Accident Compensation (Amendment) Act 1994

No. 50 of 1994 Section 1. Purposes 2. Commencement TABLE OF PROVISIONS PART 1 PRELIMINARY PART 2 AMENDMENT OF THE ACCIDENT COMPENSATION ACT 1985 3. Principal Act 4. Objects 5. Definitions 6. Remuneration and fringe benefits 7. New section 5c inserted 5c. Taxable value of fringe benefits 8. Pre-injury average weekly earnings 9. Independent contractors 10. Persons employed by Crown or departments 11. Places of pick-up 12. Sporting contestant 13. Objectives and functions of Authority 14. New section 20D inserted 20D. Advisory practice notes 15. Amendment of sections 22 and 25 16. Meetings of the Board 17. Directors 18. WorkCover Advisory Committee 19. WorkCover Authority Fund 20. Contributions 21. New section 34A inserted 34A. Operating and financial report 22. Repeal of sections 37 and 37A 23. Amendment of section 41 24. Amendment of section 42B 25. Evidence 26. Section 49 substituted 49. Certain proceedings subject to conciliation 27. Section 50 costs 28. Definition of "dispute" 29. Lodging of disputes 30. New section 58A inserted 58A. Protection of Conciliation Officers and legal practitioners 31. Procedures and powers 32. Amendment of section 67 1003

33. Amendment of section 83 34. New section 84A inserted 84A. Interstate arrangements 35. Miscellaneous amendments 36. Repeal of section 91 37. County Court to determine compensation for death 38. Amendment of sections 93A and 93D 39. New section 93DA inserted 93DA. Notional earnings 40. Amendment of section 97 41. Industrial deafness 42. Amendment of section 98A 43. New section 98B inserted 98B. Proceedings under section 98 or 98A 44. Amendment of section 99 45. Amendment of section 99AA 46. Section 99AC substituted 99AC. Part to prevail 47. Costs 48. Amendment of section 99A 49. Amendment of section 99B 50. Claims Management and Procedures Division 3 Claims Management and Procedures 101. Employer to keep register of injuries etc. 102. Notice of injury 103. Claim for compensation 104. Claims for compensation under sections 98 and 98A 105. Medical certificate 106. Lodging of claims with Authority or authorised insurer in certain circumstances 107. Provision of information to claimant 108. Responsibilities of employer 109. Responsibilities of authorised insurers, self-insurers and the Authority 110. Application by worker to alter amount of weekly payments 111. Worker's capacity for work 112. Medical examinations 113. Medical certificate 114. Termination or alteration of weekly payments 114A. Reduction of weekly payments after 26 weeks incapacity 114B. Termination of weekly payments after 104 weeks incapacity 114c. Time for payment 114D. Payment of weekly payments 114E. Outstanding weekly payments 114F. Recovery of payments 1004

Division 3A Settlements 51. Consequential to Claims 52. Settlements 53. Amendment of section 122 54. Return to work 55. Amendment of section 123A 56. Liability to pay compensation 57. Amendment of section 125B 58. Section 127 substituted 127. Provisions to apply where employer does not meet liabilities 59. Amendment of section 128 60. Amendment of section 129 61. Amendment of section 129- liability 62. Amendment of Divisions 6A and 6B 63. Administration by State Trust Corporation of Victoria 64. Amendment of sections 135, 135A and 135B 65. Supreme Court limitation of jurisdiction 66. New section 137A inserted 137A. Settlement between Transport Accident Commission and the Authority 67. New section 138 substituted 138. Indemnity by third party 68. Amendment of section 139 69. Repeals 70. Amendment of sections 141 and 141A 71. Amendment of sections 142 and 142A 72. New sections 142B-142C inserted 142B. Application for approval as self-insurer by partnership 142c. Approval of partnership as self-insurer 73. Amendment of section 146 74. Amendment of section 148 75. Secrecy provision section 155 76. Part VI substituted PART VI OCCUPATIONAL REHABILITATION, RETURN TO WORK PLANS AND RISK MANAGEMENT 156. Occupational rehabilitation and risk management programs 157. Exemption from requirements of section 156 158. Contents of occupational rehabilitation program 159. Risk management program 160. Contents of return to work plan 161. Functions of return to work co-ordinator 162. Interview about employment opportunities 163. Powers of the Authority 164. Offence 77. Savings provision 78. Repeal of Part VII 79. Authority may enter into agreements 80. Amendment of sections 239 and 240 1005

81. Section 242 substituted 242. Offences 242A. Unauthorised use of information 82. Amendment of section 243 83. Amendment of sections 246-249A 84. Section 249B substituted 249B. Suspension or forfeiture of payment for services 85. Amendment of section 250 86. Amendment of section 252 87. New section 252B inserted 252B. Guidelines, forms and advisory practice notes PART 3 AMENDMENT OF ACCIDENT COMPENSATION (WORKCOVER INSURANCE) ACT 1993 88. Principal Act 89. Purpose 90. References 91. WorkCover Insurance for apprentices 92. WorkCover Insurance for work experience students 93. Rateable remuneration 94. Amendment of section 10 (1) 95. Inspection of policies 96. Licences 97. Payments out of a statutory fund 98. Claims against section 55 (2) (a) or (2) (d) employer 99. Claims against section 55 (2) (b) or (2) (c) employer 100. New sections 59A and 59B inserted 59A. Common law claim 59B. Deemed contract of insurance 101. Authority may recover amount in relation to claim 102. Amendment of section 66 103. WorkCover Insurance Premiums Order 1993/94 104. Repeal of spent provisions PART 4 AMENDMENT OF TRANSPORT ACCIDENT ACT 1986 105. Transport Accident Fund 106. Amendment of section 38 107. New section 38AA inserted 38AA. Settlement between Commission and Victorian WorkCover Authority 108. New section 94A inserted 94A. Settlement between Commission and Victorian WorkCover Authority PART 5 AMENDMENT OF WORKERS COMPENSATION ACT 1958 109. Principal Act 110. Amendment of Transitional provisions 111. Amendment of definitions 112. References to WorkCover Authority Fund 1006

