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TASMANIA
__________
WORKERS REHABILITATION AND
COMPENSATION AMENDMENT BILL 2009
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Long title amended
5. Section 2A inserted
2A. Objects of Act
6. Section 3 amended (Interpretation)
7. Section 10 amended (Functions of Board)
8. Section 22 amended (Record of Tribunal)
9. Section 33A inserted
33A. Employer given notice of injury to advise worker of
right to claim
10. Section 36 amended (Employer to forward accident report and
claim)
11. Section 38 amended (Effect of failure to make claim)
12. Section 39 substituted
39. Employer to give claimant notice of status of claim
within 28 days
13. Section 56 amended (Provisions relating to evidence and
production of documents)
14. Section 67 amended (Amount of compensation in case of death)
[Bill 87]-XI
15. Section 67A amended (Weekly payments in case of death)
16. Section 69 amended (Amount of compensation in case of
incapacity)
17. Section 69B amended (Period for which benefits are payable)
18. Section 70 amended (Computation of normal weekly earnings)
19. Section 71 amended (Compensation for permanent impairment)
20. Section 72 amended (Assessment of degree of impairment)
21. Section 74 amended (Interpretation of Division 2 of Part VI)
22. Section 75 amended (Additional compensation for medical and
other services)
23. Section 76 amended (Additional compensation for travelling
expenses)
24. Section 76A inserted
76A. Account to be forwarded to employers and insurers
25. Section 77AA amended (Employer to pay claim or refer it to
Tribunal)
26. Sections 77AB and 77AC inserted
77AB. Employer's liability for expenses less than $5 000 if
liability not accepted or determined
77AC. Proceedings before Tribunal under section 77AB
27. Section 77A amended (Provision of certain services)
28. Section 77B amended (Application for accreditation)
29. Section 77C amended (Grant, &c., of accreditation)
30. Section 77D substituted
77D. Duration of accreditation
31. Section 77F amended (Revocation or suspension of
accreditations)
32. Section 81AA amended (Payments not admission of liability)
33. Section 81AC inserted
81AC. Tribunal may order compensation to be paid if
employer taken to have accepted liability
34. Section 85 repealed
35. Section 86 amended (Cases in which employer may terminate or
reduce payments)
36. Section 89 repealed
2
37. Part VII, Division 1A inserted
Division 1A - Medical examinations and independent medical
reviews
90A. Workers may be required to submit to independent
medical reviews
90B. Reports in relation to reviews
90C. Disagreements &c. about reviews
90D. Reliance on medical reports
38. Section 97 amended (Obligation of employers to insure)
39. Section 101 amended (Granting, &c., of licences)
40. Section 105 amended (Granting, &c., of permits)
41. Section 127A amended (Nominal Insurer Fund)
42. Section 127B amended (Nominal Insurer Special Account)
43. Section 127C inserted
127C. Minister may give directions in relation to Nominal
Insurer Fund and Special Account
44. Section 132A inserted
132A. Settlement by agreement
45. Sections 138AB, 138ABA and 138AC substituted
138AB. Claims for damages
46. Section 138AD amended (No damages if claim settled by
agreement)
47. Part XI substituted
PART XI - Injury Management
Division 1 - Application, purpose and interpretation
139. Purpose and principles of Part
140. Application of Part
141. Interpretation
Division 2 - Injury management programs
142. Injury management programs to be complied with
143. Approval of injury management programs
Division 3 - Injury management and return-to-work co-
ordinators and plans
143A. Employer to notify insurer of workplace injury
143B. Injury management co-ordinator to be appointed
143C. Responsibilities of injury management co-ordinators
143D. Return-to-work co-ordinator may be required to be
appointed
143E. Return-to-work and injury management plans
3
143F. Work capacity of injured workers to be regularly
reviewed
Division 4 - Medical treatment
143G. Primary treating medical practitioners
143H. Issue of certificates
143I. Employer to be notified of certified incapacity and
given medical certificate
143J. Worker's obligation of full disclosure to medical
practitioners chosen by worker
143K. Medical advisory and mentoring service
Division 5 - Obligations relating to return to work of injured
worker
143L. Injured worker's position to be held open for worker
143M. Employer to provide suitable duties after injury
143N. Workers to participate in return-to-work process
143O. Workplace rehabilitation providers
Division 6 - Miscellaneous
143P. Disputes about injury management
143Q. Powers of Tribunal in respect of matters under this
Part
48. Section 145 amended (Establishment of Workers Rehabilitation
and Compensation Fund)
49. Section 158 amended (Maintenance of secrecy)
50. Section 164A inserted
164A. Application of Workers Rehabilitation and
Compensation Amendment Act 2009
51. Repeal of Act
4
WORKERS REHABILITATION AND
COMPENSATION AMENDMENT BILL 2009
(Brought in by the Minister for Workplace Relations, the
Honourable Lisa Maria Singh)
A BILL FOR
An Act to amend the Workers Rehabilitation and
Compensation Act 1988
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Workers
Rehabilitation and Compensation Amendment
Act 2009.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 87] 5
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 3
3. Principal Act
In this Act, the Workers Rehabilitation and
Compensation Act 1988* is referred to as the
Principal Act.
4. Long title amended
The long title of the Principal Act is amended by
inserting "to promote the prevention of
injuries in the workplace," after "workers,".
5. Section 2A inserted
After section 2 of the Principal Act, the
following section is inserted in Part I:
2A. Objects of Act
The objects of this Act are to establish a
rehabilitation and compensation scheme
for workplace injuries that -
(a) provides for the prompt and
effective management of
workplace injuries in a manner
that promotes and assists the
return to work of injured workers
as soon as possible; and
(b) provides fair and appropriate
compensation to workers and
*No. 4 of 1988
6
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 6
their dependants for workplace
injuries; and
(c) assists in securing the health,
safety and welfare of workers and
in reducing the incidence of
workplace injuries; and
(d) provides an effective and
economical mechanism for
resolving disputes relating to the
treatment and management of,
and compensation in relation to,
workplace injuries; and
(e) is efficiently and effectively
administered; and
(f) is fair, affordable, efficient and
effective.
6. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "practitioner":
"primary treating medical
practitioner", in relation to a
worker, means the medical
practitioner referred to in a notice
given by the worker in
accordance with section 143G(1);
7
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 6
(b) by omitting "that place." from the
definition of "working day" and
substituting "that place;";
(c) by inserting the following definitions
after the definition of "working day":
"workplace injury", in relation to a
worker, means an injury for
which the worker's employer is
or may be liable to pay
compensation under this Act;
"workplace rehabilitation provider"
means a person who is accredited
under section 77C to provide
workplace rehabilitation services;
"workplace rehabilitation services"
means -
(a) initial workplace
rehabilitation assessment;
or
(b) assessment of the
functional capacity of a
worker; or
(c) workplace assessment; or
(d) job analysis; or
(e) advice concerning job
modification; or
(f) rehabilitation counselling;
or
8
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 7
(g) vocational assessment; or
(h) advice or assistance in
relation to job seeking; or
(i) advice or assistance in
arranging vocational re-
education or training; or
(j) any other service that is
prescribed by the
regulations.
7. Section 10 amended (Functions of Board)
Section 10(f) of the Principal Act is amended by
omitting "effective injury management of
injured workers" and substituting "purpose and
principles of Part XI".
8. Section 22 amended (Record of Tribunal)
Section 22(1)(d) of the Principal Act is amended
by omitting "tape".
9. Section 33A inserted
After section 33 of the Principal Act, the
following section is inserted in Part IV:
9
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 10
33A. Employer given notice of injury to advise
worker of right to claim
An employer who is informed by a
worker of an injury to the worker must,
within 14 days, serve on the worker the
prescribed notice in writing, unless the
employer is informed of the injury by the
service on the employer of a claim for
compensation.
Penalty: Fine not exceeding 10 penalty
units.
10. Section 36 amended (Employer to forward accident
report and claim)
Section 36 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
before subsection (1):
(1A) An employer must, within 48
hours of receiving a claim for
compensation under section 35,
notify the employer's insurer of
the claim.
(b) by inserting the following subsections
after subsection (3):
(4) If an employer does not comply
with subsection (1A) in relation
to a worker then, despite any
contract of insurance with the
10
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 10
employer in accordance with
section 97(1), the employer's
insurer is not liable to indemnify
the employer for the relevant
amount that the employer is liable
to pay, or has paid, to the worker
by way of weekly payments for
the relevant period.
(5) In this section -
(a) the relevant amount is the
weekly payment payable
to the worker within the
relevant period; and
(b) the relevant period means
the period that -
(i) begins on the day,
all or part of
which occurs after
the end of the 48-
hour period
referred to in
subsection (1A);
and
(ii) ends on, and
includes, all of the
day on which the
employer notifies
the insurer of the
claim.
11
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 11
11. Section 38 amended (Effect of failure to make
claim)
Section 38(2) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(aa) a failure by the worker's employer to
comply with section 33A in relation to
the injury to which the worker's claim
for compensation relates; and
12. Section 39 substituted
Section 39 of the Principal Act is repealed and
the following section is substituted:
39. Employer to give claimant notice of status of
claim within 28 days
(1) If an employer receives a claim for
compensation from a worker under
section 35, the employer or the
employer's insurer, within 28 days -
(a) must notify the worker in writing
as to whether a decision has been
made to accept, or not to accept,
liability for the injury to which
the claim relates; and
(b) if no decision has been made to
accept, or not to accept, liability
for the injury, must specify in the
notice -
12
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 13
(i) the reasons why the
decision has not been
made; and
(ii) the steps the employer, or
the employer's insurer,
intends to take before
making the decision.
Penalty: Fine not exceeding 10 penalty
units.
(2) A person referred to in subsection (1) is
not required to comply with that
subsection if another person referred to
in that subsection complies with the
subsection.
