a determination is changed on appeal to a court, the changed determination is to be recognised under this section.

36F No ACT compensation if external compensation received (1) Compensation under this Act (ACT compensation) is not payable in relation to a worker’s injury to the extent that compensation (external compensation) under the workers compensation law of an external Territory or a place outside Australia has been received in relation to the same injury. (2) If a person receives ACT compensation from an employer in relation to a worker’s injury and later receives external compensation in relation to the same injury, the employer is entitled to recover from the person the recoverable amount. (3) For subsection (2), the lesser of the following amounts is the recoverable amount: (a) the amount of ACT compensation; (b) the amount of external compensation.

(4) If an amount of ACT compensation is paid in relation to a lump sum claim, subsection (3) (a) applies as if the reference to the amount of ACT compensation paid by the employer included a reference to any legal costs as between party and party that the employer is liable to pay in relation to the claim. (5) An employer cannot recover an amount under this section in relation to an injury if the employer has recovered an amount under section 184 (No compensation if damages received) in relation to the same injury.

36G Definitions—pt 4.3 initial incapacity date, for a worker in relation to an injury that causes incapacity or death, means— (a) the date the worker first becomes incapacitated (whether totally or partially) for work because of the injury; (b) if the worker is dead and the death was not preceded by a period of incapacity for work—the date of the worker’s death. pension age, for a worker, has the meaning given by the Social Security Act 1991 (Cwlth), section 23 (5A), (5B), (5C) and (5D). statutory floor means the national minimum wage set by a national minimum wage order in an annual wage review by the Fair Work Commission under the Fair Work Act 2009 (Cwlth). weekly compensation, for a worker, means compensation to which the worker is entitled under section 39 (Entitlement to weekly compensation for first 26 weeks of incapacity) or section 40 (Entitlement to weekly compensation after first 26 weeks of incapacity). annual wage review—see the Fair Work Act 2009 (Cwlth), section 285 (1). Fair Work Commission—see the Fair Work Act 2009 (Cwlth), section 12. national minimum wage order—see the Fair Work Act 2009 (Cwlth), section 12.

37 What if the worker is dead? (1) A worker is not entitled to weekly compensation if the worker is dead. (2) However, this section does not affect an entitlement to weekly compensation that accrued before the worker’s death.

38 When do weekly compensation payments begin etc? (1) If the worker is or may be entitled to compensation for a compensable (a) the payment of weekly compensation must begin when the worker gives notice of the injury to the employer; and (b) the worker is or may be entitled to weekly compensation from the date of the injury. Note An employer is liable to pay compensation if the employer’s worker suffers personal injury arising out of, or in the course of, the worker’s employment (see s 31 (1)). (2) However, if, at the end of 7 days after the date of the injury, the worker has not made a claim for compensation— (a) payment of weekly compensation ends; and (b) the worker is not entitled to weekly compensation for the injury for the period— (i) beginning on the day 8 days after the date of the injury; and (ii) ending on the day before the day the worker makes a claim for the injury. (3) Subsection (2) does not apply in relation to the worker if— (a) the worker cannot make a claim before the end of the 7-day period because of the injury; and (b) the worker makes the claim not later than 7 days after the day the worker is first able to make the claim.

(4) An employer commits an offence if the employer— (a) is required under subsection (1) to begin the payment of workers compensation to a worker; and (b) fails to comply with the requirement.

39 Entitlement to weekly compensation for first 26 weeks of incapacity (1) This section applies if a worker is incapacitated (whether totally or partially) because of a compensable injury. (2) The worker is entitled to receive weekly compensation under this section for any period on or after the initial incapacity date that the worker is incapacitated because of the injury. (3) However, the worker is not entitled to weekly compensation under this section for the injury— (a) for a period of longer than, or for periods (whether or not continuous) totalling more than, 26 weeks; or (b) if the worker was, on the initial incapacity date for the injury, younger than the pension age by more than 2 years—for any period after the worker reaches pension age; or (c) if the worker was, on the initial incapacity date for the injury, younger than the pension age by 2 years or less—for any period more than 2 years after the initial incapacity date; or (d) if the worker was, on the initial incapacity date for the injury, pension age or older—for any period more than 2 years after the initial incapacity date.

(4) The worker’s entitlement under this section is worked out as follows: (a) for any period during which the person is totally incapacitated during the period of entitlement—the worker’s average pre-incapacity weekly earnings; (b) for any period during which the person is partially incapacitated during the period of entitlement—the difference between— (i) the worker’s average pre-incapacity weekly earnings; and (ii) the average weekly amount that the worker is being paid for working or could earn in reasonably available suitable employment. (5) For this section, in working out the average weekly amount the worker could earn, consideration may be given to the following: (a) suitable employment that the worker unreasonably rejects; (b) suitable employment that the worker obtains but unreasonably discontinues.

40 Entitlement to weekly compensation after first 26 weeks of incapacity (a) a worker is incapacitated (whether totally or partially) because of a compensable injury; and (b) the worker has received weekly compensation under section 39 for the injury for a period of, or periods (whether or not continuous) totalling, 26 weeks. (2) The worker is entitled to receive weekly compensation under section 41 (Entitlement to weekly compensation after 26 weeks of total incapacity) for any period after the 26-week period when the worker is totally incapacitated.

(3) The worker is entitled to receive weekly compensation under section 42 (Entitlement to weekly compensation after 26 weeks of partial incapacity) for any period after the 26-week period when the worker is partially incapacitated. (4) However, the worker is not entitled to weekly compensation for the (a) if the worker was, on the initial incapacity date for the injury, younger than the pension age by more than 2 years—for any period after the worker reaches pension age; or (b) if the worker was, on the initial incapacity date for the injury, younger than the pension age by 2 years or less—for any period more than 2 years after the initial incapacity date; or (c) if the worker was, on the initial incapacity date for the injury, pension age or older—for any period more than 2 years after the initial incapacity date.

41 Entitlement to weekly compensation after 26 weeks of total incapacity (1) If a worker is entitled to receive weekly compensation under this section for a period, the worker is entitled to receive weekly compensation equal to— (a) if 100% of the worker’s average pre-incapacity weekly earnings is less than the pre-incapacity floor for the worker—100% of the worker’s average pre-incapacity weekly earnings; or (b) if 100% of the worker’s average pre-incapacity weekly earnings is more, but 65% of those earnings is less, than the pre-incapacity floor for the worker—the statutory floor; or

(c) if 65% of the worker’s average pre-incapacity weekly earnings is more than the pre-incapacity floor for the worker—whichever of the following is (at the time of payment) more: (i) 65% of the worker’s average pre-incapacity weekly earnings; (ii) the statutory floor. Example for par (c) Jim is injured at work and totally incapacitated for 14 weeks. After unsuccessfully attempting a return to work for 3 days, Jim is totally incapacitated for another 18 weeks. Jim is entitled under section 39 to compensation equal to his average pre-incapacity weekly earnings for the 14 weeks and the next 12 weeks of his total incapacity (making a total of 26 weeks not including the 3 days return to work). He is then entitled to be paid 65% of his pre-incapacity weekly earnings (or the statutory floor, if more at the time of payment) for the remaining period (6 weeks) he is totally incapacitated. pre-incapacity floor, for a worker, means the statutory floor that applied immediately before the initial incapacity date for the worker in relation to the injury.

42 Entitlement to weekly compensation after 26 weeks of partial incapacity (1) If a worker is entitled to receive weekly compensation under this section for a period, the worker is entitled to receive weekly compensation equal to the difference between the weekly amount the worker is being paid for working or could earn in reasonably available suitable employment and— (a) if 100% of the worker’s average pre-incapacity weekly earnings is less than the statutory floor—100% of the worker’s average pre-incapacity weekly earnings; or

(b) if the relevant percentage of the worker’s average pre-incapacity weekly earnings is less than the statutory floor—the statutory floor; or (c) if the relevant percentage of the worker’s average pre-incapacity weekly earnings is more than the statutory ceiling—the statutory ceiling; or (d) in any other case—the relevant percentage of the worker’s average pre-incapacity weekly earnings. (2) For this section, the relevant percentage is— (a) if the worker is not working or works 25% of the worker’s average pre-incapacity weekly hours or less—65%; or (b) if the worker is working more than 25% of the worker’s average pre-incapacity weekly hours but not more than 50%—75%; or (c) if the worker is working more than 50% of the worker’s average pre-incapacity weekly hours but not more than 75%—85%; or (d) if the worker is working more than 75% of the worker’s average pre-incapacity weekly hours but not more than 85%—95%; or (e) if the worker is working more than 85% of the worker’s average pre-incapacity weekly hours—100%. 1 Bronwyn injures herself at work in her full-time job. Bronwyn’s injury causes her to become partially incapacitated and prevents her from fulfilling her normal duties over normal work hours for 28 weeks. In those 28 weeks, Bronwyn works, on average, 50% of her pre-incapacity weekly hours. Bronwyn returns to normal duties for 4 weeks but suffers from a relapse, becoming partially incapacitated again and staying that way for a further 7 weeks. Bronwyn’s employer is required to pay Bronwyn her wage for the time she has worked during the 35 weeks of partial incapacity. Bronwyn is also entitled to the following weekly compensation: (a) weekly compensation equal to the amount she has lost in wages for the first 26 weeks of reduced hours work;

