Part 1 Preliminary

Part 1 Preliminary

1 Name of Act

1 Name of Act

This Act may be cited as the Workers Compensation Act 1987.

2 Commencement

2 Commencement

(1) Sections 1 and 2 and Parts 19 and 20 of Schedule 6 shall commence on the date of assent to this Act.

(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.

2A Relationship to Workplace Injury Management and Workers Compensation Act 1998

2A Relationship to Workplace Injury Management and Workers Compensation Act 1998

(1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act.

(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.

(3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.

s 2A: Ins 1998 No 85, Sch 1 [1].

3 Definitions

3 Definitions

(cf former s 6 (1), (2), (13))

(1AA) In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise.

(1) In this Act—

agency arrangement means the contract or other arrangement by which a scheme agent is appointed.

Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015.

former Act means the Workers’ Compensation Act 1926.

former licensed insurer means a person (not being a licensed insurer) who—

(a) was previously a licensed insurer under this Act or under section 27 of the former Act, and

(b) continues to have liabilities under policies of insurance previously issued or renewed by the person.

group means the employers who constitute a group under Division 2A of Part 7.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.

Guarantee Fund means the Insurers’ Guarantee Fund established under section 227.

ICNSW means Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015.

injury is defined by section 4.

Insurance Fund means the Workers Compensation Insurance Fund established under section 154D.

licensed insurer means an insurer who is the holder of a licence granted under Division 3 of Part 7 and in force.

mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 10 (2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, is a place to which that Act does not apply.

Nominal Insurer means the Workers Compensation Nominal Insurer referred to in section 154A.

NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

premium income—

(a) in relation to contributions payable under this Act by an insurer (other than a specialised insurer) in respect of a financial year—means the amount the insurer receives during that financial year as premiums in respect of policies of insurance issued or renewed by the insurer (whether the policies are issued or renewed during that financial year or during a previous financial year), or

(b) in relation to contributions payable under this Act by a specialised insurer in respect of a financial year—means the amount the insurer receives, whether during or after that financial year, as premiums in respect of policies of insurance issued or renewed by the insurer during that financial year,

and, in relation to contributions payable by any insurer, includes any amount comprising or attributable to GST and any amount prescribed by the regulations as included for the purposes of this definition in relation to that financial year, but does not include any amount prescribed by the regulations as excluded for the purposes of this definition in relation to that financial year.

regulations means regulations made under this Act.

scheme agent means a person appointed under section 154G to act as agent for the Nominal Insurer in connection with the exercise of any of the functions of the Nominal Insurer.

self-insurer means—

(a) the holder of a licence in force under Division 5 of Part 7, and

(b) a subsidiary of the licence holder covered for the time being by the licence (as provided by section 211A), and

(c) any Government employer covered for the time being by the Government’s managed fund scheme (as provided by section 211B).

specialised insurer means a licensed insurer whose licence is endorsed with a specialised insurer endorsement.

Workers Compensation Market Practice and Premiums Guidelines means guidelines issued by the Authority under section 168 and in force.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(1A) A reference to a worker who has been injured includes, if the worker is dead, a reference to the worker’s legal personal representative or the worker’s dependants, or any other person to whom or for whose benefit compensation is payable.

(2) (Repealed)

(3) The exercise of the functions of a public or local authority shall, for the purposes of this Act, be treated as its trade or business.

(4) The operations of a racing or recreation club shall, for the purposes of this Act, be treated as its trade or business.

(5) The Crown shall, for the purposes of this Act, be treated as the employer of members of the Police Force.

(6) Notes included in the text of this Act do not form part of this Act.

s 3: Am 1987 No 223, sec 3; 1988 No 132, Sch 1 (2); 1989 No 119, Sch 1 (1); 1989 No 121, Sch 1; 1989 No 130, Sch 1; 1989 No 133, Sch 8 (1); 1990 No 48, Sch 1; 1991 No 94, Sch 1; 1991 No 100, Sch 2 (1); 1994 No 10, Schs 2 (1), 3 (1), 4 (1), 5 (1); 1995 No 30, Sch 12 [3]; 1995 No 89, Sch 1 [1]–[3]; 1996 No 37, Sch 2.12 (am 1997 No 24, Sch 1 [24]); 1996 No 120, Sch 1.1 [1] [2]; 1997 No 134, Sch 1 [1]; 1997 No 154, Sch 6.51 [1]; 1998 No 85, Sch 1 [2]–[4]; 1999 No 24, Sch 2 [1]; 2000 No 44, Sch 12.1 [1] [2]; 2000 No 87, Sch 20.1 [1]; 2002 No 129, Sch 2.18 [1] (subst 2004 No 74, Sch 3 [67]); 2003 No 81, Schs 1 [1], 2 [1]; 2006 No 25, Sch 1 [1]; 2009 No 49, Sch 2.64 [1]; 2012 No 54, Sch 3.6 [1]; 2013 No 54, Sch 3.15; 2015 No 19, Sch 5 [2]–[4]; 2015 No 43, Sch 4.13.

4 Definition of “injury”

4 Definition of “injury”

(cf former s 6 (1))

In this Act—

injury—

(a) means personal injury arising out of or in the course of employment,

(b) includes a disease injury, which means—

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

s 4: Am 2002 No 129, Sch 2.18 [2] (subst 2004 No 74, Sch 3 [67]); 2012 No 53, Sch 7 [1].

4A Directors of uninsured employer not entitled to compensation

4A Directors of uninsured employer not entitled to compensation

If an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer’s liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability.

s 4A: Ins 1995 No 89, Sch 1 [4].

5

5 (Repealed)

6 Act binds Crown

6 Act binds Crown

(1) This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities.

(2) (Repealed)

s 6: Am 2000 No 87, Sch 19.2.

7 Certain Acts not affected

7 Certain Acts not affected

(cf former s 5)

Nothing in this Act affects the operation of the following Acts—

Workers’ Compensation (Dust Diseases) Act 1942,

Workers’ Compensation (Brucellosis) Act 1979,

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

s 7: Am 1995 No 89, Sch 1 [5].

7A Application of Act in respect of coal industry

7A Application of Act in respect of coal industry

(1) The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act.

(2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company—

(a) Division 6 of Part 4,

(b) sections 156 and 156B,

(c) Divisions 1A, 2–5, 6A and 7 of Part 7.

(3) For avoidance of doubt—

(a) an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and

(b) a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry.

(4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company).

(5) In this section—

employer in the coal industry has the same meaning as in the Coal Industry Act 2001.

s 7A: Ins 2001 No 107, Sch 7.12 [1]. Am 2003 No 81, Sch 2 [2]; 2018 No 19, Sch 2.1.

8

8 (Repealed)

Part 2 Compensation—liability

Part 2 Compensation—liability

9 Liability of employers for injuries received by workers—general

9 Liability of employers for injuries received by workers—general

(cf former s 7 (1) (a))

(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.

9AA Liability for compensation

9AA Liability for compensation

(1) Compensation under this Act is only payable in respect of employment that is connected with this State.

(2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.

(3) A worker’s employment is connected with—

(a) the State in which the worker usually works in that employment, or

(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or

(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.

(5) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if—

(a) the worker is in this State when the injury happens, and

(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

(7) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.

(8) In this section—

ship means any kind of vessel used in navigation by water, however propelled or moved, and includes—

(a) a barge, lighter, or other floating vessel, and

(b) an air-cushion vehicle, or other similar craft,

used wholly or primarily in navigation by water.

State includes Territory and, in a geographical sense, a State’s or Territory’s relevant adjacent area as described in Schedule 1.

ss 9AA–9AC: Ins 2002 No 124, Sch 1.1 [1].

9AB Recognition of determination of State of connection in another State

9AB Recognition of determination of State of connection in another State

(1) If a designated court makes a determination of the State with which a worker’s employment is connected for the purposes of a corresponding law, that State is to be recognised for the purposes of section 9AA as the State with which the worker’s employment is connected.

(2) This section does not prevent or affect the operation of a determination of the State with which a worker’s employment is connected for the purposes of section 9AA made by the Commission or a court of this State before the determination is made by a designated court.

(3) This section does not prevent any appeal relating to any such determination of a designated court. If the determination is altered on appeal, the altered determination is to be recognised under subsection (1).

(4) In this section—

corresponding law means the provisions of the statutory workers compensation scheme of another State that corresponds with section 9AA.

designated court means—

(a) the Supreme Court of a State in which a corresponding law is in force, or

(b) a court, tribunal or other decision-making body of a State in which a corresponding law is in force that is declared by the regulations to be a designated court for the purposes of this section.

State includes Territory.

ss 9AA–9AC: Ins 2002 No 124, Sch 1.1 [1].

9AC Person not to be compensated twice

9AC Person not to be compensated twice

(1) Compensation under this Act is not payable in respect of any matter to the extent that compensation has been received under the laws of a place other than this State.

(2) If a person receives compensation under this Act and, for the same matter, subsequently receives compensation under the laws of a place other than this State, the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).

(3) The amount that is recoverable under subsection (2) is—

(a) the amount of compensation paid under this Act, or

(b) the amount of compensation received under the laws of a place other than this State,

whichever is less.

ss 9AA–9AC: Ins 2002 No 124, Sch 1.1 [1].

9A No compensation payable unless employment substantial contributing factor to injury

9A No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.

Note.

In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—

(a) the time and place of the injury,

(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e) the worker’s state of health before the injury and the existence of any hereditary risks,

(f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,

(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.

s 9A: Ins 1996 No 120, Sch 1.2 [1]. Am 1998 No 120, Sch 2.40 [1]; 2010 No 101, Sch 1 [1]; 2012 No 53, Sch 7 [2] [3].

9B No compensation for heart attack or stroke unless nature of employment results in significantly greater risk

9B No compensation for heart attack or stroke unless nature of employment results in significantly greater risk

(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.

(2) In this section—

heart attack injury means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with—

(a) any heart attack, or

(b) any myocardial infarction, or

(c) any myocardial ischaemia, or

(d) any angina, whether unstable or otherwise, or

(e) any fibrillation, whether atrial or ventricular or otherwise, or

(f) any arrhythmia of the heart, or

(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or

(h) any harm or damage to such a blood vessel or to any associated plaque, or

(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or

(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or

(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or

(l) any haemorrhage from such a blood vessel, or

(m) any aortic dissection, or

(n) any consequential physical harm or damage, including harm or damage to the brain, or

(o) any consequential mental harm or damage.

stroke injury means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with—

(a) any stroke, or

(b) any cerebral infarction, or

(c) any cerebral ischaemia, or

(d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or

(e) any subarachnoid haemorrhage, or

(f) any haemorrhage from such a blood vessel, or

(g) any harm or damage to such a blood vessel or to any associated plaque, or

(h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or

(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or

(j) any consequential physical harm or damage, including neurological harm or damage, or

(k) any consequential mental harm or damage.

s 9B: Ins 2012 No 53, Sch 6.

