Workers’ Compensation Reform Act 2004

 

Workers’ Compensation Reform Act 2004

CONTENTS

Part 1 — Preliminary

1.Short title2

2.Commencement2

Part 2 — Amendments to the Workers’ Compensation and Rehabilitation Act 1981

3.The Act amended3

4.Long title amended3

5.Section 1 amended3

6.Section 3 amended4

7.Section 4 amended4

8.Section 5 amended4

9.Section 7 amended11

10.Section 10A replaced12

10A.Working directors12

11.Section 12 amended12

12.Heading to Part III Division 1 replaced13

Division 1 — Injury: general

13.Section 22 amended13

14.Heading to Part III Division 2 replaced13

Division 2 — Discontinued regime for lump sum payments for specified injuries

15.Section 24 amended13

16.Section 24A amended14

17.Section 24B amended14

18.Section 26 amended15

19.Section 28 amended15

20.Section 31 amended15

21.Part III Division 2A inserted15

Division 2A — New regime for lump sum payments for specified injuries

31A.Application of Division15

31B.Degree of permanent impairment16

31C.Compensation for impairments mentioned in Schedule 216

31D.Schedule 2 impairment assessment17

31E.Lump sum compensation for noise induced hearing loss18

31F.Lump sum compensation for AIDS20

31G.Subsequent injuries21

31H.Election under section 31C or 31E22

31I.Effect of election23

31J.Limit on compensation of worker electing24

31K.Compensation payable before election25

22.Heading to Part III Division 3 replaced25

Division 3 — Injury: specified industrial diseases

23.Section 32 amended25

24.Section 33 amended25

25.Section 34 amended26

26.Section 35 amended26

27.Section 37 amended26

28.Section 38 amended26

29.Section 39 amended27

30.Section 40 replaced27

40.Interpretation of this Division in cases of death without prior incapacity27

31.Section 41 amended27

32.Section 43 amended28

33.Section 44 amended28

34.Section 47 amended28

35.Section 48 amended29

36.Heading to Part III Division 4 replaced29

Division 4 — Injury: specified losses of functions

37.Section 49 replaced30

49.Injury occurs when loss of function renders worker less able to earn full wages30

38.Section 53 amended30

39.Section 54 amended30

40.Section 57 amended30

41.Section 57A amended31

42.Section 57B amended32

43.Section 57BA inserted33

57BA.Notices under sections 57A and 57B33

44.Section 57C amended36

45.Section 58 amended36

46.Section 59 amended37

47.Section 60 amended38

48.Section 61 amended38

49.Section 62 amended40

50.Section 63 amended41

51.Section 64 amended41

52.Section 65 amended42

53.Section 66 amended42

54.Section 66A inserted43

66A.Additional medical examinations43

55.Section 67 amended43

56.Section 70 replaced45

70.Furnishing medical reports45

57.Section 71 amended46

58.Section 72 replaced by sections 72, 72A and 72B46

72.Suspension of payments during custody46

72A.Suspension or cessation of payments for failure to undergo medical examination47

72B.Suspension or cessation of payments for failure to participate in return to work program49

59.Section 73 amended50

60.Section 74 amended51

61.Section 75 amended51

62.Section 76 amended51

63.Section 79 amended53

64.Section 80 amended53

65.Section 83 amended53

66.Section 84AB inserted54

84AB.Employer to notify worker and WorkCover WA of intention to dismiss worker54

67.Part IIIA repealed54

68.Section 91 amended54

69.Section 92 amended55

70.Section 93 amended55

71.Heading to Part IV Division 2 Subdivision 1 inserted55

Subdivision 1 — Preliminary provisions

72.Section 93A amended56

73.Section 93B amended56

74.Heading to Part IV Division 2 Subdivision 2 inserted56

Subdivision 2 — 1993 scheme

75.Sections 93CA, 93CB and 93CC inserted57

93CA.Meaning of “AMA Guides” in this Subdivision57

93CB.Limits on application of this Subdivision57

93CC.Application of this Subdivision57

76.Section 93D amended58

77.Section 93E amended59

78.Section 93G amended59

79.Part IV Division 2 Subdivision 3 inserted59

Subdivision 3 — 2004 scheme

93H.Terms used in this Subdivision59

93I.Application of this Subdivision60

93J.No damages for noise induced hearing loss if not an injury60

93K.Restrictions on awarding, and amount of, damages60

93L.Election to retain right to seek damages63

93M.Termination day65

93N.Special evaluation if condition has not sufficiently stabilised68

93O.Employer to give worker notice of certain things69

93P.How election may affect statutory compensation70

93Q.Special provisions about HIV and AIDS71

93R.Special provisions about specified industrial diseases72

93S.Regulations74

80.Part V heading replaced75

Part V  WorkCover Western Australia Authority

81.Section 94 amended75

82.Section 95 replaced76

95.WorkCover WA’s governing body76

83.Section 96 amended78

84.Section 97 amended78

85.Section 98 amended79

86.Section 99 amended79

87.Section 100 amended79

88.Section 100A amended81

89.Section 100B inserted83

100B.Disclosure of information83

90.Section 101 amended83

91.Section 101AA inserted84

101AA.Delegation by WorkCover WA84

92.Section 102 amended84

93.Section 103A amended85

94.Section 104 amended85

95.Part V Division 1AA inserted86

Division 1AA — Personal interest

104AA.Disclosure of interests86

104AB.Exclusion of interested member86

104AC.Resolution that section 104AB inapplicable87

104AD.Quorum where section 104AB applies87

104AE.Minister may declare sections 104AB and 104AD inapplicable87

96.Part V Division 1A repealed87

97.Heading to Part V Division 3 amended88

98.Section 106 amended88

99.Section 109 amended89

100.Heading to Part V Division 4 amended89

101.Section 110 amended89

102.Section 111 amended90

103.Part VI repealed90

104.Part VII heading replaced90

Part VII  Medical assessment and assessment for specialised retraining programs

Division 1 — Medical assessment panels

105.Section 145A amended91

106.Section 145C amended91

107.Section 145D amended91

108.Section 145E amended92

109.Part VII Divisions 2, 3 and 4 inserted93

Division 2 — Assessing degree of impairment

146.Degree of impairment93

146A.Evaluation of impairment generally94

146B.Evaluation for the purposes of Part III Division 2A94

146C.Evaluation for purposes of Part IV Division 2 Subdivision 395

146D.Evaluation for the purposes of Part IXA96

146E.Evaluation for the purposes of clause 18A96

146F.Approved medical specialist97

146G.Powers of approved medical specialist98

146H.Outcome of assessment99

146I.Release of information relevant to assessment101

146J.Decisions of approved medical specialist101

Division 3 — Approved medical specialist panels

146K.Panel to be constituted102

146L.Procedures102

146M.Failure to comply with requirement of approved medical specialist panel104

146N.Assessment of impairment by approved medical specialist panel105

146O.Outcome of assessment by approved medical specialist panel105

146P.No assessment without unanimous agreement107

146Q.Remuneration107

Division 4 — WorkCover Guides

146R.WorkCover Guides107

110.Part VII Division 5 inserted108

Division 5 — Assessment for specialised retraining programs

146S.Register for panel membership108

146T.Panel to be constituted108

146U.Procedures109

146V.Assessments110

146W.Remuneration112

111.Part VIII heading amended112

112.Sections 147 to 150 repealed112

113.Section 151 amended112

114.Section 152 amended and transitional provision112

115.Section 153 amended113

116.Section 154 amended113

117.Sections 154A and 154AB inserted114

154A.Regulations for provision of information114

154AB.Special directions by Minister114

118.Part IX replaced115

Part IX  Injury management

155.Terms used in this Part115

155A.Code of practice (injury management)115

155B.Establishment of injury management systems for employer’s workers116

155C.Establishment of return to work programs for individual workers116

155D.Injury management: insurers’ obligations117

156.Approval of vocational rehabilitation providers118

156A.Vocational rehabilitation services119

156B.Arbitrators’ powers in relation to return to work programs120

157.Information about injury management matters121

157A.Early identification of injuries that require, or may require, management121

157B.Mediation and assistance123

119.Part IXA inserted123

Part IXA  Specialised retraining programs

158.Meaning of “retraining criteria”123

158A.Eligibility to participate in specialised retraining programs124

158B.Final day for recording agreed matters, referring disputed matters for determination126

158C.Disputes as to degree of permanent whole of person impairment128

158D.Disputes as to retraining criteria129

158E.Specialised retraining program agreements130

158F.WorkCover WA to direct payments in relation to specialised retraining programs131

158G.Obligations of employers, insurers133

158H.3 monthly reviews of performance, payments under specialised retraining programs134

158I.WorkCover WA may direct modification, suspension, cessation of payments under specialised retraining programs134

158J.Cessation of payments135

158K.Directions not open to challenge etc.135

158L.Other effects of participation in specialised retraining program136

120.Section 160 amended136

121.Section 162 amended137

122.Section 164 amended138

123.Section 165 amended138

124.Section 168 amended139

125.Section 171 amended139

126.Section 174 amended140

127.Section 174AA inserted141

174AA.Recovery from responsible officers of body corporate141

128.Sections 174AB and 174AC inserted142

174AB.WorkCover WA may exercise rights of employer142

174AC.WorkCover WA’s right of subrogation143

129.Part XA inserted144

Part XA  Infringement notices and modified penalties

175E.Definitions144

175F.Authorised officers144

175G.Giving of notice145

175H.Content of notice145

175I.Extension of time146

175J.Withdrawal of notice146

175K.Benefit of paying modified penalty146

175L.No admission implied by payment147

175M.Application of penalties collected147

130.Part XI replaced by Parts XI to XVIII147

Part XI  Dispute resolution

Division 1 — General

176.Exclusive jurisdiction147

177.Evidence of communication between worker and injury management officer148

Division 2 — Requirements before commencing proceeding

178.Notice of injury and claim148

179.Service of notice of injury149

180.Provision of certain documents before commencement of proceeding152

Division 3 — Proceedings before an arbitrator

181.Arbitrators to determine disputes154

182.Who is to be given a copy of an application154

183.Information exchange between parties155

184.Interim assessment and minor claims157

185.Arbitrator to attempt conciliation157

186.Arbitrator may review decision157

187.Decisions of arbitrator158

Division 4 — Practice and procedure

188.Practice and procedure, generally158

189.Relief or redress not restricted to claim159

190.Directions159

191.Dependants159

192.Arbitrator may regard illegal contracts of employment as valid160

193.Power of arbitrator to require information160

194.Arbitrator may provide documents, material and information to party161

195.Representation162

196.Arbitrator may appoint guardian163

197.Interpreters and assistants163

198.Electronic hearings and proceedings without hearings164

199.Hearings to be held in private165

200.Notice of hearings165

201.Expert or professional assistance165

202.Summoning witnesses166

203.Powers relating to witnesses166

204.Privilege against self‑incrimination166

205.Legal professional privilege in relation to medical reports167

206.Other claims of privilege168

207.Oaths and affirmations168

208.Authorising person to take evidence168

209.Dealing with things produced169

210.Referral of medical dispute for assessment169

Division 5 — Decisions

Subdivision 1 — General provisions

211.Decisions generally170

212.Conditional and ancillary orders and directions170

213.Form and content of decision and reasons170

214.Validity of decision172

215.When decision has effect172

216.Correcting mistakes172

Subdivision 2 — Particular orders

217.Order as to total liability172

218.Order relating to payment of compensation in respect of persons under legal disability or who are dependants174

Subdivision 3 — Enforcement of decisions

219.Enforcement of decisions175

Division 6 — Miscellaneous

220.Evidence not admissible in common law proceedings176

221.Payment of compensation awarded176

222.Interest before order for payment176

223.Interest after order for payment177

224.Interest on agreed payment of lump sum compensation177

225.Regulations may exclude interest178

Part XII  Interim orders and minor claims

Division 1 — Preliminary

226.Interpretation178

227.Exercise of functions under this Part178

228.Provisions of Part XI apply179

229.Arbitrator may direct that matter be dealt with under Part XI179

230.DRD Rules apply179

Division 2 — Interim payment orders

231.Application for interim payment order180

232.Orders for interim weekly payments181

233.Orders for interim payment of statutory expenses182

234.Limits on interim payment orders182

235.Effect of interim payment order183

236.Recovery of payments183

237.Revocation of interim payment order184

Division 3 — Interim suspension or reduction orders

238.Interim suspension or reduction order184

239.Effect of Part XI determination on the same matter as a matter determined under this Division185

240.Revocation of interim suspension or reduction order186

Division 4 — Expedited determination of minor claims

241.Application for determination of minor claim187

242.Limits on minor claims orders189

243.No recovery of compensation190

244.Production of documents190

Part XIII   Questions of law and appeals

245.Application of Part XI190

246.Reference of question of law to Commissioner191

247.Appeal against decision of arbitrator191

248.Commencing appeal193

249.Commissioner hearing to be held in public193

250.Effect of decision against which appeal made194

251.Commissioner may state case194

252.Indemnity as to costs194

253.Decisions of Commissioner195

254.Appeal against decision of Commissioner195

Part XIV  Offences

255.Failing to comply with decision196

256.Failing to comply with summons197

257.Failing to give evidence as required197

258.Giving false or misleading information198

259.Misbehaviour and other conduct198

260.Contempt of Commissioner199

Part XV  Costs

Division 1 — General

261.Terms used in this Part199

262.Costs to which this Part applies200

263.This Part prevails over Legal Practice Act 2003200

Division 2 — Costs of parties in proceedings and costs of proceedings

264.Costs to be determined by dispute resolution authority201

265.Costs unreasonably incurred by representative202

266.Agent’s costs202

267.Appeal costs203

268.Regulations for assessment of costs203

Division 3 — Maximum costs

269.Costs Committee204

270.Constitution and procedure of Costs Committee204

271.Costs determination205

272.Consultation206

273.Approval and publication of determination206

274.Effect of costs determination207

275.Agreement as to costs207

276.Division does not apply to Part IV proceedings207

Part XVI  Registered agents

277.Who may register as an agent207

Part XVII  The Dispute Resolution Directorate

Division 1 — Establishment and objectives

278.DRD established209

279.Main objectives of the DRD209

280.DRD’s constitution210

Division 2 — Commissioner

281.Appointment of Commissioner210

282.Terms and conditions of service210

283.Declaration of inability to act211

284.Acting appointment211

285.Functions of Commissioner212

Division 3 — Arbitrators

286.Arbitrators212

287.Control and direction of arbitrators213

Division 4 — Director Dispute Resolution and staff

288.Director Dispute Resolution213

289.Functions and responsibilities of Director213

290.Delegation by Director214

291.Staff of DRD214

Part XVIII — Regulations, rules and practice notes

292.Regulations215

293.DRD Rules217

294.Practice notes219

131.Section 177A inserted220

177A.Delegation by chief executive officer220

132.Section 180 amended220

133.Section 180A inserted221

180A.District Court to provide information to WorkCover WA221

134.Section 183 amended221

135.Section 184 repealed and sections 184 to 187 inserted instead221

184.Protection from liability221

185.Immunity222

186.Protection for compliance with this Act223

187.Proceedings for defamation not to lie223

136.Section 188A repealed224

137.Sections 188B and 188C inserted224

188B.Who can take proceedings for offences224

188C.Time limit for taking proceedings224

138.Section 192 amended224

139.Section 192A amended225

140.Section 198 repealed225

141.Schedule 1 amended225

1.Death — dependants wholly dependent — notional residual entitlement225

1A.Death — dependants wholly dependent — child’s allowance226

1B.Death — dependants wholly dependent — notional residual entitlement or child’s allowance227

1C.Determination of entitlement under clause 1B228

18B.Final day for clause 18A(1b) application238

18C.Dispute as to degree of permanent whole of person impairment240

18D.Interim payment of additional expenses241

142.Schedule 2 amended241

Schedule 2 — Table of compensation payable

143.Schedule 5 amended244

144.Schedule 7 amended244

6.Reference to medical assessment panel244

145.Schedule 8 inserted245

Schedule 8 — Terms and conditions of service of Commissioner

1.Tenure of Commissioner’s office245

2.Vacating office prematurely245

3.Commissioner’s status as District Court Judge246

4.Completion of matters246

146.References to a disability changed to an injury247

147.References to disability changed to injury248

148.Other references to disabilities changed to injuries250

149.References to dispute resolution body changed to arbitrator250

150.References to Commission changed to WorkCover WA251

151.References to Commission changed to WorkCover WA’s governing body252

152.References to Executive Director changed to chief executive officer253

153.References to Committee changed to WorkCover WA253

154.Renumbering of provisions of the Act253

Part 3 — Consequential amendments to other Acts

155.Acts Amendment (ICWA) Act 1996256

156.Blood Donation (Limitation of Liability) Act 1985256

157.Constitution Acts Amendment Act 1899256

158.Employers Indemnity Policies (Premium Rates) Act 1990257

159.Employers’ Indemnity Supplementation Fund Act 1980257

38B.WorkCover WA may advise Insurance Commission259

160.Financial Administration and Audit Act 1985260

161.Hospitals and Health Services Act 1927260

162.Law Reporting Act 1981261

163.Legal Practice Act 2003261

164.Limitation Act 1935262

165.Local Government Act 1995262

166.Miner’s Phthisis Act 1922263

167.Police Assistance Compensation Act 1964264

168.Public Sector Management Act 1994264

169.Sentencing Act 1995265

170.Waterfront Workers (Compensation for Asbestos Related Diseases) Act 1986265

171.Workers’ Compensation and Rehabilitation (Acts of Terrorism) Act 2001267

172.Workers’ Compensation and Rehabilitation Amendment Act 1993268

173.Workers' Compensation (Common Law Proceedings) Act 2004268

174.Workers’ Compensation and Rehabilitation Act 1981 replaced with Workers’ Compensation and Injury Management Act 1981269

175.Workers’ Compensation Act 1912 etc. replaced with Workers’ Compensation and Injury Management Act 1981271

Part 4 — Transitional provisions

Division 1 — General

176.Interpretation272

177.Application of Interpretation Act 1984272

178.Transitional regulations272

179.Power to amend subsidiary regulations273

Division 2 — Transitional provisions relating to statutory entitlements

180.Section 217 of the Workers’ Compensation and Injury Management Act 1981274

181.Transitional provisions — amendments to Schedule 1274

Division 3 — Transitional provisions relating to dispute resolution

182.Interpretation276

183.Conciliation and review277

184.Compensation magistrate’s court278

185.Existing summonses and warrants279

186.Director of Conciliation and Review279

187.Records280

188.Deemed eligibility for approval as Director or arbitrator281

Division 4 — Transitional provisions relating to Part VIII amendments

189.Transitional provisions for Part VIII amendments281

 

 

 

Workers’ Compensation Reform Act 2004

No. 42 of 2004

An Act to —

·amend the Workers’ Compensation and Rehabilitation Act 1981;

·enact transitional provisions; and

·make consequential amendments to various Acts.

 

[Assented to 9 November 2004]

 

The Parliament of Western Australia enacts as follows:

Part 1  Preliminary

1.Short title

This Act may be cited as the Workers’ Compensation Reform Act 2004.

2.Commencement

(1)This Act comes into operation on a day to be fixed by proclamation.

(2)Different days may be fixed under subsection (1) for different provisions.

Part 2  Amendments to the Workers’ Compensation and Rehabilitation Act 1981

3.The Act amended

The amendments in this Part are to the Workers’ Compensation and Rehabilitation Act 1981*.

[*Reprinted as at 14 September 2001.

For subsequent amendments see Western Australian Legislation Information Tables for 2003, Table 1, p. 438‑9.]

4.Long title amended

The long title is amended as follows:

(a)by deleting “for and the rehabilitation of workers suffering disability by accident or disease in the course of their employment,” and inserting instead —

for, and the management of, employment‑related injuries,

”;

(b)by deleting “establish a Workers' Compensation and Rehabilitation Commission” and inserting instead —

provide for the WorkCover Western Australia Authority

”;

(c)by deleting “dispute resolution bodies” and inserting instead —

a Dispute Resolution Directorate ”.