(b) weekly compensation for the remaining 9 weeks of working on reduced hours equal to the difference between the weekly amount Bronwyn is being paid for working and the statutory ceiling (because Bronwyn is earning more than 150% of AWE at the time the compensation is being paid). 2 Nicholas works full time in a job that pays him an amount equivalent to the statutory floor. Nicholas injures himself at work and is totally incapacitated for 6 weeks and partially incapacitated for 26 weeks. Nicholas is advised he could work on light duties for 3 weeks of the partial incapacity period. However, suitable employment is not provided for this period. Nicholas’ condition improves to the point where he returns to work on a part-time basis and works 20% of his average pre-incapacity hours for 10 weeks. Nicholas’ condition further improves to the point where he works on average 60% of his pre-incapacity weekly hours for the last 13 weeks of partial incapacity. Nicholas’ entitlements are as follows: (a) the following amounts for wages (paid to Nicholas by his employer) for the time he has worked during the 35 weeks of partial incapacity: (i) for the first 3 weeks when Nicolas suffers from partial incapacity but is capable of undertaking suitable work and is not provided with it—nothing; (ii) 20% of his normal pre-incapacity earnings for the next 10 weeks of partial incapacity; (iii) 60% of his normal pre-incapacity earnings for the last 13 weeks of partial incapacity; (b) the following amounts for weekly compensation: (i) for the initial 6 weeks he is totally incapacitated—compensation equal to his average pre-incapacity weekly earnings; (ii) for the first 3 weeks of partial incapacity when he is capable of undertaking suitable work but is not provided with it—100% of his normal pre-incapacity earnings; (iii) for the next 17 weeks of partial incapacity—the difference between the average weekly amount that Nicholas is paid for working and his pre-incapacity earnings; (iv) for the remaining 6 weeks—the difference between the statutory floor (because Nicholas is paid at the same rate as the statutory floor) and the amount that Nicholas is paid for working.

(3) For this section, in working out the average weekly amount the worker could earn, consideration may be given to the following: (a) suitable employment that the worker unreasonably rejects; (b) suitable employment that the worker obtains but unreasonably discontinues. statutory ceiling, in relation to an amount, means 150% of AWE at the time the amount is to be paid.

43 Stopping payments for total incapacity (1) A worker stops being entitled to weekly compensation for total incapacity for a compensable injury at the earliest of the following times: (a) when the worker stops being totally incapacitated because of the injury; (b) when the worker returns to work; (c) when the worker dies. (2) However, if the worker stops being entitled to weekly compensation under subsection (1) (a) or (b), the worker may again become entitled to weekly compensation for the compensable injury if the worker again becomes totally or partially incapacitated because of the injury.

43A Stopping payments for partial incapacity (1) A worker stops being entitled to weekly compensation for partial incapacity for a compensable injury at the earliest of the following times: (a) when the worker stops being partially incapacitated because of the injury; (b) when the worker dies.

(2) However, if the worker stops being entitled to weekly compensation under subsection (1) (a), the worker may again become entitled to weekly compensation if the worker again becomes totally or partially incapacitated because of the compensable injury.

43B Effect on payment period of loss of entitlement to weekly (1) This section applies if a worker would be entitled to weekly compensation under section 39 (Entitlement to weekly compensation for first 26 weeks of incapacity) or section 40 (Entitlement to weekly compensation after first 26 weeks incapacity) if payment of the compensation had not been stopped under section 83 (No compensation while imprisoned) or section 113 (Compliance by workers). (2) The period when the worker’s entitlement is stopped is counted as part of the 26-week period mentioned in section 39 and section 40 as if payment of compensation had not been stopped.

44 Living outside Australia (1) A worker who is otherwise entitled to receive weekly compensation is not entitled to the compensation if the worker stops living in Australia. (2) Subsection (1) does not apply to the worker if— (a) the incapacity resulting from the injury is likely to be permanent; or (b) the worker’s absence from Australia is likely to help the worker recuperate.

45 Effect of living outside Australia if compensation still (1) This section applies if the worker lives outside Australia but is, apart from this section, still entitled to weekly compensation. Note A worker living outside Australia is still entitled to compensation if s 44 (2) applies to the worker. (2) The worker is not entitled to weekly compensation, but is entitled to receive quarterly the amount of the weekly compensation payable during the previous quarter. (3) However, the worker is entitled to receive quarterly payment of compensation only if the worker proves the worker’s identity and that the worker continues to be incapacitated by the incapacity in relation to which the weekly compensation is payable.

46 Effect of payment of weekly compensation on other benefits etc (1) A worker is entitled to take or accrue annual leave and long service leave under a law in force in the ACT during a period in relation to which the worker is entitled to weekly compensation. Note This provision removes the restriction under the Fair Work Act 2009 (Cwlth), s 130 (1) on taking or accruing annual leave or long service leave during a period the employee is entitled to weekly compensation. (2) This part is not intended to affect any other entitlement of a worker to a benefit or payment (that is not leave) under any other law in force in the ACT.

47 No assignment etc of weekly compensation Weekly compensation (including compensation payable under section 45 (Effect of living outside Australia if compensation still payable)) may not— (a) be assigned, charged or attached; and

(b) pass to anyone else by operation of law; and (c) have a claim set off against it.

Part 4.4 Compensation for permanent injuries

48 Meaning of loss loss, in relation to a thing— (a) means— (i) the loss of the thing; or (ii) the permanent loss of the use, or efficient use, of the thing; and (b) includes the following: (i) permanent musculoskeletal impairment, or another permanent impairment; (ii) a loss, damage, impairment, disfigurement or disease mentioned in schedule 1 (Compensation for permanent injuries).

49 Meaning of single loss amount single loss amount means $100 000 cpi indexed.

50 Meaning of maximum loss amount maximum loss amount means $150 000 cpi indexed.

51 Compensation for permanent injuries generally (1) A worker who has suffered a loss mentioned in an item of schedule 1 as the result of a compensable injury is entitled to receive from the worker’s employer, as compensation for the loss, the percentage of the single loss amount mentioned in that item. (2) For this section, the loss is to be worked out when the last of the following happens: (a) the worker’s employer became liable to pay compensation; (b) it is unlikely that there will be an improvement or further improvement in the use, or efficient use, of the injured part of the body. (3) If a payment of compensation under this part has been made in relation to an injury, nothing prevents a further payment of compensation under this part from being made in relation to the same injury if there is an increase in the loss of the efficient use of the injured part of the body. Example of loss of efficient use of injured part of body a loss, or further loss, of sight in an injured eye

53 Compensation for 2 or more losses A worker who has suffered 2 or more losses mentioned in schedule 1 (Compensation for permanent injuries) because of an injury is not entitled to receive as compensation under this part more than the maximum loss amount for the losses.

54 Compensation and left-handedness If a worker’s left arm or hand is the worker’s dominant limb, in working out the loss for the worker— (a) the loss of the worker’s left arm, left hand or fingers of left hand is to be compensated as if it is the loss of the worker’s right arm, right hand or fingers of right hand; and

(b) the loss of the worker’s right arm, right hand or fingers of right hand is to be compensated as if it is the loss of the worker’s left arm, left hand or fingers of left hand.

55 Compensation for combination of items If a loss (other than the impairment of the back, neck or pelvis) may be compensated by a combination of items in schedule 1 (Compensation for permanent injuries) or by a proportionate loss of a single item, the loss is to be compensated by a proportionate loss of the single item. 1 Loss of 2 or more fingers is to be compensated as a proportionate loss of the hand. 2 Loss of a hand includes the loss of the thumb and other fingers of the hand and is to be compensated as a loss, or proportionate loss, of the hand. 3 Loss of an arm at or above the elbow includes the loss of the arm below the elbow and loss of the hand and is to be compensated as a loss, or a proportionate loss, of the arm at or above the elbow. 4 Loss of a leg at or above the knee includes the loss of the leg below the knee and loss of the foot and is to be compensated as a loss, or a proportionate loss, of the leg at or above the knee. 5 Loss of a leg below the knee includes the loss of the foot and is to be compensated as a loss, or a proportionate loss, of the leg below the knee.