10 Journey claims

10 Journey claims

(cf former s 7 (1) (b)–(d), (f), (g))

(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.

(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.

(1C) (Repealed)

(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.

(2) Subsection (1) does not apply if—

(a) the injury was received during or after any interruption of, or deviation from, any such journey, and

(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,

unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.

(3) The journeys to which this section applies are as follows—

(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,

(b) the daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to attend,

(c) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,

(d) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3),

(e) a journey between any camp or place—

(i) where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or

(ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment,

and the worker’s place of abode when not so residing,

(f) a journey between the worker’s place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act,

(g) a journey between the worker’s place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money—

(i) due to the worker under the terms of his or her employment, and

(ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment.

(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.

(4) For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.

(5) For the purposes of this section, if the worker is journeying from the worker’s place of employment with one employer to the worker’s place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer.

(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.

(6) In this section—

educational institution means—

(a) a trade, technical or other training school, or

(b) a university or other college or school providing secondary or tertiary education.

night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker’s employment.

place of abode includes—

(a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and

(b) the place to which the worker is journeying with the intention of there spending the night following a journey.

s 10: Am 1989 No 214, Sch 1 (1); 1996 No 120, Sch 1.3 [1]–[4]; 1998 No 85, Sch 1 [6]; 1999 No 19, Sch 2.50; 2012 No 53, Sch 5; 2013 No 19, Sch 3.

11 Recess claims

11 Recess claims

(cf former s 7 (1) (e))

If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract—

(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,

(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and

(c) receives a personal injury during that absence,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

s 11: Am 2003 No 97, Sch 1 [1].

11A No compensation for psychological injury caused by reasonable actions of employer

11A No compensation for psychological injury caused by reasonable actions of employer

(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.

(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.

(5) (Repealed)

(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.

This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).

(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”.

(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—

(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and

(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.

s 11A: Ins 1995 No 89, Sch 1 [6] (am 1996 No 120, Sch 2.6 [1]). Am 1996 No 120, Sch 1.2 [2]–[7]; 1998 No 85, Sch 1 [7] [8]; 2001 No 61, Sch 6.1 [1].

12 Claims by trade union representatives

12 Claims by trade union representatives

(cf former s 7 (1) (h))

If—

(a) a worker is an accredited representative of a trade union of employees, or other organisation of employees, of which any person employed by the worker’s employer is a member,

(b) with the consent of or at the request of that employer or pursuant to an industrial award or agreement, the worker is carrying out his or her duties as such a representative (whether at the worker’s place of employment or elsewhere) or is on an associated journey, and

(c) the worker receives a personal injury while carrying out those duties or on that journey,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

13

13 (Repealed)

14 Conduct of worker etc

14 Conduct of worker etc

(cf former s 7 (2), (3))

(1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received—

(a) acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or

(b) acting without instructions from the worker’s employer,

if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.

(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.

(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.

15 Diseases of gradual process—employer liable, date of injury etc

15 Diseases of gradual process—employer liable, date of injury etc

(cf former ss 7 (4), (4C), (5), 16 (1A))

(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—

(a) the injury shall, for the purposes of this Act, be deemed to have happened—

(i) at the time of the worker’s death or incapacity, or

(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case—

where—

C is the contribution to be calculated for the particular employer concerned.

T is the amount of compensation to which the employer is required to contribute.

A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due.

B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due.

(3) Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.

(4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.

(5) This section does not apply to an injury to which section 17 applies.

s 15: Am 1989 No 119, Sch 1 (2); 1995 No 30, Sch 4 [1]–[3]; 2001 No 61, Sch 6.1 [2]–[4].

16 Aggravation etc of diseases—employer liable, date of injury etc

16 Aggravation etc of diseases—employer liable, date of injury etc

(cf former ss 7 (4A), (5), 16 (1A))

(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—

(a) the injury shall, for the purposes of this Act, be deemed to have happened—

(i) at the time of the worker’s death or incapacity, or

(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.

(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.

(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case—

where—

C is the contribution to be calculated for the particular employer concerned.

T is the amount of compensation to which the employer is required to contribute.

A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

(4) This section does not apply to an injury to which section 17 applies.

s 16: Am 1989 No 119, Sch 1 (2); 1995 No 30, Sch 4 [4] [5]; 1996 No 120, Sch 1.2 [8]; 2001 No 61, Sch 6.1 [5]–[7].

17 Loss of hearing—special provisions

17 Loss of hearing—special provisions

(cf former s 7 (4B), (4BB))

(1) If an injury is a loss, or further loss, of hearing which is of such a nature as to be caused by a gradual process, the following provisions have effect—

(a) for the purposes of this Act, the injury shall be deemed to have happened—

(i) where the worker was, at the time when he or she gave notice of the injury, employed in an employment to the nature of which the injury was due—at the time when the notice was given, or

(ii) where the worker was not so employed at the time when he or she gave notice of the injury—on the last day on which the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(b) the provisions of section 61 of the 1998 Act shall apply to or in respect of the injury as if the words “as soon as practicable after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury” were omitted therefrom,

(c) compensation is payable by—

(i) where the worker was employed by an employer in an employment to the nature of which the injury was due at the time he or she gave notice of the injury—that employer, or

(ii) where the worker was not so employed—the last employer by whom the worker was employed in an employment to the nature of which the injury was due before he or she gave the notice,

(d) an employer (not being an employer referred to in paragraph (c) (i) or (ii)) by whom the worker was employed in an employment to the nature of which the injury was due during the relevant period (as defined in paragraph (e)) shall be liable to make to an employer referred to in paragraph (c) (i) or (ii) a contribution which bears to the amount of compensation payable the same proportion as the period of that employment during the relevant period bears to the total period of employment of that worker in an employment to the nature of which the injury was due during the relevant period,

(e) in paragraph (d), the relevant period means—

(i) where the worker has not had a prior injury (being a loss of hearing or a further loss of hearing)—in relation to an injury, the period of 5 years immediately preceding the date when a notice is given in respect of the injury,

(ii) where the worker has had one or more prior injuries (being losses of hearing or further losses of hearing) which or all of which, as the case may be, are deemed under this Act to have happened at a time more than 5 years before the date when a notice is given in respect of a further injury—in relation to the further injury, the period of 5 years immediately preceding the date when that notice was given, and

(iii) where the worker has had not more than one, or more than one, prior injury (being a loss of hearing or a further loss of hearing) which or the last of which, as the case may be, is deemed under this Act to have happened at a time during the 5 years immediately preceding the date when a notice is given in respect of a further injury—in relation to the further injury, the period between the time when that prior injury is deemed to have happened and the date when that notice was given,

(f) where the Commission is satisfied that a contribution required to be made under paragraph (d) cannot be recovered by an employer referred to in paragraph (c), the Commission may direct the Nominal Insurer to pay to that employer out of the Insurance Fund such amount, not exceeding the amount of the contribution, as the Commission considers appropriate and the Nominal Insurer is to pay out that amount accordingly as if it were a payment made in respect of a claim under Division 6 of Part 4,

(g) where there is a dispute as to the amount of a contribution required to be made under paragraph (d), that dispute shall be deemed to be a matter or question arising under this Act.

(2) Without limiting the generality of subsection (1), the condition known as “boilermaker’s deafness” and any deafness of a similar origin shall, for the purposes of that subsection, be deemed to be losses of hearing which are of such a nature as to be caused by a gradual process.

(3) Compensation is payable by an employer as referred to in subsection (1) (c) in respect of the injury to which the notice given to the employer relates even if the worker, before claiming or receiving that compensation, commences employment (to the nature of which that kind of injury can be due) with another employer.

s 17: Am 1989 No 119, Sch 1 (2); 1995 No 30, Sch 4 [6]; 1998 No 85, Sch 1 [9]; 2001 No 61, Sch 6.1 [8], 2003 No 81, Sch 2 [3].

18 Special insurance provisions relating to occupational diseases

18 Special insurance provisions relating to occupational diseases

(cf former s 18 (6A)–(6C))

(1) If an employer has become liable under section 15 (1) (b) or 16 (1) (b) to pay compensation to a worker in respect of an injury and the time at which the injury is deemed to have happened is after the worker ceased to be employed by the employer, the liability of the employer is, despite sections 15 and 16, taken to have arisen immediately before the worker ceased to be employed by the employer. This subsection operates only for the purpose of determining whether any insurer or which of 2 or more insurers is liable under a policy of insurance in respect of that compensation.

(2) Where—

(a) an employer (in this subsection referred to as the contributor) has become liable under this Act to make a contribution to another employer towards compensation payable by that other employer in respect of an injury to a worker (being an injury referred to in section 15, 16 or 17), and

(b) on the last day of the period in respect of which the contributor was liable to make the contribution, the contributor was maintaining in force a policy of insurance,

the insurer under that policy is—

(c) directly liable, with the contributor, to pay the contribution to the employer who is liable to pay the compensation, and

(d) liable to indemnify the contributor to the extent that the contributor pays the contribution.

(3) In a case to which section 15, 16 or 17 applies, if each of the employers who is liable to pay the compensation or to make a contribution under the section concerned is insured in respect of that liability by an insurer who is an insurer within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed—

(a) a contribution that would otherwise be payable by an employer under section 15, 16 or 17 in respect of the claim is not payable, and

(b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that any contribution that would have been payable but for paragraph (a) was payable.

s 18: Am 1995 No 30, Sch 4 [7] [8].

19 Presumptions relating to certain employment

19 Presumptions relating to certain employment

(cf former s 7 (4D), (4E))

(1) If a worker, during a time when the worker is engaged in employment of a kind prescribed by the regulations as an employment to which this subsection applies, contracts a disease prescribed by the regulations as a disease that is related to employment of that kind, then for the purposes of this Act, unless the contrary is established—

(a) the disease shall be deemed to have been contracted by the worker in the course of the employment in which the worker was so engaged, and

(b) that employment shall be deemed to have been a substantial contributing factor to the disease.