5.Section 1 amended

Section 1 is amended by deleting “Rehabilitation” and inserting instead —

Injury Management ”.

6.Section 3 amended

Section 3 is amended as follows:

(a)by deleting paragraph (b) and inserting the following paragraphs instead —

(b)to make provision for the management of workers’ injuries in a manner that is directed at enabling injured workers to return to work;

(ba)to make provision for specialised retraining programs for certain injured workers;

”;

(b)in paragraph (d) by deleting “bodies” and inserting instead —

“ authorities ”.

7.Section 4 amended

(1)Section 4(2)(a)(v) is amended by inserting after “injuries” —

“ and impairments from injury ”.

(2)Section 4(2)(b) is amended by deleting “rehabilitation” and inserting instead —

“ the injury management ”.

8.Section 5 amended

(1)Section 5(1) is amended by deleting the definitions of “approved rehabilitation provider”, “Commission”, “Committee”, “compensation magistrate’s court”, “conciliation officer”, “Directorate”, “disability”, “disabled from earning full wages”, “dispute resolution body”, “Executive Director”, “rehabilitation”, “review officer”, “the Chairman of the Commission” and “vocational rehabilitation”.

(2)Section 5(1) is amended by inserting the following definitions in the appropriate alphabetical positions —

approved medical specialist means a person for the time being designated under section 146F as an approved medical specialist;

approved medical specialist panel means an approved medical specialist panel constituted under Part VII Division 3;

approved vocational rehabilitation provider means a person approved under section 156 as a vocational rehabilitation provider;

arbitrator means an officer of WorkCover WA approved under section 286(2) as an arbitrator;

chief executive officer means the person appointed under the Public Sector Management Act 1994 to the office of chief executive officer of WorkCover WA and includes a person appointed to act in the place and during the absence of the chief executive officer while that person is so acting;

Commissioner means the Commissioner appointed under section 281;

decision includes an order, award, direction or determination;

dispute resolution authority means the Director, an arbitrator or the Commissioner;

DRD means the Dispute Resolution Directorate established under section 278;

DRD Rules means the rules made under section 293;

injury means —

(a)a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions;

(b)a disease because of which an injury occurs under section 32 or 33;

(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;

(d)the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or

(e)a loss of function that occurs in the circumstances mentioned in section 49,

but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;

injury management means the management of workers’ injuries in a manner that is directed at enabling injured workers to return to work;

medical report includes a medical opinion;

“NRE amount” means —

(a)in relation to any financial year ending on or before 30 June 2005, the prescribed amount in relation to that financial year;

(b)in relation to the financial year ending on 30 June 2006, $200 000;

(c)in relation to any subsequent financial year, the nearest whole number of dollars to —

(i)the amount obtained by varying the NRE amount for the preceding financial year by the percentage by which the amount that the Australian Statistician published as the Wages Cost Index, ordinary time hourly rates of pay (excluding bonuses) for Western Australia (“WCI”) varied between the second-last December quarter before the financial year commenced and the last December quarter before the financial year commenced; or

(ii)if the calculation under subparagraph (i) cannot be performed in relation to a financial year because the WCI for a relevant quarter was not published, the amount obtained by varying the NRE amount for the preceding financial year in accordance with the regulations,

with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars;

officer of the DRD refers to —

(a)the Director;

(b)an arbitrator; and

(c)any other officer of WorkCover WA made available under section 291;

participate, in relation to a return to work program established under section 155C(1), means to participate in the program in a cooperative manner including attending appointments as required under the program;

registered agent means a person registered under regulations made under section 277;

return to work, in relation to a worker who has suffered an injury compensable under this Act, means —

(a)the worker holding or returning to the position held by the worker immediately before the injury occurred, if it is reasonably practical for the employer who employed the worker at the time the injury occurred to provide that position to the worker; or

(b)if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position —

(i)for which the worker is qualified; and

(ii)that the worker is capable of performing,

whether with the employer who employed the worker at the time the injury occurred, or another employer;

specialised retraining assessment panel means a specialised retraining assessment panel constituted under Part VII Division 5;

specialised retraining program means a program directed at enabling a worker to return to work by assisting the worker to undertake formal vocational training or study through technical or tertiary training courses of no longer than 3 years duration;

the Chairman of WorkCover WA means the person appointed to the office of Chairman of WorkCover WA’s governing body and includes a person appointed to act in the place and during the absence of the Chairman while that person is so acting;

vocational rehabilitation, in relation to a worker who has suffered an injury compensable under this Act, means the provision to the worker of prescribed services, according to the worker’s assessed needs, for the purpose of enabling the worker to return to work;

WorkCover Guides means the directions published by WorkCover WA under section 146R;

WorkCover WA means the WorkCover Western Australia Authority referred to in section 94;

”.

(3)Section 5(1) is amended as follows:

(a)in the definition of “child’s allowance” by deleting “in clause 1(2), (3), and (4)”;

(b)in the definition of “chiropractor” by deleting “and who is approved by the Commission to practise chiropractic for the purposes of this Act”;

(c)by deleting the definition of “Director” and inserting instead —

Director means the officer of WorkCover WA approved under section 288(2) as the Director Dispute Resolution;

”;

(d)in the definition of “General Fund” by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”;

(e)by deleting the definition of “industrial award” and inserting instead —

industrial award means —

(a)an award or order (including an enterprise order or General Order) made by The Western Australian Industrial Relations Commission under the Industrial Relations Act 1979;

(b)an industrial agreement as defined in the Industrial Relations Act 1979;

(c)an award under the Coal Industry Tribunal of Western Australia Act 1992; or

(d)an award or certified agreement, as those terms are defined in the Workplace Relations Act 1996 of the Commonwealth,

as the relevant employment requires;

”;

(f)in the definition of “medical assessment panel” by inserting after “Part VII” —

“ Division 1 ”;

(g)in the definition of “notional residual entitlement” —

(i)in paragraph (a) by deleting “that disability;” and inserting instead —

the injury or impairment resulting from the injury;

”;

and

(ii)by deleting paragraph (b) and inserting instead —

(b)the NRE amount as at the date of the worker’s death, less the amount of any weekly payments made, the amount of any lump sum paid in redemption of weekly payments, and the amount of any sum paid under Schedule 2, for the injury suffered by the worker or impairment resulting from the injury,

”;

(h)in the definition of “relevant employment” in paragraph (b) and (e) by deleting, in each case, “disabling”;

(i)in the definition of “Trust Fund” by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”.

(4)Before section 5(4) the following subsection is inserted —

(3)A reference in this Act to a “personal injury by accident” is a reference to an injury of a kind referred to in paragraph (a) of the definition of “injury” in subsection (1).

”.

(5)Section 5(4) and 5(5) are amended by deleting “disability”, in each case, and inserting instead —

“injury” ”.

9.Section 7 amended

Section 7(2) is amended by deleting “industrial agreement or”.

10.Section 10A replaced

Section 10A is repealed and the following section is inserted instead —

10A.Working directors

(1)Despite anything in section 5, and except as provided in subsection (2), a person who is a director of a company is, to the extent that the person executes work for or on behalf of the company, taken not to be a worker within the meaning of this Act.

(2)If —

(a)a company contracts with another person (in this section referred to as the principal) for the execution of work by or under the company, being work which is for the purpose of the principal’s trade or business; and

(b)a director of the company executes any of that work for or on behalf of the company,

then, to the extent that the director executes the work, the director is taken to be a worker and the principal is taken to be the employer of the director.

(3)Section 175 does not apply in respect of a director referred to in subsection (2).

”.

11.Section 12 amended

Section 12(1) is amended by deleting “disabled” and inserting instead —

“ injured ”.

12.Heading to Part III Division 1 replaced

The heading to Part III Division 1 is deleted and the following heading is inserted instead —

Division 1 — Injury: general

”.

13.Section 22 amended

Section 22 is amended by deleting “disability shall be disallowed unless the disability results in death or serious and permanent disablement.” and inserting instead —

injury shall be disallowed unless the injury has serious and permanent effects or results in death.

”.

14.Heading to Part III Division 2 replaced

The heading to Part III Division 2 is deleted and the following heading is inserted instead —

Division 2 — Discontinued regime for lump sum payments for specified injuries

”.

15.Section 24 amended

(1)After the heading to section 24 the following subsection is inserted —

(1)In this section —

amendment day means the day on which section 21 of the Workers’ Compensation Reform Act 2004 comes into operation.

”.

(2)Section 24 is amended as follows:

(a)by inserting before “Notwithstanding” the subsection designation “(2)”;

(b)by inserting after “column 1 of” —

“ Part 1 of ”;

(c)by deleting “thereof” and inserting instead —

“ of that Part ”.

(3)At the end of section 24 the following subsections are inserted —

(3)This Division does not apply if the compensable personal injury by accident occurs on or after the amendment day.

(4)This Division does not apply in relation to noise induced hearing loss shown on or after the amendment day by an audiometric test under Schedule 7 clause 4.

”.

16.Section 24A amended

Section 24A(1) is amended by inserting before “the table” in both places where it occurs —

“ Part 1 of ”.

17.Section 24B amended

(1)Section 24B(1)(b) is amended by deleting “Directorate” and inserting instead —

“ Director ”.

(2)Section 24B(5) is amended as follows:

(a)by deleting “Part IIIA” in the first place where it occurs and inserting instead —

“ Part XI ”;

(b)by deleting “in this Division or Part IIIA”.

18.Section 26 amended

Section 26(1) is amended by inserting after “column 1 of” —

“ Part 1 of ”.

19.Section 28 amended

Section 28 is amended by inserting after “18,” —

“ 18A ”.

20.Section 31 amended

Section 31 is amended by inserting after “application of” —

“ Part 1 of ”.

21.Part III Division 2A inserted

After section 31 the following Division is inserted —

Division 2A — New regime for lump sum payments for specified injuries

31A.Application of Division

(1)In this section —

amendment day means the day on which section 21 of the Workers’ Compensation Reform Act 2004 comes into operation.

(2)This Division does not apply in respect of a compensable personal injury by accident that occurs before the amendment day.

(3)This Division does not apply in relation to noise induced hearing loss shown before the amendment day by an audiometric test under Schedule 7 clause 4.

31B.Degree of permanent impairment

In this Division —

degree of permanent impairment means —

(a)except as provided in paragraph (b), the degree of permanent impairment of a part or faculty of the body, evaluated as described in sections 146A and 146B;

(b)in the case of scarring referred to in item 80 or 81 of Schedule 2, the degree of permanent whole of person impairment, evaluated as described in sections 146A and 146B,

resulting from the injury or injuries arising from a single accident.

31C.Compensation for impairments mentioned in Schedule 2

(1)Despite Schedule 1, in respect of a permanent impairment from a compensable personal injury by accident, if the worker so elects during the lifetime of the worker as provided by section 31H in respect of an impairment mentioned in column 1 of Part 2 of the table in Schedule 2, the compensation payable for the impairment is, subject to subsection (2) and the provisions of this Act relating to Schedule 2, to be the percentage ratio of the prescribed amount indicated in column 2 of that Part.

(2)Except as provided in sections 31E and 31F(3), the compensation payable for each such impairment from injury is to be in accordance with the percentage ratio of the prescribed amount indicated in column 2 of Part 2 of the table in Schedule 2 in respect of such an impairment at the date of the accident by which that injury was caused to the worker, irrespective of when the worker so elects.

31D.Schedule 2 impairment assessment

(1)In subsection (2) —

full amount, in relation to an injury, means the amount payable under this Division if the degree of permanent impairment resulting from the injury is 100%.

(2)If compensation is payable under section 31C but the degree of permanent impairment from the injury of the worker is less than 100%, a percentage of the full amount equal to the degree of permanent impairment is to be awarded in lieu of the full amount.

(3)If —

(a)there is not agreement between an employer and a worker as to the degree of permanent impairment of the worker; and

(b)the worker has a certificate of an approved medical specialist given under section 146H indicating that the worker has not less than the degree of permanent impairment alleged by the worker,

the worker may apply to have the question as to the degree of permanent impairment arising from the injury concerned determined by an arbitrator.

(4)An arbitrator to whom an application to determine a question is made under subsection (3) may —

(a)determine the degree of permanent impairment; or

(b)refer the question as to the degree of permanent impairment for assessment by an approved medical specialist panel and make a determination as to the degree of permanent impairment according to that assessment.

(5)If a determination is made that the worker’s degree of permanent impairment arising from the injury concerned is not less than that alleged by the worker, the arbitrator may order the employer to pay all or any of the costs connected with the dispute, including any costs connected with referral to an approved medical specialist panel.

31E.Lump sum compensation for noise induced hearing loss

(1)Subject to Schedule 7 and this section, a worker suffering from noise induced hearing loss is entitled to compensation for that loss under item 44 of Part 2 of the table in Schedule 2 if the worker so elects as provided by section 31H.

(2)The compensation payable for noise induced hearing loss is to be, subject to the provisions of this Act relating to Schedule 2, in accordance with the percentage ratio of the prescribed amount indicated in column 2 of Part 2 of the table in Schedule 2 in respect of item 44 at the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred, irrespective of when the worker so elects.

(3)A worker is entitled to compensation under this section only in respect of noise induced hearing loss incurred after 1 March 1991 and —

(a)in respect of the worker’s first election under this section (if the worker has not made a successful first election under section 24A), where that noise induced hearing loss is at least a 10% loss of hearing; and

(b)in respect of a subsequent election by the worker under this section after a successful first election under section 24A or paragraph (a) of this section —

(i)where that noise induced hearing loss is at least a further 5% loss of hearing; or

(ii)where the worker has reached the age of 65 years or on the worker’s retirement from work before that age, where that noise induced hearing loss is assessed under Schedule 7 as any further percentage of loss of hearing.

(4)Nothing in subsection (3) operates to stop a worker who —

(a)has retired from work before attaining the age of 65 years;

(b)has made a successful election under section 24A(2)(b)(ii) or subsection (3)(b)(ii) of this section; and

(c)subsequently returns to work,

from making an election under subsection (3)(b) in respect of further loss of hearing.

(5)A worker is not entitled to compensation under this section in respect of noise induced hearing loss incurred after the worker has attained the age of 65 years.

(6)In subsection (3), loss of hearing means percentage loss of hearing calculated in accordance with the National Acoustic Laboratory Tables prescribed by the regulations.

(7)Schedule 7 applies and noise induced hearing loss is to be ascertained and measured for the purposes of this section in accordance with that Schedule.

31F.Lump sum compensation for AIDS

(1)In this section and in the table in Schedule 2 —

AIDS means acquired immune deficiency syndrome;

HIV means human immunodeficiency virus;

prohibited drug has the meaning given to that term by the Misuse of Drugs Act 1981 section 3.

(2)Subject to this section, for the purposes of this Division —

(a)the infection of a worker by HIV by accident arising out of or in the course of employment, or whilst the worker is acting under the employer’s instructions, is taken to be a personal injury by accident; and

(b)if that worker subsequently contracts AIDS, the contracting of AIDS —

(i)is taken to be a compensable personal injury by accident;

(ii)is taken to result in a degree of permanent impairment of 100%; and

(iii)is taken to have occurred on the date on which the worker contracted the HIV infection referred to in paragraph (a).

(3)Despite section 31C the compensation payable for the contracting of AIDS in the circumstances set out in subsection (2) is 100% of the prescribed amount at the date on which a certificate is given by a medical practitioner that the worker has contracted AIDS.

(4)The regulations may make provision for methods of deciding for the purposes of this section whether a worker is HIV infected or has contracted AIDS.

(5)Sections 31C(2) and 31D do not apply to an impairment that is AIDS.

(6)A worker is not entitled to compensation under this Division in respect of an impairment that is AIDS if the impairment resulted from the unlawful use of any prohibited drug or from voluntary sexual activity.

(7)Subsection (6) does not limit the operation of section 22.

(8)A worker is not entitled to compensation under this Division in respect of an impairment that is AIDS if the accident by which the worker became HIV infected occurred on a day before the coming into operation of section 21 of the Workers’ Compensation Reform Act 2004.

31G.Subsequent injuries

(1)In this section —

impairment includes a loss of full and efficient use of a part or faculty of the body to which the provisions of Division 2 apply.

(2)When —

(a)by a compensable personal injury by accident, a worker has already suffered a permanent impairment of any part or faculty of the body referred to in column 1 of the table in Schedule 2; and

(b)by a subsequent compensable personal injury by accident the worker suffers further permanent impairment of that part or faculty of the body,

the compensation payable under the provisions of the table in Schedule 2 and this Division in respect of each such subsequent injury is to be proportionate to any increase (resulting from that subsequent injury) in the degree of permanent impairment, and the compensation payable is to be calculated at the rates applicable at the time of occurrence of each subsequent injury.

(3)Where a worker has received compensation payable under the provisions of the table in Schedule 2 and Division 2 or this Division in respect of an impairment of a part of the body or a faculty for a degree of permanent impairment of 100%, whether in one payment for a degree of permanent impairment of 100% or in several payments, each of which has been made for a degree of permanent impairment of less than 100%, then and in such case, the worker is not entitled to any further payment under the provisions of that table and this Division in respect of that impairment.

31H.Election under section 31C or 31E

(1)A worker elects under this section for the purposes of section 31C or 31E when —

(a)the worker signs a form of election prescribed by the regulations containing particulars prescribed by the regulations in respect of the impairment or loss; and

(b)that form of election is filed with the Director, and a copy of it is served by or on behalf of the worker on the employer.

(2)A worker can elect for the purposes of section 31C only if —

(a)the worker and the worker’s employer agree as to the worker’s degree of permanent impairment resulting from the injury concerned; or

(b)a determination has been made under section 31D(4) in respect of the worker’s degree of permanent impairment resulting from the injury concerned or the worker has a certificate given for the purposes of section 31F(3) that the worker has contracted AIDS.

(3)In the case of an election for the purposes of section 31E, the employer on whom the copy of the form of election is served is to be the employer who last employed the worker in employment to the nature of which noise induced hearing loss is due.

(4)Where a worker makes an election under subsection (1) for the purposes of section 31E, this Division and Part XI apply as if the noise induced hearing loss in respect of which the election was made were a compensable personal injury by accident arising out of or in the course of the worker’s employment, and for that purpose a reference to the time or date of a personal accident by injury is, in respect of compensable noise induced hearing loss, to be construed as a reference to the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred.

31I.Effect of election

(1)A form of election referred to in section 31H(1) is not binding upon a worker unless the Director is satisfied that it contains a statement in clear terms of the effect the election will have on the worker’s future entitlements to compensation under this Act.

(2)If not satisfied in accordance with subsection (1), the Director is to, within 7 days of so determining, notify the employer and the worker accordingly.

(3)Subject to this Act, a worker who elects as provided by section 31H(1) is entitled to continue to receive any weekly payments of compensation to which the worker is entitled until —

(a)an agreement with respect to the election is registered under section 76; or

(b)an order of an arbitrator is made with respect to the amount of compensation payable under the election,

whichever is the sooner.

(4)Sections 31C and 31E do not limit the amount of compensation that is payable to a worker for any period of incapacity resulting from the impairments or losses referred to in those sections unless the worker elects under section 31H and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.

31J.Limit on compensation of worker electing

(1)A worker who elects under section 31H is not in any case (including the case of a worker suffering by the same accident more than one of the impairments mentioned in Schedule 2) entitled to more than the prescribed amount, in addition to payment of such expenses as are provided for in clauses 9, 17, 18, 18A and 19.

(2)Clauses 9, 17, 18, 18A and 19 are by this section made applicable to each worker entitled to compensation under this Division until that worker elects under section 31H and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.