113. Amendment of section 9 114. The Clauses Referred To 115. Spent provisions 116. References to Tribunal 117. Definition 118. Administration 119. Enforcement of awards 120. Amendment of section 67 121. References to Commission 122. Payments out of Fund 123. Use of Fund money PART 6 AMENDMENT OF OTHER ACTS 124. Amendment of Corrections Act 1986 110. Accident compensation 125. Amendment of Education Act 1958 126. Amendment of Emergency Management Act 1986 127. Amendment of Juries Act 1967 128. Amendment of Police Assistance Compensation Act 1968 129. Amendment of Victoria State Emergency Service Act 1987 1007

Victoria No. 50 of 1994 Accident Compensation (Amendment) Act 1994 [Assented to 15 June 1994] The Parliament of Victoria enacts as follows: PART 1 PRELIMINARY 1. Purposes The purposes of this Act are (a) to amend the Accident Compensation Act 1985 (i) to revise claims management and procedures; and (ii) to make further provision for occupational rehabilitation, return to work plans and risk management; and 1009

Act No. 5011994 (iii) to further enhance the operation of WorkCover; and (iv) to facilitate greater harmonization between WorkCover and workers compensation schemes in other States and Territories; and (b) to make miscellaneous amendments to the Workers Compensation Act 1958, the Accident Compensation (WorkCover Insurance) Act 1993, Transport Accident Act 1986 and the Corrections Act 1986; and (c) to make consequential amendments to certain other Acts. 2. Commencement (1) Part 1 and sections 13,15,16,17,18,19, 30, 35, 36, 48, 49, 64 (2), 64 (4), 64 (5) to 64 (11), 65 and 107 come into operation on the day on which this Act receives the Royal Assent. (2) The following sections are deemed to have come into operation as follows (a) sections 64 (1) and 64 (3) on 30 November 1992; (b) sections 5 (10), 5 (11), 32 (1), 33 (1), 42, 60, 67 and 106 on 1 December 1992; (c) sections 89,90 (1) and 90 (2) on 1 June 1993; (d) sections 5 (1), 5 (7), 5 (12), 9 (a), 9 (b), 52, 57, 61, 62 (1) to 62 (9), 92 (2) and 92 (3) at 4 p.m. on 30 June 1993; (<?) sections 41 (1), 41 (2) and 41 (4) on 1 April 1994. (3) Sections 76 and 77 come into operation on 1 July 1994. (4) Subject to sub-section (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision referred to in sub-section (4) (other than section 34) does not come into operation within 1010

Act No. 5011994 s.3 the period of 6 months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period. (6) In sections 63 (4) and 118 (4) "appointed day" means a day specified by a proclamation published in the Government Gazette. PART 2 AMENDMENT OF THE ACCIDENT COMPENSATION ACT 1985 3. Principal Act NO. 10191. Reprinted In this Part, the Accident Compensation Act 1985 is jj g m called the Principal Act. 4. Objects 5. Definitions In section 3 (b) of the Principal Act, before "rehabilitation" insert "occupational". (1) In section 5 (1) of the Principal Act, after the definition of "authorised agent" insert ' "authorised insurer" means an insurer who is the holder of a licence under Part 3 of the Accident Compensation (WorkCover Insurance) Act 1993;'. (2) In section 5 (1) of the Principal Act, after the definition of "injury" insert ' "interest at the prescribed rate" means interest at the rate fixed for the time being under section 2 of the Penalty Interest Rates Act 1983;'. (3) In section 5 (1) of the Principal Act, in the definition of "medical question" after paragraph (b) insert "(pa) if paragraph (b) does not apply, a question whether a worker's employment could possibly have been a contributing factor to an injury or 1011

s. 5 Act No. 5011994 alleged injury, or to a similar injury; other than a question whether the worker's employment was in fact such a contributing factor; or". (4) In section 5 (1) of the Principal Act, in paragraph (e) of the definition of "medical service", after "Authority" (wherever occurring) insert "or authorised insurer"... (5) In section 5 (1) of the Principal Act, for the definition of "occupational rehabilitation program" substitute '"occupational rehabilitation program" means an occupational rehabilitation program under Part VI;'. (6) In section 5 (1) of the Principal Act, in the definition of "occupational rehabilitation service" (a) in paragraph (/) before "rehabilitation" insert "occupational"; (b) in paragraph (k) for "rehabilitation plan" substitute "return to work plan". (7) In section 5 (1) of the Principal Act, in the definition of "remuneration" for paragraph (/) substitute "(/) remuneration that does not exceed the exemption limit within the meaning of section 3 (1) of the Accident Compensation (WorkCover Insurance) Act 1993 until it exceeds the exemption limit;". (8) In section 5 (1) of the Principal Act, after the definition of "retirement age" insert ' "return to work plan" means a return to work plan under Part VI; "risk management program" means a risk management program under Part VI;'. (9) In section 5 (1) of the Principal Act, for paragraph (e) of the definition of "suitable employment", substitute "(e) the worker's return to work plan, if any; 1012