(2) For the purposes of this Act, the disease brucellosis, Q fever or leptospirosis shall be deemed to have been contracted by a worker if the result of any medical test—

(a) which complies with such requirements as are prescribed by the regulations in relation to that disease, and

(b) which was carried out for the purpose of determining whether that worker has contracted that disease,

is a result prescribed by the regulations in respect of that disease.

s 19: Am 1996 No 120, Sch 1.2 [9].

19A Presumptions relating to certain cancers—firefighters

19A Presumptions relating to certain cancers—firefighters

(1) In the application of this Act to a worker who is an eligible firefighter, it is presumed (unless the contrary is established) that the disease contracted by the worker was contracted in the course of the worker’s firefighting employment and that employment was—

(a) for the purposes of the definition of disease injury in section 4, a contributing factor to contracting the disease, and

(b) for the purposes of section 9A, a substantial contributing factor to contracting the disease.

Note.

Amendments made to section 9A and the definition of disease injury in section 4 by Schedule 7 to the Workers Compensation Legislation Amendment Act 2012 do not apply to police officers, paramedics or firefighters. See clause 25 of Part 19H of Schedule 6 to this Act.

(2) A worker is an eligible firefighter if the worker—

(a) has, at any time, been engaged in firefighting employment, and

(b) has contracted a disease that is a cancer of a kind specified in Schedule 4.

(3) A worker has been engaged in firefighting employment if—

(a) the worker has, at any time, been employed by any person, body or agency (or former body or agency) prescribed for the purposes of this section by the regulations, and

(b) in the course of that employment, the worker has performed firefighting activities.

(4) This section does not apply to a disease contracted by an eligible firefighter if the total aggregate period during which the worker has been engaged in firefighting employment as at the date of injury (the service period) is less than the qualifying service period specified for the disease in Schedule 4.

(5) Any period during which an eligible firefighter has served in the capacity of an eligible volunteer firefighter is to be counted towards the service period.

(6) However, any period during which the eligible firefighter concurrently serves as an eligible volunteer firefighter and engages in firefighting employment is to be counted once only.

(7) For the purposes of the application of section 261 of the 1998 Act to a disease to which a presumption under this section applies, the period required by that section for the making of a claim for compensation in respect of the disease is taken to commence on the date of injury in relation to the disease (regardless of when the eligible firefighter or any other person first became aware of the disease).

(8) Any compensation payable on the basis of a presumption under this section to an eligible firefighter who, on the last day of the service period, concurrently served as an eligible volunteer firefighter and engaged in firefighting employment with an employer is payable under this Act by that employer.

(9) In this section—

date of injury, in relation to a disease, means the date of whichever of the following occurs first—

(a) the disease is first diagnosed by a medical practitioner,

(b) the firefighter dies as a result of the disease.

eligible volunteer firefighter means an official fire fighter within the meaning of Part 2 of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987.

firefighting activities means any of the following activities performed by a worker—

(a) extinguishing, controlling or preventing the spread of fire,

(b) bush fire hazard reduction work within the meaning of the Rural Fires Act 1997,

(c) the provision of training or instruction in the performance of an activity referred to in paragraph (a) or (b) resulting in exposure of the worker to smoke or other hazards of fire.

s 19A: Ins 2018 No 93, Sch 1 [1].

19B Presumptions relating to certain employment in relation to COVID-19

19B Presumptions relating to certain employment in relation to COVID-19

(1) If a worker, during a time when the worker is engaged in prescribed employment, contracts the disease COVID-19 (also known as Novel Coronavirus 2019), then for the purposes of this Act, it is presumed (unless the contrary is established)—

(a) that the disease was contracted by the worker in the course of the employment, and

(b) the employment—

(i) in the case of a person to whom clause 25 of Part 19H of Schedule 6 applies—was a substantial contributing factor to contracting the disease, or

(ii) in any other case—was the main contributing factor to contracting the disease.

(2) A worker is taken to have contracted COVID-19 for the purposes of this Act if the result of a medical test—

(a) that complies with requirements prescribed by the regulations in relation to the disease, and

(b) that was carried out for the purpose of determining if the worker has contracted the disease,

is a result prescribed by the regulations in respect of the disease.

(3) A worker is taken to have contracted COVID-19 for the purposes of this Act if the worker is classified by a medical practitioner as having COVID-19, having satisfied the epidemiological or clinical criteria (or both) prescribed by the regulations for the purpose of making that classification.

(4) For the purposes of this Act, the date of the injury in relation to COVID-19 is the date of whichever of the following occurs first—

(a) the worker is diagnosed by a medical practitioner as having COVID-19 following a prescribed test result, as referred to in subsection (2),

(b) the worker is classified by a medical practitioner as having COVID-19, as referred to in subsection (3),

(c) the worker dies as a result of COVID-19.

(5) For the purposes of this Act, it is presumed (unless the contrary is established) that a worker the subject of a presumption under subsection (1) is incapable of work as a result of COVID-19 for the period starting on the date of the injury and ending (unless sooner ended by the death of the worker)—

(a) on a date established in accordance with the regulations, or

(b) if no regulations are made under paragraph (a)—on a date that is 7 days after the date on which a medical practitioner certifies that the worker no longer has the disease.

(6) This section applies to a casual worker in prescribed employment only if the worker has performed casual work in the employment on 1 or more of the 21 days preceding the date of the injury.

(7) The regulations may make provision for or with respect to any matter relating to the application of this Act to or in respect of workers who have or are suspected of having COVID-19.

(8) In particular, the regulations may make provision for or with respect to the following matters—

(a) the modification of the provisions of this Act in their application to or in respect of workers who have COVID-19,

(b) (without limitation) the application of the Act to workers who suffer permanent impairment as a result of COVID-19,

(c) the use of employers’ claims histories relating to COVID-19-related claims in calculating premiums payable under the Act,

(d) the sharing of the financial risk arising out of COVID-19 between all insurers under the Act, including through the imposition and enforcement of risk equalisation arrangements for that purpose,

(e) (without limiting clause 1 of Part 20 of Schedule 6) transitional provisions for or with respect to claims relating to confirmed or cases of COVID-19 arising before the commencement of this section.

(9) In this section—

prescribed employment means employment in any of the following—

(a) the retail industry (other than businesses providing only on-line retail),

(b) the health care sector, including ambulance officers and public health employees,

(c) disability and aged care facilities,

(d) educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services),

(e) police and emergency services (including fire brigades and rural fire services),

(f) refuges, halfway houses and homeless shelters,

(g) passenger transport services,

(h) libraries,

(i) courts and tribunals,

(j) correctional centres and detention centres,

(k) restaurants, clubs and hotels,

(l) the construction industry,

(m) places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos),

(n) the cleaning industry,

(o) any other type of employment prescribed by the regulations for the purposes of this definition.

s 19B: Ins 2020 No 5, Sch 1.34[1].

20 Principal liable to pay compensation to workers employed by contractors in certain cases

20 Principal liable to pay compensation to workers employed by contractors in certain cases

(cf former s 6 (3))

(1) If any person (in this section referred to as the principal) in the course of or for the purposes of the person’s trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.

(2) If compensation is claimed from or proceedings are taken against the principal in respect of any such injury, then, in the application of this Act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.

(3) Notwithstanding subsection (1), where the contract relates to threshing, chaff-cutting, ploughing or other agricultural work, and the contractor provides and uses machinery driven by mechanical power for the purposes of that work, the contractor (and no other person) shall be liable under this Act to pay compensation to any worker employed by the contractor on that work.

(4) If the principal is liable to pay compensation under this section, the principal is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement be determined by the Commission.

(5) Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal.

(6) This section does not apply in any case where the injury occurred elsewhere than on, in or about premises on which the principal has undertaken to execute the work or which otherwise are under the principal’s control or management, but nothing in the foregoing affects the liability of the contractor under any other provision of this Act.

(7) This section does not render the owner of a farm liable to pay compensation as principal in respect of any worker employed by a share farmer.

(8) If—

(a) a principal under a contract referred to in subsection (1) is, at the time of an injury to a worker employed in the execution of the work under the contract, insured under a policy of insurance in respect of workers other than the workers employed in the execution of the work under the contract,

(b) compensation payable by the principal under subsection (1) in respect of the injury is paid by the principal’s insurer, and

(c) the principal has not, in respect of the policy, paid to the insurer a premium in respect of the principal’s liability under subsection (1),

the principal is liable to pay the insurer, in addition to the premium payable or paid in respect of the policy, a premium calculated having regard to—

(d) the Workers Compensation Market Practice and Premiums Guidelines, and

(e) the wages paid to the workers employed in the execution of the work under the contract during the term of the policy.

(9) A principal under a contract referred to in subsection (1) is not, under subsection (8), liable to pay in respect of a policy of insurance more than one additional premium in respect of the workers employed in the execution of the work under the contract.

(10) In the event of a disagreement between a principal and insurer as to whether or not an additional premium is payable under subsection (8) or as to the amount of an additional premium payable under that subsection, the Authority may, on the request of either party, determine the matter.

(11) A determination by the Authority under subsection (10) shall have effect according to its tenor and shall not be subject to review or appeal.

s 20: Am 1989 No 119, Sch 1 (2); 2001 No 61, Sch 6.1 [9]; 2015 No 19, Sch 5 [5].

21

21 (Repealed)

22 Compensation to be apportioned where more than one injury

22 Compensation to be apportioned where more than one injury

(1) If—

(a) the death or incapacity of a worker, or

(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or

(c) a liability under Division 3 of Part 3 to a worker,

results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.

(1A) Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury.

(2) Liability to pay compensation under this Act includes—

(a) the liability of an employer (including an employer who is a self-insurer), and

(b) the liability of an insurer under a policy of insurance in respect of the payment of that compensation (including a direct liability to the worker), and

(c) a liability in respect of a claim under Division 6 of Part 4, and

(d) in the case of a worker who is partially incapacitated for work, a liability that arises because the worker is entitled to be compensated under this Act as if totally incapacitated.

(3) Liability to pay compensation under this Act is not to be apportioned by the Commission if the parties to whom the liability relates have agreed on the apportionment.

(4) Liability to pay compensation under this Act may be apportioned by the Commission even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.