31K.Compensation payable before election

Subject to section 31J, when a worker elects under section 31H, any amount of compensation that was payable to the worker for any period of incapacity resulting from the injuries referred to in section 31C or 31E and occurring before the worker so elects and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election is not to be deducted from the amount payable in accordance with the table in Schedule 2.

”.

22.Heading to Part III Division 3 replaced

The heading to Part III Division 3 is deleted and the following heading is inserted instead —

Division 3 — Injury: specified industrial diseases

”.

23.Section 32 amended

Section 32 is amended as follows:

(a)by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”;

(b)by deleting “the disablement” and inserting instead —

“ being so rendered ”.

24.Section 33 amended

Section 33 is amended as follows:

(a)by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”;

(b)by deleting “the disablement” and inserting instead —

“ being so rendered ”.

25.Section 34 amended

Section 34 is amended as follows:

(a)by deleting “becomes disabled from earning” and inserting instead —

“ is rendered less able to earn ”;

(b)by deleting “disabled” and inserting instead —

“ rendered ”.

26.Section 35 amended

Section 35 is amended as follows:

(a)by deleting “becomes disabled from earning” and inserting instead —

“ is rendered less able to earn ”;

(b)by deleting “disabled” and inserting instead —

“ rendered ”.

27.Section 37 amended

Section 37 is amended by deleting “in a compensation magistrate’s court” and inserting instead —

“ before an arbitrator ”.

28.Section 38 amended

(1)Section 38(1)(b) is amended by deleting “disabled from earning” and inserting instead —

“ less able to earn ”.

(2)Section 38(1)(c) is amended by deleting “cause impairment of his” and inserting instead —

“ adversely affect the worker’s ”.

(3)Section 38(1)(d) is amended by deleting “disablement” and inserting instead —

“ being less able to earn full wages, ”.

29.Section 39 amended

Section 39 is amended as follows:

(a)by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”;

(b)by deleting “disablement” and inserting instead —

“ being so rendered ”.

30.Section 40 replaced

Section 40 is repealed and the following section is inserted instead —

40.Interpretation of this Division in cases of death without prior incapacity

A reference in this Division to the date on which, or time at which, a worker was rendered less able to earn full wages is, in the case of a death of a worker who was not rendered less able to earn full wages before the worker died, a reference to the date of the worker’s death.

”.

31.Section 41 amended

(1)Section 41(2) is amended by deleting “of disablement,” and inserting instead —

on which the worker was rendered less able to earn full wages,

”.

(2)Section 41(4) is amended by deleting “of disablement,” and inserting instead —

on which the worker was rendered less able to earn full wages,

”.

32.Section 43 amended

Section 43 is amended by deleting “disablement” and inserting instead —

“ occurrence of the injury ”.

33.Section 44 amended

Section 44 is amended by deleting “disablement” and inserting instead —

date on which the worker was rendered less able to earn full wages

”.

34.Section 47 amended

Section 47 is amended as follows:

(a)by deleting “of a worker’s disablement within the meaning of” and inserting instead —

at which a worker was rendered less able to earn full wages as mentioned in

”;

(b)in paragraph (b) by deleting “disabled” and inserting instead —

“ so rendered ”;

(c)in paragraph (d) by deleting “disabled” and inserting instead —

“ rendered ”;

(d)in the final phrase by deleting “disabled” and inserting instead —

“ so rendered ”;

(e)by deleting “that disablement” and inserting instead —

“ being so rendered ”.

35.Section 48 amended

Section 48(1) is amended as follows:

(a)by deleting “the Executive Director” and inserting instead —

“ WorkCover WA ”;

(b)by deleting “the disablement began.” and inserting instead —

at which the worker was rendered less able to earn full wages.

”.

36.Heading to Part III Division 4 replaced

The heading to Part III Division 4 is deleted and the following heading is inserted instead —

Division 4 — Injury: specified losses of functions

”.

37.Section 49 replaced

Section 49 is repealed and the following section is inserted instead —

49.Injury occurs when loss of function renders worker less able to earn full wages

Where a worker is rendered less able to earn full wages by reason of suffering from a loss of function described in column 1 of Schedule 4 and the loss of function is due to the nature of any employment in which the worker was employed at any time within 3 years before the date on which the worker is rendered less able to earn full wages, an injury, being that loss of function, occurs and this Act applies to such an injury subject to this Division.

”.

38.Section 53 amended

Section 53 is amended by deleting “disablement” and inserting instead —

“ occurrence of the injury ”.

39.Section 54 amended

Section 54 is amended by deleting “disablement” and inserting instead —

date on which the worker is rendered less able to earn full wages

”.

40.Section 57 amended

Section 57 is amended as follows:

(a)by inserting after “18,” —

“ 18A ”;

(b)by deleting “clause 17(1)” and inserting instead —

“ clauses 17(1) and 18A(1c) ”.

41.Section 57A amended

(1)Section 57A(3) is repealed and the following subsection is inserted instead —

(3)Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer —

(a)give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed;

(b)subject to section 75, give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or

(c)give the worker to whom the claim relates, the employer and the Director notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.

Penalty: $1 000.

”.

(2)Section 57A is amended at the foot of subsection (4) by inserting —

“ Penalty: $1 000. ”.

(3)Section 57A(5) is amended by deleting “to the Directorate”.

(4)Section 57A(6) is amended as follows:

(a)by deleting “the Directorate may” and inserting instead —

“ an arbitrator may ”;

(b)by deleting “by the Directorate”.

(5)Section 57A(7)(b) is amended by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

42.Section 57B amended

(1)Section 57B(2) is repealed and the following subsection is inserted instead —

(2)In the circumstances mentioned in subsection (1), an employer must, before the expiration of 17 days after those circumstances arose —

(a)if liability to make the weekly payments claimed is accepted, subject to subsection (6), make the first of those weekly payments;

(b)subject to section 75, give the worker notice, in accordance with section 57BA and the regulations, that liability is disputed in respect of all or any of the weekly payments claimed; or

(c)give the Director and the worker notice, in accordance with section 57BA and the regulations, that a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by this subsection.

Penalty: $1 000.

”.

(2)Section 57B is amended as follows:

(a)at the foot of subsection (2b) by inserting —

“ Penalty: $1 000. ”;

(b)at the foot of subsection (3) by inserting —

“ Penalty: $1 000. ”.

(3)Section 57B(4) is amended by deleting “to the Directorate”.

(4)Section 57B(5) is amended as follows:

(a)by deleting “the Directorate may” and inserting instead —

“ an arbitrator may ”;

(b)by deleting “by the Directorate”.

(5)Section 57B(6)(b) is amended by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

43.Section 57BA inserted

After section 57B the following section is inserted —

57BA.Notices under sections 57A and 57B

(1)A notice under section 57A or 57B is to be expressed in plain language.

(2)The regulations may make provision —

(a)as to information to be included in or to accompany a notice under section 57A or 57B; and

(b)requiring information included in or accompanying a notice under section 57A or 57B to be given to WorkCover WA or other persons prescribed by the regulations.

(3)A notice under section 57A(3)(b) or 57B(2)(b) is to be in or to the effect of the form prescribed by the regulations and is to contain a statement of —

(a)the reason the person giving the notice disputes liability;

(b)the provisions of this Act on which the person giving the notice relies to dispute liability.

(4)A notice under section 57A(3)(b) or 57B(2)(b) is to also include —

(a)a statement to the effect that the worker can apply for resolution of the dispute under this Act;

(b)a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, a legal practitioner or a registered agent; and

(c)such other information as the regulations may prescribe or, subject to the regulations, as WorkCover WA may from time to time approve and notify to insurers and, in the case of information required in a notice under section 57B(2)(b), to employers.

(5)A statement in a notice under section 57A(3)(b) or 57B(2)(b) is given —

(a)in the case of a notice under section 57A(3)(b), subject to the insurer not being prejudiced in any subsequent proceedings relating to the claim by any information included in the statement; and

(b)in the case of a notice under section 57B(2)(b), subject to the employer, or the insurer if the insurer subsequently agrees to indemnify the employer, not being prejudiced in any subsequent proceedings relating to the claim by any information included in the statement.

(6)A notice under section 57A(3)(c) or 57B(2)(c) is to —

(a)be in or to the effect of the form prescribed by the regulations;

(b)include a statement as to the reasons why a decision as to whether or not liability is to be accepted in respect of the weekly payments claimed is not able to be made within the time allowed by section 57A(3) or 57B(2), as the case requires, and —

(i)if a reason is that the person giving the notice requires further medical information, a statement as to the nature and substance of the medical information and whether or not the person giving the notice requires any written authority from the worker for that purpose;

(ii)if a reason is that the person giving the notice requires further information as to the worker’s weekly earnings, a statement as to the nature and substance of the information required; and

(iii)any other particulars required by the person giving the notice to make the decision;

and

(c)include such other information as the regulations may prescribe.

”.

44.Section 57C amended

Section 57C is amended as follows:

(a)at the foot of subsection (2) by inserting —

“ Penalty: $1 000. ”;

(b)at the foot of subsection (3) by inserting —

“ Penalty: $1 000. ”;

(c)at the foot of subsection (4) by inserting —

“ Penalty: $1 000. ”;

(d)at the foot of subsection (5) by deleting the penalty provision.

45.Section 58 amended

(1)Section 58(1) is amended by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

(2)Section 58(2) is amended by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

(3)Section 58(2a) is amended as follows:

(a)by deleting “the Directorate may order” and inserting instead —

“ the Director may order ”;

(b)by deleting “for the Directorate to hear” and inserting instead —

“ for an arbitrator to hear ”.

(4)Section 58(3) is amended as follows:

(a)by deleting “for the Directorate to hear” and inserting instead —

“ for an arbitrator to hear ”;

(b)by deleting “the Directorate may hear” and inserting instead —

“ an arbitrator may hear ”.

(5)Section 58(5) is amended as follows:

(a)by deleting “Directorate shall satisfy itself as to all the evidence before it whereupon the Directorate” and inserting instead —

arbitrator is to satisfy himself as to all the evidence before him and

”;

(b)in paragraph (a) by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”;

(c)in paragraph (b) by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”.

(6)Section 58(6) is amended by deleting “by the Directorate” and inserting instead —

“ by an arbitrator ”.

46.Section 59 amended

Section 59(10) is amended by deleting “to the Directorate for an order” and inserting instead —

“ for an order of an arbitrator ”.

47.Section 60 amended

(1)Section 60(1) is amended by deleting “to the Directorate at any time for an order” and inserting instead —

“ at any time for an order of an arbitrator ”.

(2)Section 60(2) is amended as follows:

(a)by deleting “the Directorate that” and inserting instead —

“ an arbitrator that ”;

(b)by deleting “the Directorate may” and inserting instead —

“ the arbitrator may ”;

(c)by deleting “the Directorate directs” and inserting instead —

“ the arbitrator directs ”;

(d)by deleting “it” in both places where it occurs and inserting instead —

“ the arbitrator ”.

48.Section 61 amended

(1)Section 61(1) is amended as follows:

(a)by deleting “order of the Directorate” and inserting instead —

“ order of an arbitrator ”;

(b)by deleting “to the Directorate”.

(2)After section 61(2) the following subsection is inserted —

(2a)If a person is required to give notice under subsection (1) and —

(a)fails to give the notice within the period referred to in that subsection; or

(b)gives a notice that does not comply with subsection (2),

the person commits an offence.

Penalty: $2 000.

”.

(3)Section 61(3) is amended as follows:

(a)by deleting “as the Directorate” and inserting instead —

“ as an arbitrator ”;

(b)by deleting “to the Directorate for an order” and inserting instead —

“ for an order of an arbitrator ”.

(4)Section 61(4) is amended as follows:

(a)by deleting “the Directorate” and inserting instead —

“ an arbitrator ”;

(b)in paragraphs (a) and (c) by deleting “it” and inserting instead —

“ the arbitrator ”.

(5)After section 61(4) the following subsection is inserted —

(4aa)A reference in subsection (1), (3) or (4) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer’s insurer.

”.

(6)Section 61(4a) is amended as follows:

(a)by deleting “the Directorate” and inserting instead —

“ an arbitrator ”;

(b)by deleting paragraph (a) and the “and” after it and inserting instead —

(a)may, where the case requires, take into account whether —

(i)a return to work program has been established for the worker under section 155C(1);

(ii)the establishment, content and implementation of the return to work program are in accordance with the code as defined in section 155; and

(iii)the worker has participated in the return to work program,

and for the purposes of determining the application accordingly treat the worker’s incapacity as being of such degree as the arbitrator sees fit; and

”.

(7)Section 61(7) is amended as follows:

(a)in paragraph (ba) by inserting after “93E(8)” —

“ or 93P(2)(b) ”;

(b)in paragraph (c) by deleting “64, 65,”.

49.Section 62 amended

(1)Section 62(1) is amended as follows:

(a)by deleting “the Directorate at the request” and inserting instead —

“ an arbitrator on an application ”;

(b)by deleting “as the Directorate” and inserting instead —

“ as the arbitrator ”.

(2)After section 62(1) the following subsection is inserted —

(2)An arbitrator may, instead of discontinuing, reducing or increasing the weekly payments, suspend the weekly payments from the date of the order until such time as is specified in the order.

”.

50.Section 63 amended

Section 63 is amended by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

51.Section 64 amended

(1)Section 64(1) is amended by deleting “, and, if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to compensation, and to take or prosecute any proceeding under this Act shall be suspended until such an examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so”.

(2)Section 64(2) is repealed and the following subsections are inserted instead —

(2)Subsection (1) does not apply in relation to an election made by the worker —

(a)for the purposes of section 24 to receive compensation in accordance with that section for permanent loss of the full efficient use of the back, neck or pelvis; or

(b)for the purposes of section 31C to receive compensation in accordance with that section for impairment of the back, neck or pelvis.

(3)A reference in subsection (1) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer’s insurer.

”.

52.Section 65 amended

Section 65 is amended as follows:

(a)by inserting after “employer” in the first place where it occurs —

or, if the employer is insured against liability to pay compensation under this Act, the employer’s insurer

”;

(b)by inserting after “employer” in the second place where it occurs —

“ or insurer, as the case may be ”;

(c)by deleting “, and if he, without reasonable excuse, proof of which is on him, refuses to submit himself to such an examination, or in any way obstructs it, his right to such weekly payments shall be suspended until such examination has taken place, and shall cease unless he submits himself for examination within one month after being required to do so”.

53.Section 66 amended

Section 66 is amended by inserting after “prescribed” —

“ , nor more often than is prescribed ”.

54.Section 66A inserted

After section 66 the following section is inserted —

66A.Additional medical examinations

(1)In this section —

additional medical examination means an examination by a medical practitioner in addition to those permitted by section 66.

(2)An arbitrator may by order require a worker to submit himself for an additional medical examination if the arbitrator is satisfied that the examination is necessary.

(3)An additional medical examination required under subsection (2) is to be carried out by a medical practitioner registered under section 145B —

(a)agreed to by the worker and the employer; or

(b)selected by the arbitrator, if the worker and the employer cannot reach agreement under paragraph (a) within such period as is specified in the order.

(4)The medical practitioner is to be paid by the employer.

(5)The regulations may limit the number of additional medical examinations that may be required.

(6)A reference in subsection (3) or (4) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer’s insurer.

”.

55.Section 67 amended

(1)Section 67(1)(a) and (b) and “and” after paragraph (a) are deleted and the following is inserted instead —

(a)an arbitrator, with the consent of the worker and the employer, makes an order that the liability for the incapacity is to be redeemed by the payment of a lump sum of an amount specified in the order; or

(b)the worker and the employer agree to the redemption, and on the amount of the lump sum, and a memorandum of the agreement is registered under Division 7.

”.

(2)Section 67(4) is amended as follows:

(a)by deleting “settled, in default of agreement, under Part IIIA” and inserting instead —

determined, in default of agreement, by an arbitrator

”;

(b)by deleting “under Part IIIA” in the second place where it occurs and inserting instead —

“ by the arbitrator ”.

(3)Section 67(5) is amended as follows:

(a)by deleting “subsection (4)” and inserting instead —

“ subsection (1) or (4) ”;

(b)in paragraph (b) by inserting after “18,” —

“ 18A ”.

(4)After section 67(5) the following subsection is inserted —

(6)The regulations may make provision as to details that are to be specified in a consent order, or an agreement registered under Division 7, for payment of a lump sum.

”.

56.Section 70 replaced

Section 70 is repealed and the following section is inserted instead —

70.Furnishing medical reports

(1)Where a worker has submitted himself for examination by a medical practitioner as required under section 64, 65 or 66A, the employer or employer’s insurer, as the case requires, shall, within 14 days after receiving the report of that practitioner as to the worker’s medical condition, furnish the worker with a copy of that report.

(2)If a person is required to furnish a worker with a copy of a report under subsection (1) and fails to do so within the period referred to in that subsection, that person commits an offence.

Penalty: $2 000.

(3)In proceedings for an offence under subsection (2) it is a defence for the employer or the employer’s insurer, as the case may be, to show that the other of them furnished a copy of the report within the period referred to in subsection (1).

(4)Where a worker has been examined by a medical practitioner selected by himself, the worker shall, within 14 days after receiving the report of that practitioner as to the worker’s medical condition, furnish the employer with a copy of that report.

(5)The reference in subsection (4) to the employer is, where the employer is insured against liability to pay compensation under this Act, a reference to the employer’s insurer.

”.

57.Section 71 amended

Section 71 is amended as follows:

(a)by deleting “the Commission, employer, or an” and inserting instead —

“ WorkCover WA, the employer, or the ”;

(b)by deleting “the Commission, employer, or” and inserting instead —

“ WorkCover WA, the employer, or the ”;

(c)by deleting “to the Directorate for an order” and inserting instead —

“ for an order of an arbitrator ”;

(d)by deleting “the Directorate has” and inserting instead —

“ an arbitrator has ”;

(e)by deleting “it” and inserting instead —

“ the arbitrator ”.

58.Section 72 replaced by sections 72, 72A and 72B

Section 72 is repealed and the following sections are inserted instead —

72.Suspension of payments during custody

(1)Subject to subsection (2), a worker’s entitlement to weekly payments of compensation under this Act is suspended during any period that the worker is —

(a)in custody under a law of this State, another State or a Territory, or the Commonwealth except where that custody is of a kind prescribed by the regulations; or

(b)otherwise serving a term of imprisonment of a kind prescribed by the regulations.

(2)The worker’s entitlement to compensation is suspended from the date on which an arbitrator certifies to the existence of the ground of suspension under subsection (1) until the date from which an arbitrator certifies that the ground no longer exists.

(3)A certificate issued under subsection (2) is binding on the worker, the employer and the insurer of the employer.

(4)An arbitrator may exercise functions under this section entirely on the basis of the documents and information provided to the arbitrator.

72A.Suspension or cessation of payments for failure to undergo medical examination

(1)A worker’s entitlement to compensation under this Act, and to take and prosecute any proceeding under this Act, may be suspended by order of an arbitrator if the worker —

(a)being required by the employer under section 64 to submit himself for examination by a medical practitioner; or

(b)being required by an arbitrator to submit himself for an additional medical examination as defined in section 66A(1), being an examination additional to examinations under section 64,

refuses or fails to do so or in any way obstructs the examination.

(2)A worker’s entitlement to compensation under this Act, may be suspended by order of an arbitrator if the worker —

(a)being required by the employer under section 65 to submit himself for examination by a medical practitioner; or

(b)being required by an arbitrator to submit himself for an additional medical examination as defined in section 66A(1), being an examination additional to examinations under section 65,

refuses or fails to do so or in any way obstructs the examination.

(3)An arbitrator is not to make an order under subsection (1) or (2) if the worker satisfies the arbitrator that the worker had a reasonable excuse for refusing or failing to submit to the medical examination.