13. Section 56 amended (Provisions relating to evidence
and production of documents)
Section 56 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "tape
recording" and substituting "recording,
by mechanical or electronic or other
means,";
(b) by omitting from subsection (3) "tape";
(c) by omitting subsection (4) and
substituting the following subsection:
(4) Any recording and notes of a
proceeding filed in accordance
13
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 14
with subsection (3) are to be kept
for a period of 12 months from
the completion of the proceeding
or a longer period determined by
the Tribunal.
14. Section 67 amended (Amount of compensation in
case of death)
Section 67 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "369
units" and substituting "415 units";
(b) by omitting from subsection (2)(a) "369
units" and substituting "415 units";
(c) by omitting from subsection (2)(c) "369
units" and substituting "415 units";
(d) by omitting from subsection (3) "369
units" and substituting "415 units".
15. Section 67A amended (Weekly payments in case of
death)
Section 67A of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(b)
"10%" and substituting "15%";
(b) by omitting from subsection (2)(a) "13
weeks" and substituting "26 weeks";
14
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 16
(c) by omitting from subsection (2)(b)
"85%" and substituting "90%";
(d) by omitting from subsection (2)(b) "13
weeks" and substituting "26 weeks".
16. Section 69 amended (Amount of compensation in
case of incapacity)
Section 69(3) of the Principal Act is amended by
inserting "in accordance with the worker's
entitlement under the worker's contract of
employment or industrial instrument" after
"decreases".
17. Section 69B amended (Period for which benefits are
payable)
Section 69B of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "13
weeks" and substituting "26 weeks";
(b) by omitting from subsection (1)(b)
"85%" and substituting "90% (or, if
subsection (2) applies to the worker,
95%)";
(c) by omitting from subsection (1)(b) "13
weeks" and substituting "26 weeks";
15
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 17
(d) by omitting paragraph (c) from
subsection (1) and substituting the
following paragraph:
(c) 80% (or, if subsection (2) applies
to the worker, 85%) of the
weekly payment for the period of
incapacity exceeding 78 weeks
but not exceeding -
(i) 9 years from the date of
the initial incapacity, if
the worker's permanent
impairment (if any), at a
percentage of the whole
person, is less than 15%
or is not assessed; or
(ii) 12 years from the date of
the initial incapacity, if
the worker's permanent
impairment, assessed at a
percentage of the whole
person, is 15% or more
but less than 20%; or
(iii) 20 years from the date of
the initial incapacity, if
the worker's permanent
impairment, assessed at a
percentage of the whole
person, is 20% or more
but less than 30%; or
(iv) the period extending from
the date of the initial
16
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 17
incapacity to the day on
which the entitlement of
the worker ceases in
accordance with
section 87, if the worker's
permanent impairment,
assessed at a percentage
of the whole person, is
30% or more.
(e) by omitting subsection (2) and
substituting the following subsections:
(2) For the purposes of
paragraphs (b) and (c) of
subsection (1), this subsection
applies to a worker in respect of
each week or part of a week,
within the period referred to in
those paragraphs, in respect of
which -
(a) there is medical evidence
that the worker is unable
to perform the worker's
usual duties with the
employer; and
(b) there is medical evidence
that the worker is able to
return to perform suitable
alternative duties with the
employer; and
(c) the employer does not
enable the worker to
17
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 17
undertake suitable
alternative duties as part
of the worker's
employment by the
employer.
(2A) Despite subsection (1), a weekly
payment is not reduced by a
percentage specified in
subsection (1)(b) or (c) in respect
of any week in which the worker
engages in work, for 50% or
more of the worker's normal
weekly hours, under the worker's
approved return-to-work plan, or
approved injury management
plan, within the meaning of
Part XI.
(2B) For the purposes of
subsection (2A), if the worker
was employed by the employer
for more than 14 days before the
date of the worker's initial
incapacity, the worker's normal
weekly hours are the average
number of hours per week for
which the worker was employed
by the employer.
(2C) For the purposes of
subsection (2A), if the worker
was employed by the employer
for 14 days or less before the date
of the initial incapacity, the
normal weekly hours of the
18
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 17
worker are taken to be the hours
per week -
(a) for which the worker
agreed to work in the pay
period in which the
worker's incapacity arose;
or
(b) for which the worker was
rostered to perform work
in the pay period in which
the worker's incapacity
arose -
whichever is the higher.
(2D) In computing the normal weekly
hours of the worker for the
purposes of subsections (2B) and
(2C), any overtime or excess
hours are to be disregarded
unless -
(a) the overtime or excess
hours were a requirement
of the worker's contract
of employment; and
(b) the worker worked
overtime or excess hours
in accordance with a
regular and established
pattern and in accordance
with a roster; and
19
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 17
(c) the pattern was
substantially uniform as
to the number of overtime
or excess hours worked;
and
(d) the worker would have
continued to work
overtime or excess hours
in accordance with the
established pattern if the
worker had not been
incapacitated.
(2E) Subject to section 87, a worker -
(a) to whom
subsection (1)(c)(i)
applies ceases to be
entitled to weekly
payments under section
69 on the expiration of 9
years after the date of the
initial incapacity; and
(b) to whom
subsection (1)(c)(ii)
applies ceases to be
entitled to weekly
payments under section
69 on the expiration of 12
years after the date of the
initial incapacity; and
(c) to whom
subsection (1)(c)(iii)
20
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 18
applies ceases to be
entitled to weekly
payments under section
69 on the expiration of 20
years after the date of the
initial incapacity; and
(d) to whom
subsection (1)(c)(iv)
applies ceases to be
entitled to weekly
payments under section
69 on the expiration of the
day on which the
entitlement of the worker
ceases in accordance with
section 87.
18. Section 70 amended (Computation of normal
weekly earnings)
Section 70(2)(d) of the Principal Act is amended
by omitting "paragraph (c)" and substituting
"paragraph (b)".
19. Section 71 amended (Compensation for permanent
impairment)
Section 71 of the Principal Act is amended as
follows:
(a) by omitting the formula from subsection
(1)(b) and substituting the following
formula:
21
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 19
(b) by omitting from subsection (1)(c) "369
units" and substituting "415 units";
(c) by omitting the formula from subsection
(2)(b) and substituting the following
formula:
(d) by omitting from subsection (2)(c) "369
units" and substituting "415 units";
(e) by inserting the following subsections
after subsection (2):
(3) For the purposes of this section
and section 138AB(4), a worker
who suffers an injury resulting in,
or consisting in whole or in part
of, the loss of a foetus that the
worker has carried for at least 16
weeks since conception is to be
taken to have suffered a
permanent impairment, in relation
to that loss, that has been
assessed at a percentage of the
whole person equal to 20%.
(4) The degree of impairment of a
person for the purposes of
subsection (3) and
section 138AB(4) in respect of a
workplace injury is in addition to
any other degree of impairment
that the person may be assessed
22
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 20
to have suffered as a result of the
injury.
20. Section 72 amended (Assessment of degree of
impairment)
Section 72(2)(d) of the Principal Act is amended
by omitting "is to be disregarded" and
substituting "is not to be taken into account in
assessing the degree of the impairment resulting
from the injury".
21. Section 74 amended (Interpretation of Division 2 of
Part VI)
Section 74 of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "hospital services":
"household services" means a service
provided to a worker, other than
by a member of the family of the
worker, that is a service -
(a) of a domestic nature,
including, but not limited
to, cooking, cleaning, and
laundry or gardening
services; and
(b) required for the proper
running and maintenance
23
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 22
of the worker's residential
premises;
(b) by omitting "motor vehicle." from
paragraph (c) of the definition of
"rehabilitation services" and substituting
"motor vehicle -";
(c) by inserting the following after
paragraph (c) in the definition of
"rehabilitation services":
"and includes workplace
rehabilitation services;"
(d) by inserting the following definition after
the definition of "rehabilitation services":
"road accident rescue services"
means services provided for the
purpose of extricating a worker
from a vehicle in which the
worker has been injured.
22. Section 75 amended (Additional compensation for
medical and other services)
Section 75 of the Principal Act is amended as
follows:
(a) by inserting the following subsection
before subsection (1):
(1A) Subsection (1) applies to an
employer of a worker if -
24
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 22
(a) the employer has
accepted, or is to be taken
under section 81AB to
have accepted, liability to
pay compensation in
accordance with this Act
for an injury to the
worker; or
(b) the employer has been
determined by the
Tribunal or a court to be
liable to pay
compensation in
accordance with this Act
for an injury to the
worker; or
(c) section 77AB applies to
the worker.
(b) by omitting from subsection (1) "Where
an employer of a worker is, pursuant to
section 25, liable to pay compensation in
accordance with this Act," and
substituting "If this subsection applies to
an employer of a worker,";
(c) by inserting in subsection (1)(a)
"household services, road accident rescue
services" after "rehabilitation services,";
(d) by omitting paragraph (b) from
subsection (1) and substituting the
following paragraph:
25
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 22
(b) if the worker dies as a result of
the worker's injury -
(i) the reasonable expenses,
not being more than the
amount prescribed by
regulations, of the
worker's burial or
cremation; and
(ii) the reasonable costs of
counselling services
provided to members of
the family by counselling
professionals, up to a total
amount of all such costs
that is not more than the
amount prescribed by
regulations.
(e) by omitting subsection (2) and
substituting the following subsections:
(2) If a worker was entitled to weekly
payments in respect of an injury,
the worker's entitlement to
compensation under
subsection (1)(a) for a service in
relation to the injury ceases 52
weeks after the lawful
termination of the weekly
payments, unless the Tribunal
makes a determination in relation
to the service under
subsection (2AB).
26
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 22
(2AA) If a worker is not entitled to
weekly payments in respect of an
injury in relation to which a claim
for compensation has been made,
the worker's entitlement to
compensation under
subsection (1)(a) for a service in
relation to the injury ceases 52
weeks after the date the claim is
made, unless the Tribunal makes
a determination in relation to the
service under subsection (2AB).