Act No. 50/1994 s.6 (/) if any occupational rehabilitation services are being provided to or for the worker;". (10) In section 5 (1) of the Principal Act, in the definition of "weekly payment", for "or 93B" substitute ", 93B or 93c". (11) In section 5 (1A) of the Principal Act, for "83 (2)" substitute "83 other than sub-section (1) (a)". (12) In section 5 (13) of the Principal Act (a) after "section 196" insert "of this Act or section 67 of the Accident Compensation (WorkCover Insurance) Act 1993"; (b) for "they were paid" substitute "it was paid". 6. Remuneration and fringe benefits (1) In section 5 (1) of the Principal Act (a) after the definition of "financial year" insert "fringe benefit" has the same meaning as in the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth but does not include anything that is prescribed by the regulations not to be a fringe benefit for the purposes of this definition;"; (b) in the definition of "remuneration" (i) for ", allowances or other benefits" (where first occurring) substitute "or allowances"; (ii) in paragraph (e) for ", allowances or other benefits" substitute "or allowances"; (iii) paragraphs (g) and (k) are repealed; (2) In section 5 of the Principal Act, for sub-section (9) substitute "(9) For the purposes of this Act, a reference to remuneration includes a reference to fringe benefits, but does not include benefits that are exempt benefits for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth, even though those exempt 1013

s.7 Act No. 5011994 benefits would, apart from this sub-section, be treated as remuneration for the purposes of this Act.". (3) In sections 5 (11) and 5 (14) of the Principal Act for ", allowances or other benefits" substitute "or allowances". 7. New section 5c inserted After section 5B of the Principal Act insert "5c. Taxable value of fringe benefits For the purposes of this Act, the value of remuneration, comprising a fringe benefit, is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.". 8. Pre-injury average weekly earnings (1) In section 5A (8) of the Principal Act, for "80 percent of $506" substitute "calculated as if the worker's pre-injury average weekly earnings were $603". (2) In section 5A (9) (b) (ii) of the Principal Act for "$506" substitute "$603". 9. Independent contractors In section 9 of the Principal Act (a) in sub-section (1) (c), after "section 196" insert "of this Act or section 67 of the Accident Compensation (WorkCover Insurance) Act 1993"; (b) in sub-section (1) after "Authority" (where last occurring) insert "or authorised insurer"; (c) after sub-section (1) (/) insert ";or 1014

Act No. 5011994 s.10 (g) has supplied to that person services for or in relation to the door to door sale of goods or of services ancillary to the sale of those goods on behalf of that person unless the Authority or authorised insurer determines that the contract or arrangement under which the services are so supplied was entered into with an intention, either directly or indirectly, of avoiding or evading the payment of a premium by any person."; (d) in sub-section (6) omit "and" at the end of paragraph (c); (e) in sub-section (6) after paragraph (d) insert "; and (e) a reference to the door to door sale of goods or of services ancillary to the sale of those goods is a reference to the entering into of an agreement or the making of an offer for the sale of those goods or services to the end user, or the taking or soliciting of an order for the purchase of those goods or services by the end user at a place other than a place of business where goods or services of that kind are normally offered or displayed for retail sale.". 10. Persons employed by Crown or departments (1) In section 14 (1) of the Principal Act, for "administrative unit" substitute "department". (2) In section 14 (3) of the Principal Act after "body" (where first occurring) insert "(other than a municipal council)". 11. Places of pick-up In section 15 of the Principal Act omit "or while travelling thereto from a place of residence, or (where 1015

s.12 Act No. 5011994 the person fails to be so selected) while travelling from such place of pick-up to a place of residence". 12. Sporting contestant In section 16 (1) of the Principal Act, after "employer" (where secondly occurring) insert "or self-insurer". 13. Objectives and functions ofauthority (1) In section 19 of the Principal Act (a) in paragraph (b) after "this Act," insert "the Accident Compensation (WorkCover Insurance) Act 1993,"; (b) in paragraph (d) before "rehabilitation" insert "occupational"; (c) omit "and" at the end of paragraph (e). (2) In section 20 (1) of the Principal Act, for paragraphs (b) and (c) substitute "(b) license and regulate authorised insurers; (ba) administer the Uninsured Employers and Indemnity Scheme under the Accident Compensation (WorkCover Insurance) Act 1993; (c) regulate and make recommendations to the Minister in relation to self-insurers;". (3) In section 20 of the Principal Act (a) in sub-section (1), for paragraph (/) substitute "(/) provide insurance and re-insurance for the purposes of the Accident Compensation (WorkCover Insurance) Act 1993"; (b) in sub-section (1) (p), after "employers," insert "authorised insurers,"; (c) in sub-section (2) (b), before "rehabilitation" insert "occupational"; 1016