(4)An arbitrator is to revoke an order made under subsection (1) or (2) if satisfied that the worker has submitted himself for the examination and has not obstructed the examination.

(5)The worker’s entitlements are suspended from the date on which the arbitrator makes the order until the date on which the order is revoked or the worker’s entitlements cease under subsection (7).

(6)An order made under subsection (1) or (2) is binding on the worker, the employer and the insurer of the employer.

(7)If a worker continues to refuse or fail to submit to medical examination for one month, or such time as an arbitrator otherwise orders, after an order is made under subsection (1) or (2) in respect of the worker, then —

(a)the worker’s entitlement to compensation for the injury in respect of which the worker was required to submit to medical examination ceases; and

(b)in the case of an order under subsection (1), the worker’s entitlement to take and prosecute any proceeding under this Act in relation to that compensation ceases.

72B.Suspension or cessation of payments for failure to participate in return to work program

(1)A worker’s entitlement to compensation under this Act may be suspended by order of an arbitrator if the worker, being required by an arbitrator under section 156B(2) to participate in a return to work program, refuses or fails to participate in the return to work program.

(2)An arbitrator is not to make an order under subsection (1) if —

(a)the establishment, content or implementation of the return to work program is not in accordance with the code as defined in section 155; or

(b)the worker satisfies the arbitrator that the worker had a reasonable excuse for refusing or failing to participate in the return to work program.

(3)An arbitrator is to revoke an order made under subsection (1) if satisfied that the worker has subsequently participated in a return to work program that has been established for the worker under section 155C(1).

(4)The worker’s entitlements are suspended from the date on which the arbitrator makes the order until the date on which the order is revoked under subsection (3) or the worker’s entitlements cease under subsection (6).

(5)An order made under subsection (1) is binding on the worker, the employer and the insurer of the employer.

(6)If a worker continues to refuse or fail to comply with an order to participate in the return to work program for one month, or such time as an arbitrator otherwise orders, after an order is made under subsection (1) in respect of the worker, then the worker’s entitlement to compensation for the injury in respect of which the worker was required to participate in the return to work program ceases.

”.

59.Section 73 amended

(1)Section 73(4) is amended by deleting “refer to the Director for conciliation under Part IIIA” and inserting instead —

“ apply for determination by an arbitrator of ”.

(2)Section 73(5) is amended by deleting “it may” and inserting instead —

“ the arbitrator may ”.

(3)Section 73(6) is amended as follows:

(a)by inserting after “24A” —

“ or 31E ”;

(b)by deleting “a conciliation officer, review officer or court dealing with the dispute under Part IIIA” and inserting instead —

“ an arbitrator dealing with the dispute ”.

60.Section 74 amended

(1)Section 74(1a) is amended by deleting “refer to the Director for conciliation under Part IIIA” and inserting instead —

“ apply for determination by an arbitrator of ”.

(2)Section 74(2) is amended as follows:

(a)by deleting “A dispute resolution body” and inserting instead —

“ An arbitrator ”;

(b)by deleting “it” and inserting instead —

“ the arbitrator ”.

61.Section 75 amended

Section 75 is amended as follows:

(a)by inserting before “Where” the subsection designation “(1)”;

(b)by inserting at the end of the section the following subsection —

(2)An employer or insurer that gives notification contrary to subsection (1) commits an offence.

Penalty: $1 000.

”.

62.Section 76 amended

(1)Section 76(1) is amended as follows:

(a)by deleting “or 24A” and inserting instead —

“ , 24A, 31C or 31E ”;

(b)by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

(2)Section 76(4) is amended by deleting “the Directorate” and inserting instead —

“ an arbitrator ”.

(3)Section 76(5) is amended by deleting “Directorate” and inserting instead —

“ Director ”.

(4)Section 76(6) is amended as follows:

(a)by deleting “or 24A” in both places where it occurs and inserting instead —

“ , 24A, 31C or 31E ”;

(b)by deleting “to a compensation magistrate’s court which” and inserting instead —

“ to the Commissioner who ”;

(c)by deleting “the court” and inserting instead —

“ the Commissioner ”.

(5)Section 76(7) is amended by deleting “or 24A” and inserting instead —

“ , 24A, 31C or 31E ”.

(6)After section 76(7) the following subsection is inserted —

(7a)A medical practitioner nominated by the Director under subsection (7) to examine a worker who has made an election under section 31C in respect of an impairment that is not AIDS must be an approved medical specialist.

”.

(7)Section 76(8) is amended as follows:

(a)by deleting “The Directorate” and inserting instead —

“ An arbitrator ”;

(b)by deleting “the Board’s” and inserting instead —

“ the arbitrator’s ”;

(c)by deleting “or 24A” and inserting instead —

“ , 24A, 31C or 31E ”;

(d)by deleting “the Directorate” and inserting instead —

“ the arbitrator ”.

63.Section 79 amended

Section 79 is amended by deleting “a dispute resolution body may in its” and inserting instead —

“ an arbitrator may in the arbitrator’s ”.

64.Section 80 amended

Section 80(1) is amended by deleting “or industrial agreement”.

65.Section 83 amended

(1)Section 83(1) is amended as follows:

(a)by deleting “made under the Conciliation and Arbitration Act 1904 of the Commonwealth” and inserting instead —

as those terms are defined in the Workplace Relations Act 1996 of the Commonwealth

”;

(b)by deleting “disabled from earning” and inserting instead —

“ rendered less able to earn ”.

(2)Section 83(2) is amended by deleting “by the Directorate” and inserting instead —

“ by an arbitrator ”.

66.Section 84AB inserted

After section 84AA the following section is inserted —

84AB.Employer to notify worker and WorkCover WA of intention to dismiss worker

(1)An employer must not dismiss a worker to whom section 84AA(1) applies unless the employer has given to the worker and to WorkCover WA in accordance with subsection (2) a notice of intention to dismiss the worker.

Penalty: $2 000.

(2)A notice of intention to dismiss a worker —

(a)is to be given to the worker and to WorkCover WA not less than 28 days before the dismissal is to take effect; and

(b)is to be in or to the effect of the form prescribed and contain substantially the information sought in the form.

(3)Nothing in this section limits any other obligation of an employer or rights of a worker under this Act or any other written law.

”.

67.Part IIIA repealed

Part IIIA is repealed.

68.Section 91 amended

Section 91 is amended as follows:

(a)by inserting before “If” the subsection designation “(1)”;

(b)by deleting “to the Directorate” and inserting instead —

“ for determination by an arbitrator ”;

(c)by inserting at the end of the section the following subsection —

(2)To the extent that it is practicable to do so, and subject to the DRD Rules, a referral under subsection (1) is to be dealt with as if it were an application for resolution of a dispute under Part XI.

”.

69.Section 92 amended

Section 92 is amended as follows:

(a)in paragraph (f)(i) by deleting “Directorate” and inserting instead —

“ Director ”;

(b)in paragraph (f)(ii) by deleting “Directorate” and inserting instead —

“ Director ”.

70.Section 93 amended

Section 93(3) is amended by deleting “by the Directorate in any action brought by the worker before the Directorate” and inserting instead —

“ by an arbitrator on any application made by the worker ”.

71.Heading to Part IV Division 2 Subdivision 1 inserted

After the heading to Part IV Division 2 the following heading is inserted —

Subdivision 1 — Preliminary provisions

”.

72.Section 93A amended

Section 93A is amended by deleting the definition of “AMA Guides”.

73.Section 93B amended

(1)Section 93B(1) is amended as follows:

(a)by deleting “a disability suffered by a worker” and inserting instead —

an injury suffered by a worker, or a noise induced hearing loss suffered by a worker that is not an injury,

”;

(b)in each of paragraphs (a) and (b), by deleting “the disability” and inserting instead —

“ it ”.

(2)Section 93B(3a) is amended by deleting “if the disability” and inserting instead —

“ in respect of an injury if the injury ”.

(3)After section 93B(4) the following subsection is inserted —

(5)In the context of a cause of action arising on or after the day on which section 79 of the Workers’ Compensation Reform Act 2004 comes into operation, a reference in the other subsections of this section to the worker’s employer does not include a reference to a person who is the worker’s employer only because of section 175.

”.

74.Heading to Part IV Division 2 Subdivision 2 inserted

After section 93C the following heading is inserted —

Subdivision 2 — 1993 scheme

”.

75.Sections 93CA, 93CB and 93CC inserted

Before section 93D the following sections are inserted —

93CA.Meaning of “AMA Guides” in this Subdivision

In this Subdivision —

AMA Guides means the edition of the Assessment of Disability Guide published by the Western Australian Branch of the Australian Medical Association Incorporated that is prescribed in the regulations.

93CB.Limits on application of this Subdivision

(1)This Subdivision does not apply if the cause of action arises on or after the day on which section 79 of the Workers’ Compensation Reform Act 2004 comes into operation.

(2)This Subdivision does not apply to the awarding of damages to the extent that they are for noise induced hearing loss that is not an injury.

93CC.Application of this Subdivision

This Subdivision applies to a cause of action arising before the day on which section 79 of the Workers’ Compensation Reform Act 2004 comes into operation, regardless of when the cause of action arose and whether proceedings in respect of the cause of action have commenced, unless —

(a)because of section 32(7) of the Workers’ Compensation and Rehabilitation Amendment Act 1999, the former provisions as defined in section 32(6) of that Act apply to proceedings in respect of the cause of action; or

(b)because of Part 2 of the Workers’ Compensation (Common Law Proceedings) Act 2004, the former provisions as defined in section 4 of that Act apply to proceedings in respect of the cause of action.

”.

76.Section 93D amended

(1)Section 93D(2)(a) is amended as follows:

(a)by inserting after “so far as Schedule 2” —

“ Part 1 ”;

(b)by deleting “such a disability,” and inserting instead —

“ an injury suffered by the worker, ”;

(c)by deleting “that Schedule” and inserting instead —

“ that Part ”.

(2)Section 93D(8) is amended by deleting “Part IIIA” and inserting instead —

“ Part XI ”.

(3)Section 93D(10) is amended by deleting “the Director is to refer the question for resolution under the provisions of Part IIIA (other than Division 2).” and inserting instead —

it is to be dealt with under Part XI, and for that purpose —

(a)an application is taken to have been made by the worker under section 181; and

(b)the requirement to give copies under section 182 does not apply.

”.

77.Section 93E amended

(1)Section 93E(1) is amended by deleting “on a reference under” and inserting instead —

“ when dealt with as described in ”.

(2)After section 93E(13) the following subsection is inserted —

(14)If a further additional sum has been allowed to the worker under clause 18A(1b) in relation to an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.

”.

78.Section 93G amended

Section 93G(a) is amended by deleting “Division” and inserting instead —

“ Subdivision ”.

79.Part IV Division 2 Subdivision 3 inserted

After section 93G the following Subdivision is inserted —

Subdivision 3 — 2004 scheme

93H.Terms used in this Subdivision

(1)In this Subdivision —

degree of permanent whole of person impairment means the degree of permanent whole of person impairment, evaluated as described in sections 146A and 146C, resulting from the injury or injuries arising from a single event, as defined in subsection (2);

election registration day means the day on which the Director registers the election under section 93K(4)(b).

(2)In the definition of “degree of permanent whole of person impairment” in subsection (1) —

event means anything that results, whether immediately or not and whether suddenly or not, in an injury or injuries of a worker and the term includes continuous or repeated exposure to conditions that results in an injury or injuries of a worker.

93I.Application of this Subdivision

This Subdivision applies only if the cause of action arises on or after the day on which section 79 of the Workers’ Compensation Reform Act 2004 comes into operation.

93J.No damages for noise induced hearing loss if not an injury

Damages to which this Division applies are not to be awarded, in circumstances to which this Subdivision applies, in respect of noise induced hearing loss that is not an injury.

93K.Restrictions on awarding, and amount of, damages

(1)If the liability for an incapacity resulting from the injury has been redeemed under section 67, damages are not to be awarded in respect of the injury.

(2)If a further additional sum has been allowed to the worker under clause 18A(1b) in relation to an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.

(3)If the worker is participating, or has at any time participated, in a specialised retraining program established in respect of an injury that is compensable under this Act, damages are not to be awarded in respect of the injury.

(4)Damages in respect of an injury can only be awarded if —

(a)the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages;

(b)the Director registers the election in accordance with the regulations;

(c)court proceedings seeking the damages are commenced within —

(i)the period of 30 days after the Director gives the worker written notice that the Director has registered the election; or

(ii)any further time provided for in the regulations to allow for things to be done before court proceedings are commenced;

and

(d)the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 15%.

(5)Unless the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 25% —

(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the injury or injuries, of the maximum amount that may be awarded; and

(b)the maximum amount of damages that may be awarded in respect of the injury or injuries is Amount A, but the maximum amount may be awarded only in a most extreme case in which the worker’s degree of permanent whole of person impairment is less than 25%.

(6)Subsection (5) has effect in respect of the amount of a judgment before the operation of section 92(b).

(7)No entitlement to damages is created by subsection (5) and that subsection is subject to any other law that prevents or limits the awarding of damages.

(8)If —

(a)subsection (4) does not allow damages to be awarded in respect of the injury; or

(b)damages in respect of the injury have been awarded in accordance with subsection (5),

the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (the Contribution Act) in respect of damages awarded against another person in relation to the injury.

(9)If subsection (5) limits the damages that could have been awarded in respect of the injury —

(a)the contributions that the employer may be liable to make under the Contribution Act in respect of damages awarded against other persons in relation to the injury are not to exceed the damages that could have been awarded in accordance with subsection (5); and

(b)if the employer has made or been directed to make a contribution under the Contribution Act in respect of damages awarded against another person in relation to the injury, the amount of damages that may be awarded in accordance with subsection (5) is reduced by the amount of that contribution.

(10)This section applies regardless of whether the damages are awarded against one or several employers.

(11)An issue as to the amount of damages that may be awarded, is to be determined by reference to Amount A as in effect on the date on which the determination is made.

(12)In this section —

Amount A means, in relation to a financial year, the amount that section 93F(8) defines to be Amount A in relation to that financial year.

(13)The court is not bound by an agreement or assessment recorded by the Director under section 93L(2), but may admit it as evidence relevant to the worker’s degree of permanent whole of person impairment.

93L.Election to retain right to seek damages

(1)In this section —

termination day has the meaning given in section 93M.

(2)A worker can only elect under section 93K(4) to retain the right to seek damages if —

(a)the worker and the employer agree —

(i)that the worker’s degree of permanent whole of person impairment is at least 15%; and

(ii)as to whether or not the worker’s degree of permanent whole of person impairment is at least 25%;

or

(b)the worker’s degree of permanent whole of person impairment has been assessed to be a percentage that is not less than 15%,

and the Director has, at the written request of the worker, recorded that agreement or assessment in accordance with the regulations.

(3)The Director cannot, under subsection (2), record an assessment that involves a special evaluation as defined in section 146C(4) unless the Director has been given a copy of the certificate referred to in section 93N(1) on the basis of which the special evaluation was requested.

(4)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to the injury or injuries concerned, an election cannot be made after the termination day.

(5)An agreement or assessment that the Director has, at the written request of the worker, recorded in accordance with the regulations cannot be withdrawn and, after it has been recorded, another agreement or assessment as to the worker’s degree of permanent whole of person impairment cannot be recorded.

(6)An election that the Director has registered in accordance with the regulations cannot be withdrawn and a subsequent election cannot be made in respect of the same injury or injuries.

(7)Subsection (5) does not prevent an agreement or assessment as to the worker’s degree of permanent whole of person impairment from being made, whether before or after the commencement of court proceedings, after the Director has, at the written request of the worker, recorded an agreement or assessment in accordance with the regulations, or from being used in court proceedings.

(8)The Director may at any time rectify an error that was made in recording an agreement or assessment or registering an election.

93M.Termination day

(1)If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4).

(2)In subsection (1) —

claim for compensation by way of weekly payments means a claim for compensation by way of weekly payments for total or partial incapacity that has been made on an employer in accordance with section 178(1)(b).

(3)If, after the expiry of the period of 3 months after the day on which the claim is made —

(a)a dispute resolution authority, acting under section 58(1) or (2), determines the question of liability to make the weekly payments claimed; or

(b)the worker is first notified that liability is accepted in respect of the weekly payments claimed,

the termination day is the last day of the period of 9 months after the day of the act described in paragraph (a) or (b) that was most recently done unless a later day is fixed under subsection (4).

(4)The Director may, in accordance with the regulations, from time to time extend the termination day, but only if —

(a)before the termination day, an approved medical specialist, in writing —

(i)certifies that the worker’s condition has not stabilised to the extent required for a normal evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides as described in sections 146A and 146C; and

(ii)recommends a day until which the termination day be extended;

(b)the Director is satisfied that the employer has failed to comply with section 93O;

(c)the Director is satisfied that the extension should be given because an approved medical specialist requires or required more than the time described in section 93O(1)(d) before being able to give the worker the documents required by section 146H; or

(d)the Director is satisfied that —

(i)the worker has, in accordance with the regulations, requested an approved medical specialist to assess the worker’s degree of permanent whole of person impairment other than as described in subparagraph (ii), allowing at least the time described in section 93O(1)(d) for the approved medical specialist to give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day; or

(ii)the worker has, in accordance with the regulations, requested an approved medical specialist to make an assessment that involves a special evaluation of the worker’s degree of permanent whole of person impairment, allowing at least 7 weeks for the approved medical specialist to make the assessment and give the worker the documents required by section 146H at least 7 days before the termination day, but the worker was not given, or it would be impracticable to give, those documents at least 7 days before the termination day.

(5)In subsection (4) —

normal evaluation has the meaning given to that term in section 146C(3);

special evaluation has the meaning given to that term in section 146C(4).

(6)An extension under subsection (4) is to be to a day that is not more than one year after the day that would have been the termination day had there been no extension under that subsection except that, in circumstances described in subsection (4)(d), the Director may give an extension for as long as the Director considers necessary to give the worker an opportunity to make an election.

(7)An extension is to be in writing and the Director is required to give the worker and the employer each a copy of the extension.

(8)An extension may be given even though the termination day has passed.

93N.Special evaluation if condition has not sufficiently stabilised

(1)This section applies if, after the expiry of the period of 6 months after the day that would have been the termination day had there been no extension under section 93M(4), an approved medical specialist certifies that the worker’s condition has not stabilised to the extent required for a normal evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with sections 146A and 146C.

(2)The worker may request an approved medical specialist to make a special evaluation of the worker’s degree of permanent whole of person impairment in accordance with sections 146A and 146C.

(3)The approved medical specialist requested to make a special evaluation may be the approved medical specialist who certified as described in subsection (1).

(4)The request is to be made in accordance with the regulations not later than 8 weeks before the termination day and is to be accompanied by a copy of the certificate referred to in subsection (1).

(5)The approved medical specialist is to make the special evaluation in accordance with sections 146A and 146C unless the worker’s condition is found to have stabilised to the extent required for a normal evaluation, in which case the approved medical specialist is to make a normal evaluation in accordance with those sections.

(6)In this section —

normal evaluationhas the meaning given to that term in section 146C.

93O.Employer to give worker notice of certain things

(1)At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations —

(a)of the day that would be the termination day if no later day were to be fixed under section 93M(4);

(b)that about 6 months remains before the termination day;

(c)of the significance of the termination day for the worker’s ability to seek damages; and

(d)of the amount of time that, according to the regulations, an approved medical specialist can reasonably be expected to take, after a worker requests an assessment of the worker’s degree of permanent whole of person impairment, to give the worker the documents that an approved medical specialist is required by section 146H to give the worker.

(2)The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4).

93P.How election may affect statutory compensation

(1)This section applies unless, according to an agreement or assessment that the Director has recorded as described in section 93L(2), the worker’s degree of permanent whole of person impairment is at least 25%.

