Accident Compensation Legislation (Amendment) Act 2004

Accident Compensation Legislation (Amendment) Act 2004

Act No. 102/2004

table of provisions

SectionPage

Part 1—Preliminary

1.Purpose

2.Commencement

Part 2—Accident Compensation Act 1985

Division 1—Common Law Provisions

3.Amendment of section 39—Jurisdiction—general

4.Amendment of section 104B consequent on changes to section134AB

5.Amendment of section 104B—Impairment process

6.Amendment of section 134AB—Access to common law

7.Amendment to section 134AB consequential on amendments made by section 6

8.Amendment of section 134AB—Actions for damages

9.New section 134ABA inserted—Calculation of limitation of actions period

134ABA. Calculation of limitation of actions period

10.Amendment of section 134AF—Directions

11.Amendment of section 135A—Actions for damages

12.New Division 9A inserted—Actions by terminally ill workers

Division 9A—Actions by terminally ill workers

135BA.Actions by terminally ill workers

13.Amendment of section 39—consequential on amendment
made by section 12

Division 2—Compensation Provisions

14.Amendment of section 92A—Revised compensation for death
of worker

15.Amendment of section 89—Further loss of hearing

16.Amendment of section 91—Assessment of impairment

17.Consequential amendments

18.Amendment of section 98C—Compensation for noneconomic loss

19.New section 119IA—Circumstances in which offer may be withdrawn or settlement avoided

119IA.Circumstances in which offer may be withdrawn or settlement avoided

Division 3—General Amendments

20.Amendment of section 93C—Grandfather provision

21.Amendment of section 93CB—After the first entitlement period and until the expiry of the second entitlement period

22.Amendment of section 93DA—Notional earnings

23.Amendment of section 93E—Injury after retirement

24.Occupational rehabilitation services

25.Amendment of section 102—Notice of injury

26.Time to forward claims

27.Amendment of section 107—Provision of information to claimant

28.New section 107A inserted—General right of access to information under this Act

107A.General right of access to information under this Act

29.Amendments consequential to amendments made by sections 27 and 28

30.Amendment of section 112—Medical examinations

31.Consequential amendments

32.Amendment of section 239—Power to obtain information and evidence

33.Amendment of section 239A—Certificate

34.New section 239AA inserted—Levy

239AA. Levy

35.Repeal of levy provisions

36.Amendment of section 249—False information

37.Repeal of unproclaimed amendment

Division 4—Upgrade of references to indexed amounts

38.Amendments to sections 5A, 92A, 92B, 93A, 93B, 93CA,
93CB, 93CC, 93CD and 98C

39.Amendments to section 98E

40.Amendments to sections 98E, 99, 125, 125A, 129B, 134AB, 135A and 135C

41.New Division 4 inserted into Part IX

Division 4—Accident Compensation Legislation (Amendment) Act 2004

270.Sections 5(1), 88, 89, 91 and 98C—(claims for compensation for further loss of hearing)

271.Section 39 (Jurisdiction—general)

272.Section 92A (Revised compensation for death of
worker)

273.Section 93C (Grandfather provision)

274.Section 93CB (After the first entitlement period and
until the expiry of the second entitlement period)

275.Section 93E (Injury after retirement)

276.Section 99—occupational rehabilitation services

277.Section 102 (Notice of injury)

278.Sections 103, 106, 108 and 109—(forwarding of
claims for weekly payments)

279.Section 104B (Claims for compensation under
section 98C)

280.Section 119IA (Circumstances in which offer may be withdrawn or settlement avoided)

281.Section 134AB (Actions for damages)

282.Section 135A (Actions for damages)

283.Section 135BA (Actions by terminally ill workers)

Part 3—Accident Compensation (WorkCover Insurance) Act 1993

42.Amendment of section 8—Rateable remuneration

43.Amendment of section 22A—Application for refund of
premium

44.New section 22B inserted—What happens if Authority refuses
or fails to determine an application for a refund or fails to make
a refund?

22B.What happens if Authority refuses or fails to determine an application for a refund or fails to make a refund?

