Accident Compensation Legislation (Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
551238
BILL LA CIRCULATION 18/11/2004
Clause Notes
PART 1—PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 is the commencement provision.
Sub-clause (1) provides that the Bill, with the exception of clauses 5, 15 to 18, 21, 23 to 31 and 45, comes into operation on the day it receives Royal Assent.
Sub-clause (2) provides that clauses 5, 15 to 18 and 23 are deemed to have come into operation on 18 November 2004, the date of second reading of the Bill.
Sub-clause (3) provides that clauses 21, 24 to 31 and 45 come into operation on a day or days to be proclaimed.
Sub-clause (4) provides that if clauses 21, 24 to 31 and 45 do not come into operation before 1 July 2005, they will come into operation on that day.
PART 2—ACCIDENT COMPENSATION ACT 1985
Division 1—Common Law Provisions
Clause 3 amends section 39(1A) of the Accident Compensation Act 1985 to provide that the County Court can not review decisions made by the Authority under sections 134AB(20A) and 135A(6B), in addition to sections 134AB(20) and 135A(6A). Where a date to issue a proceeding for a determination of serious injury or common law damages is missed, a limited right exists under sections 134AB(20), 134AB(20A), 135A(6A) and 135A(6B) to seek an indulgence from the VWA to permit the proceedings to be commenced.
The amendments are necessary to supplement the 2001 amendments which altered the sections in which the indulgence is granted but failed to add a reference to sections 134AB(20A) and 135A(6B) into section 39(1A) to exclude the County Court's jurisdiction to review the Authority's decisions under those sections.
Clause 4 amends section 104B of the Accident Compensation Act 1985 by inserting a new sub-section (1BA) to provide that if a worker has commenced an application for serious injury under section 134AB(4)(b), the worker cannot make a claim for compensation for non-economic loss under section 98C until the proceedings under section 134AB have been finally determined.
Clause 5 amends section 104B of the Accident Compensation Act 1985 by substituting a new impairment benefit process to reduce the time for workers to access common law damages. The new process is intended to ensure the level of impairment and the determination of liability are determined at the same time rather than the existing two stage process.
Sub-clause (1) inserts new sub-sections (1D) and (1E) into section 104B.
Sub-section (1D) enables the Authority or self-insurer to suspend a claim for compensation under section 98C or 98E within 90days by notice in writing to the worker where there is insufficient medical information to determine the matters specified in sub-section (2), or where a determination cannot be made under sub-section (2) because the condition of the worker's injury is not stable.
Sub-section (1E) provides that the Authority or self-insurer must, within 14 days of having sufficient medical information to make a determination or being able to make a determination because the condition of the worker's injury has stabilised, remove the suspension under sub-section (1D) by notice in writing to the worker.
Sub-clause (2) substitutes new sub-sections (2) and (2A) into section 104B.
The new sub-section (2) provides the Authority or self-insurer must within 120 days of receiving the claim—
· accept or reject liability for each injury included in the claim;
· obtain an impairment assessment under section 91 as to the degree of permanent impairment of the worker resulting from the injury for which liability is accepted;
· after taking into account the assessment under paragraph (b), determine the degree of impairment of the worker for the purposes of sections 98C, 134AB and Subdivision 1 of Division 3A;
· determine whether the worker has an injury which is a total loss as in the Table to section 98E(1);
· calculate any entitlement to compensation under section98C or 98E;
· advise the worker as to the decision whether to accept or reject liability, each of the determinations as to degree of permanent impairment and whether the worker has an injury which is a total loss, calculation of any entitlement to compensation under section 98C or 98E, and the consequences under sub-section (11A);
· provide the worker with a copy of any medical reports or correspondence provided to or obtained from any medical practitioner conducting a medical examination.
New sub-section (2A) provides that the Authority or self-insurer is not bound by the impairment assessments obtained under sub-section (2)(b) in determining the degree of permanent impairment under sub-section (2)(c).