56 Compensation for only arm, leg, hand or foot Loss of an only arm, leg, hand or foot is treated under schedule 1 as the loss of both arms, legs, hands or feet.

57 Compensation for loss of sexual organs The following percentages of the single loss amount are payable for the loss of sexual organs (subject to the maximum percentage of 47% and without limiting compensation for the loss of another sexual organ): (a) the percentage payable for loss of the penis is 47%;

(b) the percentage payable for loss of 1 testicle is 10%; (c) the percentage payable for loss of 2 testicles or an only testicle is 47%.

58 Loss of bowel function To work out whether and to what extent a worker has suffered permanent loss of bowel function— (a) the bowel is taken to include the anal sphincter; and (b) permanent ileostomy and permanent colostomy are each taken to constitute permanent loss of bowel function for which the maximum percentage is payable.

59 Proportionate loss of use (1) If a loss suffered by a worker consists of the loss of a proportion, but not all, of a thing mentioned in schedule 1 (Compensation for permanent injuries), a percentage of the compensation payable for the total loss of the thing equal to the percentage lost by the worker is payable as compensation under section 51 (Compensation for permanent injuries generally). (2) In working out the extent of the loss of the thing, the extent to which the loss, or the effect of the loss, may be reduced or limited by an external removable aid or appliance is not to be taken into account. (3) The amount of compensation payable for a particular case must, unless decided by agreement, be worked out by conciliation or arbitration under this Act.

61 Deduction for previous injury or pre-existing condition (1) In working out the compensation payable under this part for a loss (the initial loss), an amount must be deducted from the compensation (the deductible proportion) for any proportion of the loss attributable to— (a) a previous injury (whether or not it is an injury for which compensation has been paid, or is payable, under this part); or (b) a pre-existing condition or abnormality. (2) In subsection (1), it does not matter whether the initial loss is a total or partial loss. (3) If there is a deductible proportion for a loss but the extent of the deductible proportion (or a part of it) will be difficult or costly to work out, it is to be assumed that the deductible proportion for the loss (or the relevant part of the loss) is 10% of the loss, unless this assumption is contrary to the available evidence. If this subsection requires it to be assumed that the deductible proportion in relation to a particular loss is 10% and the loss is 30% of the loss of the use of the right arm, the deductible proportion for the loss is 3% (that is, 10% of 30%). (4) However, section 63 must be used to work out how much (if any) of a worker’s hearing loss is caused by age.

62 Further loss and deductible proportions (1) This section applies in working out the compensation payable for a further loss (the further loss) resulting from an initial loss. (2) An amount proportionate to the deductible proportion of the initial loss must be deducted from the compensation payable for the further loss. (3) A deduction under subsection (2) in relation to a further loss is in addition to, not in substitution for, any deductible proportion for the further loss.

63 Loss of hearing because of age (1) This section applies in working out the percentage of the decrease of hearing in relation to boilermakers deafness of a worker who is the prescribed age or older, but does not apply to total hearing loss in either of the worker’s ears. (2) For this part, it is to be conclusively presumed that the worker’s loss of hearing to be attributed to loss of hearing because of age is 0.5 decibels for each complete year of the worker’s age over the prescribed age. prescribed age means— (a) for a male—55 years old; or (b) for a female—65 years old.

64 No compensation for less than 6% hearing loss (1) A worker is not entitled to compensation under section 51 (Compensation for permanent injuries generally) for a loss of hearing because of boilermakers deafness (the hearing loss) if the worker’s total hearing loss is less than 6%. (2) However, the worker is entitled to compensation for the hearing loss if the total hearing loss reaches 6% or more. Assume all hearing losses mentioned in this example are because of boilermakers deafness. A worker suffers a hearing loss of 3% (the first hearing loss that the worker has suffered). No compensation is payable under section 51 for the loss because it is less than 6%, although notice of injury may be given or a claim may be made for the hearing loss.

The worker suffers a further hearing loss of 6%, bringing the total loss to 9%. The total loss has now passed the 6% threshold and compensation is payable for the full 9%. Compensation for the initial 3% hearing loss will be payable by the earlier employer if the worker made a claim or gave notice of injury for the initial hearing loss. The worker suffers a further hearing loss of 6%. The worker is entitled in the usual way to compensation for the 6% further loss because the 6% threshold has already been passed (the total loss is now 15%). Note Pt 5.3 (Obligations on injury) and ch 6 (Claims) apply to a hearing loss even if it is not immediately compensable because of this section. (3) In working out the percentage hearing loss because of boilermakers deafness, the loss of hearing is to be worked out as a proportionate loss of hearing of both ears, even if the loss is in 1 ear only. (4) A lawyer or agent who acts for a worker on a claim for compensation for loss of hearing because of boilermakers deafness is not entitled to recover costs from the worker or the employer in relation to the claim if no compensation is payable on the claim because the worker’s total hearing loss is less than 6%. total hearing loss means the total of the present loss and all previous losses of hearing because of boilermakers deafness.

65 Presumption to be drawn from refusal to submit to hearing examination (1) This section applies to a worker with a claim for which no compensation is payable because of section 64. (2) If the worker fails to allow themself to be examined as required under the worker’s personal injury plan, or obstructs the examination, it is presumed in the absence of evidence to the contrary that the worker has no hearing loss because of boilermakers deafness.

66 Employer’s responsibility to pay for hearing loss tests (1) If an employer would, apart from section 64 (No compensation for less than 6% hearing loss), be liable to pay compensation under section 51 (Compensation for permanent injuries generally) for a worker’s hearing, the employer is liable under this chapter to pay the cost of only the following hearing tests for the loss: (a) a test carried out at least 3 years after any previous test that the employer has paid for; (b) a test that finds that the worker has suffered a total hearing loss because of boilermakers deafness of 6% or more; (c) a test carried out after the worker has left the worker’s employment with the employer if the hearing loss is attributable to the employment; (d) a test carried out by a doctor, or audiologist, using an audiogram to work out the level of hearing loss. (2) The cost of a hearing test for the worker is the cost of obtaining a medical certificate, and any examination required for the certificate, about the extent of the worker’s hearing loss. (3) This section does not require payment by an employer for the cost of obtaining a hearing test that the employer would not otherwise be liable to pay for under this chapter. total hearing loss means the total of the present loss and all previous losses of hearing because of boilermakers deafness.

67 Reimbursement for costs of medical certificate and examination (1) Obtaining a medical certificate, and any examination required for the certificate, is taken to be medical or related treatment for this chapter if the worker gives the employer a copy of the certificate.

medical certificate means a report or certificate, from a doctor, that complies with the requirements for medical assessments prescribed by regulation and that certifies— (a) that a worker has suffered a loss mentioned in schedule 1 (Compensation for permanent injuries); or (b) the extent of the loss to allow the amount of compensation payable for the loss to be worked out.

68 Limited entitlement if death happens within 3 months (a) a worker has received a compensable injury; and (b) the worker dies within 3 months after receiving the compensable injury because of the compensable injury or another injury received at the same time. (2) The worker is not entitled to receive compensation for the compensable injury under the following items of schedule 1 (Compensation for permanent injuries): (a) item 2 (loss of sense of taste or smell); (b) item 3 (loss of senses of taste and smell); (c) item 41 (loss of sexual organs); (d) item 42 (loss of both breasts); (e) item 43 (loss of 1 breast); (f) item 44 (permanent and total loss of capacity to engage in sexual intercourse); (g) item 49 (severe facial disfigurement); (h) item 50 (severe bodily disfigurement).

Part 4.5 Compensation for medical treatment, damage and other costs

69 Application—pt 4.5 This part applies if— (a) compensation under this Act is payable by an employer to, or in relation to, a worker in relation to an injury; or (b) the operation of section 64 (No compensation for less than 6% hearing loss) means no compensation is payable by an employer to, or in relation to, a worker in relation to an injury; or (c) compensation would be payable by an employer to, or in relation to, a worker in relation to an injury except that— (i) the worker is not incapacitated for work; or (ii) the worker is imprisoned (see section 83); or (iii) weekly compensation has been suspended under section 113 (Compliance by workers); or (iv) the worker has contravened this Act. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

70 Employer liability for medical treatment etc (1) The employer is liable to pay— (a) in relation to the cost of medical treatment reasonably received in relation to the injury—an amount of compensation appropriate for the provision of the medical treatment, having regard to the charges customarily made for similar medical treatment where the treatment is received; and (b) in relation to the cost of alteration to the worker’s place of residence—the cost of the alteration if— (i) the worker has an impairment as a result of the injury; and (ii) the worker has received, or is receiving, medical treatment in relation to the injury; and (iii) the alteration is reasonably required by the worker in relation to the worker’s impairment; and Note See also s 73A and s 73B. (c) in relation to the cost of rehabilitation services received by the worker in relation to the injury under the worker’s personal injury plan—the cost of the services in accordance with the plan; and (d) in relation to any damage to, or loss of, the worker’s clothing sustained in association with the injury—compensation of a reasonable amount for the repair or replacement of the damaged or lost clothing. Note 1 Rehabilitation services include training and retraining services—see the dictionary, def rehabilitation services. Note 2 Ch 5 deals with personal injury plans.