(2AB) If a worker's entitlement to
compensation for an expense,
referred to in subsection (1)(a),
for a service provided to the
worker has ceased in accordance
with subsection (2) or (2AA), the
Tribunal may order that, despite
those subsections, the worker is
entitled to compensation for -
(a) the expense; or
(b) expenses for services,
specified in the
determination, that are
services referred to in
subsection (1)(a) that
have been or may be
provided to a worker.
(2AC) The Tribunal may only make a
determination under
subsection (2AB) in relation to a
27
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 22
service provided, or to be
provided, to a worker, if -
(a) the worker has returned to
work and the
worker requires surgery
or cannot reasonably be
expected to remain at
work unless the service is
provided; or
(b) the service consists of, or
relates to, a modification,
replacement or
maintenance of a
prosthesis of the worker;
or
(c) the service is essential to
ensure that the worker's
health, or ability to
undertake the necessary
activities of daily life,
does not significantly
deteriorate.
(f) by inserting in subsection (3) "or
household services" after "attendance
services";
(g) by omitting subsection (10) and
substituting the following subsection:
(10) In this section -
"counselling professionals"
means -
28
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 23
(a) medical
practitioners,
registered
psychologists or
social workers; or
(b) counsellors who
are members of, or
who have
qualifications
recognised by, the
Australian
Counselling
Association;
"counselling services" means
services provided to a
person to assist the person
to cope with the
psychological impact of
the death of a worker;
"medical treatment", in
relation to a worker,
includes any attendance,
examination, treatment,
test or analysis provided
to or carried out on the
worker.
23. Section 76 amended (Additional compensation for
travelling expenses)
Section 76(3) of the Principal Act is amended by
omitting "General Conditions of Service Award
29
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 24
made by the Tasmanian Industrial Commission."
and substituting "Tasmanian State Service
Award or any industrial award, agreement or
determination that replaces that award.".
24. Section 76A inserted
After section 76 of the Principal Act, the
following section is inserted in Division 2:
76A. Account to be forwarded to employers and
insurers
(1) A worker who receives an account for
payment of an expense under this
Division for which the worker's
employer is or may be liable to pay is to
take reasonable steps to ensure that the
account is forwarded to the employer
within 7 days.
(2) An employer who receives an account
for payment of an expense under this
Division for which the employer is or
may be liable to pay is to take reasonable
steps to ensure that within 7 days the
account is forwarded to the employer's
insurer.
25. Section 77AA amended (Employer to pay claim or
refer it to Tribunal)
Section 77AA of the Principal Act is amended as
follows:
30
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 25
(a) by inserting the following subsection
before subsection (1):
(1AA) Subsection (1) applies to an
employer of a worker if -
(a) the employer has
accepted, or is to be taken
under section 81AB to
have accepted, liability to
pay compensation in
accordance with this Act
for an injury to the
worker; or
(b) the employer has been
determined by the
Tribunal or a court to be
liable to pay
compensation in
accordance with this Act
for an injury to the
worker.
(b) by omitting from subsection (1)
"Division 2 of Part VI, an employer" and
substituting "this Division, an employer
to whom this section applies";
(c) by omitting from subsection (4)
"Division 2 of Part VI" and substituting
"this Division".
31
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 26
26. Sections 77AB and 77AC inserted
After section 77AA of the Principal Act, the
following sections are inserted in Division 2:
77AB. Employer's liability for expenses less than
$5 000 if liability not accepted or determined
(1) This section applies to an employer of a
worker who has made a claim for
compensation if -
(a) either -
(i) the employer has not
accepted, or is not to be
taken under section 81AB
to have accepted, liability
to pay compensation for
an injury to the worker; or
(ii) the employer has not been
determined by the
Tribunal or a court to be
liable to pay
compensation for an
injury to the worker; and
(b) the Tribunal has not made orders
under either section 81A(3)(c) or
(d) in relation to the injury to the
worker; and
(c) the employer receives from an
injured worker a claim for
payment of an expense under this
Division; and
32
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 26
(d) the amount of the expense, when
combined with amounts for
expenses under this Division that
the employer has already paid in
relation to the worker's injury, is
not more than $5 000.
(2) If this section applies to an employer, the
employer, within 28 days of receiving a
claim for payment of an expense referred
to in subsection (1)(c) -
(a) must pay the expense; or
(b) if the employer is of the opinion
that the expense is unreasonable
or unnecessary, must -
(i) serve the worker with a
notice specifying why the
expense is unreasonable
or unnecessary; and
(ii) notify in writing the
service provider who
rendered the account that
liability for the expense is
disputed because the
expense is unreasonable
or unnecessary and give
the reasons why the
expense is unreasonable
or unnecessary; and
(iii) refer the dispute to the
Tribunal under this
section.
33
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 26
(3) If an employer pays an expense in
accordance with subsection (2), the
payment is not, in any subsequent
proceedings under this Act, to be
construed as an admission of liability.
(4) If an employer who receives from a
worker a claim for payment of an
expense under this Division pays the
expense under this section -
(a) the payment is not recoverable
from the worker by the employer,
unless an order is made in
relation to the amount under
section 77AC(5); and
(b) the payment, except for the
amount payable by the employer
under section 97(1A) and (1B)
and any amount that the employer
is entitled to recover from the
worker by virtue of an order
under section 77AC(5), is
recoverable by the employer from
the employer's insurer.
77AC. Proceedings before Tribunal under
section 77AB
(1) The referral of a dispute to the Tribunal
under section 77AB is to be accompanied
by -
(a) the prescribed fee; and
34
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 26
(b) all evidentiary material on which
the employer intends to rely at the
hearing of the matter.
(2) An employer who fails to lodge
evidentiary material under
subsection (1)(b) may not rely on that
material unless the Tribunal otherwise
allows.
(3) The Tribunal must -
(a) if the Tribunal is not satisfied that
it is reasonably arguable that an
expense is unreasonable or
unnecessary, order the employer
to pay the expense; or
(b) if the Tribunal is satisfied that it
is reasonably arguable that an
expense, type of expense or any
treatment is unreasonable or
unnecessary, order that the
employer is not liable to pay the
expense, such expenses or such
treatment.
(4) If a dispute is referred to the Tribunal
under section 77AB, the onus of proving
that the expense is unreasonable or
unnecessary lies on the employer.
(5) The Tribunal may order that an employer
is entitled to recover from a worker a
payment for an expense that the
employer has paid as required by
section 77AB, if the Tribunal is satisfied
35
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 27
that the worker's claim for payment of
the expense was fraudulent.
27. Section 77A amended (Provision of certain services)
Section 77A of the Principal Act is amended by
inserting after subsection (3) the following
subsections:
(4) A person (in this section referred to as a
"provider") is not to provide workplace
rehabilitation services to another person
for the purposes of this Act (including by
reason only of supplying to the other
person the services of a person employed
or engaged by the provider) unless the
provider has been accredited by the
Board as a workplace rehabilitation
provider.
(5) Subsection (4) does not apply to a
person, employed or engaged by the
provider, who provides services to
another person on behalf of the provider,
if the provider is accredited by the Board.
28. Section 77B amended (Application for
accreditation)
Section 77B(2) of the Principal Act is amended
by omitting "section 77A(2) or (3)" and
substituting "section 77A(3) or (4)".
36
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 29
29. Section 77C amended (Grant, &c., of accreditation)
Section 77C of the Principal Act is amended as
follows:
(a) by inserting the following paragraph after
paragraph (a) in subsection (2):
(ab) has fulfilled the prescribed
requirements, if any; and
(b) by inserting the following subsection
after subsection (2):
(3) The Board may grant
accreditation subject to the
conditions or restrictions it thinks
fit.
30. Section 77D substituted
Section 77D of the Principal Act is repealed and
the following section is substituted:
77D. Duration of accreditation
(1) Except in a case to which subsection (2)
applies, an accreditation remains in force
for the period that the Board determines,
unless it is sooner revoked or suspended
in accordance with section 77F.
(2) The accreditation of a person as a
workplace rehabilitation provider
remains in force for -
37
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 31
(a) 3 years; or
(b) a shorter period specified on the
grant of accreditation -
unless it is sooner revoked or suspended
in accordance with section 77F.
31. Section 77F amended (Revocation or suspension of
accreditations)
Section 77F(1) of the Principal Act is amended
by inserting after paragraph (b) the following
paragraph:
(ba) that the accredited medical practitioner or
accredited person has failed to comply
with the principles set out in
section 139(2); or
32. Section 81AA amended (Payments not admission of
liability)
Section 81AA(1)(d) of the Principal Act is
amended by inserting "or an amount referred to
in section 36(4)" after "(1B)".
33. Section 81AC inserted
After section 81AB of the Principal Act, the
following section is inserted in Division 1:
38
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 34
81AC. Tribunal may order compensation to be paid
if employer taken to have accepted liability
If, under section 81AB, an employer is
taken to have accepted liability in respect
of a claim for compensation in relation to
an injury to a worker, the Tribunal may
make one or more of the following orders
in relation to the employer:
(a) order the employer to make
weekly payments in respect of the
worker from the date determined
by the Tribunal;
(b) order the employer to pay the
costs of an expense payable under
Division 2 of Part VI in respect of
the injury.
34. Section 85 repealed
Section 85 of the Principal Act is repealed.
35. Section 86 amended (Cases in which employer may
terminate or reduce payments)
Section 86(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (c) "injury;"
and substituting "injury; or";
(b) by omitting paragraph (d);
39
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 36
(c) by omitting from paragraph (e)
"section 69B(2)" and substituting
"section 69B(2E)".
36. Section 89 repealed
Section 89 of the Principal Act is repealed.
37. Part VII, Division 1A inserted
After section 90 of the Principal Act, the
following Division is inserted in Part VII:
Division 1A - Medical examinations and independent
medical reviews
90A. Workers may be required to submit to
independent medical reviews
(1) For the purposes of this Act, an
independent medical review of a worker
is a review, conducted by a single
medical practitioner (other than a
medical practitioner chosen by the
worker) who has expertise in a field, or a
part of a field, relevant to the worker's
injury, and may include -
(a) one or more examinations of the
worker; and
(b) a review of any diagnostic test
results, or other medical records,
in respect of the worker.