(5) The Commission may, on the application of any insurer or employer concerned or of the Authority, determine a dispute as to whether—

(a) liability to pay compensation under this Act should be apportioned under this section, or

(b) any such liability should be apportioned under this section in respect of different injuries.

The determination of the Commission has effect despite any agreement on apportionment if the application for determination was made by an employer (in the employer’s own right) or the Authority.

(6) (Repealed)

(7) A person who is liable to pay compensation under this Act is not entitled in any proceedings under this Act to a reduction in that liability by apportionment on account of the existence of any other person who is also liable to pay any part of that compensation unless that other person is a party to the proceedings.

(8) This section applies to any liability arising before or after the commencement of this Act.

s 22: Am 1989 No 119, Sch 1 (2). Subst 1991 No 2, Sch 4 (1). Am 1995 No 30, Sch 4 [9]–[12]; 2001 No 61, Sch 6.1 [10]–[13]; 2003 No 81, Sch 2 [4].

22A Further provisions concerning apportionment of liability under section 22

22A Further provisions concerning apportionment of liability under section 22

(1) The apportionment of liability under section 22 is—

(a) in the case of the apportionment of liability between employers—to be on the basis of the relative length of the worker’s employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case, and

(b) in the case of the apportionment of liability between insurers of the same employer—to be on the basis of the relative length of the employer’s period of insurance with each insurer concerned during which the worker concerned was employed by the employer (not including any period of insurance after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case.

(2) (Repealed)

(3) Liability may be apportioned under section 22 even if the liability has been discharged.

(4) When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.

(5) The person ordered under subsection (4) to pay compensation to the worker is to be—

(a) in the case of apportionment between employers—the employer who most recently employed the worker, or such other of the employers as the Commission considers reasonable in the special circumstances of the case, and

(b) in the case of apportionment between insurers—the insurer of the employer at the time of the last injury, or such other of the insurers as the Commission considers reasonable in the special circumstances of the case.

(6) An order is not to be made under subsection (4) if the parties concerned have agreed as to the payment by one of them of the compensation concerned.

(7) In this section a reference to an insurer includes a reference to a self-insurer and a reference to a period of insurance includes a reference to a period of self-insurance. A liability in respect of a claim under Division 6 of Part 4 is for the purposes of this section taken to be a liability of the insurer of the employer concerned during the period that is relevant to that liability.

(8) In a case to which section 22 applies, if all of the insurers concerned (being either insurers of the same employer or of the different employers concerned) are insurers within the meaning of Division 4 of Part 7 and the entitlement of the worker (or other claimant) to receive compensation is not disputed—

(a) the compensation is (despite subsection (5)) payable by the last insurer or the last employer (as relevant to the case), with no apportionment of liability under section 22, and

(b) for the purposes of calculating an insurance premium payable by any of those employers, their claims histories are to be determined on the assumption that liability had been apportioned under section 22 (without the need for a determination of, or agreement as to, that apportionment).

(9) The operation of section 22 is not to be limited because of the fact that it provides for liability to be apportioned rather than providing for payment of contributions.

s 22A: Ins 1995 No 30, Sch 4 [13]. Am 1995 No 89, Sch 1 [7]; 2001 No 61, Sch 6.1 [14]–[16]; 2003 No 81, Sch 2 [5]; 2012 No 53, Sch 1.1 [1].

22B Determination as to which injury gave rise to compensation liability

22B Determination as to which injury gave rise to compensation liability

(1) The Commission may, on the application of an employer (in the employer’s own right) or of the Authority, determine a dispute as to which injury, from among 2 or more alleged injuries, has given rise to a liability to pay compensation under this Act.

(2) Such a determination may be made irrespective of any agreement and irrespective of whether the payment of any contribution is ordered under section 15 or 16 or any apportionment of liability is ordered under section 22.

s 22B: Ins 1995 No 30, Sch 4 [13]. Am 2001 No 61, Sch 6.1 [17].

22C Certain injuries not to be dealt with under sections 15 and 16

22C Certain injuries not to be dealt with under sections 15 and 16

(1) This section applies to an injury that is of a kind, or that occurs in circumstances, prescribed by the regulations for the purposes of this section.

(2) The regulations may provide that either or both of sections 15 and 16 is or are not to apply to an injury to which this section applies and that instead section 22 is to apply to the injury.

(3) The regulations may provide that section 15 (1) (a) or 16 (1) (a) is, for the purposes of all or specified provisions of this Act, to apply in respect of an injury to which this section applies.

(4) A regulation made for the purposes of this section extends to apply to an injury that happened before the commencement of the regulation, but only if—

(a) death, incapacity, loss or liability as referred to in section 22 results from that injury and one or more other injuries, and

(b) at least one of those other injuries happened after the commencement of the regulation.

(5) A regulation made for the purposes of this section does not (despite subsection (4)) affect any liability of an employer or insurer to pay compensation or a contribution, or any liability of an insurer to indemnify an employer, that arose before the commencement of the regulation, unless the Commission otherwise orders.

s 22C: Ins 1995 No 30, Sch 4 [13]. Am 2001 No 61, Sch 6.1 [18].

23 Age or residence not relevant to liability

23 Age or residence not relevant to liability

(cf former ss 53D, 72)

Compensation under this Act is payable to a person, and proceedings for the recovery of compensation under this Act may be instituted by a person, even though—

(a) the person is under the age of 18 years, or

(b) the person resides, or at any time resided, outside New South Wales.

24 Illegal employment

24 Illegal employment

(cf former s 53I)

If, in any proceedings for the recovery of compensation under this Act, it appears that the contract of service or training contract under which the injured person was engaged at the time when the injury happened was illegal, the matter may be dealt with as if the injured person had at that time been a worker under a valid contract of service or training contract.

s 24: Am 2003 No 97, Sch 1 [2].

Part 3 Compensation—benefits

Part 3 Compensation—benefits

Division 1 Compensation payable on death

Division 1 Compensation payable on death

25 Death of worker leaving dependants

25 Death of worker leaving dependants

(cf former s 8 (1))

(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be—

(a) the amount of $750,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and

(b) in addition, an amount of $66.60 per week in respect of—

(i) each dependent child of the worker under the age of 16 years, and

(ii) each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.

(1A) If the lump sum death benefit is paid to the NSW Trustee for the benefit of a dependant in accordance with section 85 after the commencement of this subsection, the employer must, subject to the regulations, pay as additional compensation fees of a kind prescribed by the regulations concerning investing or otherwise managing the sum for the dependant’s benefit.

(2) Payments in respect of a dependent child under subsection (1) (b) shall continue—

(a) except as provided by paragraph (b)—until the child dies or reaches the age of 16 years, whichever first occurs, or

(b) in the case of a dependent child who is a student at the time of the worker’s death or after reaching the age of 16 years—until the child dies, reaches the age of 21 years or ceases to be a student, whichever first occurs.

(3) The amount of any weekly payments, or other compensation payable under this Act, shall not be deducted from the amounts referred to in subsection (1) (a) or (b).

(4) If an amount mentioned in subsection (1) (a) at any time after the commencement of this Act—

(a) is adjusted by the operation of Division 6, or

(b) is adjusted by an amendment of this section,

the compensation payable under subsection (1) (a) is to be calculated by reference to the amount in force at the date of death.

(4A) If the death of a worker results both from an injury received before the adjustment of an amount mentioned in subsection (1) (a) and an injury received after that adjustment, the worker shall, for the purposes of subsection (1) (a), be treated as having died as a result of the injury received after that adjustment.

(5) In this section—

child of the worker means a child or stepchild of the worker and includes a person to whom the worker stood in the place of a parent.

dependent child of the worker means a child of the worker who was wholly or partly dependent for support on the worker.

student means a person receiving full-time education at a school, college or university.

s 25: Am 1989 No 133, Schs 2 (1), 3 (1); 1991 No 99, Sch 1 (1); 2008 No 118, Sch 1 [1] [2]; 2015 No 18, Sch 1 [1]; 2022 No 25, Sch 2.1[1].

26 Funeral expenses

26 Funeral expenses

If compensation is payable under this Division for a death resulting from an injury, the employer must pay additional compensation equal to reasonable funeral expenses not exceeding $15,000 or such other amount as may be prescribed by the regulations.

s 26: Am 1989 No 119, Sch 1 (2); 2001 No 61, Sch 6.1 [19]–[21]. Subst 2008 No 118, Sch 1 [3]. Am 2015 No 18, Sch 1 [2].

27

27, 27A (Repealed)

28 Expenses of transporting body

28 Expenses of transporting body

(cf former s 8 (4A))

If compensation is payable under this Division and the usual place of residence of the worker was, at the time of the worker’s death, in Australia, the employer shall pay additional compensation equal to the reasonable cost of transporting the body of the worker to—

(a) what would, in the circumstances, be an appropriate place for its preparation for burial or cremation, or

(b) that usual place of residence,

whichever is the lesser cost.

29 Apportionment of payments between dependants

29 Apportionment of payments between dependants

(cf former s 59)

(1) The compensation payable under this Division to each dependant of a deceased worker may be apportioned by the Commission or by the NSW Trustee.

(1A) The lump sum death benefit payable under this Division is not to be apportioned if a deceased worker leaves only one dependant (whether wholly or partly dependent on the worker for support) and the whole of the lump sum death benefit is to be paid to that one dependant.

(1B) In apportioning the lump sum death benefit payable under this Division between 2 or more dependants, the whole lump sum death benefit is to be apportioned among those dependants (so that the sum of the apportioned amounts equals the full lump sum death benefit).

(2) Application for apportionment may be made by or on behalf of a person entitled to the compensation—

(a) to the NSW Trustee, or

(b) to the Commission (whether or not an application has been made to the NSW Trustee or the NSW Trustee has made a decision).

(3) The NSW Trustee may decline to deal with an application for apportionment and advise the parties to apply to the Commission.

(4) The NSW Trustee is not to deal with an application for apportionment of compensation if an application for apportionment of the same compensation is before the Commission.

(5) A decision by the NSW Trustee to apportion compensation under this Division is subject to any decision made by the Commission with respect to the matter.

(6) If there are both total and partial dependants of a deceased worker, the compensation may be apportioned partly to the total and partly to the partial dependants.

(7) If a dependant dies—

(a) before a claim under this Division is made, or

(b) if a claim has been made, before an agreement or award has been arrived at or made,

the legal personal representative of the dependant has no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if that dependant had died before the worker.