(2) However, the total amount payable under subsection (1) for each of the following must not be more than the maximum amount: (a) for the cost of medical treatment consisting of the repair or replacement of a worker’s contact lenses, crutches, prosthesis, spectacles or other artificial aid; (b) for damage to or loss of a worker’s clothing. (3) Despite subsection (1) (a), (b) and (c), the employer is not liable to pay the costs of any treatment and care needs, or excluded treatment and care, of the worker— (a) if the worker is a participant in the LTCS scheme— (i) that relate to the injury for which the worker is a participant in the scheme; and (ii) that arise while the worker is a participant in the scheme; or (b) if the worker receives a lump sum under a lump sum agreement with the LTCS commissioner in relation to the injury for which the worker was a participant in the scheme— (i) that relate to the injury; and (ii) either— (A) arose while the worker was a participant in the LTCS scheme; or

(B) arise after the worker receives the lump sum under the lump sum agreement. Note Excluded treatment and care—see the LTCS Act, s 9. LTCS Act—see the dictionary. LTCS commissioner—see the dictionary. Treatment and care needs, of a participant in the LTCS scheme—see the LTCS Act, s 9. (4) Subsection (3) applies— (a) whether or not the treatment and care are assessed treatment and care needs under the LTCS Act; and (b) whether or not the LTCS commissioner is required to make a payment in relation to the treatment and care needs; and (c) whether or not the treatment, care, support or services provided in connection with the treatment and care needs is provided without charge. (5) To remove any doubt, the employer is liable to pay the costs of any treatment and care needs, or excluded treatment and care, of a worker under subsection (1)— (a) until the worker is accepted as a participant in the LTCS scheme in relation to the injury; and (b) if the worker— (i) ceases to be a participant in the LTCS scheme; and (ii) does not receive a lump sum under a lump sum agreement with the LTCS commissioner.

(6) In subsection (2): maximum amount, for medical treatment, damage or loss, means— (a) if an amount has been agreed between the worker and employer—that amount; or (b) in any other case—$500 cpi indexed. (7) For this section, the cost of medical treatment or rehabilitation services is taken to include— (a) the amount of wages lost by the worker because of the worker’s attendance at a place (the relevant place) to receive the treatment or services; and (b) the cost of taking the worker (whether the worker or someone else does the taking) to and from the relevant place worked out under either— (i) section 74 (Transport costs other than private car); or (ii) section 75 (Working out transport costs for private cars); and (c) the cost of any accommodation (including the cost of meals required by the worker because of the worker’s attendance at the relevant place worked out under section 76 (Costs of accommodation and meals). (8) In this section: lump sum agreement——see the LTCS Act, section 30B.

71 Claim for compensation for pt 4.5 (1) The worker may make a claim for compensation under this part for the cost of medical treatment or in relation to damage to, or loss of, the worker’s clothing only if the worker has given the employer written notice stating— (a) the amount of compensation sought; and

(b) reasonable details of the expenses for which compensation is sought. (2) However, a failure to give notice, or a defect or inaccuracy in the notice, does not affect a claim for compensation under this part if it is found in the proceeding on the claim that— (a) if a notice or amended notice were then given and the hearing postponed, the employer’s defence is not, or would not be, prejudiced by the failure, defect or inaccuracy; or (b) the failure, defect or inaccuracy was caused by mistake or other reasonable cause.

72 Second assessments (1) This section applies if the worker receives medical treatment and claims the cost of it from the employer under this part. (2) The employer may, in consultation with the doctor or other person providing the treatment, and before making a payment under this part, require the worker to be assessed by a doctor, or other person, chosen by the employer.

73 Payments for medical treatment received from hospital (1) This section applies if the employer is liable under this part to pay an amount in relation to medical treatment received by the worker from a hospital. (2) The employer must pay the amount, less any amount previously paid by the worker in relation to the treatment, on demand— (a) for a private hospital—to the proprietor of the hospital; or (b) for any other hospital—to the person authorised in writing by the governing entity in charge of the hospital to receive payments payable to the hospital.

73A Working out costs of alterations to residences The following matters must be considered when working out the amount of compensation payable in relation to a worker under section 70 (1) (b): (a) the likely period for which the alteration will be required; (b) any difficulty faced by the worker in gaining access to, or enjoying reasonable freedom of movement in the worker’s place of residence; (c) if the worker previously received compensation under section 70 (1) (b) in relation to an alteration to the worker’s place of residence and later disposed of the place—whether the value of that place increased as a result of the alteration.

73B Payments for costs of alterations to residences For section 70 (1) (b), a regulation may prescribe— (a) what is or is not included in the cost of an alteration; and (b) when an alteration is or is not reasonably required by a worker in relation to the worker’s impairment.

74 Transport costs other than private car (1) This section sets out how the costs of taking an injured worker to and from a place (other than by private motor vehicle) to receive medical treatment or rehabilitation services must be worked out. (2) If the worker cannot be taken in a motor vehicle (other than an ambulance) because of the worker’s injury, the transport cost is the actual cost of the transport by ambulance.

(3) The transport cost is the actual cost of the public transport if the worker is taken by public transport because, although the worker can be taken in a private motor vehicle— (a) the worker is prohibited by law from taking themself in a private motor vehicle and no-one else is available to take the worker in a private motor vehicle; or (b) no private motor vehicle is available. (4) The transport cost is the reasonable cost of transport if a private motor vehicle or public transport is not reasonably available, or reasonably appropriate, to transport the worker in the circumstances. public passenger vehicle—see the Road Transport (Public Passenger Services) Act 2001, dictionary. public transport means travel in a public passenger vehicle.

75 Working out transport costs for private cars (1) The costs of taking an injured worker by private motor vehicle (the car) to and from a place to receive medical treatment or rehabilitation services must be worked out in accordance with this section. (2) The transport cost is the cost worked out by multiplying the number of kilometres travelled to and from the place by the per kilometre cost for the car. (3) The per kilometre cost for the car is the amount determined by the commissioner of taxation under the Income Tax Assessment Act 1997 (Cwlth), section 28-25 (4) for the financial year in which the cost was incurred.

76 Costs of accommodation and meals (1) The cost of accommodation for the worker is the relevant amount set out in a public ruling by the Commonwealth Commissioner of Taxation in relation to reasonable allowance amounts for the year in which the costs were incurred. (2) The relevant amount, for accommodation, is the amount that would be allowed for an employee on the lowest salary for which allowances are given for the place where the employee was accommodated. (3) The worker is not entitled to payment for a meal unless the meal is eaten while the worker— (a) is travelling to or from a place to receive medical treatment or rehabilitation services for which compensation is payable; or (b) is at a place to receive medical treatment or rehabilitation services for which compensation is payable; or (c) is staying at accommodation for which compensation is payable accommodation, for a worker, includes meals for the worker, other than a meal to which the worker is not entitled to payment because of public ruling—see the Taxation Administration Act 1953 (Cwlth), schedule 1, section 358-5 (What is a public ruling?).

Compensation for death Part 4.6

77 Death benefits (1) This section applies to the death of a worker for which compensation is payable under this Act. (2) The dependants of the worker are entitled to the following: (a) a single lump sum payment of $539 002.37 wpi indexed to be divided between the dependants; (b) for each dependant who is a child—weekly compensation of $148.23 wpi indexed; (c) the funeral expenses of the worker to a maximum of $11 828.87 cpi indexed. (3) In working out for this Act whether or not a child is, or was, dependent on the earnings of the worker, any family tax benefit within the meaning of the A New Tax System (Family Assistance) Act 1999 (Cwlth), section 3 (definitions) in relation to the child must be disregarded. (4) To remove any doubt, the payment under subsection (2) (a) need not be divided equally between the dependants, but may be divided between them as the Magistrates Court considers appropriate. (5) Compensation under subsection (2) (b) is payable only while the person receiving it is a child. (6) If the worker did not have dependants, the personal representative of the worker is entitled to a maximum of $11 828.87 cpi indexed for the funeral expenses of the worker.

WPI means the Wage Price Index number published by the Australian Statistician. wpi indexed, for an amount, means the amount as adjusted in line with any adjustment in the WPI since the commencement of the provision in which the amount appears.