Act No. 5011994 s.14 (d) in sub-section (2) (d), after "administration of this Act" insert "or of the Accident Compensation (WorkCover Insurance) Act 1993 and the Workers Compensation Act 1958". (4) In section 21 of the Principal Act (a) in sub-section (1) after "this Act" insert "or any other Act"; (b) sub-section (2) is repealed. 14. New section 20D inserted After section 20c of the Principal Act insert "20D. Advisory practice notes 15. Amendment of sections 22 and 25 The Authority may issue advisory practice notes for the purposes of improving the management of claims and assisting in the prevention of injuries and the return to work of injured workers within the WorkCover system generally.". (1) For section 22 (2) of the Principal Act substitute "(2) The Authority may employ any persons necessary to enable the Authority to perform its objectives and functions and exercise its powers.". (2) For section 22 (5) of the Principal Act substitute "(5) An employee of the Authority (including a person appointed as casual staff or a consultant) is not subject to any action, liability, claim or demand for any matter or thing done or omitted to be done or contract entered into by the Authority if the matter or thing is done or omitted to be done or the contract is entered into in good faith for the purposes of performing a 1017

s.16 Act No. 5011994 duty or carrying out a power or function of the Authority under this or any other Act.". (3) In section 25 (4) of the Principal Act for "is be" substitute "is". 16. Meetings of the Board (1) In section 28 (1) of the Principal Act for "once in each month" substitute "10 times in each calendar year". (2) After section 28 (1) of the Principal Act insert "(1A) The Board may transact any of its business at a meeting at which the Directors or any of the Directors participate by telephone, closedcircuit television or in any other similar way.". 17. Directors For sections 29 (3) and 29 (4) of the Principal Act substitute "(3) The Public Sector Management Act 1992 (including Part 9) does not apply to a Director in respect of the office of Director. (4) A Director is not subject to any action, liability, claim or demand for any matter or thing done or omitted to be done or contract entered into by the Authority if the matter or thing is done or omitted to be done or the contract is entered into in good faith for the purposes of performing a duty or carrying out a power or function of the Authority under this Act or any other Act.". 18. WorkCover Advisory Committee In section 31A of the Principal Act (a) in sub-section (1) (c), before "rehabilitation" insert "occupational"; (b) in sub-section (2) (e), for "accident" substitute "occupational"; 1018

Act No. 5011994 s.19 (c) in sub-section (3) (b) (i), after "Act" insert "or the Accident Compensation (WorkCover Insurance) Act 1993". 19. WorkCover Authority Fund In section 32 of the Principal Act 20. Contributions (a) in sub-section (2), for "(b)" (where secondly occurring) substitute "(pa)"', (b) in sub-section (3) (b), for "or any other Act" substitute ", the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958"; (c) in sub-section (3) (/), before "rehabilitation" insert "occupational". In section 33A of the Principal Act (a) in sub-section (1), after "leviable remuneration" insert "or rateable remuneration within the meaning of section 3 (1) of the Accident Compensation (WorkCover Insurance) Act 1993"; (b) for sub-section (2) (a) substitute "(a) is payable on 1 August, 1 November, 1 February and 1 May in each year; and"; (c) in sub-section (3), for "penalty rate" substitute "rate"; (d) in sub-section (7), after "Part III" insert "or in meeting any liability incurred under section 151". 21. New section 34A inserted After section 34 of the Principal Act insert 1019

s.22 Act No. 5011994 "34A. Operating andfinancialreport (1) The Authority must as soon as possible after 31 December but not later than 28 February submit to the Minister an operating and financial report. (2) The operating and financial report must be in a form and contain such matters as may be required by the Minister. (3) The Authority must ensure that the operating and financial report is publicly available within 14 days after it is submitted to the Minister.". 22. Repeal of sections 37 and 37A (1) Sections 37 and 37A of the Principal Act are repealed. (2) In sections 38 and 38A of the Principal Act omit", 37 or 37A" (wherever occurring). (3) In section 38B (1) of the Principal Act omit "or 37". 23. Amendment of section 41 In section 41 of the Principal Act, after "99B" insert "or Part VI". 24. Amendment of section 42B For section 42B (2) of the Principal Act substitute "(2) For the purposes of this section any judge of the County Court may act as a member of the Accident Compensation Tribunal. (2A) The Accident Compensation Tribunal continues in existence for the purposes of determining any matter arising after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992 in any proceedings to which this section applies. 1020

Act No. 5011994 s.25 (2B) This section as amended by section 24 of the Accident Compensation (Amendment) Act ' ' : ' 1994 applies to any application which is lodged 1 in the County Court or Magistrates' Court on or after the commencement of that section.". 25. Evidence (1) In section 44 of the Principal Act, for sub-section (3) substitute "(3) Evidence given before the County Court must ' \ ' not be used in any civil or criminal proceedings in any court or tribunal other than proceedings (a) for an offence against this Act, the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958; (b) for fraud; * * (c) for making false statements or for perjury.". (2) In section 44 (4) of the Principal Act, for "given" substitute "give". (3) In section 47 (4) of the Principal Act, after "practitioner" insert "or registered psychologist". 26. Section 49 substituted For section 49 of the Principal Act substitute "49. Certain proceedings subject to conciliation Proceedings, other than proceedings which relate solely to a claim under section 92, 98 or 98A, must not be commenced in the County Court or Magistrates' Court (a) unless the dispute between the. parties has been referred to conciliation under Division 2 of Part III; and 1021

s.27 Act No. 5011994 27. Section 50 costs (b) until the earlier of (i) the issue of a certificate by a Conciliation Officer stating that all action in respect of the conciliation of the dispute has been taken; or (ii) the expiry of 28 days after the referral to conciliation.". After section 50 (2) of the Principal Act insert "(2A) Notwithstanding anything to the contrary in any court rules, in proceedings before the County Court under this Act which relate to a claim under section 98 or 98A, where a judgment or order is made by the County Court for the payment of an amount of compensation (a) that is not greater than the amount of the final offer under section 98B the County Court must order that the costs of the Authority, authorised insurer, employer or self-insurer must be paid by the worker and the County Court must not make an order for the payment of the costs of the worker by the Authority, authorised insurer, employer or self-insurer; (b) that is greater than the amount of the final offer under section 98B the County Court must order that the costs of the worker must be paid by the Authority, authorised insurer, employer or self-insurer.". 28. Definition of "dispute" In section 53 of the Principal Act for the definition of "dispute" substitute '"dispute" means a dispute in connection with a claim for compensation between the person who 1022