(8) The regulations may make provision for or with respect to the publication of applications for apportionment and any other matter connected with apportionment.

s 29: Am 1989 No 119, Sch 1 (2); 1996 No 120, Sch 1.9 [1]; 2001 No 61, Sch 6.1 [22]; 2008 No 118, Sch 1 [4]; 2009 No 49, Sch 2.64 [2].

30 Review of apportionment among dependants

30 Review of apportionment among dependants

(1) The Commission or the NSW Trustee may, on account of the variation of the circumstances of the various dependants or for any other sufficient cause, vary any previous apportionment among the dependants of a deceased worker of compensation under this Division.

(2) Application for a variation may be made by or on behalf of the person entitled to compensation to the Commission or the NSW Trustee.

(3) The NSW Trustee may apply to the Commission for any such variation of a previous apportionment made by the NSW Trustee or by the Commission.

(4) The NSW Trustee is not to deal with an application for variation of any previous apportionment if an application for variation of the same previous apportionment is before the Commission.

(5) The NSW Trustee is not to vary an apportionment made by the Commission.

s 30: Am 1989 No 119, Sch 1 (2) (3); 1996 No 120, Sch 1.9 [1]. Subst 2001 No 61, Sch 6.1 [23]. Am 2009 No 49, Sch 2.64 [2].

31 Payment in respect of dependent children

31 Payment in respect of dependent children

(cf former s 8 (1A))

(1) Compensation payable under section 25 (1) (b) in respect of a dependent child of a deceased worker shall, unless the Commission otherwise orders—

(a) be paid to the surviving parent of the child concerned, if there is one, or

(b) be paid to the NSW Trustee for the benefit of the child or to any person (approved by the NSW Trustee) having the care or custody of the dependent child, if no such parent survives.

(2) If the Commission makes an order under subsection (1), the compensation is payable in accordance with the order.

s 31: Am 1989 No 119, Sch 1 (2); 1996 No 120, Sch 1.9 [2] [3]; 1998 No 130, Sch 5 [1]; 2001 No 61, Sch 6.1 [24] [25]; 2009 No 49, Sch 2.64 [2].

32 Payment where no dependants

32 Payment where no dependants

(cf former s 57 (4))

If a deceased worker leaves no dependants, compensation payable under this Division shall be paid to the worker’s legal personal representative or, if there is no such representative, to the person to whom the payment of the expenses for which the compensation is payable is due.

Division 2 Weekly compensation by way of income support

Division 2 Weekly compensation by way of income support

pt.3-div.2-sdiv.1 Interpretation

Subdivision 1 Interpretation

pt 3, div 2, sdiv 1, hdg: Ins 2012 No 53, Sch 1.1 [2].

32A Definitions

32A Definitions

(1) In this Division and in Schedule 3—

fair work instrument means—

(a) a fair work instrument (other than an FWA order) within the meaning of the Fair Work Act 2009 of the Commonwealth, or

(b) a transitional instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.

maximum weekly compensation amount means the maximum weekly compensation amount under section 34.

second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—

(a) having regard to—

(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii) the worker’s age, education, skills and work experience, and

(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of—

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii) the nature of the worker’s pre-injury employment, and

(iv) the worker’s place of residence.

work capacity assessment means a work capacity assessment under section 44A.

work capacity decision—see section 43.

worker with high needs means a worker whose injury has resulted in permanent impairment and—

(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or

(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or

Note.

Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.

(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,

and includes a worker with highest needs.

worker with highest needs means a worker whose injury has resulted in permanent impairment and—

(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or

(b) an assessment of the degree of permanent impairment is pending and has not been made because a medical assessor has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or

Note.

Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.

(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.

(2) Words and expressions in this Division that are defined in Schedule 3 have the meanings provided by that Schedule. The regulations may amend Schedule 3.

Note.

Definitions include current work capacity, current weekly earnings and pre-injury average weekly earnings.

s 32A: Ins 2012 No 53, Sch 1.1 [2]. Am 2015 No 18, Sch 2 [1]–[3]; 2018 No 62, Sch 3.1[1] [2]; 2020 No 18, Sch 6.10[1].

pt.3-div.2-sdiv.2 Entitlement to weekly compensation

Subdivision 2 Entitlement to weekly compensation

pt 3, div 2, sdiv 2, hdg: Ins 2012 No 53, Sch 1.1 [2].

33 Weekly compensation during total or partial incapacity for work

33 Weekly compensation during total or partial incapacity for work

(cf former s 9 (1))

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

Note.

Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.

s 33: Am 1998 No 85, Sch 1 [10].

34 Maximum weekly compensation amount

34 Maximum weekly compensation amount

(1AA) A weekly payment of compensation under this Subdivision is not to exceed the maximum weekly compensation amount.

(1) The maximum weekly compensation amount is $1,838.70.

(2) If the amount mentioned in subsection (1)—

(a) is adjusted by the operation of Division 6, or

(b) is adjusted by an amendment of this section,

the maximum weekly compensation amount applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted.

(3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.

s 34: Am 1995 No 30, Sch 8 [1]. Subst 2012 No 53, Sch 1.1 [3]. Am 2018 No 62, Sch 3.1[3] [4].

35

35 (Repealed)

36 Weekly payments during first entitlement period (first 13 weeks)

36 Weekly payments during first entitlement period (first 13 weeks)

(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.

(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates—

(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,

(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.

s 36: Subst 2012 No 53, Sch 1.1 [3]; 2018 No 62, Sch 3.1[5].

37 Weekly payments during second entitlement period (weeks 14–130)

37 Weekly payments during second entitlement period (weeks 14–130)

(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.

(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—

(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,

(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.

(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—

(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,

(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.

s 37: Am 1989 No 119, Sch 1 (2); 1989 No 133, Sch 3 (3); 1991 No 99, Sch 1 (3); 1994 No 10, Sch 5 (2); 1995 No 30, Sch 8 [2] [3]; 1998 No 130, Sch 5 [2]; 2001 No 61, Schs 1 [2], 6 [26]; 2010 No 19, Sch 3.126 [1] [2]. Subst 2012 No 53, Sch 1.1 [3]; 2018 No 62, Sch 3.1[5].

38 Weekly payments after second entitlement period (after week 130)

38 Weekly payments after second entitlement period (after week 130)

(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.

(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—

(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and

(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and

(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.

(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.

(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—

(a) during the last 52 weeks of the second entitlement period, and

(b) thereafter at least once every 2 years.

Note.

An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.

(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.

(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.

(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—

(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,

(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.

(8) A worker’s entitlement to compensation under this section may be reassessed at any time.

s 38: Am 1989 No 119, Sch 1 (2) (5); 1989 No 133, Schs 2 (2), 4 (1). Subst 1994 No 10, Sch 1 (1). Am 1998 No 85, Sch 1 [11] [12]. Subst 2012 No 53, Sch 1.1 [3]. Am 2015 No 18, Sch 2 [4]–[6]; 2018 No 62, Sch 3.1[6].

38A Special provision for workers with highest needs

38A Special provision for workers with highest needs

(1) If the determination of the amount of weekly payments of compensation payable to a worker with highest needs in accordance with this Subdivision results in an amount that is less than $788.32, the amount is to be treated as $788.32.

(2) If the amount specified in subsection (1) is varied by operation of Division 6A, a weekly payment of compensation payable to a worker with highest needs before the date on which the variation takes effect is, for any period of incapacity occurring on and after that date, to be determined by reference to that amount as so varied.

s 38A: Ins 1989 No 133, Sch 4 (2). Subst 1994 No 10, Sch 1 (1). Am 1995 No 30, Sch 12 [5]; 1996 No 120, Sch 1.5 [1] [2]; 1998 No 85, Sch 1 [13] [14]; 2000 No 87, Sch 22.2 [1]; 2001 No 61, Sch 6.1 [27]–[29]; 2010 No 101, Sch 1 [2]. Rep 2012 No 53, Sch 1.1 [3]. Ins 2015 No 18, Sch 2 [7}.

39 Cessation of weekly payments after 5 years

39 Cessation of weekly payments after 5 years

(1) Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.

(2) This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.

Note.

For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.

(3) For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4).

s 39: Am 1989 No 119, Sch 1 (2) (4) (5); 1990 No 46, Sch 1; 1990 No 108, Sch 1; 1994 No 10, Sch 1 (2); 1995 No 30, Sch 12 [13]; 1998 No 85, Sch 1 [15]; 2001 No 61, Sch 6.1 [30]–[34]. Subst 2012 No 53, Sch 1.1 [3].

40 Entitlement after second entitlement period not affected by certain circumstances

40 Entitlement after second entitlement period not affected by certain circumstances

(1) A worker who receives weekly payments under section 38 does not cease to be entitled to weekly payments under that section by reason only that the worker occasionally, but not during more than 4 weeks in the first period of 12 consecutive weeks immediately after the worker first received weekly payments under that section, or in any subsequent consecutive period of 12 weeks—

(a) has worked more hours during a week, or

(b) has worked fewer hours during a week (even if the number of hours worked is less than 15), or

(c) has received higher current weekly earnings, or

(d) has received lower current weekly earnings (even if the earnings are less than $155 per week),

than the hours worked, or the current weekly earnings received, at the time of making the application for payments under section 38.

(2) A reference in subsection (1) to hours of work does not include hours of leave approved by the employer.

s 40: Am 1989 No 133, Sch 3 (4); 1989 No 133, Sch 4 (3); 1990 No 46, Sch 1; 1991 No 99, Sch 1 (4). Subst 1994 No 10, Sch 1 (3). Am 1995 No 89, Sch 1 [8]; 1998 No 85, Sch 1 [16]–[18]; 1998 No 120, Sch 2.40 [2]; 2001 No 61, Schs 1 [1], 6.1 [35]; 2010 No 101, Sch 1 [3]–[6]. Subst 2012 No 53, Sch 1.1 [3].

40A

40A (Repealed)

41 Compensation for incapacity after second entitlement period resulting from surgery

41 Compensation for incapacity after second entitlement period resulting from surgery

(1) An injured worker who suffers incapacity resulting from injury related surgery is entitled to weekly payments of compensation (special compensation) as provided by this section in respect of that incapacity when the incapacity occurs after the second entitlement period.

(2) The special compensation provided for by this section is payable at the rate provided under section 37, as if the period of incapacity in respect of which the special compensation is payable occurred during (not after) the second entitlement period.