78 Payment into court of lump sum death benefits (1) A payment mentioned in section 77 (2) (a) (the lump sum) must be paid into the Magistrates Court, unless the court otherwise orders. (2) The Magistrates Court must, until the lump sum is paid to the person entitled to it— (a) invest, apply or otherwise deal with the lump sum payment in the way the court considers appropriate for the benefit of the person entitled to it under this Act; or (b) deal with it under the Public Trustee and Guardian Act 1985, section 25 (Payment of money etc to public trustee and guardian on behalf of person under disability). (3) The receipt of the registrar of the Magistrates Court is a sufficient discharge for the amount paid in.

Registration of agreements for compensation Part 4.7 Part 4.7 Registration of agreements for

79 Registration of agreements for compensation (1) If the worker agrees to receive an amount of compensation under section 51 (Compensation for permanent injuries generally) for a loss or under section 137 (How worker may commute rights) for the commutation of a right, a party to the agreement may apply to the Magistrates Court for registration of the agreement. (2) The Magistrates Court may refuse to register the agreement if the court considers that the agreement is inaccurate or that the agreed amount of compensation is manifestly inadequate. (3) The Magistrates Court must refuse to register the agreement unless satisfied that the worker received independent legal advice about the agreement before entering into it. (4) However, subsection (3) does not apply to an agreement of a worker to receive an amount of compensation under section 51 (Compensation for permanent injuries generally) for an imminently fatal asbestos-related disease. (5) An agreement may deal with the payment of costs.

80 Effect of registration of agreements (1) A worker with a registered agreement in relation to a loss or the commutation of a right is not entitled to receive any additional compensation for the loss or commutation of the right under an award of the Magistrates Court. (2) However, the Magistrates Court may award additional compensation if satisfied that— (a) the agreement was obtained by fraud or undue influence; or (b) the agreed amount of compensation was manifestly inadequate.

Part 4.7 Registration of agreements for compensation (3) This section does not limit an award of additional compensation for a further loss suffered after the loss to which the agreement relates.

81 Cancellation or amendment of registered agreements (1) On application by a party to a registered agreement, the Magistrates Court may amend the registered agreement or cancel the registration of the agreement. (2) The Magistrates Court may act under subsection (1) only if— (a) a party becomes aware of evidence that was not available to the party when the agreement was made; and (b) the court considers that, if the party had been aware of the evidence, the agreement would not have been made, or would not have been made as registered.

Exceptions to entitlements to compensation Part 4.8 Part 4.8 Exceptions to entitlements to

82 When is compensation under Act generally not payable? (1) This section applies if, apart from this section, compensation in relation to an injury to a worker is payable under this Act. (2) Compensation is not payable if the injury to, or death of, the worker is caused by an intentionally self-inflicted injury. (3) Compensation is not payable if it is proved that the injury to the worker is attributable to the worker’s serious and wilful misconduct, unless the injury results in death or serious and permanent disablement. (4) In subsection (3), the personal injury received by the worker is attributable to the serious and wilful misconduct of the worker if— (a) at the time of the injury, the worker was under the influence of alcohol or a prescribed drug, unless the alcohol or prescribed drug did not contribute to the injury or was not consumed or taken voluntarily; or (b) the injury was otherwise attributable to the serious and wilful misconduct of the worker. prescribed drug—see the Road Transport (Alcohol and Drugs) Act 1977, dictionary. Note 1 The LTCS Act applies to an injury to a worker arising out of, or in the course of, the worker’s employment, including an injury that is attributable to the worker’s serious and wilful misconduct (see LTCS Act, s 6 (4) (b)). Note 2 LTCS Act—see the dictionary.

Part 4.8 Exceptions to entitlements to compensation

83 No compensation while imprisoned A worker who is otherwise entitled to compensation under this Act is not entitled to compensation for a period when the worker is imprisoned because the worker has been convicted of an offence against a law of the Territory, a State, the Commonwealth or another Territory. Note 1 A worker with an injury to which the LTCS Act applies is eligible to participate in the LTCS scheme even though the worker is imprisoned (see LTCS Act, s 15 (3)). Note 2 LTCS Act—see the dictionary.

84 Compensation for sporting injuries A person is not entitled to receive compensation for an injury sustained as a result of the person’s engagement in professional sporting activity.

Payments to families of deceased workers Part 4.9 Part 4.9 Payments to families of deceased workers

84A Application—pt 4.9 (1) This part applies to the death of a worker that arises out of, or in the course of, the worker’s employment. (2) This part does not apply to a worker’s death prescribed by regulation.

84B Payments to families of deceased workers (1) On application by a family member of a worker made within 3 months after the death of the worker, the employer must pay the family member— (a) for the deceased worker’s domestic partner—$10 000 cpi indexed; or (b) for any other family member—$5 000 cpi indexed. (2) An employer must, within 48 hours after the employer receives the application, give the application to the licensed insurer liable to indemnify the employer for the payment. (3) The employer must pay the family member the amount mentioned in subsection (1) within 7 days after the day the employer receives the application. (4) The employer may refuse to pay a family member if the employer has already paid a total of $50 000 cpi indexed to other family members family member, of a deceased worker, means— (a) any of the following people who, in the 6 months before the worker’s death, lived with the worker: (i) a domestic partner;

Part 4.9 Payments to families of deceased workers (ii) a child or stepchild; (iii) a parent or step-parent; or (b) any other person prescribed by regulation.

84C Effect of payment A payment made to a person under this part— (a) is not an admission of liability by the employer or the insurer for the death of the worker; and (b) is not recoverable from the person, unless the person was not entitled to the payment; and (c) does not affect a claim for compensation or compensation payable under this Act in relation to the worker’s death.

Object and definitions for ch 5 Part 5.1

85 Object—ch 5 The object of this chapter is to establish a system the aim of which is to achieve the best results for the timely, safe and durable return to work of workers following workplace injuries.

85A Meaning of injured worker and personal injury plan—Act injured worker means a worker who has received a workplace injury. personal injury plan, for a worker, means a plan for coordinating and managing the aspects of injury management that relate to medical treatment and rehabilitation services for the worker to achieve a timely, safe and durable return to work for the worker.

86 Definitions—ch 5 employer—see section 87. injury management means a process that consists of activities and procedures that are carried out or established to achieve a timely, safe and durable return to work for injured workers. injury management program means a coordinated and managed program that integrates all aspects of injury management (including medical treatment, rehabilitation services, claims management and employment management practices) to achieve the best results for a timely, safe and durable return to work of injured workers. injury notice—see section 93 (2) (Early notification of workplace injury).

insurer—see section 86A and section 87. nominated treating doctor, for an injured worker, means the doctor or medical practice nominated under section 102 (Nomination of doctor for personal injury plan). workplace injury means an injury in relation to which compensation is or may be payable under this Act.

86A Meaning of insurer for ch 5 (b) a licensed self-insurer; or (c) for an injured worker’s injury if the licensed insurer that issued a compulsory insurance policy that covers the worker in relation to the injury cannot provide the indemnity required to be provided under the policy—the DI fund; or (d) for an injured worker’s injury if there is no compulsory insurance policy that covers the worker in relation to the injury and the worker’s employer is not a licensed self-insurer—the DI fund. Note The DI fund manager must act as if the DI fund were the licensed insurer in other situations (see s 112 (3)). (2) However, in applying this chapter to the DI fund as insurer— (a) a requirement that the licensed insurer do or not do something is taken to be a requirement that the DI fund manager do or not do the thing; and

Object and definitions for ch 5 Part 5.1 (b) the manager is not required to comply with section 88 (Insurer to establish etc injury management program) or section 89 (Insurer to give effect to injury management program); and Note Also, s 128 (1) (b) does not apply to the DI fund (see s 128 (2)). (c) although otherwise required to comply with this chapter, the manager is not liable to be prosecuted for an offence against this chapter.

87 Meaning of employer and insurer if more than 1 (1) This section applies if 2 or more employers are or may be liable to pay compensation to an injured worker but the employers do not all still employ the worker. (2) In this chapter: employer, of the injured worker, means the employer that last employed the worker. insurer means the employer’s insurer.

88 Insurer to establish etc injury management program (1) An insurer must establish and maintain an injury management program. Note The DI fund manager is not required to comply with this section (see s 86A (2) (b)). (2) An insurer must review the effectiveness of its injury management program at least once every 2 years and revise the program in accordance with the results of the review. (3) An insurer must give a copy of its injury management program, and any revised injury management program, to the Minister.