ActNo. 5011994 s.29 makes or has made the claim and any one or more of the following (a) the employer (not being a self-insurer or a subsidiary of a self-insurer) of the relevant worker; (b) where the compensation is or may be payable by an authorised insurer, that authorised insurer; (c) the Authority or the Authority's agent in the case of a claim lodged under Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993; (d) where the compensation is or may be payable by a self-insurer, that self-insurer.'. 29. Lodging of disputes (1) After section 55 (2) of the Principal Act insert "(2A) A referral must be signed or sealed personally by the party making the application unless the Senior Conciliation Officer is satisfied that there are special circumstances preventing the party from personally doing so.". (2) For section 55 (4) of the Principal Act substitute "(4) Within 7 days after receiving a referral for conciliation, the Senior Conciliation Officer must issue a certificate to the worker or claimant and the employer (a) acknowledging receipt of the referral; and (b) specifying the date for the purposes of section 49 (b) (ii).". 30. New section 58A inserted After section 58 of the Principal Act insert 1023

s.31 Act No. 5011994 "58A. Protection of Conciliation Officers and legal practitioners 31. Procedures and powers (1) A Conciliation Officer has in the performance of his or her duties as a Conciliation Officer the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. (2) A legal practitioner appearing at a conciliation conference on behalf of a party in accordance with section 56 (4) has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.". (1) In section 65 of the Principal Act, for sub-section (3) substitute "(3) Information given to a Panel cannot be used in any civil or criminal proceedings in any court or tribunal, other than proceedings (a) before the County Court, the Magistrates' Court or the Administrative Appeals Tribunal under this Act or the Workers Compensation Act 1958; (b) for an offence against this Act or the Accident Compensation (WorkCover Insurance) Act 1993 or the Workers Compensation Act 1958; (c) for fraud; (d) for making false statements or for perjury.". (2) In section 65 (6) of the Principal Act, omit "or" at the end of paragraph (a). 32. Amendment of section 67 (1) In section 67 (1) of the Principal Act after "medical question" insert "in respect of injuries arising out of, 1024

Act No. 5011994 s.33 or in the course of or due to the nature of employment before, on or after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992". (2) In section 67 (4) of the Principal Act for ", or hindered," substitute "or in any way hindered". 33. Amendment of section 83 (1) In section 83 (1) of the Principal Act after "employment" (where first occurring) insert "for the purposes of section 82 (1) and 82 (2)". (2) In section 83 (1) (c) of the Principal Act, for "training school" substitute "training". (3) In section 83 (2) of the Principal Act for "with employer's" substitute "with the employer's". 34. New section 84A inserted After section 84 of the Principal Act insert "84A. Interstate arrangements 941398 33 1025 (1) If- (a) an injury is caused to or suffered by a worker in another State or in a Territory in circumstances which, had the injury occurred in Victoria, would have entitled the worker, or the worker's dependants to compensation under this Act; and (b) the worker's principal place of employment, at the time of the injury, was in Victoria the worker or, in the case of the death of the worker, the worker's dependants, are entitled to compensation under this Act as if the injury had occurred in Victoria.

s.34 Act No. 5011994 (2) If- (a) an injury is caused to or suffered by a worker in Victoria; and. (b) at the time of the injury, the worker's principal place of employment was in another State or Territory the worker is not or, in the case of the death of the worker, the worker's dependants are not, entitled to compensation under this Act in respect of the injury. (3) For the purposes of this section, a worker's principal place of employment is in a particular State or Territory (a) if the worker usually carries out his or her work in that State or Territory; or (b) where the worker does not usually carry out his or her work only in one State or Territory but usually carries it out in more than one State or Territory, if the employer's principal place of business in Australia is in the first-mentioned State or Territory. (4) For the purpose of determining the question whether a worker usually carries out his or her work in a particular State or Territory (a) regard shall be had to the worker's work history and the intention of the worker and employer; (b) regard shall not be had to any temporary arrangement under which the worker works in a particular State or Territory only for a continuous period not exceeding 6 months.". 1026

Act No. 5011994 s.35 35. Miscellaneous amendments (1) In section 85 (7) of the Principal Act, for "the Tribunal" substitute "a court of competent jurisdiction". (2) In section 86 (a) of the Principal Act, omit "and if employment of that nature was a significant contributing factor". (3) In section 88 (3) of the Principal Act for "Unless the" substitute "Unless". (4) In section 90 (4) of the Principal Act for "the Authority" substitute "Authority". 36. Repeal of section 91 Section 91 of the Principal Act is repealed. 37. County Court to determine compensation for death (1) In section 92 (1), (3), (4), (6) and (7) of the Principal Act, for "Authority, authorised insurer or self-insurer" substitute "County Court". (2) The Principal Act as amended by sub-section (1) applies to determinations made after the commencement of this section. 38. Amendment of sections 93A and 93D (1) In section 93A (3) of the Principal Act (a) in paragraph (a) (i) for "occupational rehabilitation program" substitute "a return to work plan"; (b) in paragraph (a) (iii), after "employer" insert "or self-insurer"; (c) in paragraph (b) (i) for "occupational rehabilitation program" substitute "a return to work plan"; (d) in paragraph (b) (ii), after "insurer" insert "or with the self-insurer (as the case may be)"; 1027