40
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
(2) If a worker claims compensation or is
receiving weekly payments, the worker's
employer, or the employer's insurer, may
require the worker to submit to an
independent medical review of the
worker by a medical practitioner.
(3) A worker may only be required under
subsection (2) to submit to an
independent medical review if the
employer or the employer's insurer -
(a) has discussed with the worker's
primary treating medical
practitioner the reasons why it is
intended to have the review
conducted; and
(b) has informed the worker, in
writing, of the reasons why it is
intended to have the review
conducted.
(4) A worker who is required under
subsection (2) to submit to an
independent medical review by a medical
practitioner -
(a) is to -
(i) submit, at a reasonable
time, and at a reasonable
place, of which the
worker has been given
reasonable notice in
writing, to the review,
including any
41
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
examination conducted by
the medical practitioner as
part of the review; and
(ii) be taken to have given
consent to the provision,
to a medical practitioner
nominated by the
worker's employer, of any
medical reports or records
that relate to the injury to
which the worker's claim
for compensation relates;
or
(b) is to, within 30 days, refer the
matter under section 90C(2) to
the Tribunal.
(5) Subject to subsection (6), a worker is not
required to submit to more than one
independent medical review in any 3-
month period.
(6) Despite subsection (5), a worker is
required to submit to an independent
medical review if -
(a) the worker has suffered multiple
injuries or the worker's injury
requires the consideration of
medical practitioners who are
specialists in different fields or
aspects of the injury; and
(b) the review is conducted by a
medical practitioner specialising
42
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
in a different injury, or a different
field or different aspect of the
injury, to the previous
practitioner who conducted a
review in the 3-month period.
(7) If a medical practitioner conducting an
independent medical review reports that
any medical or surgical treatment
specified by the practitioner will
terminate or shorten the period of
incapacity of the worker to whom the
report relates, the following provisions
apply:
(a) subject to paragraph (b), the
worker must submit to that
treatment;
(b) if the worker notifies the
employer, not later than 14 days
after the date on which a copy of
the practitioner's report has been
provided to the worker in
accordance with section 90B(4),
that the worker, after consulting
with the worker's primary
treating medical practitioner, is
not satisfied with the report, the
worker must submit to an
examination by another medical
practitioner selected by the
worker who may be, but is not
required to be, the worker's
primary treating medical
practitioner;
43
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
(c) the employer or the employer's
insurer is to pay for the
examination referred to in
paragraph (b);
(d) if the report, provided in
accordance with section 90B(2),
of the medical practitioner who
makes an examination in
accordance with paragraph (b) is
in agreement with the report
provided under section 90B(1) by
the medical practitioner
conducting the independent
medical review, the worker must
as soon as practicable submit to
the treatment specified in the last-
mentioned report.
90B. Reports in relation to reviews
(1) After an independent medical review of a
worker is conducted under section 90A
by a medical practitioner, the medical
practitioner -
(a) must prepare a report in respect
of the review; and
(b) must provide the report to the
person who required the worker
to submit to the review; and
(c) must not provide the report to the
worker.
44
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
(2) After an examination is conducted under
section 90A(7)(b) by a medical
practitioner, the medical practitioner -
(a) must prepare a report in respect
of the examination; and
(b) must provide the report to the
person who required the worker
to submit to the review as a result
of which the examination was
conducted; and
(c) must not provide the report to the
worker, unless the medical
practitioner is the worker's
primary treating medical
practitioner.
(3) A person to whom a report of a review or
examination is provided under
subsection (1) or (2) must, within 7 days,
serve a copy of the report on -
(a) the worker's primary treating
medical practitioner, unless the
person conducting the
examination was the primary
treating medical practitioner; and
(b) the injury management co-
ordinator to whom the worker has
been assigned under
section 143B.
Penalty: Fine not exceeding 10 penalty
units.
45
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
(4) If a report is served on a primary treating
medical practitioner under this section or
relates to an examination conducted by
that practitioner under section 90A(7)(b)
or otherwise, the primary treating
medical practitioner must provide the
report to the worker.
90C. Disagreements &c. about reviews
(1) Subsections (2) and (3) apply in relation
to a worker if the worker -
(a) refuses without reasonable excuse
to submit to an independent
medical review or examination
when required under section 90A
to do so; or
(b) in any way obstructs such a
review or examination; or
(c) refuses to submit to, or undertake,
any treatment required in
accordance with section 90A(7).
(2) If this subsection applies to a worker, the
worker, the worker's employer or the
employer's insurer may refer the matter
of the worker's refusal or obstruction to
the Tribunal.
(3) If this subsection applies to a worker, the
worker's right to compensation and to
take any proceedings under this Act in
46
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
relation to compensation is, except if the
treatment to which the worker has
refused to submit is surgical treatment,
suspended until the matter has been
determined by the Tribunal.
(4) If -
(a) a copy of a report is served under
this Division on a worker's
primary treating medical
practitioner, the worker's
employer, or the employer's
insurer; and
(b) the worker, employer or
employer's insurer are unable to
agree as to -
(i) whether, or to what
extent, the worker's
incapacity is due to the
injury in respect of which
the worker is claiming or
receiving compensation;
or
(ii) the worker's condition or
fitness for employment -
the worker, the employer or the
employer's insurer may refer the matter
to the Tribunal.
(5) In determining whether an independent
medical review, or an examination of a
worker, ought to be conducted, the
47
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
Tribunal must have regard to the
following matters:
(a) whether the reviewer has the
appropriate expertise to properly
assess the worker's injury;
(b) whether, in the circumstances, an
excessive number of reviews or
examinations have been
conducted in respect of the
worker;
(c) whether the worker has
previously made a complaint, on
reasonable grounds, to the
worker's employer or the
employer's insurer about the
conduct of the medical
practitioner who it is proposed
will conduct the review;
(d) the location and timing of the
review -
and may have regard to any other matter
that the Tribunal thinks fit.
(6) In determining any matter referred to it
under subsection (2), the Tribunal may, if
the payment of compensation has been
suspended under subsection (3),
specify -
(a) whether compensation may be
paid to the worker in respect of
that period of suspension; and
48
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 37
(b) the period of that suspension in
respect of which the worker is
entitled to be paid compensation.
90D. Reliance on medical reports
(1) If a worker has submitted to an
independent medical review under
section 90A by a medical practitioner, a
report in relation to the review, and any
evidence of the medical practitioner,
cannot be used as evidence in respect of
a claim for compensation unless the
report is served on the worker.
(2) If a worker has been examined under
section 90A(7)(b) by a medical
practitioner chosen by the worker, a
report in relation to the examination, and
any evidence of the medical practitioner,
cannot be used as evidence in respect of
a claim for compensation unless the
report is served on the worker's
employer.
(3) If a worker has been examined, otherwise
than under section 90A(7)(b), by a
medical practitioner chosen by the
worker, a report in relation to the
examination, and any evidence of the
medical practitioner, cannot be used as
evidence in respect of a claim for
compensation unless the report is served
on the worker's employer.
49
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 38
38. Section 97 amended (Obligation of employers to
insure)
Section 97 of the Principal Act is amended by
inserting after subsection (6) the following
subsection:
(6A) If an employer of more than 50 persons
at a workplace accepts or renews an
insurance policy referred to in this Act,
the employer, within 60 days, must
identify, and provide to the insurer, a list
of duties, if any, at the workplace that
may be suitable for the purposes of
section 143M in relation to a worker to
whom that section may apply.
Penalty: Fine not exceeding 5 penalty
units.
39. Section 101 amended (Granting, &c., of licences)
Section 101(2) of the Principal Act is amended
by inserting after paragraph (f) the following
paragraph:
(fa) the insurer is capable of complying with
Part XI and any regulations or guidelines
for the purposes of that Part; and
40. Section 105 amended (Granting, &c., of permits)
Section 105(2)(bb) of the Principal Act is
amended by omitting "provide high-quality
50
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 41
injury management to injured workers" and
substituting "comply with Part XI and any
regulations or guidelines for the purposes of that
Part".
41. Section 127A amended (Nominal Insurer Fund)
Section 127A(3) of the Principal Act is amended
as follows:
(a) by omitting from paragraph (b) "this
Act." and substituting "this Act; and";
(b) by inserting the following paragraph after
paragraph (b):
(c) all amounts required to be paid
from the Nominal Insurer Fund in
accordance with a direction under
section 127C.
42. Section 127B amended (Nominal Insurer Special
Account)
Section 127B(2) of the Principal Act is amended
as follows:
(a) by omitting from paragraph (c)
"paragraph (a)." and substituting
"paragraph (a); and";
(b) by inserting the following paragraph after
paragraph (c):
51
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 43
(d) all amounts required to be paid
from the Special Account in
accordance with a direction under
section 127C.
43. Section 127C inserted
After section 127B of the Principal Act, the
following section is inserted in Division 5:
127C. Minister may give directions in relation to
Nominal Insurer Fund and Special Account
(1) The Nominal Insurer may, in writing,
request the Minister for directions in
relation to an amount that -
(a) is in the Nominal Insurer Fund
established under section 127A or
the Special Account established
under section 127B; and
(b) is, in the opinion of the Nominal
Insurer, in excess of the amount
required for the purposes for
which the Nominal Insurer Fund,
or the Special Account, as the
case may be, is established.
(2) The Minister may, in writing, after
receiving under subsection (1) a request
in relation to an amount, direct the
Nominal Insurer as to how the Nominal
Insurer is to deal with the amount.
52
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 43
(3) A direction under subsection (2) in
relation to an amount referred to in a
request under subsection (1) may require
the Nominal Insurer to -
(a) retain in the Nominal Insurer
Fund, or the Special Account, as
the case may be, the amount or a
part of the amount; or
(b) pay the amount, or part of the
amount, for -
(i) a purpose related to the
provision of rehabilitation
or compensation for
injured workers; or
(ii) the promotion of
workplace safety; or
(iii) purposes that are, in the
opinion of the Minister,
related to the objects of
this Act.