89 Insurer to give effect to injury management program (1) An insurer must give effect to its injury management program, in particular by complying with the obligations imposed on the insurer under the program. Note The DI fund manager is not required to comply with this section (see s 86A (2) (b)). (2) An insurer must take appropriate steps to ensure that each employer who is insured by the insurer is aware of the employer’s obligations under this chapter and is aware of the requirements of the insurer’s injury management program. Note An employer may have obligations under the following provisions of this part: • under s 91 to comply with the obligations imposed on the employer under the injury management program • under s 93 (2) to give notice of injury to the insurer • under s 100 to take part and cooperate in establishing a personal injury plan for a worker, and to comply with the plan • under s 105 and s 106 to provide suitable work for an injured worker • under s 109 to establish a return-to-work program.

General obligations Part 5.2 (3) Subsection (2) does not apply to a licensed self-insurer.

90 Insurer’s obligation of prompt payment (1) An insurer commits an offence if— (a) the insurer receives written notice requiring payment for the provision of a service; and (b) the insurer is required under this Act to pay for the service; and (c) the insurer fails to pay the person who provided the service (the service provider) for the service not later than 30 days after the day the insurer receives the notice. (2) Subsection (1) does not apply if— (a) the insurer does not pay for the service because the insurer has reasonable grounds to believe that the service has not been provided, or has not been properly provided; and (b) the insurer has told the service provider, in writing, why the insurer has not paid for the service.

91 Employer’s obligations for injury management programs (1) An employer must comply with the reasonable obligations imposed on the employer by the employer’s insurer under the insurer’s injury management program. (2) This section does not apply to a non-business employer.

92 Register of injuries (1) This section applies to a mine, quarry, factory, workshop, office or shop (the workplace). (2) A register of injuries (the register) is to be kept at the workplace in a place that is readily accessible to workers at the workplace. (3) The manager of the mine or quarry, or the occupier of the factory, workshop, office or shop, must ensure the register is kept in accordance with subsection (2). (4) A person must not change, damage, deface, remove or otherwise interfere with the register. (5) A worker employed at the workplace, or a person acting on the worker’s behalf, may enter in the register details of an injury received by the worker. (6) If details of the injury are entered in the register as soon as possible after the injury happens, the entry is taken to be notice of the injury given to the employer by the injured worker for this Act. (8) This section does not prevent the alteration of the register to correct an error of fact.

93 Early notification of workplace injury (1) The injured worker must tell the employer that the worker has received a workplace injury as soon as possible after being injured. Note An injured worker may give notice of an injury by making an entry in a register of injuries (see s 92). (2) The employer must give the insurer notice of the injury (an injury notice) under section 94 within 48 hours after becoming aware that the worker has received a workplace injury. (3) Subsection (2) does not apply if the insurer is a licensed self-insurer.

94 Injury notice (1) An injury notice must state— (a) the name and address of the injured worker; and (b) the cause of the injury (in ordinary language); and (c) the date and time the injury happened; and (d) the name and address of the employer; and (e) the name and address of the nominated treating doctor or, if there is no treating doctor, a doctor who has treated the worker for the injury. (2) The employer may give the notice orally, in writing or in electronic form. (3) However, if the employer gives the notice orally, the employer must give the notice in writing or in electronic form within 3 days after giving the notice orally. (4) If the worker has more than 1 employer, the notice must be given to the employer responsible for the workplace where the injury happened.

(5) The notice of injury is taken to have been given to an employer— (a) if it is given to a person designated for the purpose by the employer; or (b) if it is given to a person under whose supervision the worker is employed.

94A Uninsured employer to give DI fund manager injury notice etc (1) An employer (other than a licensed self-insurer) commits an offence if— (a) the employer is given an injury notice for an injured worker; and (b) the employer does not have a compulsory insurance policy that applies to the worker in relation to the injury; and (c) the employer does not, within 48 hours after receiving the injury notice— (i) give the DI fund manager a copy of the injury notice; and (ii) tell the manager, in writing, that the employer does not have a compulsory insurance policy that applies to the worker in relation to the injury.

94B Liquidator to give DI fund manager injury notice etc (1) The liquidator of an insurer (other than an insurer that has been wound up under the Corporations Act) commits an offence if— (a) the liquidator is given an injury notice; and (b) the injury notice is for an injury of an injured worker of an

(c) the employer holds or held a compulsory insurance policy with the insurer that requires or required indemnity to be provided for the injured worker’s injury; and (d) the insurer cannot provide the indemnity required to be provided under the policy; and (e) the liquidator does not, within 48 hours after receiving the injury notice— (i) give the DI fund manager a copy of the injury notice; and (ii) tell the manager, in writing, that the employer holds or held a compulsory insurance policy with the insurer that requires or required indemnity for the injury to be provided. (2) The liquidator of a licensed insurer that has been wound up under the Corporations Act commits an offence if— (a) the liquidator is given an injury notice; and (b) the injury notice is for an injury of an injured worker of an (c) the employer held a compulsory insurance policy with the insurer that required indemnity for the injured worker’s injury to be provided; and (d) the liquidator does not, within 48 hours after the liquidator receives the notice— (i) return the injury notice to the injured worker; and (ii) tell the worker, in writing, to give the injury notice to the DI fund manager.

94C Injured workers of uninsured employers may give DI fund manager injury notice An injured worker may give the DI fund manager a copy of the injured worker’s injury notice if— (a) the injured worker’s employer— (i) is required to give the notice to the fund manager under section 94A (Uninsured employer to give DI fund manager injury notice etc); but (ii) has not given the notice as required; or (b) the injured worker’s employer is required to give the notice to the fund manager under section 94A but the injured worker suspects that the employer may not have given the notice to the fund manager; or (c) a liquidator— (i) tells the injured worker to give the worker’s injury notice to the fund manager under section 94B (Liquidator to give DI fund manager injury notice etc); or (ii) is required under section 94B to tell the injured worker to give the worker’s injury notice to the fund manager, but does not tell the injured worker as required; or (d) the injured worker was employed by an employer who held a compulsory insurance policy under which the insurer was required to provide indemnity for the worker’s injury, but the insurer cannot provide the indemnity required to be provided (e) the injured worker was employed by an employer who was a licensed self-insurer and the injured worker believes, on reasonable grounds, that the employer is unable to pay compensation in relation to the injury; or (f) the injured worker’s employer no longer exists.

95 What if employer does not give notice of injury within time? (1) This section applies if an employer (other than a licensed self-insurer) is given an injury notice for an injured worker, but does not give the insurer the injury notice within the time mentioned in section 93 (2) (Early notification of workplace injury). (2) The employer is liable to pay the worker weekly compensation from the date of injury until the employer gives the insurer the injury notice. (3) The employer must not be indemnified by the insurer for a payment mentioned in subsection (2).

96 Obligations of insurer on being notified of injury (1) Within 3 business days after the day an insurer receives an injury notice, the insurer must take action under the insurer’s injury management program. (2) Within 3 business days after the day an insurer receives an injury notice, if there are reasonable grounds for the insurer to believe that the injury is a significant injury, the insurer must make contact under the insurer’s injury management program with each of the following people: (a) the injured worker; (b) the employer (unless the employer is a licensed self-insurer); (c) the worker’s nominated treating doctor (if appropriate and practical).

(3) If a workplace injury results in the worker being incapacitated for work for a continuous period of longer than 7 days, within 3 business days after the day the 1st continuous period of 7 days incapacity ends, the insurer must make contact under the insurer’s injury management program with each of the following people: (a) the injured worker; (b) the employer (unless the employer is a licensed self-insurer); (c) the worker’s nominated treating doctor (if appropriate and practical). continuous period, in relation to a worker’s incapacity—a period is a continuous period— (a) whether or not any of the days in the period are business days; and (b) whether or not the incapacity is total or partial or a combination of both. significant injury means a workplace injury that is likely to result in the worker being incapacitated for work for a continuous period of longer than 7 days.

Obligations in relation to personal injury plans Part 5.4

Part 5.4 Obligations in relation to personal injury plans

96A Application—pt 5.4 (1) This part does not apply in relation to an injured worker who is a participant in the LTCS scheme. (2) To remove any doubt, this part does apply in relation to an injured worker who ceases to be a participant in the LTCS scheme. an injured worker who is an interim participant in the LTCS scheme who is not accepted as a lifetime participant in the scheme

97 Personal injury plan for worker with significant injury (1) If it appears to an insurer who is, or may be, liable to pay compensation to an injured worker on behalf of the worker’s employer that the workplace injury is a significant injury, the insurer must establish a personal injury plan for the worker. Note This section does not apply if the injured worker is a participant in the LTCS scheme (see s 96A (1)). (2) The personal injury plan must be established in agreement with the employer (unless the employer is a licensed self-insurer or a non- business employer) and the injured worker, to the maximum extent that their cooperation and participation allow. (3) The insurer must give effect to the personal injury plan established for the injured worker and, for that purpose, must comply with the obligations imposed on the insurer under the plan.