(2)If a worker elects under section 93K to retain the right to seek damages and this section applies —

(a)the amount of any weekly payment of compensation to which the worker is entitled under this Act in respect of the injury or injuries, to the extent that the payment is for any time during the first 6 months after the election registration day, is varied to the amount calculated as described in subsection (4);

(b)the worker is not entitled to any weekly payment of compensation under this Act in respect of the injury or injuries to the extent that the payment would be for any time that is more than 6 months after the election registration day; and

(c)no other compensation under this Act is payable in respect of the injury or injuries —

(i)in relation to a time that is after the election registration day;

(ii)under Part III Division 2 or 2A, irrespective of whether an election under that Division is made before or after the election registration day; or

(iii)for expenses incurred after the election registration day.

(3)In subsection (2) —

in respect of the injury or injuriesincludes wholly or partially in respect of the injury or injuries and also includes wholly or partially in respect of any recurrence, aggravation or acceleration of the injury or injuries.

(4)The amount of a weekly payment is —

(a)to the extent that it is for any time during the first 3 months after the election registration day, 70% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied; and

(b)to the extent that it is for any other time during the first 6 months after the election registration day, 50% of the amount of the weekly payment to which the worker would have been entitled if this section had not applied.

93Q.Special provisions about HIV and AIDS

(1)Damages are not to be awarded in respect of the infection of a worker by HIV but damages may be awarded in respect of the contraction of AIDS unless it results from the unlawful use of any prohibited drug or from voluntary sexual activity.

(2)A worker who has contracted AIDS has, for the purposes of this Subdivision, a degree of permanent whole of person impairment resulting from the disease of at least 25%.

(3)A certificate in writing by a medical practitioner to the effect that the worker has contracted AIDS is to be recorded by the Director under section 93L(2), and otherwise treated for the purposes of this Subdivision, as if it included an assessment that the worker’s degree of permanent whole of person impairment resulting from the disease was at least 25%.

(4)The regulations may make provision for methods of deciding for the purposes of this section whether a worker has contracted AIDS.

(5)Part VII Division 2 does not apply to the degree of permanent whole of person impairment of a worker resulting from the contraction of AIDS.

(6)For the purposes of this Subdivision and any limitation on the period within which proceedings may be commenced to recover damages for that cause, the cause of action of a worker who has contracted AIDS is to be taken to have arisen when a certificate is first given in writing by a medical practitioner to the effect that the worker has contracted AIDS.

(7)Section 93L(4) and sections 93M, 93N, 93O, and 93P do not apply in the case of an action for damages in respect of the contraction of AIDS.

(8)In this section —

AIDS means acquired immune deficiency syndrome;

HIV means human immunodeficiency virus;

prohibited drug has the meaning given to that term by the Misuse of Drugs Act 1981 section 3.

93R.Special provisions about specified industrial diseases

(1)If damages are sought or to be sought in respect of a disease referred to in section 33 or 34, any assessment to evaluate the worker’s degree of permanent whole of person impairment resulting from the disease as described in sections 146A and 146C is to be made, not by an approved medical specialist as stated in section 146A(2), but by a medical panel constituted as described in section 36.

(2)Subsection (1) does not prevent the evaluation of the worker’s degree of permanent whole of person impairment being settled by agreement.

(3)A person seeking an assessment may advise the chief executive officer, in accordance with any relevant regulation, and the chief executive officer is to arrange for a medical panel to be constituted to make the assessment and refer the making of the assessment sought to the panel.

(4)Section 36(3), section 37, and section 38(1) and (3) apply for a reference under this section as they would for a reference under section 36 except that what is to be considered and determined is the assessment referred under this section instead of the questions that arise on a reference under section 36.

(5)Even though the worker’s condition is not required to have stabilised, the evaluation is not a special evaluation as referred to in section 146C.

(6)There is no termination day for an election to retain the right to seek damages in respect of a disease described in subsection (1).

(7)A medical panel from which an assessment under this section is sought is not bound by a previous assessment made under this section if the previous assessment has not been recorded by the Director under section 93L(2).

(8)If the Director, under section 93L(2), records an assessment under this section —

(a)any reference in this Subdivision to the worker’s degree of permanent whole of person impairment is to be taken to be a reference to the worker’s degree of permanent whole of person impairment as evaluated in the assessment recorded; and

(b)section 93K(13) does not apply.

93S.Regulations

Regulations may provide for —

(a)the notification to be given to workers, and the notification to be given to employers, of —

(i)the effect of the provisions of this Subdivision;

(ii)things done under this Subdivision;

(b)the form and lodgment of elections under section 93K(4)(a);

(c)the registration by the Director of elections under section 93K(4)(a) if an agreement or assessment for the purposes of section 93L(2) has been recorded, and the power of the Director to refuse to register an election if not satisfied that the worker has been properly advised of the consequences of the election;

(d)the recording by the Director of an agreement or assessment under section 93L(2) as to the worker’s degree of permanent whole of person impairment;

(e)how and when a worker may apply for the Director to extend the termination day under section 93M(4), and the period for which the Director may give an extension.

”.

80.Part V heading replaced

The heading to Part V is deleted and the following heading is inserted instead —

Part V  WorkCover Western Australia Authority

”.

81.Section 94 amended

(1)Section 94(1) is repealed and the following subsection is inserted instead —

(1)When section 81(1) of the Workers’ Compensation Reform Act 2004 comes into operation, the name of the body corporate that was previously called the “Workers’ Compensation and Rehabilitation Commission” becomes the “WorkCover Western Australia Authority”, but the corporate identity of the body corporate and its rights and obligations are not affected by the change.

”.

(2)Section 94(2) and (3) are each amended by deleting “Commission” and inserting instead —

“ WorkCover Western Australia Authority ”.

(3)After section 94(2) the following subsections are inserted —

(2a)The WorkCover Western Australia Authority is an agent of the State and has the status, immunities, and privileges of the State.

(2b)The WorkCover Western Australia Authority is to have a governing body that, in the name of the WorkCover Western Australia Authority, is to perform the functions of the WorkCover Western Australia Authority under this Act or any other written law.

”.

82.Section 95 replaced

Section 95 is repealed and the following section is inserted instead —

95.WorkCover WA’s governing body

(1)WorkCover WA’s governing body is to consist of — 

(a)one person appointed by the Governor on the recommendation of the Minister as a member and Chairman of WorkCover WA’s governing body and referred to as a nominee member;

(b)the chief executive officer of WorkCover WA and the chief executive officer of the department of the Public Service of the State principally assisting the Minister charged with the administration of the Occupational Safety and Health Act 1984; and

(c)4 persons appointed by the Governor, on the recommendation of the Minister, as members of WorkCover WA’s governing body and referred to as nominee members of whom — 

(i)one is a person experienced in employers’ interests;

(ii)one is a person experienced in workers’ interests;

(iii)one is a person experienced in insurance matters; and

(iv)one is a person experienced in accounting and financial management.

(2)The person appointed as Chairman of WorkCover WA’s governing body is not to be a public service officer within the meaning of the Public Sector Management Act 1994.

(3)Before making a recommendation for the purposes of subsection (1)(c)(i), the Minister may, in writing, request the body known as the Chamber of Commerce and Industry of Western Australia (Inc) to submit the name of a person, or the names of such number of persons as is specified in the request, who, or each of whom, has the required experience and is willing to act as a member under subsection (1)(c)(i), and before making a recommendation for the purposes of subsection (1)(c)(ii), the Minister may, in writing, request the body known as UnionsWA (formerly known as the Trades and Labor Council of Western Australia) to submit the name of a person, or the names of such number of persons as is specified in the request, who, or each of whom, has the required experience and is willing to act as a member under subsection (1)(c)(ii).

(4)Before making a recommendation for the purposes of subsection (1)(c)(iii) or (iv), the Minister may make enquiries to find a person who has the required experience and is willing to act as a member under that provision.

(5)The Governor may, on the recommendation of the Minister, appoint a person who is not a public service officer within the meaning of the Public Sector Management Act 1994 as deputy of the member who is the Chairman of WorkCover WA’s governing body.

(6)In the absence, for any reason, of the Chairman and a person appointed to act in the place and during the absence of the Chairman from a meeting of WorkCover WA’s governing body, the Chairman’s appointed deputy may attend the meeting and while so attending has all the powers, authorities, functions, and duties of the Chairman.

”.

83.Section 96 amended

(1)Section 96(4)(a) is amended by deleting “disability, inefficiency” and inserting instead —

incapacity to carry out duties as a member in a satisfactory manner, for inefficiency,

”.

(2)Section 96(5)(c) is deleted.

(3)Section 96(6) is amended as follows:

(a)by inserting after “95(3)” —

“ or (4), as the case requires, ”;

(b)by deleting “with such modifications as are necessary”.

84.Section 97 amended

(1)Section 97(1) is amended by deleting “upon it”.

(2)Section 97(2) is amended by deleting “their members” and inserting instead —

“ their number ”.

(3)Section 97(3) is amended by deleting “5” and inserting instead —

“ 4 ”.

(4)After section 97(5) the following subsection is inserted —

(5a)Division 1AA is about a member of WorkCover WA’s governing body having a material personal interest in a matter being considered or about to be considered by the governing body.

”.

(5)Section 97(6) is amended by deleting “its proceedings at” and inserting instead —

“ proceedings at its governing body’s ”.

85.Section 98 amended

Section 98 is amended by inserting after “office of a member” —

“ of its governing body ”.

86.Section 99 amended

(1)Section 99(1) is amended by deleting “member, other than the Executive Director,” and inserting instead —

“ nominee member ”.

(2)Section 99(2) is amended by deleting “Public Service Board.” and inserting instead —

“ Minister for Public Sector Management. ”.

87.Section 100 amended

(1)Section 100(d) is deleted.

(2)Section 100(da) is deleted and the following paragraph is inserted instead —

(da)to promote injury management;

”.

(3)Section 100(e) is amended by deleting “, loss of function, or disease”.

(4)Section 100(f) is amended as follows:

(a)by deleting “all insurers and self‑insurers” and inserting instead —

persons who are insurers or self‑insurers or are referred to in section 292(2)(a) or (b) or (3)

”;

(b)by inserting before “information” —

“ and from courts ”.

(5)Section 100(fa) is amended as follows:

(a)by deleting “insurers and self‑insurers” in the first place where it occurs and inserting instead —

persons who are insurers or self‑insurers or are referred to in section 292(2)(a) or (b) or (3)

”;

(b)by deleting “for assessing the performance of insurers and self‑insurers” and inserting instead —

or prescribed by the regulations for assessing the performance of those persons

”.

(6)Section 100(h) is deleted.

(7)Section 100(i) is amended by deleting “panel;” and inserting instead —

panel, approved medical specialist panel or specialised retraining assessment panel;

”.

(8)Section 100 is amended by deleting paragraph (j) and “and” after paragraph (i) and inserting instead —

(j)to collect such statistics, records, reports, and other information as it may require to enable it to perform its obligations under section 151(a), and ensure that its functions under Part VIII are performed efficiently; and

(k)to advise the Minister on —

(i)matters to do with insurance that is required by this Act;

(ii)WorkCover WA’s functions under this Act;

(iii)the policy to be followed in the State with regard to workers’ compensation; and

(iv)any other matter referred by the Minister to WorkCover WA for its advice.

”.

88.Section 100A amended

(1)Section 100A(2) is amended by inserting at the end of the subsection —

and at least one of them is to be a member of WorkCover WA’s governing body

”.

(2)Section 100A(3) is repealed and the following subsection is inserted instead —

(3)The member of an advisory committee who is a member of WorkCover WA’s governing body or, if there are 2 or more of them, whichever of them is specified in their appointment as the person who is to preside, is to preside at meetings of the committee but, subject to the direction of WorkCover WA, an advisory committee may otherwise determine its own procedures.

”.

(3)Section 100A(4) is amended by deleting “Public Service Commissioner” and inserting instead —

“ Minister for Public Sector Management ”.

(4)Section 100A(6) is amended by deleting “management affairs in commerce or industry (or both), persons experienced in trade union affairs” and inserting instead —

employers’ interests, persons experienced in workers’ interests

”.

(5)After section 100A(6) the following subsection is inserted —

(7)Despite subsection (2), an advisory committee appointed for the purposes of section 146R or in connection with the assessment of matters of a medical nature is to consist of the following members —

(a)at least one member of WorkCover WA’s govering body appointed by WorkCover WA;

(b)such medical practitioners as are nominated by the Australian Medical Association (WA) incorporated and appointed by WorkCover WA with the approval of the Minister; and

(c)such other members as are appointed by WorkCover WA with the approval of the Minister and after consultation with the Australian Medical Association (WA) incorporated.

(8)WorkCover WA may, with the Minister’s approval, appoint members of an advisory committee under subsection (7) without complying with subsection (6).

”.

89.Section 100B inserted

After section 100A the following section is inserted —

100B.Disclosure of information

(1)If the chief executive officer of the department principally assisting the Minister in the administration of the Occupational Safety and Health Act 1984 makes a written request to WorkCover WA to disclose information or data (including information and data about accidents, injuries and diseases) relevant to occupational safety and health that is in the possession of WorkCover WA, WorkCover WA is to comply with the request.

(2)This section has effect despite any other provision of this Act.

”.

90.Section 101 amended

Section 101 is amended as follows:

(a)in paragraph (d), by deleting “the Commission” and inserting instead —

“ the WorkCover Western Australia Authority ”;

(b)by inserting after paragraph (d) —

“ and ”;

(c)by deleting “; and” after paragraph (e) and inserting instead a full stop;

(d)by deleting paragraph (f).

91.Section 101AA inserted

After section 101 the following section is inserted —

101AA.Delegation by WorkCover WA

(1)WorkCover WA may delegate to the chief executive officer or another officer of WorkCover WA or to any other member, or any group of members, of WorkCover WA’s governing body any power or duty of WorkCover WA under another provision of this Act except if it is under Part VIII.

(2)The delegation must be in writing executed by WorkCover WA.

(3)A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4)A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5)Nothing in this section limits the ability of WorkCover WA to perform a function through an officer or agent.

”.

92.Section 102 amended

Section 102 is amended by deleting “section 100(d) and (e),” and inserting instead —

“ section 100(e), ”.

93.Section 103A amended

Section 103A is amended as follows:

(a)by inserting before “A person” the subsection designation “(1)”;

(b)by deleting “or self insurer” and inserting instead —

, a self‑insurer, or a person referred to in section 292(2)(a) or (b) or (3)

”;

(c)at the foot of the section by deleting the penalty provision;

(d)by inserting at the end of the section the following subsection —

(2)A person who furnishes to WorkCover WA under subsection (1) any information or return that is false in a material particular commits an offence.

Penalty: $2 000.

”.

94.Section 104 amended

Section 104 is amended as follows:

(a)in paragraph (b) by deleting “Act,” and inserting instead —

“ Act. ”;

(b)by deleting “but in so doing shall not give, or purport to give, legal advice.”.

95.Part V Division 1AA inserted

After section 104 the following Division is inserted —

Division 1AA — Personal interest

104AA.Disclosure of interests

(1)A member of WorkCover WA’s governing body who has a material personal interest in a matter being considered or about to be considered by the governing body must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the governing body.

Penalty: $10 000.

(2)A disclosure under subsection (1) is to be recorded in the minutes of the meeting.

104AB.Exclusion of interested member

(1)A member of WorkCover WA’s governing body who has a material personal interest in a matter that is being considered by the governing body — 

(a)must not vote on the matter; and

(b)must not be present while the matter is being considered at a meeting.

(2)In subsection (1)(a) and (b) a reference to a matter also refers to a proposed resolution under section 104AC in respect of the matter, whether relating to that member or a different member.

104AC.Resolution that section 104AB inapplicable

Section 104AB does not apply if the governing body has at any time passed a resolution that — 

(a)specifies the member, the interest, and the matter; and

(b)states that the members voting for the resolution are satisfied that the interest should not disqualify the member from considering or voting on the matter.

104AD.Quorum where section 104AB applies

Despite section 97(3), when the governing body is dealing with a matter in relation to which a member of the governing body is disqualified under section 104AB, 3 members who are entitled to vote on any motion that may be moved in relation to the matter constitute a quorum.

104AE.Minister may declare sections 104AB and 104AD inapplicable

(1)The Minister may by writing declare that section 104AB or 104AD does not apply in relation to a specified matter either generally or in voting on particular resolutions.

(2)The Minister must within 14 sitting days after a declaration under subsection (1) is made cause a copy of the declaration to be laid before each House of Parliament.

”.

96.Part V Division 1A repealed

Part V Division 1A is repealed.

97.Heading to Part V Division 3 amended

The heading to Part V Division 3 is amended by deleting “Rehabilitation” and inserting instead —

Injury Management ”.

98.Section 106 amended

(1)Section 106(1) is amended as follows:

(a)by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”;

(b)in paragraph (a) by deleting “at the Treasury, forming” and inserting instead —

“ as ”.

(2)Section 106(2)(b) is amended by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”.

(3)Section 106(3) is amended as follows:

(a)by deleting paragraph (a) and inserting the following paragraph instead —

(a)all moneys required for the remuneration and allowances of members of the governing body of WorkCover WA and of WorkCover WA’s staff;

”;

(b)by deleting paragraph (c);

(c)in paragraph (e) by deleting “dispute resolution bodies” and inserting instead —

“ the DRD ”.

99.Section 109 amended

(1)Section 109(4b) is amended after “liable to” by inserting —

“ a penalty of $2 000 and ”.

(2)Section 109(6) is amended as follows:

(a)after “return” by inserting —

“ or statutory declaration ”;

(b)after “liable to” by inserting —

“ a penalty of $2 000 and ”.

100.Heading to Part V Division 4 amended

The heading to Part V Division 4 is amended by deleting “Rehabilitation” and inserting instead —

Injury Management ”.

101.Section 110 amended

(1)Section 110(1) is amended as follows:

(a)by deleting “Rehabilitation” and inserting instead —

“ Injury Management ”;

(b)by deleting “at the Treasury, forming” and inserting instead —

“ as ”.

(2)Section 110(2) is amended by deleting “section 84F.” and inserting instead —

“ section 218. ”.

(3)Section 110(7)(a) is amended by deleting “body” and inserting instead —

“ authority ”.

(4)Section 110(8) is amended as follows:

(a)by deleting “and” after paragraph (a);

(b)in paragraph (b) by deleting “body” and inserting instead —

“ authority ”.

102.Section 111 amended

(1)Section 111(1) is amended by inserting after “particular matter,” —

“ unless prevented by subsection (1a) from doing so, ”.

(2)After section 111(1) the following subsection is inserted —

(1a)The Minister cannot give to WorkCover WA any direction with respect to the performance of any of its functions under section 151 unless the direction is allowed by section 154AB.

”.

103.Part VI repealed

Part VI is repealed.

104.Part VII heading replaced

The heading to Part VII is deleted and the following headings are inserted instead —

Part VII  Medical assessment and assessment for specialised retraining programs

Division 1 — Medical assessment panels

”.

105.Section 145A amended

(1)Section 145A(1) is amended by deleting “under section 84R, 84ZH or 84ZR” and inserting instead —

“ under section 210 ”.

(2)Section 145A(2) is amended by deleting “under section 84R, 84ZH or 84ZR” and inserting instead —

“ under section 210 ”.

106.Section 145C amended

(1)Section 145C(1) is amended by deleting “2 or”.

(2)After section 145C(2) the following subsection is inserted —

(2a)Despite subsection (2), if the question is referred under clause 18A(2ab), each practitioner selected is to be a specialist in a branch of medicine or surgery that is relevant to the question.

”.

107.Section 145D amended

(1)Section 145D(1) is amended by inserting after “legal forms and” —

“ , except as provided under this Act, ”.

(2)Section 145D(5) is amended by deleting “the Director” in both places where it occurs and inserting instead —

“ an arbitrator ”.