45.Section 26 amended—Payment of premiums

Part 4—Workers Compensation Act 1958

46.Amendment of clause 1 of section 9—Upgrade of references to indexed amounts

═══════════════

EndnoteS

SectionPage

Victoria

No. 102 of 2004

SectionPage

Accident Compensation Legislation (Amendment) Act 2004[†]

[Assented to 21 December 2004]

Act No. 102/2004

Accident Compensation Legislation (Amendment) Act 2004

Act No. 102/2004

Accident Compensation Legislation (Amendment) Act 2004

The Parliament of Victoriaenacts as follows:

Part 4—Workers Compensation Act 1958

Accident Compensation Legislation (Amendment) Act 2004

Act No. 102/2004

Part 1—Preliminary

1.Purpose

The purpose of this Act is to—

(a)amend the Accident Compensation Act 1985 to—

(i)streamline processes enabling seriously injured and terminally ill workers access to common law to ensure they receive their current level of compensation without unnecessary delays;

(ii)amend the provisions relating to compensation for hearing loss;

(iii)ensure that workers injured over the ageof 63 are not unduly discriminated against in their entitlements to weekly payments;

(iv)make further improvements to the return to work aspects of the WorkCover scheme;

(v)provide injured workers with a general right of access to information relating to their claim under the Act;

(vi)improve the administrative efficiency of the WorkCover scheme in general;

(b)amend the Accident Compensation (WorkCover Insurance) Act 1993 to improve the administrative efficiency of the premium collection system;

(c)amend the Accident Compensation Act 1985, the Accident Compensation (WorkCover Insurance) Act 1993 and the Workers Compensation Act 1958 to upgrade references to indexed amounts.

2.Commencement

s. 2

(1)This Act, other than sections 5, 15 to 18, 21, 23 to 31 and 45, comes into operation on the day on which it receives the Royal Assent.

(2)Sections 5, 15 to 18 and 23 are deemed to have come into operation on 18 November 2004.

(3)Sections 21, 24 to 31 and 45 come into operation on a day or days to be proclaimed.

(4)If a provision referred to in sub-section (3) does not come into operation before 1 July 2005, it comes into operation on that day.

s. 2

______

Part 2—Accident Compensation Act 1985

See:
Act No.
10191.
Reprint No. 12
as at
6 March 2003
and amending
Act Nos
50/1994, 60/1996 (as amended by No. 81/1998), 107/1997 (as amended by No. 81/1998), 60/2003, 94/2003, 95/2003, 40/2004 and 71/2004.
LawToday:

dpc.vic.
gov.au

Division 1—Common Law Provisions

3.Amendment of section 39—Jurisdiction—general

s. 3

In section 39(1A) of the Accident Compensation Act 1985 for "section 135A(6A) or 134AB(20)" substitute "section 134AB(20), 134AB(20A), 135A(6A) or 135A(6B)".

4.Amendment of section 104B consequent on changes to section134AB

After section 104B(1B) of the Accident Compensation Act 1985 insert—

"(1BA)If a worker has commenced an application under section 134AB(4)(b), the worker can not make a claim for compensation under section 98C until the proceedings under section 134AB in respect of that application have been finally determined.".

5.Amendment of section 104B—Impairment process

(1)After section 104B(1C) of the Accident Compensation Act 1985 insert—

"(1D)The Authority or self-insurer may within 90days of receiving a claim for compensation under section 98C or 98E by notice in writing to the worker suspend the claim for compensation if—

(a)the Authority or self-insurer has insufficient medical information to determine the matters specified in sub-section (2); or

(b)the Authority or self-insurer can not make a determination under sub-section(2) because the condition of the injury of the worker is not stable.

s. 5

(1E)The Authority or self-insurer must within 14days—

(a)if sub-section (1D)(a) applies, of having sufficient medical information to determine the matters specified in sub-section (2); or

(b)if sub-section (1D)(b) applies, of being able to make a determination under sub-section (2) because the condition of the injury of the worker has stabilised—

by notice in writing to the worker remove the suspension under sub-section (1D).".