(3) Special compensation is not payable in respect of any period of incapacity that occurs—

(a) during the first 13 consecutive weeks after the end of the second entitlement period, or

(b) more than 13 weeks after the surgery concerned, or

(c) during any period in respect of which the worker is otherwise entitled to compensation after the second entitlement period (under section 38).

(4) Surgery is injury related if it is surgery that the worker undergoes in the course of medical treatment provided to the worker as a result of an injury (the initial injury) received by the worker (being medical treatment for which the insurer has accepted liability under this Part).

(5) The following requirements must be satisfied for a worker to be eligible for the special compensation provided for by this section—

(a) the worker must have received weekly payments of compensation in respect of the initial injury and have had current work capacity prior to suffering the incapacity resulting from the injury related surgery,

(b) the worker must have returned to work after the initial injury (whether in self-employment or other employment) for a period of not less than 15 hours per week and have been in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week.

(6) This section does not limit section 52 (Termination of weekly payments on retiring age).

s 41: Subst 2012 No 53, Sch 1.1 [3].

42 Application by worker to alter amount of weekly payments

42 Application by worker to alter amount of weekly payments

(1) A worker who is receiving weekly payments of compensation may apply in writing to the insurer for an increase or reduction in the amount of the payments and must specify in the application the reasons for so applying and provide with the application any supporting evidence.

(2) Within 28 days after receiving an application, the insurer must—

(a) approve or reject the application, and

(b) give the worker and the employer written notice of its decision, including, in the case of rejection, a statement of the reasons for the decision.

s 42: Am 1989 No 79, Sch 1; 1991 No 99, Sch 1 (5); 1995 No 30, Sch 8 [4]; 1995 No 89, Sch 1 [9]; 1996 No 121, Sch 4.63 [1] [2]. Subst 2012 No 53, Sch 1.1 [3].

pt.3-div.2-sdiv.3 Work capacity

Subdivision 3 Work capacity

pt 3, div 2, sdiv 3, hdg: Ins 2012 No 53, Sch 1.1 [3].

43 Work capacity decisions by insurers

43 Work capacity decisions by insurers

(1) The following decisions of an insurer are work capacity decisions—

(a) a decision about a worker’s current work capacity,

(b) a decision about what constitutes suitable employment for a worker,

(c) a decision about the amount an injured worker is able to earn in suitable employment,

(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,

(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,

(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).

(2) The following decisions are not work capacity decisions—

(a) a decision to dispute liability for weekly payments of compensation,

(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.

(3) (Repealed)

s 43: Am 1989 No 133, Sch 8 (3); 1993 No 47, Sch 1; 1994 No 6, Sch 2 (1); 1994 No 10, Sch 1 (4); 1995 No 30, Sch 8 [5]; 1995 No 89, Sch 1 [10]–[13]; 1996 No 121, Sch 4.63 [3]. Subst 2012 No 53, Sch 1.1 [3]. Am 2015 No 18, Sch 2 [8]; 2018 No 62, Sch 1.1 [1] [2].

43A

43A (Repealed)

44

44

(Renumbered as section 44BB)

s 44: Subst 2012 No 53, Sch 1.1 [3]. Am 2015 No 18, Sch 2 [9]–[12]. Renumbered as sec 44BB, 2015 No 18, Sch 2 [13].

44A Work capacity assessment

44A Work capacity assessment

(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the Workers Compensation Guidelines and may conduct a work capacity assessment at any other time.

(2) A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the Workers Compensation Guidelines.

(3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.

(4) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it.

(5) An insurer may in accordance with the Workers Compensation Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.

(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.

s 44A: Ins 2012 No 53, Sch 1.1 [3]. Am 2015 No 18, Sch 2 [6].

44B Evidence as to work capacity

44B Evidence as to work capacity

(1) A worker must provide to the insurer—

(a) certificates of capacity in accordance with this section in respect of the period in respect of which the worker is entitled to weekly payments, and

(b) a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment or in self-employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section.

(2) If a decision to reject a claim for weekly payments or to terminate weekly payments is set aside, a worker is not required to comply with this section in respect of any period from the date that the decision took effect until the day on which the decision is set aside.

(3) A certificate of capacity must—

(a) for a first certificate of capacity provided by a worker to the insurer—be a certificate given by a medical practitioner in a form approved by the Authority, and

(a1) for a second or subsequent certificate of capacity provided by a worker to the insurer—be a certificate that complies with the requirements prescribed by the regulations, including the form of the certificate, and

(b) certify as to the worker’s incapacity for work and whether the worker has a current work capacity or has no current work capacity during the period, not exceeding 28 days, stated in the certificate, and

(c) specify the expected duration of the worker’s incapacity.

(4) A certificate of capacity may cover a period exceeding 28 days if—

(a) the person giving the certificate states in the certificate the special reasons why the certificate covers the longer period, and

(b) the insurer is satisfied that, for the special reasons stated, the certificate should be accepted.

(5) A certificate of capacity is of no effect to the extent that it relates to a period that is more than 90 days before the certificate is provided.

(6) The insurer may discontinue weekly payments of compensation if the worker fails to comply with a requirement under this section within 7 days after the requirement is communicated to the worker by the insurer.

Note.

Section 270 of the 1998 Act also allows an insurer to require medical evidence and authorisations about incapacity for work when weekly payments begin.

s 44B: Ins 2012 No 53, Sch 1.1 [3]. Am 2020 No 1, Sch 2.21.

44BAA Regulations

44BAA Regulations

The regulations may provide for the procedures to be followed by insurers in connection with the making of work capacity decisions, including the adjustment of any amount of weekly payments as a result of a work capacity decision.

s 44BAA: Ins 2018 No 62, Sch 3.1[7].

pt.3-div.2-sdiv.3A

Subdivision 3A

44BA–44BF (Repealed)

pt 3, div 2, sdiv 3A, hdg: Ins 2015 No 18, Sch 2 [14]. Rep 2018 No 62, Sch 1.1 [3].

pt 3, div 2, sdiv 3A: Rep 2018 No 62, Sch 1.1 [3].

s 44BA: Ins 2015 No 18, Sch 2 [14]. Rep 2018 No 62, Sch 1.1 [3].

s 44BB (previously s 44): Renumbered 2015 No 18, Sch 2 [13]. Rep 2018 No 62, Sch 1.1 [3].

ss 44BC–44BF: Ins 2015 No 18, Sch 2 [14]. Rep 2018 No 62, Sch 1.1 [3].

pt.3-div.2-sdiv.4 Miscellaneous

Subdivision 4 Miscellaneous

pt 3, div 2, sdiv 4, hdg: Ins 2012 No 53, Sch 1.1 [3]. Subst 2018 No 62, Sch 3.1[8].

44C

44C–44I (Repealed)

45 Reduction of weekly payments to qualify for other benefits

45 Reduction of weekly payments to qualify for other benefits

(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment—

(a) is not payable, or

(b) is reduced to a specified amount or in a specified manner,

if the worker, or any spouse or other person related to the worker, would as a result be qualified to receive any pension, allowance or other benefit under the Social Security Act 1991 of the Commonwealth or under any other Act or law.

(2) Any such order has effect according to its tenor.

(3) Any such order does not have effect for the purposes of determining (if applicable) the lump sum payable on the commutation of a weekly payment under this Act or the redemption of a weekly payment under section 15 of the former Act (as applied by Schedule 6 to this Act).

s 45: Am 1989 No 119, Sch 1 (3); 1994 No 10, Sch 5 (2); 2001 No 61, Schs 1 [1], 6.1 [36].

46 Reduction of weekly payments to prevent dual benefits

46 Reduction of weekly payments to prevent dual benefits

(cf former s 13)

(1) The Commission may, on the determination of an application for any weekly payment of compensation or on a review under this Act of any weekly payment of compensation, order that the weekly payment be reduced to prevent dual benefits of the same kind being payable by the employer during and in respect of the incapacity for work.

(2) Any such order shall have effect according to its tenor.

(3) This section does not affect the operation of section 49 or 50.

s 46: Am 1989 No 119, Sch 1 (3); 2001 No 61, Sch 6.1 [37].

47 Incapacity deemed to exist in certain cases

47 Incapacity deemed to exist in certain cases

(cf former s 12A)

A worker who, as a result of injury, is unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment shall be deemed to be incapacitated for employment of that kind.

48 Compensation payable despite existing incapacity

48 Compensation payable despite existing incapacity

(cf former s 7 (2A))

(1) Compensation is payable under this Division in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work of the worker.

(2) Any such compensation is payable as if total or partial incapacity for work had in fact resulted from the injury.

(3) In this section—

existing incapacity means total incapacity for work by disease or other cause—

(a) not entitling the worker to compensation under this Act, and

(b) existing at the time when the total or partial incapacity for work would otherwise have resulted from the injury.

49 Weekly compensation payable despite holiday pay etc

49 Weekly compensation payable despite holiday pay etc

(cf former s 7 (2B))

(1) Compensation is payable under this Division to a worker in respect of any period of incapacity for work even though the worker has received or is entitled to receive in respect of the period any payment, allowance or benefit for holidays, annual holidays or long service leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.

(2) The amount of compensation so payable is the amount which would have been payable to the worker had the worker not received or been entitled to receive in respect of the period any such payment, allowance or benefit.

50 Weekly compensation and sick leave

50 Weekly compensation and sick leave

(cf former s 7 (2C))

(1) Compensation is payable to a worker in respect of a period of incapacity for work even though the worker has received or is entitled to receive in respect of that period any wages for sick leave under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment.

(2) If a worker is paid compensation by the employer in respect of any period of incapacity for work in respect of which the employer is, or but for this section would be, liable under any Act (Commonwealth or State), award or industrial agreement under any such Act or contract of employment to pay to the worker any wages for sick leave—

(a) that liability shall, to the extent of the compensation so paid, be deemed to have been satisfied by that payment notwithstanding the terms of that Act, award, agreement or contract, and

(b) the amount of that compensation shall, for the purposes of subsections (4) and (5), be deemed to have been paid as compensation and not as wages.

(3) If a worker, in respect of any period of incapacity for work in respect of which the employer is liable to pay compensation to the worker, is paid wages for sick leave by the employer and either an award is made afterwards for the payment of compensation to the worker in respect of that period or the employer agrees afterwards that compensation be paid to the worker in respect of that period—

(a) the employer’s liability to pay compensation in respect of that period shall, to the extent of the wages paid, be deemed to have been satisfied by that payment, and

(b) the wages shall, to the extent of the compensation, be deemed for the purposes of subsections (4) and (5) to have been paid as compensation and not as wages.