(3)After section 145D(5) the following subsection is inserted —

(6)To the extent that the practice and procedure of a medical assessment panel are not prescribed under this Act, they are to be as the panel determines.

”.

108.Section 145E amended

(1)Section 145E(4) is amended by deleting “3” and inserting instead —

“ 7 ”.

(2)Section 145E(5) is repealed and the following subsections are inserted instead —

(5)The determination is not relevant in relation to —

(a)a determination of an arbitrator under Part III Division 2A as to the permanent or other impairment of the efficient use of any part or faculty of the body for the purposes of Part III Division 2A, or the degree of that impairment;

(b)an action for damages independently of this Act if Part IV Division 2 Subdivision 3 applies to the awarding of damages in the action;

(c)a determination of an arbitrator under section 158C or 158D; or

(d)a determination of an arbitrator for the purposes of clause 18A(2aa)(b).

(6)Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and the worker’s employer and on any court or tribunal hearing a matter in which any such determination is relevant.

(7)The determination is, in the absence of evidence that the determination was rescinded or varied under section 145F, conclusive evidence as to the matters determined.

(8)A determination of a medical assessment panel is not —

(a)to be vitiated because of any informality or want of form; or

(b)subject to an appeal.

(9)A decision of a medical assessment panel or anything done under this Act in the process of coming to a decision of a medical assessment panel is not amenable to judicial review.

”.

109.Part VII Divisions 2, 3 and 4 inserted

After section 145G the following Divisions are inserted —

Division 2 — Assessing degree of impairment

146.Degree of impairment

In this Part —

degree of impairment, in relation to a worker, means —

(a)the worker’s degree of permanent impairment for the purposes of Part III Division 2A;

(b)the worker’s degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3;

(c)the worker’s degree of permanent whole of person impairment for the purposes of Part IXA;

(d)the worker’s degree of permanent whole of person impairment for the purposes of clause 18A;

secondary condition means a condition, whether psychological, psychiatric, or sexual, that, although it may result from the injury or injuries concerned, arises as a secondary, or less direct, consequence of that injury or those injuries.

146A.Evaluation of impairment generally

(1)Subject to sections 146B, 146C, 146D and 146E, a worker’s degree of impairment is to be evaluated, as a percentage, in accordance with the WorkCover Guides.

(2)If a worker and the employer do not agree about the evaluation of the worker’s degree of impairment, it is to be assessed by an approved medical specialist or, if this Act so provides, an approved medical specialist panel.

(3)A request for assessment by an approved medical specialist is to be made in accordance with the regulations.

(4)For a case in which the evaluation of the degree of impairment of the worker involves taking into account a recurrence, aggravation, or acceleration of any pre‑existing disease that was to any extent asymptomatic before the event from which the injury or injuries arose, the WorkCover Guides are not to provide for a deduction to reflect the pre‑existing nature of that disease to the extent that it was asymptomatic before that event.

146B.Evaluation for the purposes of Part III Division 2A

(1)This section applies to an evaluation of a worker’s degree of permanent impairment for the purposes of Part III Division 2A.

(2)Section 146A(2) does not prevent a finding that the worker’s condition has not stabilised to the extent required for an evaluation of the worker’s degree of permanent impairment to be made in accordance with the WorkCover Guides for the purposes of Part III Division 2A.

146C.Evaluation for purposes of Part IV Division 2 Subdivision 3

(1)This section applies to an evaluation of a worker’s degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3.

(2)Section 146A(2) does not prevent a finding that the worker’s condition has not stabilised to the extent required for a normal evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides.

(3)In subsection (2) —

normal evaluation means an evaluation that is not a special evaluation as defined in subsection (4).

(4)If this Act provides for a special evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with this section, the evaluation (a special evaluation) is to be made, even though the worker’s condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, in accordance with any provisions of the WorkCover Guides that apply to a special evaluation.

(5)If the evaluation of a worker’s degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3 is assessed on the basis that the worker’s condition has not stabilised to the extent otherwise required for an evaluation to be made in accordance with the WorkCover Guides, the evaluation has to be a special evaluation made in accordance with this section.

(6)In evaluating the degree of permanent whole of person impairment of the worker, any secondary condition is to be disregarded.

(7)Subsection (6) does not prevent a secondary condition from contributing in the assessment of damages by a court.

146D.Evaluation for the purposes of Part IXA

(1)This section applies to an evaluation of a worker’s degree of permanent whole of person impairment for the purposes of Part IXA.

(2)Section 146A(2) does not prevent a finding that the worker’s condition has not stabilised to the extent required for an evaluation of the worker’s degree of permanent whole of person impairment to be made in accordance with the WorkCover Guides for the purposes of Part IXA.

(3)In evaluating the degree of permanent whole of person impairment of the worker, any secondary condition is to be disregarded.

146E.Evaluation for the purposes of clause 18A

(1)This section applies to an evaluation of a worker’s degree of permanent whole of person impairment for the purposes of clause 18A.

(2)The evaluation (a special evaluation) is to be made even if the worker’s condition has not stabilised —

(a)in the case of an evaluation for the purposes of clause 18A(2aa)(a), by an approved medical specialist;

(b)in the case of an evaluation for the purposes of clause 18A(2aa)(b) if the employer disputes the assessment referred to in clause 18A(2aa)(a), by an approved medical specialist panel,

in accordance with any provisions of the WorkCover Guides that apply to a special evaluation for the purposes of this section.

(3)In evaluating the degree of permanent whole of person impairment of the worker, any secondary condition is to be disregarded.

146F.Approved medical specialist

(1)WorkCover WA may, by order published in the Gazette, designate a person as an approved medical specialist if the person is a medical practitioner who in WorkCover WA’s opinion, is sufficiently trained in the use of the WorkCover Guides and otherwise satisfies criteria for designation as an approved medical specialist that WorkCover WA for the time being applies.

(2)WorkCover WA is required to publish in the Gazette the criteria that it applies for deciding whether a medical practitioner is suitable for designation as an approved medical specialist.

(3)WorkCover WA may require an approved medical specialist to enter into a written agreement with WorkCover WA about the procedures to be followed and the fees to be charged for, and other matters relating to, the performance of functions as an approved medical specialist and other matters relevant to the implementation of this Act.

(4)WorkCover WA may, by order published in the Gazette, cancel the designation of a person as an approved medical specialist.

(5)WorkCover WA is required to monitor assessments for consistency and monitor compliance with this Act and agreements under subsection (3).

(6)The Director is to keep a register identifying persons who have been designated as approved medical specialists showing —

(a)the day on which the person was designated; and

(b)if a person’s designation as an approved medical specialist has been cancelled, the day on which it was cancelled.

(7)The Director is to make the register available for inspection at any reasonable time by any member of the public.

146G.Powers of approved medical specialist

(1)On being requested to assess a worker’s degree of impairment, an approved medical specialist may —

(a)in accordance with the regulations, require the worker to attend at a place specified by the approved medical specialist;

(b)require the worker to answer any question about the injury;

(c)in accordance with the regulations, require the worker, the employer, or the employer’s insurer to —

(i)produce to the approved medical specialist any relevant document or information; or

(ii)consent to another person who has any relevant document or information producing it to the approved medical specialist;

(d)require the worker to submit to examination by, or as requested by, the approved medical specialist.

(2)Regulations may be made —

(a)requiring a worker who requests an assessment of the worker’s degree of impairment to produce any information described in the regulations for use in dealing with the request, and prescribing a fine of not more than $2 000 for a contravention of the requirement;

(b)about the time within which a requirement made under subsection (1) or imposed by a regulation under paragraph (a) has to be complied with if the time for complying is not specified in the requirement.

(3)A person who contravenes a requirement under subsection (1) commits an offence and is liable to a fine of $2 000.

(4)If the assessment is sought for the purpose of court proceedings and a person contravenes a requirement made under subsection (1) or imposed by a regulation under subsection (2), the court may order that the proceedings be stayed, either wholly or in part, or that any pleading be struck out.

146H.Outcome of assessment

(1)An approved medical specialist making an assessment for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A is required to give to each of the worker and the employer, in writing in accordance with the regulations —

(a)a report of the worker’s degree of impairment, including details of the assessment and reasons justifying the assessment; and

(b)a certificate specifying the worker’s degree of impairment.

(2)An approved medical specialist giving a certificate —

(a)for the purposes of Part III Division 2A or Part IXA that a worker’s condition has not stabilised to the extent required for an evaluation made in accordance with the WorkCover Guides as described in sections 146A, 146B, and 146D; or

(b)for the purposes of Part IV Division 2 Subdivision 3 that a worker’s condition has not stabilised to the extent required for a normal evaluation made in accordance with the WorkCover Guides as described in sections 146A and 146C,

is required to give to each of the worker and the employer, in writing in accordance with the regulations —

(c)a report of any relevant details provided by the worker; and

(d)brief reasons justifying the finding certified.

(3)A certificate for the purposes of —

(a)Part III Division 2A;

(b)Part IV Division 2 Subdivision 3;

(c)Part IXA; or

(d)clause 18A,

is to specify the provisions for the purposes of which it is made.

(4)A certificate for the purposes of the provisions referred to in one of paragraphs (a), (b), (c) or (d) of subsection (3) —

(a)is not to be given for the purposes of the provisions referred to in any of the other paragraphs; and

(b)has no effect for the purposes of the provisions referred to in any of the other paragraphs.

(5)If any of the documents described in subsection (1) or (2) is produced to the Director for the purposes of Part III Division 2A, Part IV Division 2 Subdivision 3, Part IXA or clause 18A and it contains an obvious error, the Director may reject it and require the approved medical specialist to replace it with a correct document given to each of the recipients of the document that contained the error.

146I.Release of information relevant to assessment

If an approved medical specialist has been requested to assess a worker’s degree of impairment, WorkCover WA may, with the consent of the worker, disclose to the approved medical specialist any information that it has in relation to the worker that may be relevant to the assessment.

146J.Decisions of approved medical specialist

(1)A decision of an approved medical specialist or anything done under this Act in the process of coming to a decision of an approved medical specialist is not amenable to judicial review.

(2)In subsection (1) —

decision of an approved medical specialist means an opinion, assessment, or other decision of an approved medical specialist that is relevant to the operation of Part III Division 2A, Part IV Division 2, Part IXA or clause 18A.

Division 3 — Approved medical specialist panels

146K.Panel to be constituted

(1)On a question being referred under section 31D(4), 158C(2)(b) or clause 18C for assessment by an approved medical specialist panel, the Director is to select 2 approved medical specialists to be the panel that is to assess the degree of impairment.

(2)An approved medical specialist who has treated or examined the worker concerned in a professional capacity or in the capacity of an approved medical specialist is not eligible to be a member of the panel.

(3)If a referral is made to an approved medical specialist panel, WorkCover WA may, with the consent of the worker, disclose to the panel any information that it has in relation to the worker that may be relevant to the assessment.

146L.Procedures

(1)In assessing the degree of impairment the approved medical specialist panel —

(a)is to act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms; and

(b)is not bound by rules of evidence.

(2)On being referred a question as to a worker’s degree of impairment, an approved medical specialist panel may —

(a)in accordance with the regulations, require the worker to attend at a place specified by the approved medical specialist panel;

(b)require the worker to answer any question about the injury;

(c)in accordance with the regulations, require the worker, the employer, or the employer’s insurer to —

(i)produce to the approved medical specialist panel any relevant document or information; or

(ii)consent to another person who has any relevant document or information producing it to the approved medical specialist panel;

(d)require the worker to submit to examination by, or as requested by, the members of the approved medical specialist panel.

(3)Regulations may be made —

(a)requiring a worker in respect of whom a question as to degree of impairment has been referred to an approved medical specialist panel to produce any information described in the regulations for use in dealing with the referral, and prescribing a fine of not more than $2 000 for a contravention of the requirement;

(b)about the time within which a requirement made under subsection (2) or imposed by a regulation under paragraph (a) has to be complied with if the time for complying is not specified in the requirement.

(4)Powers given by subsection (2)(a), (b) or (d) are to be exercised in private unless the worker otherwise consents, and any information or document obtained from, or by the consent of, the worker is not to be disclosed or given to any other person, except the person from whom it was obtained, without the consent of the worker.

(5)A person is not entitled to be represented in proceedings before an approved medical specialist panel.

(6)To the extent that the practice and procedure of an approved medical specialist panel are not prescribed under this Act, they are to be as the panel determines.

146M.Failure to comply with requirement of approved medical specialist panel

(1)If a worker —

(a)fails to comply with a requirement made by an approved medical specialist panel under section 146L(2)(a), (b) or (c); or

(b)on being required to submit to examination by the panel refuses or fails to do so or in any way obstructs the examination,

an arbitrator may issue a certificate to that effect and upon the issue of that certificate the making of an assessment of the worker’s degree of impairment is suspended until an arbitrator certifies that the suspension is removed.

(2)An arbitrator is not to issue a certificate under subsection (1) if the worker satisfies the arbitrator that there was a reasonable excuse for refusing or failing to comply with the requirement or obstructing the examination.

(3)An employer or insurer who refuses or fails to comply with a requirement of an approved medical specialist panel under section 146L(2)(c) commits an offence.

Penalty: $5 000.

(4)It is a defence to a charge under subsection (3) to prove that the employer or insurer had a reasonable excuse for failing to comply with the requirement.

146N.Assessment of impairment by approved medical specialist panel

A worker’s degree of impairment is to be assessed by an approved medical specialist panel in accordance with section 146A, and section 146B, 146D or 146E, as the case requires.

146O.Outcome of assessment by approved medical specialist panel

(1)Subject to section 146P, the assessment is to be made as soon as is practicable after the day on which a medical examination of the worker concerned is carried out by the approved medical specialist panel.

(2)An approved medical specialist panel is required to give to the Director in writing in accordance with the regulations —

(a)a report of the worker’s degree of impairment, including details of the assessment and reasons justifying the assessment; and

(b)a certificate specifying the worker’s degree of impairment.

(3)The Director is to give copies of the report and certificate to the arbitrator who referred the question to the panel, the worker concerned, and the employer of the worker concerned, within 7 days after the day on which the Director receives them.

(4)The assessment is —

(a)final and binding on the worker, the worker’s employer, on any dispute resolution authority, court or tribunal hearing a matter in which any such determination is relevant and on any other approved medical specialist panel; and

(b)conclusive evidence as to the matters determined.

(5)An assessment of an approved medical specialist panel is not —

(a)to be vitiated because of any informality or want of form; or

(b)subject to an appeal.

(6)A decision of an approved medical specialist panel or anything done under this Act in the process of coming to a decision of an approved medical specialist panel is not amenable to judicial review.

(7)In subsection (6) —

decision of an approved medical specialist panel means an opinion, assessment, or other decision of an approved medical specialist panel that is relevant to the operation of Part III Division 2A, Part IXA or clause 18A.

(8)If any of the documents described in subsection (1) or (2) contains an obvious error, the Director may reject it and require the approved medical specialist panel to replace it with a correct document which the Director is to give to each of the recipients of the document that contained the error.

146P.No assessment without unanimous agreement

(1)If the members of the approved medical specialist panel are not in unanimous agreement as to the degree of impairment, the panel is discharged and a new panel is to be selected to assess the worker’s degree of impairment in accordance with section 146N.

(2)A member of a panel discharged under subsection (1) is not eligible to be selected as a member of a new panel under that subsection.

146Q.Remuneration

(1)A member of an approved medical specialist panel is entitled to such fees and allowances as may be determined by the Minister.

(2)The fees and allowances mentioned in subsection (1) are to be paid by WorkCover WA from moneys standing to the credit of the General Fund.

Division 4 — WorkCover Guides

146R.WorkCover Guides

(1)WorkCover WA may issue directions with respect to the evaluation of degree of impairment.

(2)The directions, and any amendment of them, are to be developed in consultation with an advisory committee appointed under section 100A for the purposes of this section.

(3)The directions may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(4)Sections 41, 42, 43 and 44 of the Interpretation Act 1984 apply to the directions as if they were regulations.

”.

110.Part VII Division 5 inserted

At the end of Part VII the following Division is inserted —

Division 5 — Assessment for specialised retraining programs

146S.Register for panel membership

(1)The Director is to keep a register, with such divisions as the Director considers appropriate, containing the names of persons approved under subsection (2) who are willing to be selected for a specialised retraining assessment panel.

(2)WorkCover WA may, with the person’s consent, approve of the name of a person being included in the register.

146T.Panel to be constituted

(1)On a question being referred under section 158D(2) for assessment by a specialised retraining assessment panel, the Director is to select 3 persons who are registered under section 146S to be the panel that is to make the assessment.

(2)Of the members of the panel —

(a)one is to be an occupational physician who is an approved medical specialist;

(b)one is to be a person —

(i)who in the opinion of WorkCover WA, has knowledge of, and experience in, matters relating to the labour market; and

(ii)who is not an officer of WorkCover WA;

(c)one is to be an officer of WorkCover WA who is experienced in the review of injury management.

(3)A person is not eligible to be a member of the panel if the person —

(a)has treated or examined the worker concerned in a professional capacity; or

(b)has had dealings with, or has knowledge of, the worker concerned in a professional capacity.

(4)The Director is to nominate one of the members of the panel to be its chairman.

146U.Procedures

(1)In making an assessment a specialised retraining assessment panel is to act speedily and informally, and in accordance with good conscience, without regard to technicalities or legal forms and, except as provided in this Act, is not bound by rules of practice nor evidence.

(2)For the purposes of assisting it in making an assessment a specialised retraining assessment panel may request the worker, employer, insurer, medical practitioner or approved vocational rehabilitation provider concerned —

(a)to attend before the panel;

(b)to answer questions put by the panel;

(c)to produce to the panel any relevant document; or

(d)to authorise any person who possesses a relevant document to produce it to the panel.

(3)Powers given by subsection (2) to a panel are to be exercised in private unless the worker otherwise consents, and any information or document obtained from, or by the consent of, the worker is not to be disclosed or given to any other person, except the person from whom it was obtained, without the consent of the worker.

(4)A person is not entitled to be represented in proceedings before a specialised retraining assessment panel.

(5)If the worker concerned, without reasonable excuse (proof of which is on the worker), refuses to comply with a request made by the panel under subsection (2)(a), (b), (c) or (d), an arbitrator may issue a certificate to that effect and upon the issue of the certificate the making of an assessment in relation to the retraining criterion in question is suspended until an arbitrator certifies that the suspension is removed.

(6)To the extent that the practice and procedure of a specialised retraining assessment panel are not prescribed under this Act, they are to be as the panel determines.

146V.Assessments

(1)If the members of a specialised retraining assessment panel are not in unanimous agreement as to a question, the assessment is to be made in accordance with the opinion of at least 2 members of the panel.

(2)The assessment is to be made as soon as is practicable but in any event within 28 days after the day on which the panel first convenes to make the assessment.

(3)The assessment and the reasons for making it are to be given in writing signed by the chairman in a form approved by the Director, and are to be given to the Director within 7 days after the day on which the assessment is made.

(4)The Director is to give the assessment and reasons to the person who referred the question to the panel and the worker concerned within 7 days after the day on which the Director receives them.

(5)The assessment is not relevant in relation to an action for damages independently of this Act if Part IV Division 2 Subdivision 3 applies to the awarding of damages in the action.

(6)The assessment is —

(a)final and binding on the worker and the worker’s employer and on any body hearing a matter in which any such assessment is relevant; and

(b)conclusive evidence as to the matters assessed.

(7)An assessment of a specialised retraining assessment panel is not —

(a)to be vitiated because of any informality or want of form; or

(b)subject to an appeal.

(8)A decision of a specialised retraining assessment panel or anything done under this Act in the process of coming to a decision of a specialised retraining assessment panel is not amenable to judicial review.

(9)In subsection (8) —

decision of a specialised retraining assessment panel means an opinion, assessment, or other decision of a specialised retraining assessment panel that is relevant to the operation of Part IXA.