(4) The Nominal Insurer is to publish in its
next annual report under section 131AA
a copy of a direction given to the
Nominal Insurer under subsection (2).
(5) The Minister must cause a copy of a
direction given under subsection (2) to be
laid before each House of Parliament
within 10 sitting-days after making the
direction.
53
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 44
(6) The Nominal Insurer must comply with a
direction given to it under subsection (2).
44. Section 132A inserted
After section 132 of the Principal Act, the
following section is inserted in Division 1:
132A. Settlement by agreement
(1) A worker's outstanding entitlements to
compensation under this Act in respect of
an injury may only be settled by an
agreement to settle by which the worker
agrees that all further claims to
compensation are extinguished.
(2) An agreement to settle that does not
comply with this section is void.
(3) A settlement by agreement of all a
worker's outstanding entitlements to
compensation may only be entered into,
before the end of the period of 2 years
beginning on the day on which a claim
for compensation is first made in relation
to the worker, if the agreement has been
approved by the Tribunal under this
section.
(4) A worker, the employer or the
employer's insurer may, in a form
approved by the Tribunal, refer to the
Tribunal for its approval a proposed
54
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 44
agreement to settle, which may be in the
form the parties think fit.
(5) The Tribunal may approve, or refuse to
approve, a proposed agreement to settle
that is referred to it under subsection (4).
(6) The Tribunal may only approve under
subsection (5) a proposed agreement to
settle -
(a) if the Tribunal is satisfied that -
(i) all reasonable steps have
been taken to enable the
worker to whom the
proposed agreement
relates to be rehabilitated
or retrained or to return to
work; or
(ii) the worker has returned to
work; or
(b) where the Tribunal has, on a
reference to the Tribunal under
section 81A, determined that
there is a reasonably arguable
case for disputing liability to pay
compensation under this Act, if
the Tribunal is satisfied that the
proposed agreement is in the best
interests of the worker; or
(c) if the Tribunal is satisfied that -
55
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 44
(i) special circumstances in
relation to the worker
make the worker's
rehabilitation, retraining
or return to work
impracticable; and
(ii) the proposed agreement is
in the best interests of the
worker.
(7) The Tribunal may only approve under
subsection (5) a proposed agreement to
settle if the Tribunal is satisfied that -
(a) the worker has received advice
(which may be legal or financial
advice or both) about the
implications of settling the claim,
which advice has been paid by
the employer or the employer's
insurer and is appropriate in the
circumstances of the worker; and
(b) the entitlement, if any, of the
worker under section 71 has been
considered.
(8) If the Tribunal refuses to approve under
subsection (5) a proposed agreement to
settle -
(a) the Tribunal is not to make any
order as to the amount of the
settlement; and
56
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 44
(b) a party to the claim may refer to
the Tribunal under subsection (4)
another proposed agreement to
settle.
(9) If a worker's outstanding entitlements to
compensation are settled by agreement
between the parties after the end of the
period of 2 years beginning on the day on
which a claim for compensation is first
made in relation to the worker, the
worker, the employer or the employer's
insurer may refer the agreement to settle
to the Tribunal for review.
(10) A referral under subsection (9) of an
agreement to settle -
(a) must be made within 3 months of
the date of the agreement; and
(b) is to be in a form approved by the
Tribunal.
(11) The Tribunal may set aside an agreement
to settle referred to the Tribunal under
subsection (9) if the Tribunal is of the
opinion that -
(a) a party entered the agreement
under duress; or
(b) the worker has not received
advice (which may be legal or
financial advice, or both) about
the implications of settling the
claim, which advice has been
57
Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 44
paid by the employer or the
employer's insurer and is
appropriate in the circumstances
of the worker; or
(c) a party was induced to enter the
agreement by a
misrepresentation, made by
another party to, or the agent of a
party to, the agreement, as to a
fact material to the agreement,
whether the misrepresentation
was innocent, fraudulent or
reckless.
(12) If the Tribunal sets aside an agreement to
settle under subsection (11) -
(a) the Tribunal is not to make any
order as to the amount of the
settlement; and
(b) the Tribunal must make the order
it considers appropriate in respect
of the repayment of any money
paid under the agreement or the
application of the money towards
any entitlements of the worker;
and
(c) the parties may enter into another
agreement to settle the claim.
(13) The Tribunal is to order that the costs
reasonably incurred by a worker of and
incidental to a referral under this section
to the Tribunal of an agreement to settle,
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Workers Rehabilitation and Compensation Amendment Act 2009
Act No. of
s. 45
or a proposed agreement to settle, are to
be paid by the worker's employer,
unless -
(a) the worker referred the
agreement; and
(b) the Tribunal is satisfied the
referral was frivolous or
vexatious.
45. Sections 138AB, 138ABA and 138AC substituted
Sections 138AB, 138ABA and 138AC of the
Principal Act are repealed and the following
section is substituted:
138AB. Claims for damages
(1) A settlement by agreement of a claim for
damages in respect of an injury to a
worker for which compensation is
payable under this Act is void unless the
threshold requirement is met in relation
to the injury.
(2) A person may not commence
proceedings for an award of damages in
respect of an injury to a worker for which
compensation is payable under this Act,
unless the threshold requirement is met
in relation to the injury.
(3) The threshold requirement is met in
relation to an injury if -
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Workers Rehabilitation and Compensation Amendment Act 2009
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s. 45
(a) there has been provided to the
Tribunal a statement in writing,
signed by a medical practitioner,
certifying that, in the opinion of
the practitioner, the degree of
permanent impairment of the
worker resulting from the injury
is not less than 20% of the whole
person; and
(b) the Tribunal has determined that
the degree of permanent
impairment of the worker
resulting from the injury is not
less than 20% of the whole
person.
(4) The threshold requirement is met in
relation to an injury suffered by a worker
if -
(a) the injury is an injury to which
section 71(3) applies; and
(b) there has been provided to the
Tribunal a statement in writing,
signed by a medical practitioner,
certifying that the injury is an
injury to which section 71(3)
applies.
(5) An assessment of the degree of the
worker's impairment for the purposes of
this section is to be carried out in
accordance with section 72 or 73.
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(6) The Tribunal may refer the question of
the degree of impairment to a medical
panel in accordance with Part V.
(7) The Tribunal is to keep a record of -
(a) a statement provided to the
Tribunal in accordance with
subsection (3)(a); and
(b) a determination of the Tribunal of
the kind referred to in
subsection (3)(b); and
(c) a statement provided to the
Tribunal in accordance with
subsection (4)(b); and
(d) any other prescribed matter.
46. Section 138AD amended (No damages if claim
settled by agreement)
Section 138AD of the Principal Act is amended
by omitting "the claim has been settled by
agreement under section 39" and substituting
"the worked has settled in accordance with
section 132A the worker's outstanding
entitlements to compensation".
47. Part XI substituted
Part XI of the Principal Act is repealed and the
following Part is substituted:
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PART XI - INJURY MANAGEMENT
Division 1 - Application, purpose and interpretation
139. Purpose and principles of Part
(1) The purpose of this Part is to establish a
system that ensures that, as far as
practicable, workers -
(a) recover as soon as possible from
workplace injuries; and
(b) are able, as soon as practicable, to
return to and remain in work that
is safe for them to perform
without aggravating the injury or
impeding its healing.
(2) This Part is based on the following
principles:
(a) the primary aim of persons,
including the injured worker,
involved in injury management
should be -
(i) the recovery of the worker
from the injury; and
(ii) that the worker return to
work -
and, to this end, all such persons
should co-operate, collaborate
and consult together;
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(b) it is essential to ensure that injury
management begins as soon as
possible after a worker suffers a
workplace injury;
(c) wherever possible, injury
management is to enable an
injured worker to continue to be
employed by the employer who
was the worker's employer when
the worker was injured;
(d) injury management should be
transparent, effective and cost-
efficient;
(e) all parties to injury management,
in particular injured workers,
their employers and their medical
practitioners, should have access
to information and assistance
relating to their roles, rights and
responsibilities;
(f) injury management should be of a
high standard so as to maintain
the dignity and integrity of
injured workers and should
ensure that injured workers are
active participants in the
management of their injuries;
(g) issues relating to injury
management should be resolved
as soon as practicable, and with
such assistance as may be
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necessary, so as to ensure
effective injury management;
(h) all decisions relating to injury
management should be made in
the best interests of the worker.
140. Application of Part
(1) This Part applies in relation to a worker
who has made a claim for compensation,
even if there is a dispute as to whether
the employer is liable for the claim, but
ceases to apply -
(a) after an agreement to settle the
claim is made in accordance with
section 132A; or
(b) after an agreement to settle a
claim for damages is made in
accordance with this Act; or
(c) if the Tribunal makes orders
under either section 81A(3)(c) or
(d); or
(d) if the Tribunal or a court
determines that the employer is
not liable for the claim.
(2) Despite subsection (1), if -
(a) this Part ceases, in accordance
with subsection (1)(a), to apply in
relation to a worker because an
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agreement to settle is made in
accordance with section 132A;
and
(b) the agreement is set aside by the
Tribunal under
section 132A(11) -
this Part applies in relation to the worker,
from the date on which the agreement is
set aside, as if subsection (1)(a) did not
apply, until a further agreement to settle,
if any, is made in accordance with
section 132A.
(3) Despite subsection (1), if -
(a) this Part ceases, in accordance
with subsection (1)(d), to apply in
relation to a worker because the
Tribunal or a court determines
that the employer is not liable for
the claim; and
(b) the Tribunal or a court
subsequently determines that the
employer is so liable -
this Part applies in relation to the worker
from the date of the determination, as if
subsection (1)(d) did not apply.