Part 5.4 Obligations in relation to personal injury plans significant injury means a workplace injury that is likely to result in the worker being incapacitated for work for a continuous period of longer than 7 days, whether or not any of those days are business days and whether or not the incapacity is total or partial or a combination of both.

98 Provision of information about personal injury plan (1) The insurer must give both the employer and the injured worker information about the personal injury plan. Note This section does not apply if the injured worker is a participant in the LTCS scheme (see s 96A (1)). (2) The information must include a statement to the effect that the worker’s entitlement to weekly compensation may stop if the worker unreasonably fails to comply with the requirements of this chapter after being asked to do so by the insurer. (3) The insurer must keep the employer informed of significant steps taken, or proposed to be taken, under the personal injury plan for the worker, unless the employer is a licensed self-insurer.

99 Vocational rehabilitation The insurer must ensure, as far as possible, that vocational rehabilitation provided or arranged for the injured worker under the personal injury plan is of a kind that may reasonably be thought likely to lead to a real prospect of employment or a real increase in earnings for the injured worker.

Obligations in relation to personal injury plans Part 5.4

99A Appointment of approved rehabilitation provider under personal injury plan (1) The insurer may appoint an approved rehabilitation provider for an injured worker as part of the worker’s personal injury plan. (2) However, the insurer must appoint an approved rehabilitation provider for the injured worker as part of the personal injury plan if the worker has not returned to the worker’s pre-injury duties and pre- injury working hours, within 4 weeks after the day the worker gave notice of the injury.

100 Employer’s personal injury plan obligations (1) The employer must take part and cooperate in the establishment of a personal injury plan for the injured worker. (2) The employer must comply with the reasonable obligations imposed on the employer under the personal injury plan. (3) This section does not apply if the employer is a licensed self-insurer.

101 Worker’s personal injury plan obligations (1) The injured worker must take part and cooperate in the establishment of a personal injury plan for the worker. Note If the injured worker does not take part and cooperate in the establishment of the worker’s personal injury plan, the worker’s weekly compensation may be stopped while time for payment of weekly compensation continues to run against the worker (see s 113). (2) The injured worker must comply with reasonable obligations imposed on the worker under the worker’s personal injury plan, including any obligation to receive medical treatment or rehabilitation services.

Part 5.4 Obligations in relation to personal injury plans

102 Nomination of doctor for personal injury plan (1) The worker must nominate a doctor, or medical practice, as the worker’s treating doctor for the worker’s personal injury plan. (2) The worker may only nominate a doctor, or medical practice, that is prepared to take part in the development of, and in the arrangements under, the worker’s personal injury plan. (3) The nomination of a medical practice as treating doctor for the worker’s personal injury plan is the nomination of the members of the practice who treat the worker from time to time. (4) The worker must authorise the worker’s nominated treating doctor to provide relevant information to— (a) the insurer or employer for the worker’s personal injury plan; or (b) a person who requires the information in relation to the management of the worker’s claim for compensation; or (c) the regulator in relation to the performance of an approved rehabilitation provider. (5) The worker’s personal injury plan must provide a way for the worker to change the worker’s nominated treating doctor.

103 Subsequent medical certificates under personal injury plan A medical certificate required under a personal injury plan in relation to a claim for ongoing compensation under this Act must be from a doctor.

Return-to-work coordinators Part 5.4A

103A Definitions—pt 5.4A annual premium, for an employer, means the amount paid by the employer for the employer’s compulsory insurance policy for 1 year. return-to-work coordinator means a return-to-work coordinator appointed under section 103C.

103B Application—pt 5.4A This part applies to an employer that— (a) pays an annual premium of $200 000 or more; or (b) is a licensed self-insurer.

103C Appointment (1) An employer must appoint a return-to-work coordinator. (2) If a return-to-work coordinator’s position becomes vacant, the employer must appoint another person to the position within 3 months after the position becomes vacant. (b) the employer fails to comply with a requirement under subsections (1) or (2).

103D Functions A return-to-work coordinator has the following functions: (a) to assist injured workers to remain at work, or return to work as soon as practicable following an injury; (b) if the return-to-work coordinator’s employer is not a licensed self-insurer—to assist the employer’s insurer to prepare and implement the return to work plan or personal injury plan for an injured worker; (c) to identify suitable duties for injured workers; (d) to liaise with people involved in the provision of medical treatment or rehabilitation services to an injured worker in relation to the worker’s return to work; (e) to monitor an injured worker’s progress towards the worker’s return to work; (f) as far as practicable, to take steps to prevent an aggravation, acceleration or recurrence of an injured worker’s injury when the worker returns to work; (g) to promote injury management strategies. Note The collection and disclosure of personal health information is subject to the Health Records (Privacy and Access) Act 1997.

103E Employer’s obligations (1) An employer must— (a) provide the facilities and assistance that are reasonably necessary to enable a return-to-work coordinator to exercise the coordinator’s functions; and

Return-to-work coordinators Part 5.4A (b) not appoint a person as a return-to-work coordinator unless the person— (i) has completed training determined by the Minister as prerequisite training for a return-to-work coordinator for this Act; or (ii) has experience of the kind determined by the Minister as prerequisite experience for a return-to-work coordinator for this Act; and (c) comply with the Minister’s guidelines about an employer’s responsibilities in relation to return-to-work coordinators; and (d) notify the Minister in writing about the contact details for each of the employer’s return-to-work coordinators not later than 30 days after the day the coordinator is appointed. (2) Each of the following is a notifiable instrument: (a) a determination under subsection (1) (b); (b) a guideline under subsection (1) (c). (b) the employer fails to comply with a requirement under (5) It is a defence to a prosecution for an offence against this section, for a failure to comply with a requirement under subsection (1) (a), if the defendant proves that the defendant believed on reasonable grounds that the defendant provided the facilities and assistance that were reasonably necessary to enable a return-to-work coordinator to exercise the coordinator’s functions.

103F Register of return-to-work coordinators (1) The work health and safety commissioner must maintain a register of return-to-work coordinators. (2) The register must include the following information about a return-to-work coordinator: (a) name; (b) employer; (c) position held with employer; (d) workplace address; (e) workplace telephone number; (f) workplace email address. (3) The register may be kept in any form, including electronically, that the work health and safety commissioner decides. (4) The work health and safety commissioner must make information about an employer’s return-to-work coordinator held in the register available to— (a) an inspector; and (b) an employee of the employer; and (c) the employer’s workers compensation insurer.

104 Injured worker’s obligation to return to work The injured worker must make all reasonable efforts to return to work with the worker’s pre-incapacity employer (that is, the employer liable to pay compensation to the worker) as soon as possible, considering the nature of the injury.

105 Employer must provide suitable work for full-time, part- time and casual workers (a) a full-time, part-time or casual worker has been totally or partially incapacitated for work because of an injury; and (b) the worker can return to work, whether on a full-time or part- time basis, and whether or not to the worker’s previous (c) within 6 months after the day the worker became entitled to weekly compensation, the worker asks the employer liable to pay the compensation to provide employment for the worker. (2) The employer must provide employment to the worker that is— (a) so far as reasonably practical, the same as, or equivalent to, the employment in which the worker was employed at the time of the injury; and (b) otherwise suitable employment for the worker.

(4) This section does not apply if— (a) the worker voluntarily left the employment of the employer after the injury happened (whether before or after the beginning of the incapacity for work); or (b) the employer ended the worker’s employment after the injury happened, for a reason other than because the worker was not fit for employment because of the injury; or (c) the employer is a non-business employer; or (d) the employer cannot provide suitable employment.

106 Employer must provide suitable work for contract (a) a contract worker has been totally or partially incapacitated for work because of an injury; and (b) the worker can return to work, whether on a full-time or part- time basis, and whether or not to the worker’s previous (c) within the defined period, the worker asks the employer liable to pay the compensation to provide employment for the worker. (2) The employer must provide employment to the worker that is— (a) so far as reasonably practical, the same as, or equivalent to, the employment in which the worker was employed at the time of the injury; and (b) otherwise suitable employment for the worker.

(4) This section does not apply if— (a) the worker voluntarily left the employment of the employer after the injury happened (whether before or after the beginning of the incapacity for work); or (b) the employer ended the worker’s employment after the injury happened for a reason other than because the worker was not fit for employment because of the injury; or (c) the employer is a non-business employer; or (d) the employer cannot provide suitable employment. contract period includes the period of any reasonably expected extension or renewal of the contract. defined period, for a contract worker who is entitled to weekly compensation, means the period beginning on the day the worker becomes entitled to weekly compensation and ending— (a) if the contract period ends, or would end, before the end of 6 months after the day the worker becomes entitled to weekly compensation—at the end of the contract period; or (b) in any other case—6 months after the day the worker becomes entitled to weekly compensation.