146W.Remuneration

(1)A member of a specialised retraining assessment panel who is not an officer of WorkCover WA is entitled to such fees and allowances as may be determined by the Minister.

(2)The fees and allowances mentioned in subsection (1) shall be paid by WorkCover WA from moneys standing to the credit of the General Fund.

”.

111.Part VIII heading amended

The heading to Part VIII is amended by deleting “Committee”.

112.Sections 147 to 150 repealed

Sections 147, 148, 149 and 150 are repealed.

113.Section 151 amended

Section 151(b) is amended as follows:

(a)by inserting before “formulate” at the beginning of the paragraph —

“ WorkCover WA is to ”;

(b)by deleting “the Committee may” and inserting instead —

“ it is to ”.

114.Section 152 amended and transitional provision

(1)Section 152 is amended by deleting “100%” and inserting instead —

“ 75% ”.

(2)Section 152 is amended at the foot of the section by inserting —

“ Penalty: $1 000. ”.

(3)The amendment made by subsection (1) does not apply to the charging of a loading in so far as the loading relates to a period of insurance that commenced before the commencement of that subsection.

115.Section 153 amended

Section 153 is amended by deleting “, on the recommendation of the Committee,”.

116.Section 154 amended

(1)Section 154(1) is amended by deleting “to the Commission or against the” and inserting instead —

“ or ”.

(2)Section 154(2) is amended as follows:

(a)in paragraph (a) —

(i)by deleting “where it is against classification, to the Commission, the Committee,” and inserting instead —

“ to WorkCover WA ”; and

(ii)by inserting after “classification” —

“ or assessment ”;

(b)by deleting paragraph (b) and “or” after paragraph (a).

(3)Section 154(4) is amended as follows:

(a)by deleting “The Commission or the Committee, as the case requires,” and inserting instead —

“ WorkCover WA ”;

(b)by deleting “in the case of the Commission” and inserting instead —

“ , as the case requires, ”;

(c)by deleting “in the case of the Committee decide”.

117.Sections 154A and 154AB inserted

After section 154 the following sections are inserted —

154A.Regulations for provision of information

(1)Regulations may provide for an insurer to inform an employer of —

(a)specified details of the premium for, and other charges relating to, the policy;

(b)specified details of anything done under this Part that may be relevant to the premium;

(c)specified provisions of this Act, rights or obligations under this Act, or things done under this Act, that may be relevant to the premium.

(2)In subsection (1) —

employer means an employer holding, or seeking to obtain, a policy of insurance against liability to pay compensation under this Act;

specified means specified in the regulations.

154AB.Special directions by Minister

(1)The Minister may give directions in writing as to the effect that the matter described in subsection (2) is to have, while the directions remain in effect, on the fixing under section 151 of recommended premium rates.

(2)That matter is the extent to which the cost of paying compensation under this Act as amended by the Workers’ Compensation Reform Act 2004 in respect of claims made before section 141 of the Workers’ Compensation Reform Act 2004 commenced would differ from what it would have cost to pay compensation arising out of those claims if section 141 of the Workers’ Compensation Reform Act 2004 had not commenced.

(3)Effect is to be given to directions under this section.

”.

118.Part IX replaced

Part IX is repealed and the following Part is inserted instead —

Part IX  Injury management

155.Terms used in this Part

In this Part —

code means the code of practice (injury management) issued under section 155A(1) that is currently in force;

injury management system means an injury management system established under section 155B;

return to work program means a return to work program established under section 155C(1);

treating medical practitioner, in relation to a worker, means the medical practitioner who the worker has chosen or accepted to have the primary responsibility for the medical care and coordination of medical care for the worker.

155A.Code of practice (injury management)

(1)WorkCover WA may issue a code of practice (injury management).

(2)The code may include provisions and guidelines in relation to —

(a)the establishment, content and implementation of injury management systems;

(b)the establishment, content and implementation of return to work programs;

(c)the development by approved vocational rehabilitation providers of service delivery plans and the contents of, and other requirements in relation to, those plans;

(d)such other matters relating to injury management as WorkCover WA considers appropriate.

(3)The code may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(4)Sections 41, 42, 43 and 44 of the Interpretation Act 1984 apply to the code as if the code were regulations.

155B.Establishment of injury management systems for employer’s workers

Each employer is to ensure that —

(a)an injury management system is established in relation to the employer’s workers; and

(b)the establishment, content and implementation of the injury management system are in accordance with the code.

Penalty: $2 000.

155C.Establishment of return to work programs for individual workers

(1)An employer of a worker who has suffered an injury compensable under this Act must ensure that a return to work program is established for the worker as soon as practicable after either of the following occurs —

(a)the worker’s treating medical practitioner advises the employer in writing that a return to work program should be established for the worker;

(b)the worker’s treating medical practitioner signs a medical certificate to the effect that the worker has a total or partial capacity to return to work.

(2)Subsection (1) does not require a return to work program to be established for a worker —

(a)who has returned to the position held by the worker immediately before the injury occurred; and

(b)who has a total capacity to work in that position.

(3)An employer must ensure that the establishment, content and implementation of a return to work program are in accordance with the code.

Penalty applicable to subsections (1) and (3): $2 000.

155D.Injury management: insurers’ obligations

(1)An insurer must take such action as is prescribed by the regulations in relation to making each employer who is insured by the insurer aware of the employer’s obligations under sections 155B and 155C(1) and (3).

(2)If an insured employer requests the insurer to assist the employer to comply with any of the employer’s obligations under section 155B or 155C(1) or (3), the insurer must take such action as is reasonable —

(a)to assist the employer to comply with the employer’s obligations that are the subject of the employer’s request; and

(b)to ensure that the employer complies with the employer’s obligations that are the subject of the employer’s request.

(3)If an insured employer requests the insurer to discharge the employer’s obligations under section 155C(1) or (3) on behalf of the employer, the insurer must take such action as is reasonable —

(a)to discharge the employer’s obligations that are the subject of the employer’s request; and

(b)to comply with the employer’s obligations that are the subject of the employer’s request,

within such time as is reasonable in the circumstances.

Penalty applicable to subsection (3): $2 000.

156.Approval of vocational rehabilitation providers

(1)WorkCover WA may, in writing —

(a)subject to such conditions, if any, as it sees fit to impose, approve as a vocational rehabilitation provider any person WorkCover WA considers capable of satisfactorily providing vocational rehabilitation; and

(b)revoke any such approval.

(2)In considering whether or not to approve a person as a vocational rehabilitation provider, to impose conditions on any such approval, or to revoke any such approval, WorkCover WA — 

(a)may have regard to performance criteria established by an advisory committee under section 100A, and to the advice of such a committee in a particular case; and

(b)in the case of the revocation of an approval that is subject to conditions, is to have regard to whether or not there has been compliance with the conditions.

(3)An implied and non‑revocable condition of a person’s approval as a vocational rehabilitation provider is that the person is to comply with the code in relation to —

(a)the development and content of service delivery plans;

(b)other requirements in relation to service delivery plans; and

(c)other requirements applicable to vocational rehabilitation providers.

156A.Vocational rehabilitation services

(1)WorkCover WA, upon request, is to provide to workers, employers and other persons information as to the persons who are approved vocational rehabilitation providers.

(2)If a person providing vocational rehabilitation — 

(a)is not an approved vocational rehabilitation provider; or

(b)is an approved vocational rehabilitation provider but contravenes a condition imposed in respect of the person’s approval,

the amount of any fee or other reward paid in respect of the vocational rehabilitation is not to be regarded as a reasonable expense incurred in respect of vocational rehabilitation for the purposes of clause 17(1a).

(3)If a fee or other reward is paid for the provision of vocational rehabilitation mentioned in subsection (2) by a person who — 

(a)not being approved as a vocational rehabilitation provider, held himself or herself out as being so approved; or

(b)being approved as a vocational rehabilitation provider subject to any condition, contravenes any such condition,

the person who paid the fee or other reward may recover as a debt due from that person the amount of the fee or other reward paid.

156B.Arbitrators’ powers in relation to return to work programs

(1)The employer of a worker, or a worker, may apply for an order of an arbitrator requiring the worker to participate in a return to work program.

(2)The arbitrator may require the worker to participate in a return to work program if satisfied that —

(a)a return to work program is required under section 155C(1) to be established for the worker;

(b)the worker, without reasonable excuse, refuses or has failed to participate in a return to work program; and

(c)the establishment, content and implementation of the return to work program are, or will be, in accordance with the code.

(3)The arbitrator may require the worker to participate in a return to work program other than that proposed by or on behalf of a party to the application.

157.Information about injury management matters

(1)WorkCover WA is to provide information and advice on injury management generally.

(2)WorkCover WA is to make available, upon request, to employers, workers and other persons such information or other assistance as it considers appropriate to facilitate the arranging of injury management.

(3)WorkCover WA may make arrangements with other persons or authorities for the use of facilities for providing information about injury management and related matters.

(4)An arbitrator may request WorkCover WA to provide information on injury management or related matters, and WorkCover WA is to provide that information to the arbitrator.

157A.Early identification of injuries that require, or may require, management

(1)An insurer or a self‑insurer shall, not later than the expiration of 7 days after acquiring the knowledge referred to in paragraph (a) or (b), give to WorkCover WA notice in writing, containing the prescribed particulars, with respect to —

(a)a worker whose period of incapacity the insurer or self‑insurer knows to have exceeded 4 consecutive weeks; or

(b)a worker whose periods of incapacity during any period of 12 months or less the insurer or self‑insurer knows to have exceeded, in sum, 12 weeks.

Penalty: $1 000.

(2)Subsection (1) does not apply —

(a)to an insurer or self‑insurer who is exempted under subsection (3) and who is acting in accordance with the exemption; or

(b)in relation to a period of incapacity with respect to which notice has already been given under —

(i)this section;

(ii)section 155 as in force before section 118 of the Workers’ Compensation Reform Act 2004 came into operation; or

(iii)section 155 as in force before 8 March 1991, being the day on which section 33 of the Workers’ Compensation and Assistance Amendment Act 1990 came into operation.

(3)WorkCover WA may, in writing, exempt an insurer or a self‑insurer from the requirement to comply with subsection (1), either absolutely or subject to such conditions as it sees fit to impose, and any such exemption has effect according to its tenor until revoked by WorkCover WA.

(4)If WorkCover WA is of the opinion that a worker’s injury should be reviewed to determine whether a return to work program should be established for the worker, WorkCover WA may —

(a)notify the worker, the worker’s employer and the employer’s insurer of that opinion; and

(b)inform those persons of the requirements of section 155C and 155D and their obligations under those provisions.

157B.Mediation and assistance

WorkCover WA may provide mediation and independent guidance on injury management and related matters with a view to facilitating the informal resolution of questions and disputes arising from those matters.

”.

119.Part IXA inserted

After Part IX the following Part is inserted —

Part IXA  Specialised retraining programs

158.Meaning of “retraining criteria”

(1)In this Part —

degree of permanent whole of person impairment means the degree of permanent whole of person impairment, evaluated as described in sections 146A and 146D, resulting from the injury or injuries arising from a single event, as defined in subsection (2);

retraining criteria, in relation to a worker, means the following criteria —

(a)the worker has participated in a return to work program established under section 155C(1) but has not been able to return to work;

(b)the worker has a capacity for retraining and is a person for whom a specialised retraining program is a viable option;

(c)formal vocational training or study through a technical or tertiary training course appears to be the only course of action that will enable the worker to return to work;

(d)it is reasonable to expect that a specialised retraining program will provide the worker with the qualification or skills necessary to return to work, having regard to the labour market, the worker’s existing qualifications and work experience;

(e)such other criteria as may be prescribed in the regulations for the purposes of this definition.

(2)In the definition of “degree of permanent whole of person impairment” in subsection (1) —

event means anything that results, whether immediately or not and whether suddenly or not, in an injury or injuries of a worker and the term includes continuous or repeated exposure to conditions that result in an injury or injuries of a worker.

158A.Eligibility to participate in specialised retraining programs

(1)A worker may participate in a specialised retraining program if —

(a)the worker has suffered an injury that is compensable under this Act;

(b)the injury occurred on or after the day on which section 119 of the Workers’ Compensation Reform Act 2004 comes into operation;

(c)either —

(i)the worker and the worker’s employer agree that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%; or

(ii)an arbitrator has determined that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%;

and

(d)either —

(i)the worker and the worker’s employer agree that the worker satisfies all of the retraining criteria; or

(ii)an arbitrator has determined that the worker satisfies all of the retraining criteria.

(2)A worker is eligible to participate in a specialised retraining program even if —

(a)the worker is receiving weekly payments under clause 7 or other compensation under Schedule 1; or

(b)the weekly payments paid for periods of the incapacity arising from the worker’s injury have reached the prescribed amount.

(3)Despite having suffered an injury referred to in subsection (1)(a) and (b), a worker is not eligible to participate in a specialised retraining program if —

(a)an election by the worker under section 93K(4) in respect of the injury has been registered;

(b)an agreement in respect of the whole of the liability for the incapacity or impairment arising from the injury has been registered under Part III Division 7;

(c)an order for redemption of the liability for incapacity arising from the injury has been made under section 67(1)(a) or (4);

(d)an order in respect of the whole of the liability for the incapacity or impairment arising from the injury has been made under Part XI; or

(e)the worker’s claim for damages in respect of the injury or the incapacity or impairment arising from the injury has been settled by agreement independently of this Act and has not been disapproved under section 92(f).

(4)The participation of a worker in a specialised retraining program is subject to sections 158B and 158E.

158B.Final day for recording agreed matters, referring disputed matters for determination

(1)A worker is not eligible to participate in a specialised retraining program unless, on or before the final day referred to in subsection (2) —

(a)either —

(i)the Director has, at the written request of the worker, recorded in accordance with the regulations an agreement as to the worker’s degree of permanent whole of person impairment; or

(ii)if there is not agreement between the worker and the worker’s employer as to the worker’s degree of permanent whole of person impairment, the worker has applied under section 158C to have the matter in dispute determined by an arbitrator;

and

(b)either —

(i)the Director has, at the written request of the worker, recorded in accordance with the regulations an agreement that the worker satisfies all of the retraining criteria; or

(ii)if there is not agreement between the worker and the worker’s employer that the worker satisfies all of the retraining criteria, the worker has applied under section 158D to have the matter in dispute determined by an arbitrator.

(2)If a claim for compensation by way of weekly payments has been made on an employer in accordance with section 178(1)(b) with respect to an injury of a worker, the final day for purposes of subsection (1) is the last day of the period of 2 years after the day on which the claim for compensation is made unless a later day is fixed under subsection (3) or (4).

(3)If, after the expiry of the period of 3 months after the day on which the claim is made —

(a)an arbitrator, acting under section 58(1) or (2), determines the question of liability to make the weekly payments claimed; or

(b)the worker is first notified that liability is accepted in respect of the weekly payments claimed,

the final day is the last day of the period 1 year and 9 months after the day of the act described in paragraph (a) or (b) that was most recently done unless a later day is fixed under subsection (4).

(4)The Director may, in accordance with the regulations, from time to time extend the final day, but only if the Director is satisfied that the worker has, in accordance with the regulations and at least 8 weeks before the final day requested an approved medical specialist to assess the worker’s degree of permanent whole of person impairment, but the worker could not take, or it would be impracticable for the worker to take, the action referred to in subsection (1) before the final day referred to in subsection (2).

(5)An extension under subsection (4) is to be to a day that is not more than 6 months after the day that would have been the final day had there been no extension under that subsection.

(6)An extension is to be in writing and the Director is required to give the worker and the employer each a copy of the extension.

(7)An extension may be given even though the final day has passed.

158C.Disputes as to degree of permanent whole of person impairment

(1)If —

(a)there is not agreement between a worker and the worker’s employer that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%; and

(b)the worker’s degree of permanent whole of person impairment has been assessed by an approved medical specialist under sections 146A and 146D as at least 10% but less than 15%,

but the employer disputes the assessment referred to in paragraph (b), the worker may apply to have the question as to the worker’s degree of permanent whole of person impairment arising from the injury concerned determined by an arbitrator.

(2)An arbitrator to whom an application to determine a question is made under subsection (1) may —

(a)determine the worker’s degree of permanent whole of person impairment; or

(b)refer the question as to the worker’s degree of permanent whole of person impairment for assessment by an approved medical specialist panel in accordance with sections 146A and 146D.

(3)If a determination or assessment is made that the worker’s degree of permanent whole of person impairment is at least 10% but less than 15%, the arbitrator may order the employer to pay all or any of the costs or expenses connected with the dispute, including expenses connected with the referral to an approved medical specialist panel.

158D.Disputes as to retraining criteria

(1)If there is not agreement between a worker and the worker’s employer that the worker satisfies all of the retraining criteria, the worker may apply to have the question as to whether the worker satisfies all of the retraining criteria determined by an arbitrator.

(2)An arbitrator to whom an application to determine a question is made under subsection (1) is to refer the question for assessment by a specialised retraining assessment panel in accordance with section 146V.

(3)If an assessment is made that the worker is suitable to participate in a specialised retraining program, the arbitrator may order the employer to pay all or any of the costs or expenses connected with the dispute, including expenses connected with the referral to a specialised retraining assessment panel.

158E.Specialised retraining program agreements

(1)A worker who is eligible under sections 158A and 158B to participate in a specialised retraining program cannot participate in the program unless —

(a)the worker has entered into an agreement with WorkCover WA in relation to the program; and

(b)the agreement is entered into on or before the final day referred to in subsection (2).

(2)The final day for the purposes of subsection (1) is the later of —

(a)the day that is 30 days after the day on which —

(i)the worker is notified of the recording of an agreement referred to in section 158B(1)(a)(i) as to the worker’s degree of permanent whole of person impairment; or

(ii)the worker is given the decision of an arbitrator as to the worker’s degree of permanent whole of person impairment,

as is relevant to the case; and

(b)the day that is 30 days after the day on which —

(i)the worker is notified of the recording of an agreement referred to in section 158B(1)(b)(i) that the worker satisfies all of the retraining criteria; or

(ii)the worker is given the decision of an arbitrator as to whether the worker satisfies all of the retraining criteria,

as is relevant to the case.

(3)An agreement is to make provision in relation to —

(a)course attendance requirements;

(b)the worker’s role in relation to reviews under section 158H including attendances and communications with WorkCover WA and providing information in relation to the performance and cooperation of the worker in the specialised retraining program;

(c)acknowledgement by the worker of the effects of this Part relating to the modification, suspension and cessation of amounts payable in respect of the worker’s participation in the program.

(4)Any provision of an agreement that is inconsistent with a provision of this Act is of no effect to the extent of the inconsistency.

158F.WorkCover WA to direct payments in relation to specialised retraining programs

(1)As soon as practicable after an agreement under section 158E has been signed by the worker and WorkCover WA, WorkCover WA is to notify the following persons of the agreement —

(a)the worker’s employer; and

(b)if the employer is insured against liability to pay compensation under this Act, the employer’s insurer.

(2)The total of the amounts payable in respect of a worker’s participation in a specialised retraining program is the amount equal to 75% of the prescribed amount calculated as at the date on which the worker signed the agreement.

(3)WorkCover WA may, as it sees fit, but subject to this section and any regulations under subsection (10), give a written direction to the worker’s employer or the employer’s insurer to make a payment in respect of a worker’s participation in a specialised retraining program.

(4)A direction may be for periodic payments or for a particular payment.

(5)A payment may be for, but is not limited to —

(a)reasonable fees for a course;

(b)the cost of books and relevant resource materials reasonably necessary to undertake a course;

(c)subject to subsections (8) and (9), a weekly retraining allowance.

(6)Subject to subsection (7), a payment may be for reasonable expenses incurred in respect of vocational rehabilitation under clause 17(1a) that is requested by the worker if the assistance of an approved vocational rehabilitation provider is necessary to coordinate the specialised retraining program.