(2)For section 104B(2) of the Accident Compensation Act 1985 substitute—

"(2)The Authority or self-insurer must within 120 days of receiving the claim—

(a)accept or reject liability for each injury included in the claim;

(b)obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;

(c)after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—

s. 5

(i)section 98C;

(ii)section 134AB;

(iii)Subdivision 1 of Division 3A;

(d)determine whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1);

(e)calculate any entitlement to compensation under section 98C or 98E;

(f)advise the worker as to—

(i)the decision to accept or reject liability for each injury included in the claim;

(ii)each of the determinations as to the degree of permanent impairment (if any) of the worker and whether the worker has an injury which is a total loss mentioned in the Table to section98E(1) resulting from the injury or injuries in respect of which liability is accepted;

(iii)the calculation of any entitlement to compensation under section 98C or 98E;

(iv)the consequences as specified in sub-section (11A);

(g)provide to the worker a copy of—

s. 5

(i)any medical reports, correspondence and other documents provided to; and

(ii)any medical reports, correspondence and other documents obtained from—

any medical practitioner referred to in section 91(1)(b) conducting an independent examination.

(2A)The Authority or self-insurer is not bound by the assessment or assessments obtained under sub-section (2)(b) in determining the degree of permanent impairment (if any) under sub-section (2)(c).".

(3)In section 104B(3) of the Accident Compensation Act 1985 after "liability in relation to the" insert "injuries included in the".

(4)For section 104B(4) of the Accident Compensation Act 1985 substitute—

"(4)The worker must at the request of the Authority or self-insurer attend an independent examination to be conducted by a medical practitioner referred to in section 91(1)(b) for the purposes of this section.".

(5)For section 104B(5) of the Accident Compensation Act 1985 substitute—

s. 5

"(5)The Authority or self-insurer must obtain assessments in accordance with section 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established for the purposes of—

(a)determining any entitlement of the worker to compensation under section 98C;

(b)determining the whole person impairment under sections 134AB(3) and 134AB(15);

(c)Subdivision 1 of Division 3A.".

(6)For sections 104B(5A) and 104B(5B) of the Accident Compensation Act 1985substitute—

"(5A) A worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C.

(5AA)A worker can only make one claim for compensation under section 98C in respect of injuries arising out of the same event or circumstance.

(5B)A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.".

(7)In section 104B of the Accident Compensation Act 1985—

s. 5

(a)in sub-section (5E) for "assessments" substitute "determination of impairment";

(b)in sub-section (5F)—

(i)for "injury" substitute "event or circumstance";

(ii)for "assessments of" substitute "determination of impairment resulting from".

(8)For sections 104B(6) and 104B(7) of the Accident Compensation Act 1985 substitute—

"(6)The worker must within 60 days of being advised under sub-section (2) advise the Authority or self-insurer in writing whether the worker accepts or disputes the decision as to liability in respect of each of the injuries claimed.

(6A)If under sub-section (6) a worker disputes any part of the decision as to liability, the worker does not have to respond to any other part of the advice under sub-section (2).

(6B)If under sub-section (6) the worker accepts the decision as to liability, the worker must within 60 days of being advised under sub-section (2) advise the Authority or self-insurer in writing—

(a)whether the worker accepts or disputes the determinations of impairment and total loss;

(b)if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any;

(c)if the worker accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which he or she is entitled.

(7)If the decision made under sub-section (2)(a) to reject liability for an injury is varied as the result of a decision of a court or an agreement between the worker and the Authority or self-insurer, the Authority or self-insurer must within 90 days of the variation—

s. 5

(a)obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted or determined;

(b)after taking into account the assessment or assessments obtained under paragraph (a), determine the degree of permanent impairment (if any) of the worker for each of the purposes of—

(i)section 98C;

(ii)section 134AB;

(iii)Subdivision 1 of Division 3A;

(c)determine whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1);

(d)calculate any entitlement to compensation under section 98C or 98E;

(e)advise the worker as to—

s. 5

(i)the decision or determination of liability for each injury included in the claim;

(iii)the calculation of any entitlement to compensation under section 98C or 98E;

(iv)the consequences as specified in sub-section (11A);

(f)provide to the worker a copy of—

(i)any medical reports, correspondence and other documents provided to; and

(ii)any medical reports, correspondence and other documents obtained from—

any medical practitioner referred to in section 91(1)(b) conducting an independent examination.

(7A)The Authority or self-insurer is not bound by the assessment or assessments obtained under sub-section (7)(a) in determining the degree of permanent impairment (if any) under sub-section (7)(b).

(7B)The worker must within 60 days of being advised under sub-section (7) advise the Authority or self-insurer in writing—

s. 5

(a)whether the worker accepts or disputes the determinations of impairment and total loss;

(b)if the worker accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation, if any;

(c)if the worker accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which he or she is entitled.".