107 Payment of cost of medical treatment and rehabilitation services for injured worker (1) The worker’s personal injury plan may provide for the insurer to pay the following costs: (a) the cost of any medical treatment for the workplace injury provided to the worker by the nominated treating doctor if the nominated treating doctor is prepared to take part in the arrangements under the plan;

(b) the cost of other medical treatment described in the plan that is provided to the worker for the workplace injury; (c) the cost of any rehabilitation services (including, if necessary, vocational rehabilitation) provided to the worker under the plan. Examples of other medical treatment for par (b) Treatment may be identified by reference to factors like the kind of medical treatment, the identity of the health care professional who provides the medical treatment, and the circumstances in which the medical treatment is provided. (2) For a payment under subsection (1), it does not matter that the worker has not made a claim for compensation, that the insurer has not accepted liability for the injury or if the insurer disputes liability for the injury. (3) If the insurer makes the payments in relation to the injury and another insurer (the other insurer) or another employer (the other employer) accepts liability to pay compensation to the worker in relation to the injury, the insurer is entitled to recover the costs (to the extent that compensation is payable under this Act in relation to the costs) as a debt from the other insurer or other employer. (4) An amount recoverable under subsection (3) is taken to be payable by the other insurer or other employer as compensation to the injured

108 Second injury arrangements (1) Arrangements may be entered into under this section to encourage the employment of injured workers by providing financial incentives to their employers in relation to insurance liabilities arising from further injuries to the workers.

(2) An insurer who is liable to pay compensation to an injured worker may enter into an arrangement with a new employer (the new employer) of the injured worker providing for either or both of the (a) for the insurer to indemnify the new employer in relation to the employer’s liability to pay compensation to the injured worker (b) for the insurer to pay a wage subsidy to the new employer in relation to the worker’s employment. (3) An arrangement under this section— (a) applies for 6 months or, if a period is stated in the arrangement, that period; and (b) if it provides for an indemnity—applies to all injuries or only to the injuries stated in the indemnity arrangement; and (c) is subject to the conditions the insurer decides and the new employer agrees to. (4) A claim for compensation for an injury to the worker to which an indemnity under this section applies is excluded from the claims experience of the new employer in working out the premium payable by the new employer for an insurance policy. (5) This section applies only in relation to licensed insurers.

109 Workplace rehabilitation (1) An employer must establish and maintain a return-to-work program that complies with subsection (3).

(2) An employer must display or notify a return-to-work program that complies with subsection (3) at each place of work of the workers to whom the program relates or may relate. (3) A return-to-work program must— (a) provide policies and procedures for the rehabilitation (including, if necessary, vocational rehabilitation) of injured workers of the (b) be consistent with the injury management program of the employer’s insurer; and (c) be established in accordance with any guidelines issued by the Minister under section 110; and (d) be developed in consultation with— (i) the workers to whom it relates, or may relate; and (ii) any industrial union of workers representing the workers; and (iii) an approved rehabilitation provider. (4) To remove any doubt, subsection (3) (d) does not limit the people the employer may consult when developing the return-to-work program. (5) Subsection (1) does not apply if— (a) the employer is part of a group of employers that has jointly established a single return-to-work program for each member of the group; and (c) the employers are authorised in writing to do this by the Minister; and (b) the return-to-work program complies with subsection (3).

110 Return-to-work guidelines (1) The Minister may issue guidelines for the establishment of return-to- work programs. (2) Guidelines are a disallowable instrument. (3) In deciding guidelines for this section, the Minister may consult with the entities the Minister considers appropriate.

Part 5.5A Obligations in relation to LTCS participants Part 5.5A Obligations in relation to LTCS participants 110A LTCS participants—provision of information about assessment of treatment and care needs (a) an injured worker is a participant in the LTCS scheme in relation to a workplace injury for which an insurer is, or may be, liable to pay compensation; and (b) the LTCS commissioner gives the insurer a copy of the assessment of the injured worker’s treatment and care needs for the workplace injury under the LTCS Act, section 23 (Assessment of participant’s treatment and care needs). (2) The insurer must give the employer and injured worker a statement to the effect that the worker’s entitlement to weekly compensation may stop if the worker unreasonably fails to comply with the requirements of the assessment under the LTCS Act, section 23. Note 1 The injured worker also has an obligation to comply with any reasonable request the LTCS commissioner makes in relation to an assessment of the injured worker’s treatment and care needs, including a request that the injured worker undergo an examination by a health practitioner (see LTCS Act, s 26). Note 2 The LTCS commission may exchange information about a LTCS participant’s treatment and care needs with the participant’s employer in certain circumstances (see LTCS Act, s 94).

Compliance with ch 5 Part 5.6

111 Obligation of Minister The Minister must monitor compliance by insurers with the requirements of this chapter.

112 Compliance by insurers, including DI fund (1) It is a condition of an insurer’s approval that the insurer must comply with the requirements of this chapter. (2) If, for this chapter, the insurer in relation to an injured worker’s injury is the DI fund, the DI fund manager must comply with the requirements of this chapter applying to the fund. (3) Without limiting subsection (2), the DI fund manager must comply with the requirements of this chapter applying to the DI fund as insurer in relation to an injured worker’s injury if the manager— (a) receives a copy of the injury notice for the worker in relation to the injury under section 94A (Uninsured employer to give DI fund manager injury notice etc), section 94B (Liquidator to give DI fund manager injury notice etc) or section 94C (Injured workers of uninsured employers may give DI fund manager injury notice); or (b) is otherwise satisfied that it is reasonably likely that there is no compulsory insurance policy in force that applies to the worker in relation to the injury. Melissa suffers a workplace injury while working for Joe. Joe does not have a compulsory insurance policy and gives the DI fund manager a copy of the injury notice. The DI fund manager must comply with the requirements of an insurer under this chapter in relation to Melissa’s injury.

113 Compliance by workers (1) A worker is not entitled to weekly compensation for a period when the worker unreasonably— (a) contravenes a requirement under this chapter (including under the worker’s personal injury plan) after being asked in writing by the insurer to comply with the requirement; or (b) fails to take part in or make a reasonable effort to take part in vocational rehabilitation or a return-to-work program; or (c) fails to attend an assessment of the worker’s employment prospects; or (d) fails to attend a medical assessment of the worker’s injury; or (e) fails to undertake suitable alternative duties (if any) provided by the employer; or (f) fails to take up an offer of suitable work for which the worker is qualified and that the worker can perform. (2) A worker’s entitlement to weekly compensation does not stop under this section until 2 weeks after the day, or latest day, the insurer gives written notice to the worker and to the regulator that the compensation will stop. (3) The notice must be accompanied by a statement of the reasons for the entitlement stopping and the action that the insurer considers the worker must take to be entitled to the continuation, or resumption, of weekly compensation. (4) The resumption of weekly compensation does not entitle the worker to weekly compensation for the period when the worker had no entitlement to weekly compensation.

Compliance with ch 5 Part 5.6

114 Unreasonableness in stopping payment (1) This section applies if an insurer gives the worker and regulator notice under section 113 and stops the worker’s weekly compensation. (2) If the regulator considers that stopping the weekly compensation may have been unreasonable, the regulator may do either or both of the (a) ask the insurer, in writing, for further information about the stoppage; (b) direct the insurer, in writing, not to stop paying the weekly compensation, or to continue to pay the weekly compensation, for a stated time that is not longer than 1 month. (3) If the regulator considers that stopping payment of the weekly compensation is unreasonable, the regulator may— (a) tell the insurer so in writing; and (b) direct the insurer, in writing, not to stop paying the weekly compensation, or to continue to pay the weekly compensation until the regulator otherwise directs or the claim is settled or decided. (4) The insurer must not contravene a direction under this section.

115 Liability not affected None of the following things done by an insurer or employer is an admission of liability by the insurer or employer under this Act or independently of this Act: (a) anything done under or for an injury management program or personal injury plan;

(b) anything done in relation to the assessment of an injured worker for rehabilitation services or employment or the provision or arrangement of services or other measures for the rehabilitation or suitable employment of injured workers (whether done under a return-to-work program or otherwise).

116 Making claim for compensation (1) A worker may claim compensation under this Act. (2) A claim for weekly compensation must be accompanied by a medical certificate from— disease—a doctor prescribed by regulation; or (b) for any other claim—a doctor. (3) Failure to make a claim under this Act does not prevent the recovery of compensation if it is found that the failure was caused by ignorance, mistake or other reasonable cause.

117 Claim for property loss or damage (1) This section applies to the loss of, or damage to, property because of a compensable injury. (2) The details required to be given in the claim in relation to the loss or damage are details that adequately identify the property and how it was lost or damaged.