(4) If a worker is paid any compensation in respect of a period of incapacity for work, the worker shall, in respect of any entitlement to sick leave, or wages for sick leave, accruing after the expiration of that period—

(a) if the worker has not also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or to have received, any sick leave or wages for sick leave in respect of that period, or

(b) if the worker has also been paid wages for sick leave in respect of that period—be deemed not to have been entitled to or granted, or not to have received, sick leave or wages for sick leave in respect of the whole of that period, but only in respect of a lesser period calculated as provided by subsection (5).

(5) The lesser period referred to in subsection (4) is a period which bears to the period of incapacity of the worker the same proportion as the wages paid to the worker in respect of the period of incapacity bear to the total amount of the wages and compensation paid to the worker in respect of the period of incapacity.

(6) In this section—

compensation means weekly payments of compensation under this Division.

wages means wages, salary, allowance or other payment.

51

51 (Repealed)

52 Termination of weekly payments on retiring age

52 Termination of weekly payments on retiring age

(cf former s 60A)

(1) In this section—

retiring age, in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.

(2) If a person—

(a) receives an injury before reaching the retiring age—a weekly payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the first anniversary of the date on which that person reaches the retiring age, or

(b) receives an injury on or after reaching the retiring age—a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury.

(3) This section has effect notwithstanding anything to the contrary in this Division.

(4) This section does not apply to injuries received before 30 June 1985.

s 52: Am 1994 No 10, Sch 5 (2); 2001 No 61, Sch 5.1 [1]; 2012 No 53, Sch 1.1 [4]; 2015 No 18, Sch 2 [15].

52A

52A, 52B (Repealed)

53 Weekly payments—residence outside the Commonwealth

53 Weekly payments—residence outside the Commonwealth

(1) A worker receiving, or entitled to receive, a weekly payment of compensation who ceases to reside in Australia continues to be entitled to receive the weekly payment if the Commission or insurer has determined the worker’s incapacity for work resulting from the injury is likely to be of a permanent nature.

(2) The weekly payment of compensation is payable—

(a) at the employer’s usual times of payment of wages to the worker, or

(b) at other intervals as are agreed between the employer and the worker or between the insurer and the worker.

(3) The worker’s entitlement to the weekly payments continues so long as the worker establishes, in the way and at the intervals as may be required by the Workers Compensation Guidelines, the worker’s identity and the continuance of the incapacity for which the weekly payment is payable.

s 53: Am 1989 No 119, Sch 1 (2); 2001 No 61, Sch 6.1 [39]; 2015 No 19, Sch 5 [6]; 2020 No 18, Sch 6.10[2]. Subst 2022 No 25, Sch 2.1[2].

54

54–56 (Repealed)

57 Worker to notify return to work etc with other employer

57 Worker to notify return to work etc with other employer

(1) A worker who is in receipt of weekly payments of compensation shall forthwith notify the person making those payments of—

(a) the worker’s commencing employment with some other person or in the worker’s own business, or

(b) any change in that employment that affects the worker’s earnings.

Maximum penalty—40 penalty units.

(2) A worker is not guilty of an offence under this section if the worker satisfies the court that the person to whom the matter was to be notified failed to inform the worker of the obligation to notify that matter.

(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the President.

s 57: Am 1989 No 119, Sch 1 (8); 1993 No 47, Sch 1; 1997 No 134, Sch 1 [2] [3]; 1998 No 85, Sch 1 [35]; 2001 No 61, Sch 6.1 [47]; 2020 No 18, Sch 6.10[3].

58 Refund of weekly payments paid after return to work etc

58 Refund of weekly payments paid after return to work etc

(1) If, because of a worker’s return to employment or a change in employment that affects the worker’s earnings—

(a) the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker, or

(b) the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act (including under the former Act),

the Commission may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment.

(2) Any such refund may, in accordance with the terms of the Commission’s order, be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction.

(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the President.

(4) Without limiting this section, the Commission may make such orders as the Commission thinks fit for the adjustment of weekly payments of compensation to a worker to take account of any overpayments made to the worker (whether or not in the circumstances referred to in subsection (1)) in respect of any previous period.

(5) In this section—

(a) a reference to the worker’s return to employment includes a reference to the worker’s commencing employment, and

(b) a reference to employment includes a reference to employment in the worker’s own business.

(6) A court before which proceedings for an offence under section 57 are taken against a person may, on the application of the Authority (whether or not the person is convicted of the offence), make any order that it is satisfied the Commission could make under this section as a result of the return to employment or change in employment to which the alleged offence relates. The standard of proof that applies in connection with an application under this subsection is proof on the balance of probabilities.

(7) The power conferred on a court by subsection (6) is subject to the following limitations—

(a) it does not authorise the making of an order providing for the refund to be deducted from any future weekly payments of compensation to the extent that they are payable under an award of the Commission,

(b) it does not authorise the making of an order of the kind described in subsection (4).

(8) An order under subsection (6) is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.

(9) The Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.

(10) This section does not limit any other right of recovery that a person may have against another person in respect of any overpayment of compensation to that other person.

s 58: Am 1989 No 119, Sch 1 (2) (4) (8); 1994 No 6, Sch 2 (2); 1995 No 30, Sch 12 [17] [18]; 1997 No 134, Sch 1 [4]; 1998 No 85, Sch 1 [36]; 2001 No 61, Sch 6.1 [48]–[54]; 2007 No 94, Sch 3; 2020 No 18, Sch 6.10[4].

Division 3 Compensation for medical, hospital and rehabilitation expenses etc

Division 3 Compensation for medical, hospital and rehabilitation expenses etc

59 Definitions

59 Definitions

(cf former s 10 (2))

In this Division—

ambulance service includes any conveyance of an injured worker to or from a medical practitioner or hospital.

hospital treatment means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes—

(a) the maintenance of the worker as a patient at the hospital or rehabilitation centre,

(b) the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and

(c) any other ancillary service,

but does not include ambulance service.

medical or related treatment includes—

(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,

(b) therapeutic treatment given by direction of a medical practitioner,

(c) (Repealed)

(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,

(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment,

(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the nature of the worker’s incapacity,

(f1) domestic assistance services,

(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and

(h) treatment or other thing prescribed by the regulations as medical or related treatment,

but does not include ambulance service, hospital treatment or workplace rehabilitation service.

public hospital means—

(a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,

(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,

(c) (Repealed)

(d) a hospital or other institution (whether in this State or in another State or a Territory of the Commonwealth) that—

(i) is prescribed by the regulations, or

(ii) belongs to a class of hospitals or institutions prescribed by the regulations,

for the purposes of this definition.

workplace rehabilitation service means any service provided as a workplace rehabilitation service by or on behalf of a provider of rehabilitation services approved under section 52 of the 1998 Act.

Note.

For the meaning of references in this Division to health practitioners see section 21D of the Interpretation Act 1987 and the Health Practitioner Regulation National Law (NSW).

s 59: Am 1989 No 133, Sch 4 (4); 1997 No 154, Sch 6.51 [2]; 1998 No 85, Sch 1 [37]; 2001 No 94, Sch 3 [1]; 2010 No 34, Sch 2.52 [1] [2]; 2010 No 97, Sch 2.31; 2010 No 101, Sch 1 [7]–[9]; 2011 No 4, Sch 2.37; 2017 No 50, Sch 5.35 [1] [2].

59A Limit on payment of compensation

59A Limit on payment of compensation

(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided after the expiry of the compensation period in respect of the injured worker.

(2) The compensation period in respect of an injured worker is—

(a) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be 10% or less, or the degree of permanent impairment has not been assessed as provided by that section, the period of 2 years commencing on—

(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or

(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker), or

(b) if the injury has resulted in a degree of permanent impairment assessed as provided by section 65 to be more than 10% but not more than 20%, the period of 5 years commencing on—

(i) the day on which the claim for compensation in respect of the injury was first made (if weekly payments of compensation are not or have not been paid or payable to the worker), or

(ii) the day on which weekly payments of compensation cease to be payable to the worker (if weekly payments of compensation are or have been paid or payable to the worker).

(3) If weekly payments of compensation become payable to a worker after compensation under this Division ceases to be payable to the worker, compensation under this Division is once again payable to the worker but only in respect of any treatment, service or assistance given or provided during a period in respect of which weekly payments are payable to the worker.

(4) For the avoidance of doubt, weekly payments of compensation are payable to a worker for the purposes of this section only while the worker satisfies the requirement of incapacity for work and all other requirements of Division 2 that the worker must satisfy in order to be entitled to weekly payments of compensation.

(5) This section does not apply to a worker with high needs (as defined in Division 2).

(6) This section does not apply to compensation in respect of any of the following kinds of medical or related treatment—

(a) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries),

(b) the modification of a worker’s home or vehicle,

(c) secondary surgery.

(7) Surgery is secondary surgery if—

(a) the surgery is directly consequential on earlier surgery and affects a part of the body affected by the earlier surgery, and

(b) the surgery is approved by the insurer within 2 years after the earlier surgery was approved (or is approved later than that pursuant to the determination of a dispute that arose within that 2 years).

(8) This section does not affect the requirements of section 60 (including, for example, the requirement for the prior approval of the insurer for secondary surgery).

s 59A: Ins 2012 No 53, Sch 4 [1]. Am 2015 No 18, Sch 3 [1]–[3]. Subst 2015 No 18, Sch 3 [4].

60 Compensation for cost of medical or hospital treatment and rehabilitation etc

60 Compensation for cost of medical or hospital treatment and rehabilitation etc

(1) If, as a result of an injury received by a worker, it is reasonably necessary that—

(a) any medical or related treatment (other than domestic assistance) be given, or

(b) any hospital treatment be given, or

(c) any ambulance service be provided, or

(d) any workplace rehabilitation service be provided,

the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).

Note.

Compensation for domestic assistance is provided for by section 60AA.

(2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are—

(a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and

(b) if the worker is not reasonably able to travel unescorted—the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service.

(2A) The worker’s employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if—

(a) the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the Workers Compensation Guidelines from the requirement for prior insurer approval), or

(b) the treatment or service is given or provided by a person who is not appropriately qualified to give or provide the treatment or service, or

(c) the treatment or service is not given or provided in accordance with any conditions imposed by the Workers Compensation Guidelines on the giving or providing of the treatment or service, or

(d) the treatment is given or provided by a health practitioner whose registration as a health practitioner under any relevant law is limited or subject to any condition imposed as a result of a disciplinary process, or who is suspended or disqualified from practice.