s.38 Act No. 5011994 (e) in paragraph (b) (iv), after "required by" insert "the employer or self-insurer or". (2) In section 93B (1) (c) of the Principal Act before "the worker's notional earnings" (where twice occurring) insert "60 percent of. (3) In section 93B (2) of the Principal Act (a) in paragraph (a) (i), after "employer" insert "or self-insurer"; (b) in paragraph (a) (ii), for "rehabilitation program or vocational re-education to enable the worker to return to work in suitable employment at some time in the future" substitute "occupational rehabilitation service or return to work plan"; (c) in paragraph (b), for (ii) (where first occurring) substitute "(i)" and for "occupational rehabilitation program" substitute "a return to work plan"; (d) in paragraph (b) (iii), after "insurer" insert "or self-insurer"; (e) in paragraph (c) (i), for "occupational rehabilitation program" substitute "a return to work plan"; (/) in paragraph (c) (ii), after "insurer" insert "or with the self-insurer (as the case may be)". (4) In section 93D of the Principal Act (a) in sub-section (1) for paragraph (d) substitute "(d) the worker is waiting for the commencement of an occupational rehabilitation service or return to work plan, after approval has been given."; (b) in sub-section (2) for paragraph (d) substitute "(d) has refused or failed to participate in an occupational rehabilitation service or return to work plan."; (c) in sub-section (3) for "rehabilitation plan" substitute "return to work plan". 1028

Act No. 5011994 s.39 39. New section 93DA inserted After section 93D of the Principal Act insert '93DA. Notional earnings 40. Amendment of section 97 For the purposes of assessing the notional earnings of a partially incapacitated worker, in the calculation of that worker's weekly payments any notional earnings of the worker within the meaning of paragraph (b) of the definition of "notional earnings" in section 5 (1) are not to be taken into account during any period or periods not exceeding in total 104 weeks during which the worker is incapacitated for work and in which any of the following circumstances apply (a) the employer has failed to provide the worker with suitable employment and the worker is complying with the requirements of section 93A or 93B relating to returning to work in suitable employment; (b) the worker is participating in an occupational rehabilitation service or return to work plan.'. (1) In section 97 (1) (b) of the Principal Act for "sustenation" substitute "sustentation". (2) For section 97 (2) of the Principal Act substitute "(2) If a worker who is receiving weekly payments ceases to reside in Australia, his or her entitlement to weekly payments ceases unless the worker has before leaving Australia satisfied the Authority, authorised insurer or self-insurer 1029

s.41 Act No. 5011994 that the worker has a serious injury or is totally and permanently incapacitated or both. (2A) If a worker who is receiving weekly payments is temporarily absent from Australia, his or her entitlement to weekly payments is limited to a maximum aggregate period of 28 days in respect of any certificate or certificates provided by a medical practitioner outside Australia unless the Authority, authorised insurer or self-insurer is satisfied that there are special circumstances which justify the extension of that period for a further period as is specified in the certificate.". (3) In section 97 (3) of the Principal Act for "decides under sub-section (2) that the incapacity is likely to be of a permanent nature" substitute "is satified that the worker has a serious injury or is totally and permanently incapacitated or both". 41. Industrial deafness (1) In section 98 of the Principal Act, in the Table (a) omit "Total loss of the hearing of one ear 20"; (b) for "Partial loss of the hearing of both ears or of an only ear" substitute "Partial loss of hearing"; (c) for "percentage of the diminution of hearing measured without any hearing aid" (where first occurring) substitute "percentage (being not less than 7) of the diminution of hearing"; (d) omit "Partial loss of the hearing of one ear"; (e) omit the passage beginning "Such percentage" and ending "hearing aid" (where last occurring). (2) After section 98 (2) of the Principal Act insert "(2AA) Compensation is not payable under this section for a loss of hearing unless the percentage of the diminution of hearing is at least 7.". 1030

Act No. 5011994 s.42 (3) In section 98 of the Principal Act, for sub-sections (2AA) and (2A) substitute "(2AA) Compensation is not payable under this section for a loss of hearing unless the percentage of the diminution of hearing determined in accordance with sub-section (2AB) is at least 7. (2A) If compensation is payable under this section for a loss of hearing, the percentage of the maximum amount payable for total loss is the percentage of the diminution of hearing determined in accordance with sub-section (2AB). (2AB) For the purposes of this section, the percentage of diminution of hearing (a) shall be determined (i) by a person or class of persons approved; and (ii) in the manner approved by the Minister on the recommendation of the convenor of the Medical Panels; and (b) shall be determined in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition or a later prescribed edition) published by the National Acoustic Laboratory.". (4) Section 98 of the Principal Act as amended by sub-sections (1) and (2) applies in respect of claims for compensation made on or after 1 April 1994. (5) Section 98 of the Principal Act as amended by sub-section (3) applies in respect of claims for compensation made on or after commencement of this sub-section. 42. Amendment of section 98A In section 98A of the Principal Act 1031