(9)In section 104B(8) of the Accident Compensation Act 1985—

(a)for "under sub-section (7) that the worker accepts both of the assessments and the entitlement to compensation" substitute "under sub-section (6) or (7B) that the worker accepts each of the determinations of impairment and total loss and the entitlement to compensation under section 98C or 98E";

(b)for "either under sub-section (7) or at a later date" substitute "under sub-section (6) or (7B) or at a later date".

(10)For section 104B(9) of the Accident Compensation Act 1985 substitute—

s. 5

"(9)The Authority or self-insurer must, within 14days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to—

(a)the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and

(b)whether the worker has an injury or injuries claimed for which liability is accepted or established which is a totalloss mentioned in the Table to section 98E(1)—

to a Medical Panel for its opinion under section 67.

(9A)For the purposes of sub-section (9), if a worker has suffered an injury arising out of the same event or circumstance resulting in both psychiatric impairment and impairment other than psychiatric impairment—

(a)the worker may—

(i)accept or dispute the determinations of impairment of both psychiatric impairment and impairment other than psychiatric impairment; or

(ii)accept or dispute either the determination of psychiatric impairment or the determination of impairment other than psychiatric impairment but can not accept only part of the determination of impairment other than psychiatric impairment; and

s. 5

(b)the Authority or self-insurer must refer under that sub-section the medical questions relating to the determination or determinations disputed in accordance with sub-section (9).".

(11)In section 104B(12) of the Accident Compensation Act 1985 for "an assessment" substitute "a determination".

(12)After section 104B(18) of the Accident Compensation Act 1985 insert—

"(19)If as at the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 a worker has attended at least 1 impairment examination, the assessment of impairment and the final determination of the claim of the worker must be completed in accordance with this section as in force before that commencement.

(20)If as at the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004 a worker has lodged an impairment claim but has not attended any impairment examinations, the worker may before attending an impairment examination elect by notice in writing to the Authority or self-insurer—

s. 6

(a)to continue to have the claim determined in accordance with this section as in force before that commencement; or

(b)to withdraw the claim.

(21)If a worker withdraws a claim under sub-section (20)(b), the worker may submit a new claim as if it were the first claim of that type that the worker was submitting in respect of that injury.".

6.Amendment of section 134AB—Access to common law

(1)For sections 134AB(3) and 134AB(4) of the Accident Compensation Act 1985 substitute—

"(3)A worker may not bring proceedings in accordance with this section unless—

(a)determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under sub-section (4); or

(b)subject to any directions issued under section 134AF, the worker elects to make an application under sub-section(4) on the ground that the worker has a serious injury within the meaning of this section.

(4)A worker may only make an application—

s. 6

(a)if sub-section (3)(a) applies, after the worker—

(i)has advised the Authority or self-insurer under section 104B(6) or 104B(7B) that he or she accepts the determinations of degree of impairment; or

(ii)has received the advice of the Authority or self-insurer under section 104B(10); or

(b)if sub-section (3)(b) applies—

(i)after a period of at least 18 months has elapsed since the event or circumstance giving rise to the injury occurred; or

(ii)if an application had been made under section 104B as in force before the commencement of section 5 of the Accident Compensation Legislation (Amendment) Act 2004, subject to section 104B(21).".

(2)In section 134AB(15) of the Accident Compensation Act 1985 after "section 104B" insert "made before an application under subsection (4) is made".

(3)After section 134AB(21) of the Accident Compensation Act 1985insert—

"(21A)If after a worker has failed to satisfy a court that the relevant injury is a serious injury on an application for leave to bring proceedings in accordance with sub-section (16)(b), the worker obtains under section 104B determinations that the degree of impairment of the worker is 30 percentum or more, the worker is not entitled to recover damages for the same relevant injury.".

7.Amendment to section 134AB consequential on amendments made by section 6

s. 7

After section 134AB(5) of the Accident Compensation Act 1985 insert—

"(5A)A copy of any claim under section 104B referred to in sub-section (3) and of an application under sub-section (4) must be served on each person against whom the applicant claims to have a cause of action.".

8.Amendment of section 134AB—Actions for damages

(1)In section 134AB(37) of the Accident Compensation Act 1985, after paragraph (a) of the definition of "determination date" insert—