141. Interpretation
(1) In this Part, unless the contrary intention
appears -
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"Agency" has the same meaning as in
the State Service Act 2000;
"approved injury management
plan", in relation to a worker,
means the injury management
plan to which the worker and the
worker's employer have
consented under section 143E;
"approved injury management
program", in relation to a
worker -
(a) means the injury
management program that
is in force and that was
approved under
section 143(7) in respect
of the worker's employer;
or
(b) if the worker is employed
for the purposes of an
Agency and there is in
force an injury
management program that
was approved under
section 143(7) in respect
of that Agency, means
that program -
and includes any amendments to
the program that are submitted to
the Board under section 143(10)
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and are not disallowed under
section 143(11);
"approved return-to-work plan", in
relation to a worker, means the
return-to-work plan to which the
worker and the worker's
employer have consented under
section 143E and that is in force;
"employer's insurer", in relation to
an employer, means a licensed
insurer with whom the employer
has entered into a contract
pursuant to section 97(1);
"Head of an Agency" has the same
meaning as in the State Service
Act 2000;
"injured worker" means a worker
suffering from a workplace
injury;
"injury management co-ordinator",
in relation to a worker, means the
injury management co-ordinator
to whom the worker is assigned
under section 143B;
"injury management plan" means a
comprehensive plan for injury
management in respect of an
injured worker who is, or is likely
to be, totally or partially
incapacitated for work for 28
working days or more;
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"injury management program"
means a program for injury
management in respect of
workers who may suffer
workplace injuries;
"return-to-work co-ordinator", in
relation to a worker, means the
return-to-work co-ordinator to
whom the worker is assigned
under section 143D;
"return-to-work plan" means a plan,
which need not be
comprehensive, for injury
management in respect of an
injured worker who is, or is likely
to be, totally or partially
incapacitated for work for more
than 5 working days but less than
28 working days;
"significant injury", in relation to a
worker, means a workplace injury
suffered by the worker that is
likely to result in the worker
being totally or partially
incapacitated for more than 5
working days;
"treating medical practitioner", in
relation to a worker, means a
medical practitioner treating the
injured worker for the worker's
workplace injury and includes the
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worker's primary treating
medical practitioner.
(2) In this Part, a reference to an employer in
relation to a worker means the employer
who is or may be liable to pay
compensation under this Act in respect of
a workplace injury suffered by the
worker.
(3) For the purposes of this Part, the injury
management program in respect of an
employer who is not a self-insurer, a
Minister or the Crown -
(a) is, if there is in force an injury
management program that was
submitted by the employer to the
employer's insurer under
section 143(4), that program; or
(b) is, if -
(i) there is in force an injury
management program that
was submitted to the
Board under
section 143(1) by the
employer's insurer; and
(ii) the employer's insurer has
notified the employer
under section 143(3) that
the program applies to the
employer; and
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(iii) paragraph (a) does not
apply -
that program -
and includes any amendments to the
program that are submitted to the Board
under section 143(10) and are not
disallowed under section 143(11).
(4) For the purposes of this Part, the injury
management program in respect of an
employer who is a self-insurer and who
is not a Minister or the Crown is the
injury management program that -
(a) was submitted by the employer to
the Board under section 143(5);
and
(b) is approved by the Board under
section 143(7); and
(c) is in force -
and includes any amendments to the
program that are submitted to the Board
under section 143(10) and are not
disallowed under section 143(11).
(5) For the purposes of this Part, an injury
management program is in force in
relation to an Agency if the program -
(a) was submitted by the Head of the
Agency to the Board under
section 143(6); and
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(b) is approved by the Board under
section 143(7); and
(c) is in force -
and a reference to such a program
includes a reference to any amendments
to the program that are submitted to the
Board under section 143(10) and are not
disallowed under section 143(11).
Division 2 - Injury management programs
142. Injury management programs to be
complied with
(1) The Board may, by notice, issue
guidelines specifying -
(a) matters that must be included in
an injury management program;
and
(b) matters that the Board
recommends be included, but that
are not required to be included, in
an injury management program.
(2) An employer's insurer must, as far as
reasonably practicable -
(a) ensure that there is an injury
management program in respect
of each employer; and
(b) comply with each injury
management program -
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(i) that is submitted by the
insurer to the Board and
approved by the Board
under section 143(7); or
(ii) that is submitted to the
insurer under
section 143(4) and
approved by the insurer.
Penalty: Fine not exceeding 100 penalty
units.
(3) An employer who is not a Minister or the
Crown must -
(a) ensure that there is an injury
management program in respect
of the employer; and
(b) comply with each injury
management program in respect
of the employer.
Penalty: Fine not exceeding 100 penalty
units.
(4) An employer who is a Minister or the
Crown must -
(a) ensure that there is an injury
management program that is in
force in relation to each Agency;
and
(b) comply with each such program.
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(5) If an injury management program that is
in force was submitted to the Board
under section 143, the person who
submitted the program -
(a) must review the program after
every 12 months commencing on
the day on which the program is
approved under section 143(7);
and
(b) must, if the person is notified by
the Board under subsection (7) -
(i) review the program; and
(ii) submit to the Board a
report in relation to the
program within the period
specified in the notice.
(6) If an injury management program that is
in force was submitted by an employer to
the employer's insurer under
section 143(4), the employer -
(a) must review the program after
every 12 months commencing on
the day on which the program is
approved under section 143(7);
and
(b) must, if the employer is notified
by the Board under
subsection (7) -
(i) review the program; and
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(ii) submit to the Board a
report in relation to the
program within the period
specified in the notice.
(7) The Board may, by notice in writing to
an employer, a Head of an Agency or an
employer's insurer, require the employer,
Head of an Agency or insurer to submit
to the Board, within the period specified
in the notice, a report in relation to the
injury management program referred to
in the notice.
143. Approval of injury management programs
(1) An employer's insurer may submit to the
Board an injury management program in
respect of an employer, or a group of
employers, or all employers, in respect of
whom the insurer is a licensed insurer.
(2) An injury management program that is
submitted by an insurer to the Board and
approved by the Board under
subsection (7) may apply to one or more
employers, if the insurer has notified the
employers under subsection (3).
(3) An employer's insurer may notify the
employer in writing that an injury
management program approved by the
Board under subsection (7) applies to the
employer.
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(4) An employer may submit to the
employer's insurer -
(a) an injury management program;
or
(b) an amendment to an injury
management program submitted
to the insurer under paragraph (a).
(5) An employer who is a self-insurer may
submit to the Board an injury
management program.
(6) If a worker is employed by a Minister or
the Crown, the Head of an Agency may
submit to the Board, on behalf of the
employer of the worker, an injury
management program that is to apply to
the Agency.
(7) The Board or an employer's insurer may
approve, or refuse to approve, an injury
management program, or an amendment
to an injury management program,
submitted to the Board or the insurer,
respectively, under this section.
(8) The Board or an employer's insurer must
not approve an injury management
program unless it contains all matters
that are specified in guidelines issued
under section 142(1) to be matters that
must be included in injury management
programs.
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(9) An injury management program that has
been approved under subsection (7) -
(a) comes in force on the date on
which it is approved under that
subsection or another date agreed
to by the Board, or the insurer, to
whom the plan is submitted; and
(b) remains in force for the period, of
not more than 3 years, specified
in the approval; and
(c) may contain the amendments,
submitted to the Board or an
insurer under subsection (10),
that have not been disallowed
under subsection (11) by the
Board or the employer's insurer,
as the case may be.
(10) A person who may under this section -
(a) submit an injury management
program to the Board may submit
to the Board an amendment to an
injury management program
approved by the Board; and
(b) submit an injury management
program to an employer's insurer
may submit to the insurer an
amendment to an injury
management program approved
by the insurer.
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(11) If an amendment to an injury
management program is submitted to the
Board or an insurer by a person under
subsection (10), the Board or the insurer,
as the case may be, may, within 60 days,
disallow the amendment by notice in
writing to the person.
Division 3 - Injury management and return-to-work co-
ordinators and plans
143A. Employer to notify insurer of workplace
injury
(1) An employer must notify the employer's
insurer, if any, within 48 hours of
becoming aware that one of the
employer's workers has suffered a
workplace injury that -
(a) results in, or is likely to result in,
the worker being partially or
totally incapacitated for work; or
(b) is required to be reported to the
insurer under the worker's
approved injury management
program.
Penalty: Fine not exceeding 10 penalty
units.
(2) An employer is not to be taken to have
given notice under subsection (1) in
relation to a worker unless the notice is
in accordance with the requirements of
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the worker's approved injury
management program.
143B. Injury management co-ordinator to be
appointed
(1) The licensed insurer of an employer of a
worker must appoint an injury
management co-ordinator in respect of
the employer.
(2) The licensed insurer of an employer of a
worker, as soon as practicable after
becoming aware that the worker has
suffered a significant injury, must assign
the worker to the injury management co-
ordinator in respect of the employer.
(3) If a worker's approved injury
management program was submitted by
the worker's employer to the employer's
insurer under section 143(4) -
(a) subsections (1) and (2) do not
apply to the employer's insurer;
and
(b) the employer must -
(i) appoint an injury
management co-ordinator
in respect of the
employer; and
(ii) assign a worker to the
injury management co-
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ordinator, as soon as
practicable after
becoming aware that the
worker has suffered a
significant injury.
(4) If a worker's approved injury
management program was submitted by
the worker's employer to the Board
under section 143(5) or (6), the employer
must -
(a) appoint an injury management
co-ordinator in respect of the
employer; and
(b) assign a worker to the injury
management co-ordinator, as
soon as practicable after
becoming aware that the worker
has suffered a significant injury.
(5) A person may only be appointed to be an
injury management co-ordinator if,
where the Board approves a course of
training -
(a) the person has successfully
completed the course of training;
or
(b) the Board is satisfied that the
person has obtained a
qualification or completed a
course of training that is at least
equivalent to the course of
training approved by the Board.
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(6) The employer or insurer who appointed a
person to be an injury management co-
ordinator may appoint another person to
be the injury management co-ordinator in
the place of the person first appointed.
143C. Responsibilities of injury management co-
ordinators
(1) An injury management co-ordinator is
responsible for co-ordinating and
overseeing the injury management in
respect of the worker assigned to the co-
ordinator under section 143B(2) or (3).