s.43 Act No. 5011994 (a) in sub-section (1) (i) for "a loss" substitute "an injury"; (ii) for "losses as a result of the same injury" substitute "injuries on the same occasion"; (iii) for "loss or all those losses" substitute "injury or all those injuries"; (b) in sub-section (2) for "loss or all those losses" substitute "injury or all those injuries"; (c) in sub-section (3) for "loss or losses" substitute "injury or injuries"; (d) in sub-section (5) for "loss" substitute "injury". 43. New section 98B inserted After section 98A of the Principal Act insert "98B. Proceedings under section 98 or 98A (1) Notwithstanding anything to the contrary in this Act, a party must not commence proceedings relating to a claim under section 98 or 98A (a) unless the claim has been dealt with in accordance with section 104; and (b) until the Authority, authorised insurer or self-insurer has made a final offer in settlement or compromise of the claim or a final offer is deemed to have been made. (2) The Authority, authorised insurer or self-insurer must make a final offer in settlement or compromise of the claim within 14 days of receiving the opinion of the Medical Panel under section 104. (3) A final offer must be consistent with the opinion of the Medical Panel. (4) If the Authority, authorised insurer or self-insurer fails to comply with 1032

Act No. 5011994 s.44 sub-section (2), a final offer of nothing is deemed to have been made.". 44. Amendment of section 99 (1) In section 99 of the Principal Act, in sub-sections (11) and (12) for "the Authority or authorised insurer or self-insurer otherwise determines" substitute "sub-section (14) applies". (2) After section 99 (13) of the Principal Act insert "(14) Compensation under this section does not cease if (a) the worker has returned to work but (i) could not remain at work if a service under sub-section (1) was not provided; or (ii) surgery is required for the worker; or (iii) the worker has a serious injury within the meaning of section 93B (5); or (b) the worker requires modification of a prosthesis; or (c) the service provided under sub-section (1) is essential to ensuring that the worker's health or lifestyle does not significantly deteriorate.". (3) In section 99 (13) of the Principal Act after "If insert "a". 45. Amendment of section 99AA (1) In section 99AA (1) of the Principal Act for "if the decision has not been referred for conciliation" substitute «(a) unless the dispute between the parties has been referred to conciliation under Division 2 of Part Ill; and 1033

s.46 Act No. 5011994 (b) until the earlier of (i) the issue of a certificate by a Conciliation Officer stating that all action in respect of the conciliation of the dispute has been taken; or (ii) the expiry of 28 days after the referral to conciliation.". (2) Section 99AA (5) of the Principal Act is repealed. 46. Section 99AC substituted For section 99AC of the Principal Act substitute "99AC. Part to prevail (1) Where the Administrative Appeals Tribunal exercises jurisdiction under this Part, section 35 of the Administrative Appeals Tribunal Act 1984 applies as if-^ (a) in sub-section (2) for "at or in connexion with the hearing of a proceeding" there were substituted "in connection with, or at the hearing of a proceeding"; (b) in sub-sections (3) and (4) "the hearing of (where occurring) was omitted. (2) If a provision of the Administrative Appeals Tribunal Act 1984 is inconsistent with this Part, this Part prevails.". 47. Costs In section 99AD of the Principal Act, for paragraph (a) and the words preceding paragraph (a) substitute 1034

Act No. 5011994 s.48 "In proceedings before the Administrative Appeals Tribunal under this Act or the Workers Compensation Act 1958, being proceedings brought by a person other than the Authority, authorised insurer, employer or self-insurer, the Tribunal (a) must award costs, including costs directly relating to a referral to conciliation (other than the costs of the Authority, authorised insurer, employer or a self-insurer), against the person against whom a determination or decision is made; and". 48. Amendment of section 99A In section 99A of the Principal Act, after "Authority" (where twice occurring) insert ", authorised insurer, employer". 49. Amendment of section 99B In section 99B (4) of the Principal Act, after "County Court" insert "or Administrative Appeals Tribunal". 50. Claims Management and Procedures In Part IV of the Principal Act for Division 3 (other than sections 115 and 115A) substitute 'Division 3 Claims Management and Procedures 101. Employer to keep register of injuries etc. (I) The employer must cause to be kept at each workplace of a kind specified by the Authority at a place readily accessible at all reasonable times to a worker employed in the workplace a summary in a form approved by the Authority of 1035

s.50 Act No. 5011994 (a) the requirements relating to the giving of notice of an injury and the making of a claim under this Act; and (b) the name of the employer's authorised insurer; and (c) the benefits available to workers under this Act. (2) The employer must cause to be kept a register of injuries in a form approved by the Authority at each workplace of a kind specified by the Authority at a place readily accessible at all reasonable times to a worker employed in the work place or any person acting on a worker's behalf. (3) A worker or any person acting on the worker's behalf may enter such particulars of injury as are specified by the Authority in the register of injuries. (4) On receiving notice of an injury (otherwise than as specified in section 102 (3)) an employer must cause the specified particulars of the injury to be entered in the register. 102. Notice of injury (1) Notice of an injury that may entitle a person to compensation under this Act must be given by the person, or by another person on his or her behalf, to the employer as soon as practicable after the person or other person becomes aware of the injury. (2) Notice of an injury must (a) be given in a manner and form approved by the Authority; and 1036