Sub-clause (3) amends section 104B(3) to clarify that if the Authority or self-insurer rejects liability in relation to the claim that the rejection relates to injuries included in the claim.
Sub-clause (4) substitutes a new sub-section (4) into section 104B, to require a worker at the request of the Authority or self-insurer to attend an independent medical examination to be conducted by a medical practitioner referred to in section 91(1)(b) for the purposes of this section.
Sub-clause (5) substitutes a new sub-section (5) into section 104B. The new sub-section (5) requires the Authority or selfinsurer to obtain impairment assessments in accordance withsection 91 as to the degree of permanent impairment resulting from the injury for which liability is accepted or rejected for the purposes of determining entitlements to compensation under section 98C, determining the whole person impairment under section 134AB(3) and 134AB(15) and Subdivision 1 of Division 3A.
Sub-clause (6) inserts new sub-sections (5A), (5AA) and (5B) into section 104B. These new sub-sections provide that—
· a worker must include all injuries arising out of the same event or circumstance in a claim for compensation under section 98C;
· a worker can only make one claim for compensation under section 98C for injuries arising out of the same event or circumstance;
· a determination of the degree of impairment must takeinto account all impairments resulting from the injuries which entitle the worker to compensation under section 98C.
Sub-clause (7)—
· amends section 104B(5E) to replace the reference to "assessments" of impairment with a reference to "determination of impairment";
· amends section 104B(5F) to replace the reference to "injury" with a reference to "event or circumstance" and substitutes the words "determination of impairment resulting from" for the words "assessments of".
Sub-clause (8) substitutes new sub-sections (6), (6A), (6B), (7), (7A) and (7B) into section 104B.
New sub-section (6) requires the worker within 60 days of being advised that the claim has been accepted or rejected under subsection (2) advise the Authority or self-insurer in writing whether the worker accepts or rejects the decision as to liability.
New sub-section (6A) provides that if a worker disputes any part of the decision as to liability under sub-section (6) then the worker does not have to respond to any part of the advice under sub-section (2).
New sub-section (6B) provides that if a worker accepts the decision as to liability under sub-section (6), then the worker must, within 60 days of being advised that the claim has been accepted or rejected under sub-section (2), advise the Authority or self-insurer in writing—
· whether the worker accepts or disputes the determinations of impairment and total loss;
· and if the worker so accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation; and
· if the worker so accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which he or she is entitled.
New sub-section (7) provides that if the decision to reject liability by the Authority or self-insurer under sub-section (2)(a) is varied because of a court decision or an agreement between the worker and the Authority or self-insurer, then the Authority or self-insurer must within 90 days of the variation—
· determine the degree of permanent impairment for the accepted injuries;
· advise the worker of any entitlement to compensation under section 98C or 98E, including any entitlement to compensation in respect of total loss under section 98E;
· provide the worker with copies of any medical reports or correspondence provided to or obtained from any medical practitioner referred to in section 91(1)(b) conducting an independent medical examination.
New sub-section (7A) provides that the Authority or self-insurer is not bound by the impairments assessments obtained under sub-section (7)(a) in determining the degree of permanent impairment under sub-section (7)(b).
New sub-section (7B) provides that the worker must, within 60days of being advised of a variation in a decision under subsection (7), advise the Authority or self-insurer in writing of—
· whether the worker accepts or disputes the determinations of impairment and total loss;
· and if the worker so accepts the determinations of impairment and total loss, whether the worker accepts or disputes the entitlement to compensation; and
· if the worker so accepts the entitlement to compensation, whether or not the worker wishes to receive the compensation to which he or she is entitled.
Sub-clause (9) amends section 104B(8) to replace the reference to sub-section (7) in sub-section (8) with the new provisions subsection (6) or (7B) where the worker accepts each of the determinations of impairment and total loss and the entitlement to compensation under section 98C or 98E.
Sub-clause (10) substitutes a new sub-section (9) and inserts a new sub-section (9A) into section 104B.