(2) An injury management co-ordinator, so
far as is reasonably practicable, is to
ensure that -
(a) contact is made with the worker,
the employer and the worker's
primary treating medical
practitioner, as soon as
practicable after the worker is
assigned to the co-ordinator under
section 143B(2) or (3); and
(b) injury management plans and
return-to-work plans in relation to
the worker are developed,
reviewed, modified, and
implemented, as agreed with the
worker or determined by the
Tribunal; and
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(c) the work capacity of the worker is
regularly reviewed and options
for the worker's retraining or
redeployment are investigated
and arranged; and
(d) arrangements are made for the
rehabilitation of the worker so
that the worker returns to work as
soon as is possible and
appropriate; and
(e) if required, workplace
rehabilitation providers are
appointed; and
(f) the following persons are
involved in the management of
the worker's injury and return to
work:
(i) the worker, the worker's
employer and the
employer's insurer;
(ii) the primary treating
medical practitioner and
other treating medical
practitioners; and
(g) the following persons are, if
necessary or desirable, involved
in the injury management of the
worker's injury:
(i) workplace rehabilitation
providers;
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(ii) the return-to-work co-
ordinator;
(iii) supervisors and line
managers;
(iv) allied health
professionals; and
(h) medical information is collated;
and
(i) relevant documentation is
maintained; and
(j) attempts are made to resolve
disputes in relation to injury
management in respect of the
worker, including, if the co-
ordinator thinks fit, by arranging
or providing informal mediation;
and
(k) information on injury
management is provided to the
worker and the worker's
employer; and
(l) any other duties that are
prescribed for the purposes of this
paragraph are carried out.
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143D. Return-to-work co-ordinator may be
required to be appointed
(1) An employer who employs more than 50
workers must appoint a return-to-work
co-ordinator.
Penalty: Fine not exceeding 50 penalty
units.
(2) A person may only be appointed under
subsection (1) to be a return-to-work co-
ordinator if, where the Board approves a
course of training -
(a) the person has successfully
completed the training; or
(b) the Board is satisfied that the
person has obtained a
qualification or completed a
course of training that is at least
equivalent to the course of
training approved by the Board.
(3) A worker's employer who employs more
than 50 workers, as soon as practicable
after becoming aware that a worker has
suffered a significant injury, must assign
the worker to the return-to-work co-
ordinator appointed under subsection (1)
in respect of the employer.
Penalty: Fine not exceeding 50 penalty
units.
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(4) A worker's employer may only assign a
worker to a return-to-work co-ordinator
if the co-ordinator is familiar with the
workplace, and the management and staff
of the workplace, in which the worker is
employed.
(5) A return-to-work co-ordinator in respect
of a worker is to -
(a) assist with return-to-work
planning and the implementation
of the worker's approved return-
to-work plan or approved injury
management plan; and
(b) monitor the worker's progress
towards returning to work; and
(c) assist the worker to perform the
worker's designated work duties
in a safe and appropriate manner;
and
(d) provide the worker with
reassurance and encouragement
in respect of the treatment of the
worker's injury and the worker's
return to work; and
(e) encourage and foster a good
relationship, and effective
communication, between the
worker, the worker's employer
and the employer's insurer.
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143E. Return-to-work and injury management
plans
(1) If a worker suffers a significant injury,
the worker's injury management co-
ordinator must -
(a) if the worker is, or is likely to be,
totally or partially incapacitated
for work for more than a period
of 5 working days but less than
28 working days, ensure that a
return-to-work plan is prepared
before the expiry of 5 days after
the worker becomes totally or
partially incapacitated for work
for more than 5 days; or
(b) if the worker is, or is likely to be,
totally or partially incapacitated
for work for 28 working days or
more, ensure that an injury
management plan is prepared
before the expiry of 5 days after
the worker becomes totally or
partially incapacitated for work
for 28 working days.
(2) A worker's return-to-work plan or injury
management plan, and any amendment to
such a plan, is to be prepared, as far as is
reasonably practicable, in consultation
with -
(a) the worker; and
(b) the worker's employer; and
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(c) the worker's primary treating
medical practitioner; and
(d) the employer's insurer, if any;
and
(e) the worker's workplace
rehabilitation provider, if any;
and
(f) the worker's injury management
co-ordinator.
(3) A worker's approved return-to-work plan
or approved injury management plan,
and any amendment to such a plan, takes
effect from the day on which the worker
and the worker's employer consent to the
plan or amendment.
(4) If either a worker or a worker's employer
refuses to give consent to an injury
management plan or a return-to-work
plan, or an amendment to such a plan, the
injury management co-ordinator may
notify the Tribunal under section 143Q
about the matter.
(5) A worker's injury management co-
ordinator must ensure that the worker's
approved return-to-work plan or
approved injury management plan is
regularly reviewed in consultation with
the persons consulted under
subsection (2).
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(6) If the Tribunal makes orders under
section 81A(3)(c) or (d) in relation to a
worker, subsection (1) does not apply in
relation to the worker, until (if at all) the
worker's employer is found by the
Tribunal to be liable for the worker's
workplace injury.
(7) If a worker or the worker's employer
does not take all reasonable steps to
comply with any requirements of the
worker's approved return-to-work plan
or approved injury management plan, the
worker or the worker's employer may
notify the Tribunal under section 143Q
about the matter.
(8) The -
(a) preparation of or giving of
consent to a return-to-work plan,
or an injury management plan, in
relation to an injured worker; or
(b) implementation of an approved
return-to-work plan or an
approved injury management
plan in relation to an injured
worker -
is not an admission of liability in respect
of any claim that may be made by the
worker under this Act.
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143F. Work capacity of injured workers to be
regularly reviewed
(1) If an injured worker is incapacitated for
work for more than 6 months
continuously, the injury management co-
ordinator must, as soon as practicable
after the end of that period and each
successive 6-month period until the claim
is finalised -
(a) co-ordinate the assessment of the
worker's capacity to work; and
(b) consider whether the worker's
approved injury management
plan should be modified; and
(c) consider options for retraining or
redeploying the worker.
(2) If medical evidence in relation to an
injured worker indicates that it is highly
unlikely that the worker will be able to
engage in the employment in which the
worker was engaged before he or she was
injured, the injury management co-
ordinator must ensure that appropriate
options for -
(a) retraining the worker; and
(b) redeploying the worker, including
to another workplace or
employer -
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are reviewed, assessed, considered and
implemented.
Division 4 - Medical treatment
143G. Primary treating medical practitioners
(1) An injured worker must, as soon as
practicable after suffering a workplace
injury, notify the worker's employer of
the name of the person that the worker
has chosen to be the worker's primary
treating medical practitioner.
(2) An injured worker must not be required
to choose a primary treating medical
practitioner nominated by the employer
or the insurer.
(3) If an injured worker chooses a primary
treating medical practitioner to replace
another primary treating medical
practitioner, the worker must -
(a) notify the worker's employer of
the name of the new primary
treating medical practitioner; and
(b) authorise the previous primary
treating medical practitioner to
release to the newly chosen
medical practitioner records, in
relation to the worker's
workplace injury, that are held by
the previous practitioner.
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(4) A primary treating medical practitioner
in relation to an injured worker has the
following functions:
(a) to provide certificates for the
purposes of this Act;
(b) to diagnose the nature of the
worker's workplace injury;
(c) to provide primary medical care
in relation to the worker's
workplace injury;
(d) to co-ordinate medical treatment
in relation to the worker's
workplace injury, including by
referring the worker to persons
who may deliver specialist
medical care and by co-ordinating
the delivery of any specialist
medical care;
(e) to monitor, review and advise on
the worker's condition and
treatment;
(f) to advise on the suitability of, and
to specify restrictions on, the
work that the worker may be
expected to perform;
(g) to take part in the development of
return-to-work plans and injury
management plans.
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(5) If an injured worker fails to comply with
subsection (1) or (3), the employer or
insurer may notify the Tribunal about the
matter.
143H. Issue of certificates
(1) A medical practitioner may not issue a
medical certificate under this Act
certifying that a worker is totally
incapacitated for work for a period of
more than 14 days, unless the certificate
specifies -
(a) the medical practitioner's reasons
why the period is longer than 14
days; and
(b) a date on which the medical
practitioner will review whether
the worker remains totally
incapacitated for work.
(2) If a medical practitioner is of the opinion
that a worker is unlikely, for a period
(whether limited or indefinite), to be able
to resume -
(a) work for the number of hours in a
week for which the worker was
generally engaged by the
employer before the worker
suffered the workplace injury; or
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(b) some or all of the duties for
which the worker was generally
engaged by the employer before
the worker suffered the
workplace injury -
the medical practitioner must, in a
medical certificate issued under this Act,
specify the opinion, the reasons for it,
and the period.
(3) A failure to comply with subsection (1)
or (2) in relation to a medical certificate
does not affect the validity of a claim to
which the certificate relates.
143I. Employer to be notified of certified
incapacity and given medical certificate
If a medical certificate issued under this
Act specifies that an injury has resulted
in the worker being totally or partially
incapacitated for work, the worker must,
as soon as reasonably practicable -
(a) notify the worker's employer of
the incapacity and the period for
which the incapacity is likely to
continue; and
(b) provide a copy of the medical
certificate to the employer.
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143J. Worker's obligation of full disclosure to
medical practitioners chosen by worker
A worker must not wilfully fail to fully
disclose to any treating medical
practitioner any information that the
worker knows, or ought reasonably be
expected to know, is relevant to the
diagnosis or treatment of the worker's
workplace injury.
Penalty: Fine not exceeding 10 penalty
units.
143K. Medical advisory and mentoring service
(1) The Board may establish a medical
advisory and mentoring service for the
purposes of this Act.
(2) The Board may nominate persons to
comprise the medical advisory and
mentoring service.
(3) A medical practitioner nominated under
subsection (2) is to receive the
remuneration the Board thinks fit, which
remuneration is to be paid out of the
Fund.