Act No. 5011994 s.50 (b) include such particulars as are required by the Authority. (3) Notice of an injury is deemed to have been given to an employer if (a) the particulars of the injury as required under section 101 (3) are entered in the register of injuries as soon as practicable after the person making the entry becomes aware of the injury; or (b) a claim for compensation in respect of the injury is given to or served on the employer. (4) A person is not entitled to recover compensation under this Act unless notice of the injury has been given to the employer. 103. Claim for compensation (1) A claim for compensation must (a) be in a form approved by the Authority in respect of that type or class of claim; and (b) unless the claim is for compensation under section 92, 98, 98A or 99, be accompanied by a certificate under section 105; and (c) subject to section 106 and Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993, be given to or served on the employer; and (d) include an authority signed by the claimant authorising a provider of a medical service or hospital service to the claimant in connection with the injury to which the claim relates to give the Authority, authorised 1037

Act No. 50/1994 insurer, self-insurer, employer or Conciliation Officer information regarding the service relevant to the claim. (2) A claim for compensation which contains a material defect, omission or irregularity is deemed not to have been made if within 14 days of the claim being given, served or lodged the claim is returned to the claimant with a notice under sub-section (3). (3) The notice must (a) specify in detail all material defects, omissions and irregularities that have been identified in the claim; and (b) state that any period within which the claim is to be dealt with does not commence until a claim for compensation is given, served or lodged which does not contain the specified material defects, omissions and irregularities. (4) If a claim for compensation and a certificate under section 105 are not given or served at the same time, the claim for compensation is deemed not to have been made until the day on which the remaining document is given to or served on the employer. (5) If- (a) a claim for compensation is made in respect of an injury to a worker arising out of or in the course of, or due to the nature of, employment with a particular employer; and 1038

Act No. 5011994 s.50 (b) the claim is made after the worker ceases to be employed by that employer the claim is deemed not to have been made unless the claimant satisfies the Authority, authorised insurer or self-insurer that he or she could not reasonably have made the claim while employed by that employer. (6) If a claim for compensation relates to an injury resulting from an accident involving a motor vehicle within the meaning of the Road Safety Act 1986 the claim is deemed not to have been made unless a report of the accident has been made to a member of the police force, whether under section 61 of the Road Safety Act 1986 or otherwise. (7) Subject to sub-section (8), a claim for compensation must be given, served or lodged under this section or section 106 or Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993 (a) in the case of a claim for weekly payments, as soon as practicable after the incapacity arising from the injury becomes known; (b) in the case of a claim for compensation under section 92, within the period of 2 years after ' the date of the death of the relevant worker; (c) in the case of a claim for compensation under section 98A, at the same time as the claim for compensation under section 98 in respect of the same injury is given, served or lodged; 1039

s.50 Act No. 5011994 (d) in the case of a claim for compensation under section 99, within 6 months after the date of the relevant service. (8) If the Authority, authorised insurer or self-insurer is satisfied that a person making a claim for compensation had a special excuse for not making the claim within the relevant applicable time limit, the Authority, authorised insurer or self-insurer may waive or extend the time limit to enable the claim for compensation to be made. 104. Claims for compensation under section 98 and 98A (1) In addition to the requirements under section 103, a claim for compensation under section 98 or 98A must be lodged with medical information which (a) supports the entitlement of the claimant to compensation; and (b) specifies the extent of any relevant loss, impairment, disfigurement or pain and suffering. (2) The authorised insurer, Authority, or self-insurer must accept or reject the claim and determine the extent of the entitlement to compensation and must within 60 days of receiving the claim advise the claimant of the decision. (3) If the claimant disputes the decision under sub-section (2), the claimant must not commence proceedings unless the claimant first refers the claim to a Medical Panel for an opinion as to (a) the entitlement of the claimant to compensation; and 1040

Act No. 5011994 s.50 (b) the extent of any relevant loss, impairment, disfigurement or pain and suffering. (4) Within 7 days of a claim being referred to a Medical Panel under sub-section (3), the Medical Panel must (a) notify the authorised insurer, Authority or self-insurer of the referral; and (b) require the authorised insurer, Authority or self-insurer to forward to the Medical Panel the medical information lodged with the claim and all other relevant material regarding the claim in the possession of the authorised insurer, Authority or self-insurer. (5) The Medical Panel must give its opinion in writing to the claimant and the authorised insurer, Authority or self-insurer. (6) Section 48 applies in respect of an opinion of a Medical Panel under this section. 105. Medical certificate, (1) A certificate required under section 103 (1) (b) to accompany a claim for compensation must (a) be issued by a medical practitioner; and (b) be in a form approved by the Authority; and (c) specify the expected duration of the worker's incapacity. (2) A certificate issued or purporting to have been issued under sub-section (1) is of 1041

s.50 Act No. 5011994 no effect if it contains a material defect, omission or irregularity. (3) If a certificate issued or purporting to have been issued under sub-section (1) is in respect of a period exceeding 14 days, it is of no effect after the first 14 days, unless the Authority, authorised insurer or self-insurer is satisfied that there are special reasons which require an extension of that period. (4) If a worker is unable to comply with section 103 (1) because he or she does not have a certificate as required under this section, the worker may apply to the County Court for a determination of the entitlement of the worker to compensation under this Act. 106. Lodging of claims with Authority or authorised insurer in certain circumstances (1) If a person making a claim for compensation becomes aware that the employer (a) cannot be identified; or (b) cannot be found; or (c) is dead; or (d) is a corporation that has been wound up; or (e) has not complied or is not likely to comply with section 108; or (/) is refusing to receive the claim that person must lodge the claim with the relevant authorised insurer or, if there is no relevant authorised insurer, the Authority. (2) Sub-section (1) does not apply to a claim in respect of an injury arising wholly out 1042