The new sub-section (9) provides that where a worker disputes the determinations of impairment and total loss in respect of the injury or injuries claimed, the Authority or self-insurer must within 14 days of being advised by the worker refer the medical questions as to impairment assessment and total loss to a Medical Panel for its opinion.
The new sub-section (9A) provides that if a worker has suffered physical and psychiatric injuries, the worker may—
· accept or reject the determinations of impairment of both psychiatric impairment and impairment other than psychiatric impairment; or
· accept or reject either the determination of psychiatric impairment or the determination of impairment other than psychiatric impairment but cannot accept only parts of the determinations of impairment other than psychiatric impairment; and
· the Authority or self-insurer must refer medical questions relating to the disputed determinations under sub-section (9) to the Medical Panel for an opinion.
Sub-clause (11) amends section 104B(12) by replacing the reference to "an assessment" in that sub-section with a reference to "a determination".
Sub-clause (12) inserts new section (19) and (20) into section104B. These sub-sections are transitional provisions to cover workers who have lodged an impairment benefits claim as at the date of the commencement of clause 5 and who have not completed the impairment assessment process.
New sub-section (19) provides that if, at the commencement of the new impairment benefits process under clause 5, a worker has attended at least one impairment examination, the worker will be required to complete the impairment assessment process in accordance with the existing impairment assessment process prior to the commencement of clause 5.
New sub-section (20) provides that if, at the commencement of the new impairment benefits process under clause 5, a worker has lodged an impairment claim but has not attended any impairment examinations, the worker can elect to either—
· complete the impairment assessment process in accordance with the existing impairment assessment process prior to the commencement of clause 5; or
· withdraw the impairment claim.
Clause 6 amends section 134AB of the Accident Compensation Act 1985 to provide that a worker may lodge an application under section 134AB without being required to first have an impairment determination, where a worker elects to have the serious injury determination made solely in accordance with the narrative test.
Sub-clause (1) substitutes new sub-sections 134AB(3) and (4).
Sub-section 134AB(3) provides that a worker may not bring proceedings under section 134AB unless—
· The worker's degree of impairment has been assessed under section 104B and the worker has made an application under sub-section (4); or
· The worker elects to make an application under sub-section (4) on the grounds that he or she has a serious injury in accordance with the narrative test. This ability to elect is subject to any directions which may be issued by the Minister restricting the classes of cases or circumstances which may elect to make an application.
Sub-section 134AB(4) provides that a worker may only make an application in the following circumstances—
· Where sub-section 134AB(3)(a) applies, after the worker—
· Has advised the VWA or the self-insurer as required by section 104B(7) whether he or she accepts the impairment assessments; or
· Has received the advice of the VWA or the self-insurer under section 104B(10) in relation to the opinion of the Medical Panel and any entitlement of the worker; or
· Where sub-section 134AB(3)(b) applies—
· Eighteen months after the occurrence of the injury; or
· Where the worker has notified the Authority or self-insurer that he or she is withdrawing the claim from the section 104B process as he or she has not attended any impairment assessments and subsequently submits it as a new claim under section 134AB.
Sub-clause (2) provides that an impairment assessment under section 104B which assesses the degree of impairment at 30% or more, will only result in the injury being deemed a serious injury if the worker has not previously made an application for direct access to the narrative under section 134AB(4).
Sub-clause (3) inserts section 134AB(21A) which provides that a worker who proceeds through the section 134AB application based solely on the narrative test and fails to access common law damages but in a subsequent section 104B assessment of impairment is assessed as having a whole person impairment of 30% or more, that worker is not entitled to recover common law damages for the same cause of action.
Clause 7 amends section 134AB Accident Compensation Act 1985 to provide that a claim under section 104B and section 134AB(4) must be served on each person against whom the applicant claims to have a cause of action. This amendment is necessary to ensure that third parties to potential proceedings are put on notice of the matter and are not disadvantaged by the suspension of the limitations period provided for in clause 9.