(4) The medical advisory and mentoring
service is to provide to medical
practitioners advice in respect of -
(a) applying evidence-based medical
treatment guidelines; and
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(b) identifying appropriate treatment
options; and
(c) identifying the work capacity of
an injured worker, including
assessing whether the worker will
be able to perform suitable
alternative duties within the
meaning of section 143M; and
(d) issuing under this Act certificates
and medical reports in relation to
injured workers; and
(e) obtaining second opinions on the
diagnosis or treatment of injured
workers; and
(f) the compensation scheme
established under this Act.
Division 5 - Obligations relating to return to work of
injured worker
143L. Injured worker's position to be held open
for worker
(1) An employer of a worker must, for a
period of 12 months commencing on the
day on which the worker becomes totally
or partially incapacitated by a workplace
injury, make available to the worker the
employment in respect of which the
worker was engaged immediately before
becoming incapacitated.
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Penalty: Fine not exceeding 100 penalty
units.
(2) Subsection (1) does not apply if -
(a) there is medical evidence
indicating that it is highly
improbable that the worker will
be able to perform the
employment in respect of which
the worker was engaged
immediately before becoming
incapacitated; or
(b) the work for which the worker
was employed is no longer
required to be performed.
(3) If subsection (2) applies in relation to a
worker, the worker's employer, as soon
as practicable, must notify the worker,
and the employer's insurer, if any, of the
reason for the application of the
subsection in relation to the worker.
Penalty: Fine not exceeding 20 penalty
units.
143M. Employer to provide suitable duties after
injury
(1) If a worker who suffers from a workplace
injury is unable to perform duties for
which the worker was engaged
immediately before becoming totally or
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partially incapacitated by the injury, the
worker's employer must ensure that the
worker is given suitable alternative duties
to perform.
Penalty: Fine not exceeding 100 penalty
units.
(2) When providing suitable alternative
duties to a worker, the worker's
employer must ensure that -
(a) the worker has been consulted for
the purpose of identifying and
choosing the duties; and
(b) the duties are suitable, having
regard to the worker's incapacity
and any restrictions imposed, or
advice given, by a medical
practitioner, as to the type of
work that the worker may
perform; and
(c) the duties comply with the
worker's approved injury
management plan or approved
return-to-work plan, if any.
(3) Subsection (1) does not apply if it is
unreasonable or impracticable to give the
worker suitable alternative duties to
perform.
(4) An employer who is of the opinion that it
is unreasonable or impracticable to give
an injured worker suitable alternative
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duties to perform, must, as soon as
practicable, provide the worker with
reasons in writing for the employer's
opinion.
Penalty: Fine not exceeding 20 penalty
units.
(5) For the purposes of this Part, suitable
alternative duties in relation to a worker
are those duties for which the worker is
suited, having regard to the following:
(a) the nature of the worker's
incapacity and pre-injury
employment;
(b) the worker's age, education, skills
and work experience;
(c) the worker's place of residence;
(d) any suitable duties for which the
worker has received rehabilitation
training;
(e) any other relevant
circumstances -
but do not include -
(f) duties that are merely of a token
nature or do not involve useful
work, having regard to the
employer's trade or business; or
(g) duties that are demeaning in
nature, having regard to
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paragraphs (a) and (b) and to the
worker's other employment
prospects.
143N. Workers to participate in return-to-work
process
(1) An injured worker is to perform any
actions that the worker is required to
perform under the worker's approved
injury management plan or approved
return-to-work plan.
(2) Subsection (1) does not apply in relation
to an action that the worker is not able to
perform because of the worker's
workplace injuries or for any other
reasonable cause.
(3) A worker who is unable to perform an
action that the worker is required to
perform under the worker's approved
injury management plan or approved
return-to-work plan, is to, as soon as
practicable -
(a) seek medical advice and, if
appropriate, undergo treatment
that may enable the worker to
perform that action; and
(b) advise the employer and the
worker's injury management co-
ordinator of the worker's inability
and of any medical advice or
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treatment that has been sought or
undergone.
(4) A worker who is assigned reduced hours
in accordance with the worker's
approved injury management plan or
approved return-to-work plan must take
all reasonable steps to ensure that
attending a medical practitioner does not
interfere with the worker's employment
during those hours.
(5) If a worker fails to comply with a
provision of this section, the worker's
employer may notify the Tribunal about
the matter.
143O. Workplace rehabilitation providers
(1) The Board may issue guidelines relating
to the referral of injured workers to
workplace rehabilitation providers.
(2) If there is a dispute between a worker
and an injury management co-ordinator
in relation to the referral of the worker to
a workplace rehabilitation provider, any
party to the dispute may notify the
Tribunal about the matter.
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Division 6 - Miscellaneous
143P. Disputes about injury management
(1) An employer or insurer, as soon as
practicable after making a significant
decision in relation to the injury
management in respect of a worker, is to
notify the worker of -
(a) the decision; and
(b) the reasons why the decision was
made.
(2) A worker's employer is to inform the
worker's injury management co-
ordinator as soon as practicable after a
dispute arises in relation to injury
management in respect of the worker.
(3) An injury management co-ordinator is to
attempt to resolve any dispute of which
the co-ordinator is informed under
subsection (2) by, as soon as
practicable -
(a) informally mediating between the
parties to the dispute; or
(b) discussing the matter individually
with each party to the dispute.
(4) A party to a dispute of which an injury
management co-ordinator is informed
under subsection (2) may notify the
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Tribunal about the dispute, if the dispute
is not resolved to the party's satisfaction.
143Q. Powers of Tribunal in respect of matters
under this Part
(1) A worker, employer, insurer or injury
management co-ordinator may notify the
Tribunal about any matter to which this
Part relates.
(2) A notification under this Part is to be -
(a) in a form approved by the Chief
Commissioner; and
(b) filed with the Registrar.
(3) If the Tribunal is notified under this Part
about a matter, the Chief Commissioner
is to refer the matter to a State Service
employee nominated by the Chief
Commissioner.
(4) The person nominated under
subsection (3) is to attempt to assist the
parties, with as little formality as
possible, to resolve the matter referred to
the person.
(5) All discussions held before a person
nominated under subsection (3) are
confidential and without prejudice and
any notes or other documents forming
part of the person's record of the matter
are not to be disclosed to the Tribunal.
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(6) If a person nominated under
subsection (3) notifies the Tribunal that
the person is of the opinion that the
matter referred to the person cannot be
resolved between the parties, the matter
is taken to have been referred to the
Tribunal under section 42 on the day the
notice is given.
(7) If a matter is to be taken under
subsection (6) to have been referred to
the Tribunal under section 42, the
Tribunal may resolve the matter by
making any of the following orders:
(a) an order requiring the worker to
attend work in accordance with
the worker's approved return-to-
work plan or approved injury
management plan;
(b) an order requiring an employer to
make suitable alternative duties
available to the worker;
(c) an order suspending weekly
payments for a period specified in
the order;
(d) an order increasing weekly
payments for a period specified in
the order;
(e) an order requiring the worker to
undergo the treatment specified in
the order or, if the worker does
not undergo the treatment, to
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forego part or all of weekly
payments or amounts for services
for which the worker would
otherwise be able to claim under
this Act;
(f) an order requiring the worker to
submit to an independent medical
review or an examination
specified in the order, or, if the
worker does not submit to the
review or examination, to forego
part or all of weekly payments or
amounts for services for which
the worker would otherwise be
able to claim under this Act;
(g) an order requiring the worker to
undertake certain retraining or
rehabilitation specified in the
order or, if the worker fails to do
so, to forego part or all of weekly
payments or amounts for services
for which the worker would
otherwise be able to claim under
this Act;
(h) an order that an approved return-
to-work plan or approved injury
management plan be varied as
specified in the order;
(i) any other order the Tribunal
thinks fit.
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48. Section 145 amended (Establishment of Workers
Rehabilitation and Compensation Fund)
Section 145(3) of the Principal Act is amended
by omitting paragraph (e) and substituting the
following paragraph:
(e) all money required for other purposes
that are determined by the Minister to be
purposes associated with workers
compensation, occupational health and
safety or rehabilitation.
49. Section 158 amended (Maintenance of secrecy)
Section 158 of the Principal Act is amended by
omitting subsection (1) and substituting the
following subsections:
(1) A person must not disclose any
information obtained by the person in the
exercise of any powers conferred on the
person by this Act, or by virtue of the
person's office under this Act, unless the
disclosure -
(a) is authorised by each person to
whom the information relates; or
(b) occurs in the exercise or
performance of the powers or
functions of the person; or
(c) occurs in the exercise or
performance of the powers or
functions that have been
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delegated to the person, or which
the person is authorised to
perform, under this Act; or
(d) is authorised under this Act; or
(e) is for the purposes of, or is
authorised under, another Act or a
law; or
(f) occurs in pursuance of a
requirement imposed by or under
another Act or a law.
(1A) Without limiting the circumstances in
which a disclosure is authorised under
this Act, information may be disclosed
by a person who is authorised by or
under this Act to obtain the information,
if the disclosure is to a person -
(a) for the purpose of enabling the
person to conduct study or
research that is approved by the
Board; or
(b) for the purpose of the collection
and analysis of statistical
information; or
(c) acting on behalf of a body
performing functions similar in
whole or in part to the functions
of the Board, if the disclosure is
authorised by the Board; or
(d) for law enforcement purposes.
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50. Section 164A inserted
After section 164 of the Principal Act, the
following section is inserted in Part XIII:
164A. Application of Workers Rehabilitation and
Compensation Amendment Act 2009
Except for -
(a) this section; and
(b) sections 143L and 143M -
as inserted in this Act by the Workers
Rehabilitation and Compensation
Amendment Act 2009, the amendments
made to this Act by that Act do not apply
in relation to a worker in respect of an
injury suffered by the worker before the
day on which this section comes into
effect.
51. Repeal of Act
This Act is repealed on the ninetieth day from
the day on which all of its provisions commence.
106 Government Printer, Tasmania