(2B) The worker’s employer is not liable under this section to pay travel expenses related to any treatment or service if the treatment or service is given or provided at a location that necessitates more travel than is reasonably necessary to obtain the treatment or service.

(2C) The Workers Compensation Guidelines may make provision for or with respect to the following—

(a) establishing rules to be applied in determining whether it is reasonably necessary for a treatment or service to be given or provided,

(b) limiting the kinds of treatment and service (and related travel expenses) that an employer is liable to pay the cost of under this section,

(c) limiting the amount for which an employer is liable to pay under this section for any particular treatment or service,

(d) establishing standard treatment plans for the treatment of particular injuries or classes of injury,

(e) specifying the qualifications or experience that a person requires to be appropriately qualified for the purposes of this section to give or provide a treatment or service to an injured worker (including by providing that a person is not appropriately qualified unless approved or accredited by the Authority).

(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.

(4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section.

(5) The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute may be referred by the President for assessment by a medical assessor under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.

s 60: Subst 1989 No 133, Sch 4 (5). Am 2001 No 94, Sch 3 [2] [3]; 2010 No 101, Sch 1 [10] [11]; 2012 No 53, Sch 4 [2]; 2015 No 18, Sch 3 [5]; 2018 No 62, Sch 2.1 [1]; 2020 No 18, Sch 6.10[5].

60AA Compensation for domestic assistance

60AA Compensation for domestic assistance

(1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if—

(a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and

(b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and

(c) the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and

(d) the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.

(2) Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements—

(a) it is provided for not more than 6 hours per week,

(b) it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,

(c) it is provided pursuant to the requirements of the relevant injury management plan.

(3) Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.

(4) Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.

(5) The following requirements apply in respect of payments under this section—

(a) payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,

(b) payments are only to be made if those costs and the provision of the assistance is properly verified (and the Workers Compensation Guidelines may make provision for how the performance of those services is to be verified),

(c) payments for gratuitous domestic assistance are to be made to the provider of the assistance.

(6) In this section—

gratuitous domestic assistance means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.

s 60AA: Ins 2001 No 94, Sch 3 [4]. Am 2004 No 56, Sch 1 [1] [2].

60A Worker not liable for medical, hospital and rehabilitation charges above applicable rates

60A Worker not liable for medical, hospital and rehabilitation charges above applicable rates

A worker is not liable to pay, and a person is not entitled to recover from a worker, any amount in respect of medical or related treatment, hospital treatment at a hospital or a workplace rehabilitation service, given or provided to the worker as a result of an injury, to the extent that the amount exceeds any applicable maximum, as follows—

(a) in the case of a medical or related treatment for which a sum is fixed under section 61 (2), the applicable maximum is that fixed sum,

(b) in the case of hospital treatment at a hospital, the applicable maximum is the amount calculated as fixed under section 62 (1) as the cost to the hospital of the treatment,

(c) in the case of a workplace rehabilitation service for which a sum is fixed under section 63A (2), the applicable maximum is that fixed sum.

s 60A: Ins 1995 No 89, Sch 1 [16]. Am 1998 No 85, Sch 1 [38]; 2010 No 101, Sch 1 [12].

61 Rates applicable for medical or related treatment

61 Rates applicable for medical or related treatment

(cf former s 10 (4), (5A))

(1) The amount for which an employer is liable in respect of the medical or related treatment of a worker is such amount as is reasonably appropriate to the treatment given, having regard to the reasonable necessity for the treatment.

(2) The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.

(2A) An order under subsection (2) may provide for the maximum amount fixed in respect of any particular medical or related treatment to vary by reference to different factors of a specified kind (for example, a higher maximum amount could be fixed for a treatment when provided by a provider accredited by the Authority).

(3) The maximum amount for which an employer is liable for medical or related treatment given to a worker in respect of the same injury (whether the treatment is given at different stages of the injury or not) is—

(a) $50,000, or

(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.

(4) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (3).

(4A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of medical or related treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

(5) The amount for which an employer is liable for the care of a worker as referred to in paragraph (f) of the definition of medical or related treatment in section 59 is (subject to any maximum amount under this section) the reasonable cost of providing that care having regard to the extent to which care might be expected to be provided by the worker’s spouse or other person residing with the worker.

(6) The amount for which an employer is liable for the modification of a worker’s home or vehicle as referred to in paragraph (g) of the definition of medical or related treatment in section 59 is the reasonable cost of carrying out those modifications.

(7) Except as otherwise provided by the regulations, the maximum amount under subsection (3) does not apply to any liability of an employer referred to in subsection (6).

(8) Any amount for which an employer is liable under this Division in respect of medical or related treatment may be recovered from the employer by the person who gave the treatment.

(9) If the maximum amount referred to in subsection (3) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the medical or related treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.

Editorial note.

For Orders under this section and section 62, see the Historical notes at the end of this Act.

s 61: Am 1989 No 119, Sch 1 (2); 1991 No 99, Sch 1 (6); 1998 No 85, Sch 1 [39]–[43]; 2001 No 61, Schs 5.1 [2], 6.1 [55]; 2012 No 53, Sch 4 [3] [4].

62 Rates applicable for hospital treatment

62 Rates applicable for hospital treatment

(cf former s 10 (2A), (3))

(1) The amount for which an employer is liable in respect of hospital treatment of a worker at a hospital is the cost to the hospital of the hospital treatment.

(1A) The maximum amount for which an employer is liable for any particular hospital treatment is not to exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.

(2)–(4) (Repealed)

(5) The maximum amount for which an employer is liable for hospital treatment given to a worker in respect of the same injury (whether the treatment is afforded at different stages of the injury or not) is—

(a) $50,000, or

(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.

(6) Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (5).

(6A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of hospital treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.

(7) A hospital, or a duly authorised officer of the hospital, may recover from the employer any amount for which the employer is liable under this Division in respect of hospital treatment given by that hospital.

(8) (Repealed)

(9) If the maximum amount referred to in subsection (5) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the hospital treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.

Editorial note.

For Orders under this section and section 61, see the Historical notes at the end of this Act.

s 62: Am 1989 No 119, Sch 1 (2); 1989 No 133, Sch 8 (4); 1991 No 99, Sch 1 (7); 1998 No 85, Sch 1 [44]–[48]; 2001 No 61, Sch 6.1 [56]; 2015 No 19, Sch 5 [7]–[9].

63 Rates applicable for ambulance service

63 Rates applicable for ambulance service

(cf former s 10 (5))

(1) The maximum amount for which an employer is liable for any ambulance service provided to a worker is—

(a) $10,000, or

(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.

(2) An amount additional to that fixed by subsection (1) may be allowed on account of the distance travelled in any particular case.

(2A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of ambulance services for the worker, such an allowance may be awarded by the Commission. If no such proceedings are before the Commission, such an allowance may be awarded by the Authority on application made in respect of the worker from time to time.

(2B) If the maximum amount referred to in subsection (1) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of ambulance services provided to a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.

(3) Any amount for which an employer is liable under this Division in respect of any ambulance service may be recovered from the employer by the person providing the ambulance service.

s 63: Am 1989 No 119, Sch 1 (3); 1991 No 99, Sch 1 (8); 1998 No 85, Sch 1 [49]–[51]; 2001 No 61, Sch 6.1 [57].

63A Rates applicable for workplace rehabilitation services

63A Rates applicable for workplace rehabilitation services

(1) The amount for which an employer is liable for any workplace rehabilitation service provided to or for the benefit of a worker is such amount as is reasonably appropriate to the service provided, having regard to the reasonable necessity for the service and any guidelines determined by the Authority by order published in the Gazette.

(2) The maximum amount for which an employer is liable for any particular workplace rehabilitation service is such sum (if any) as may be fixed by the Authority in respect of that service by order published in the Gazette.

(2A) An order under subsection (2) may provide for the maximum amount fixed in respect of any particular service to vary by reference to different factors of a specified kind (for example, a higher maximum amount could be fixed for a service when provided by a provider approved or accredited by the Authority).

(3), (4) (Repealed)

(5) The regulations may exempt an employer from liability under this Division for workplace rehabilitation services unless the services are approved in the manner, or provided in the circumstances, specified in the regulations.

(6) Any amount for which an employer is liable under this Division in respect of workplace rehabilitation services may be recovered from the employer by the person who provided the service.

s 63A: Ins 1989 No 133, Sch 4 (6). Am 1995 No 89, Sch 1 [17]; 1998 No 85, Sch 1 [52]–[54]; 2001 No 61, Sch 6.1 [58]; 2010 No 101, Sch 1 [13] [14]; 2012 No 53, Sch 4 [5].

64 Rates applicable for car travel associated with treatment

64 Rates applicable for car travel associated with treatment

(cf former s 10 (1B))

If the cost referred to in section 60 (2) (a) or the amount referred to in section 60 (2) (b) includes the cost of, or an amount for, travel by private motor vehicle, that cost or amount shall be calculated at—

(a) the rate of 28 cents per kilometre, or

(b) where some other rate has been fixed by the Authority by order published in the Gazette—that other rate.

Editorial note.

For Orders under this section, see the Historical notes at the end of this Act.

s 64: Am 1998 No 85, Sch 1 [55].

64A Compensation for cost of interpreter services

64A Compensation for cost of interpreter services

(1) If it is reasonably necessary for a worker to obtain the assistance of an interpreter in connection with a claim for compensation under this Act, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the reasonable costs of any such assistance.

(2) The Authority may by order published in the Gazette—

(a) establish guidelines for determining the amount payable under this section, and

(b) fix the maximum amount payable under this section.

(3) Payments under this section are to be made as the costs are incurred, but only if properly verified.

(4) The Authority may pay any such costs (whether or not liability to pay those costs has been determined) and recover the amount from any employer liable to pay them.

(5) This section applies only to the costs of assistance provided in respect of a claim made after the commencement of this section.

s 64A: Ins 1989 No 133, Sch 8 (5). Am 1998 No 85, Sch 1 [56]–[58].

Division 3A Compensation for return to work assistance

Division 3A Compensation for return to work assistance

pt 3, div 3A (ss 64B, 64C): Ins 2015 No 18, Sch 4.