(7)If the amount payable under clause 17(1a) is exhausted in respect of a worker, then for the purpose mentioned in subsection (6), WorkCover WA may direct that an additional amount, not exceeding 3% of the amount referred to in subsection (2), be paid in respect of the worker, as long as the additional amount does not exceed the total amount applicable to the worker under subsection (2).

(8)The worker cannot receive any weekly retraining allowance payments until the total weekly payments under clause 7 have reached the prescribed amount.

(9)Any weekly retraining allowance amount —

(a)is not to be linked to or represent the worker’s capacity or otherwise to work; and

(b)is not to exceed the worker’s pre‑injury weekly earnings.

(10)Subject to subsections (6), (7), (8) and (9), the following matters may be prescribed by the regulations —

(a)the submission of requests for payment and requirement for copies of invoices to be provided to WorkCover WA;

(b)the manner in which funds may be apportioned;

(c)when funds should be directed to be paid;

(d)when funds should be paid;

(e)the rate of any weekly training allowance.

158G.Obligations of employers, insurers

(1)An employer or insurer who receives a direction under section 158F or 158I must comply with the direction within the time specified in the direction, or such longer period as may be subsequently specified by WorkCover WA but not exceeding 30 days.

(2)An employer or insurer must not modify, suspend or cease an amount payable under a direction under section 158F or affected by a direction under section 158I unless WorkCover WA has given the employer or insurer written approval to do so.

(3)A reference in section 174(1)(c) to the obtaining of an award by the worker includes a reference to the receipt by an employer or insurer of a direction under section 158F or 158I.

(4)Nothing in section 174 prevents moneys standing to the credit of the General Fund from being paid in accordance with a direction under section 158F or 158I within 30 days of the direction being received if —

(a)the direction relates to a payment in respect of a particular specialised retraining program; and

(b)moneys have already been paid from the General Fund in respect of that program.

158H.3 monthly reviews of performance, payments under specialised retraining programs

(1)WorkCover WA is to conduct, at the times set out in subsection (2), a review of —

(a)the performance and cooperation of each worker who is participating in a specialised retraining program; and

(b)the payments directed to be made in respect of each worker who is participating in a specialised retraining program.

(2)The first review in respect of a worker is to be conducted 3 months after the day on which the worker commences participation in the specialised retraining program, and subsequent reviews are to be at 3 monthly intervals.

158I.WorkCover WA may direct modification, suspension, cessation of payments under specialised retraining programs

(1)WorkCover WA may, as it sees fit, but subject to this Part and any regulations in relation to the administration of funds for specialised retraining programs, and having regard to the results of a review under section 158H in relation to a worker, give a written direction to the worker’s employer or the employer’s insurer to modify, suspend or cease the amounts payable in respect of the worker’s participation in the program.

(2)Without affecting subsection (1) WorkCover WA may give a written direction to the worker’s employer or the employer’s insurer to do any of the following —

(a)suspend any entitlement that a worker has under an agreement under section 158E if WorkCover WA is of the opinion that the worker has not complied, or is not complying, with a provision of the agreement;

(b)cease the entitlement if the worker does not, within one month of being requested in writing by WorkCover WA to do so, comply with the provision;

(c)modify, suspend or cease the amounts payable in respect of the worker’s participation in the program if the worker fails a course requirement or does not achieve the results that, in the opinion of WorkCover WA, are required for the course to be successfully completed.

158J.Cessation of payments

Payments in respect of a worker’s participation in a specialised retraining program cease from the date on which an event referred to in section 158A(3)(a) to (e) occurs in respect of a claim for the injury concerned.

158K.Directions not open to challenge etc.

A decision of WorkCover WA to direct the payment, modification, suspension or cessation of an amount payable to or in respect of a worker participating in a specialised retraining program is not liable to be challenged, appealed against, reviewed, quashed or called into question under this Act or by any court.

158L.Other effects of participation in specialised retraining program

(1)The amount referred to in section 158F(2) is in addition to and separate from any other compensation that a worker is entitled to under this Act in relation to an injury.

(2)A worker’s participation in a specialised retraining program is not, of itself, a ground for the suspension, discontinuance, reduction or increasing, under this Act, of payments of other compensation that the worker receives in respect of the injury.

(3)A worker’s participation in a specialised retraining program is not, of itself, a ground for an arbitrator to require or not require, under section 156B, the worker to participate in a return to work program.

(4)No part of the specialised retraining program entitlement can be taken into account in the calculation of any other compensation to which the worker is entitled under this Act.

”.

120.Section 160 amended

(1)Section 160(2a) is repealed.

(2)After section 160(3) the following subsection is inserted —

(3a)Where WorkCover WA permits an approved insurance office to cancel a policy or contract of insurance obtained by an employer under this section, the approved insurance office shall notify the employer of the cancellation within 14 days after the cancellation has effect.

Penalty: $1 000.

”.

(3)After section 160(4) the following subsections are inserted —

(5)Where an approved insurance office declines to indemnify an employer in respect of a liability referred to in subsection (4) in respect of which the approved insurance office would be liable to indemnify the employer if the liability were incurred during the term of the policy or contract of insurance, the approved insurance office commits an offence.

Penalty: $2 000.

(6)A conviction for an offence under subsection (5) does not affect the liability of the approved insurance office under subsection (4).

(7)Where an employer has obtained a policy of insurance from an approved insurance office under this section, the employer shall ensure that a valid certificate of currency issued by the insurance office in respect of the policy is available for inspection at the employer’s principal office or place of business in the State.

Penalty: $2 000.

(8)An employer does not have to comply with subsection (7) if it is not reasonably practicable to do so.

”.

121.Section 162 amended

After section 162(1) the following subsection is inserted —

(1a)An insurer that issues or renews a policy contrary to subsection (1) commits an offence.

Penalty: $1 000.

”.

122.Section 164 amended

Section 164(1) is amended by deleting “deposited at the Treasury” and inserting instead —

“ given to the State ”.

123.Section 165 amended

(1)Section 165(2) is amended by deleting “deposited at the Treasury” and inserting instead —

“ given to the State ”.

(2)Section 165(3)(b) is amended as follows:

(a)by deleting “deposit at the Treasury” and inserting instead —

“ give to the State ”;

(b)by deleting “deposited” and inserting instead —

“ given ”.

(3)Section 165(4)(a) is amended by deleting “deposited at the Treasury” in both places where it occurs and inserting instead —

“ given to the State ”.

(4)Section 165(4)(b)(i) is amended as follows:

(a)by deleting “deposit at the Treasury” and inserting instead —

“ give to the State ”;

(b)by deleting “deposited” and inserting instead —

“ given ”.

(5)Section 165(4)(b)(ii) is amended as follows:

(a)by deleting “deposit at the Treasury” and inserting instead —

“ give to the State ”;

(b)by deleting “deposit at the Treasury” and inserting instead —

“ give to the State ”.

(6)After section 165(4) the following subsection is inserted —

(5)Where an employer or group of employers fails to give to the State, within 21 days after the direction is given, any securities directed by the Minister to be given under subsection (4)(b) —

(a)the employer; or

(b)each employer belonging to the group of employers,

as the case may be, commits an offence.

Penalty: $1 000.

”.

124.Section 168 amended

Section 168(a) is amended by deleting “lodged by it or them with the Treasury” and inserting instead —

“ given by it or them to the State ”.

 

125.Section 171 amended

(1)Section 171(1)(b) is amended after “lapsed” by inserting —

(or, where WorkCover WA has permitted cancellation, cancelled)

”.

(2)Section 171 is amended at the foot of subsection (1) by inserting —

“ Penalty: $1 000. ”.

126.Section 174 amended

(1)Section 174(1) is amended by deleting all of the subsection after “thereof” and inserting instead a full stop.

(2)After section 174(1) the following subsection is inserted —

(1a)Without limiting section 174AB, until the amount paid to a worker under this section is recovered under this section or section 174AA, WorkCover WA may exercise any rights of the employer under this Act in relation to the payment of that award.

”.

(3)Section 174(2) is repealed.

(4)Section 174(3) is amended by deleting “Part IIIA” and inserting instead —

“ Part XI ”.

(5)Section 174(6) and (7) are repealed and the following subsections are inserted instead —

(6)Where WorkCover WA has paid from the General Fund an amount under subsection (1) WorkCover WA may file in a court of competent jurisdiction a certificate of WorkCover WA showing the amount paid.

(7)No charge is to be made for filing a copy of a certificate under this section.

(8)On filing, the certificate is to be taken to be a judgment of that court for a debt payable by the employer of the worker to WorkCover WA of the same amount as the amount stated in the certificate, and may be enforced accordingly, and section 142(1) of the Supreme Court Act 1935 applies to the amount specified in the certificate as if it were payable under a judgment of the court.

(9)Where by reason of section 175 more than one person is liable as an employer to pay compensation under this Act to a worker, the reference in subsection (8) to the employer is to be read as a reference to each person so liable, and the judgment may be enforced against those persons jointly and severally.

”.

127.Section 174AA inserted

After section 174 the following section is inserted —

174AA.Recovery from responsible officers of body corporate

(1)If none, or some but not all, of an amount paid from the General Fund under section 174 is recovered from a body corporate liable to pay the amount under that section, WorkCover WA may sue and recover the unpaid amount from a responsible officer of the body corporate.

(2)A person is a responsible officer of a body corporate if —

(a)the body corporate has contravened section 160(1) in respect of a policy of insurance or otherwise failed to ensure that it had a sufficient policy of insurance that would have covered the body corporate for the liability to which the payment made under section 174 related (whether or not the body corporate has been proceeded against or convicted of an offence for the contravention);

(b)at the time of the contravention or failure the person was a director or other officer concerned in the management of the body corporate; and

(c)the person does not prove that —

(i)the contravention or failure occurred without the person’s consent or connivance; and

(ii)the person exercised all such due diligence to prevent the contravention or failure as ought to have been exercised having regard to the nature of the person’s functions and to all the circumstances.

(3)If there are 2 or more responsible officers of a body corporate they are jointly and severally liable for the payment of the unpaid amount recoverable under subsection (1).

”.

128.Sections 174AB and 174AC inserted

Before section 174A the following sections are inserted —

174AB.WorkCover WA may exercise rights of employer

(1)If an employer is uninsured and is not defending a claim brought by a worker, WorkCover WA has all of the rights of the employer under this Act in place of the employer including the right to —

(a)consent to an award or order being made in a proceeding before a dispute resolution authority;

(b)enter into an agreement as to redemption of the claim;

(c)become a party to proceedings in relation to the claim;

(d)exercise the rights of the employer in relation to injury management; and

(e)require the worker to submit himself for examination under sections 64 and 65.

(2)If an employer —

(a)is uninsured and is defending a claim brought by a worker; or

(b)may be uninsured and a worker has brought a claim, irrespective of whether or not the employer is defending the claim,

then, unless an order to the contrary is made pursuant to an application under subsection (3), WorkCover WA has all of the rights of the employer under this Act in place of the employer as if subsection (1) applied.

(3)The employer may apply under Part XI for an order as to the rights WorkCover WA may exercise under subsection (2) and the exercise of those rights.

(4)An arbitrator may hear and determine an application under subsection (3) and may make such orders in relation to the application as the arbitrator thinks fit.

(5)WorkCover WA may sue for and recover from the employer fees, costs and charges incurred by WorkCover WA under this section, whether or not WorkCover WA was successful in any proceedings.

174AC.WorkCover WA’s right of subrogation

If WorkCover WA has paid, or is liable to pay, from the General Fund an amount as compensation for which an employer is liable under this Act, WorkCover WA is subrogated to any right of the employer and any insurer of the employer to recover any amount from any other person in respect of that payment (had the payment been made by the employer or insurer), whether the right arises by way of liability for contribution, apportionment of liability or otherwise.

”.

129.Part XA inserted

After section 175D the following Part is inserted —

Part XA  Infringement notices and modified penalties

175E.Definitions

In sections 175G, 175H, 175I and 175J —

authorised officer means a person designated as an authorised officer under section 175F for the purposes of the section in which the term is used;

prescribed means prescribed by the regulations.

175F.Authorised officers

(1)The chief executive officer may designate officers of WorkCover WA as authorised officers for the purposes of section 175G, 175H, 175I or 175J or for the purposes of 2 or more of those sections, but a person who is authorised to give infringement notices under section 175G is not eligible to be an authorised officer for the purposes of any of the other sections.

(2)The chief executive officer is to issue a certificate of authorisation to each person designated as an authorised officer under subsection (1).

(3)An authorised officer is to produce the certificate whenever required to do so by a person in respect of whom the officer has exercised, or is about to exercise, any power under this Part.

(4)Production of a certificate referred to in subsection (2) in respect of a person is evidence in any court that the person is duly designated under subsection (1).

175G.Giving of notice

(1)An authorised officer who has reason to believe that a person has committed a prescribed offence under this Act may give an infringement notice to the alleged offender.

(2)The notice is to be given within 6 months after the alleged offence is believed to have been committed.

175H.Content of notice

(1)An infringement notice is to be in the prescribed form.

(2)An infringement notice is to —

(a)contain a description of the alleged offence;

(b)specify the amount of the modified penalty for the offence;

(c)advise that if the alleged offender does not wish to have a complaint of the alleged offence heard and determined by a court, that amount may be paid to an authorised officer within the period of 28 days after the giving of the notice; and

(d)inform the alleged offender as to who are authorised officers for the purpose of receiving payment of modified penalties.

(3)The amount specified under subsection (2)(b) is to be the amount that was the prescribed modified penalty at the time the alleged offence is believed to have been committed.

(4)The modified penalty that may be prescribed for an offence is not to exceed 20% of the maximum penalty that could be imposed for that offence by a court.

175I.Extension of time

An authorised officer may, in a particular case, extend the period of 28 days within which the modified penalty may be paid, and the extension may be allowed whether or not the period of 28 days has elapsed.

175J.Withdrawal of notice

(1)An authorised officer may, whether or not the modified penalty has been paid, withdraw an infringement notice within 60 days after the day on which it was given by sending to the alleged offender a notice in the prescribed form stating that the infringement notice has been withdrawn.

(2)If an infringement notice is withdrawn after the modified penalty has been paid, the amount is to be refunded.

175K.Benefit of paying modified penalty

(1)Subsection (2) applies if the modified penalty specified in an infringement notice has been paid within 28 days or such further time as is allowed and the notice has not been withdrawn.

(2)If this subsection applies it prevents the bringing of proceedings and the imposition of penalties to the same extent that they would be prevented if the alleged offender had been convicted by a court of, and punished for, the alleged offence.

175L.No admission implied by payment

Payment of a modified penalty is not to be regarded as an admission for the purposes of any proceedings, whether civil or criminal.

175M.Application of penalties collected

An amount paid as a modified penalty is to be dealt with in accordance with section 312, unless section 175J(2) requires the amount to be refunded.

”.

130.Part XI replaced by Parts XI to XVI II

Part XI is repealed and the following Parts are inserted instead —

Part XI  Dispute resolution

Division 1 — General

176.Exclusive jurisdiction

(1)In this Part —

dispute means —

(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;

(b)a dispute in connection with an obligation imposed under Part IX;

(c)any other dispute or matter for which provision is made under this Act for determination by an arbitrator;

(d)any other matter of a kind prescribed by the regulations.

(2)A proceeding for the determination of a dispute is not capable of being brought other than under this Part or Part XII.

(3)Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.

177.Evidence of communication between worker and injury management officer

Evidence of any communication between a worker and a person employed by WorkCover WA and acting in the capacity of an injury management officer is not admissible in a proceeding before an arbitrator unless, during the course of the proceeding, the worker consents to the evidence being so admitted.

Division 2 — Requirements before commencing proceeding

178.Notice of injury and claim

(1)Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless —

(a)a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and

(b)the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death,

but —

(c)the want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and

(d)the failure to make a claim within the period mentioned in paragraph (b) is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.

(2)Notice in respect of an injury under this Act is to state —

(a)the name and address of the person injured;

(b)in ordinary language the cause of the injury; and

(c)the date and place at which the injury occurred,

and is to include such other information, if any, as may be prescribed by the regulations.

179.Service of notice of injury

(1)Notice in respect of an injury under this Act is to be served on the employer, or, if there is more than one employer, upon one of such employers.

(2)The notice may be served by delivering it at, or sending it by post in a registered letter addressed to, the residence or place of business of the person on whom it is to be served.

(3)When the employer is a body of persons, corporate or unincorporate, the notice may also be served by delivering it at, or by sending it by post in a registered letter addressed to the employer at the office, or, if there is more than one office, any one of the offices of such body.

(4)When the employer is —

(a)the State, notice in respect of an injury under this Act is to be served on the State Solicitor, at Perth, or the manager of the work on which the worker was employed at the time the injury occurred;

(b)the Governor under the Governor’s Establishment Act 1992, notice in respect of an injury under this Act is to be served on the Official Secretary within the meaning of that Act;

(c)the President of the Legislative Council, notice in respect of an injury under this Act is to be served — 

(i)in the case of a worker who is a member of the Department of the Legislative Council, on the Clerk of the Legislative Council; or

(ii)in the case of a worker who is an electorate officer, on the Director‑General;

(d)the Speaker of the Legislative Assembly, notice in respect of an injury under this Act is to be served — 

(i)in the case of a worker who is a member of the Department of the Legislative Assembly, on the Clerk of the Legislative Assembly; or

(ii)in the case of a worker who is an electorate officer, on the Director‑General;

or

(e)the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, notice in respect of an injury under this Act is to be served, in the case of a worker who is a member of — 

(i)the Department of the Parliamentary Reporting Staff, on the Chief Hansard Reporter;

(ii)the Department of the Parliamentary Library, on the Parliamentary Librarian; or

(iii)the Joint House Department, on the Executive Officer of the Joint House Department,

as the case requires.

(5)A reference in subsection (4)(c), (d) or (e) to an expression that is defined in the Parliamentary and Electorate Staff (Employment) Act 1992 is a reference to that expression as so defined.

180.Provision of certain documents before commencement of proceeding

(1)In this section —

injury includes alleged injury;

relevant document means any of the following —

(a)a contract of service or apprenticeship to which the worker is a party;

(b)a contract for service to which the worker is a party;

(c)records of wages or other remuneration paid to the worker;

(d)a report relevant to the injury by a medical practitioner who has treated the worker for the injury;

(e)a report by a medical practitioner who has conducted tests or investigations on the worker in relation to the injury;

(f)a report by a medical practitioner who has been consulted by a medical practitioner referred to in paragraph (d) or (e) in connection with treatment of, or tests related to, the injury;

(g)a report by an approved vocational rehabilitation provider in relation to the worker;

(h)a notice of occurrence of the injury made in accordance with section 178(1)(a);

(i)a claim for compensation with respect to the injury made in accordance with section 178(1)(b);

(j)a document of a kind prescribed by the regulations.

(2)A worker who has suffered an injury, or the worker’s legal practitioner or agent, may request the worker’s employer at the time the injury occurred, or that employer’s insurer, to provide the person making the request with a copy of such relevant documents as are in the possession of or under the control of the employer and the insurer.

(3)If a worker has made a claim for compensation with respect to noise induced hearing loss in accordance with section 178(1)(b), the worker’s employer or that employer’s insurer may request WorkCover WA to provide the person making the request with a copy of any documents in the possession of or under the control of WorkCover WA that —

(a)are of a kind described in paragraph (d), (e) or (f) of the definition of “relevant document” in subsection (1); or

(b)relate to the worker’s employment history or the worker’s exposure to noise.

(4)A request under subsection (2) or (3) is to be made in accordance with the DRD Rules and within the time prescribed by the DRD Rules.

(5)An employer or insurer requested to provide a copy of a relevant document under subsection (2) or (3) that fails to comply with the request within the period referred to in subsection (4) commits an offence.

Penalty: $1 000.

(6)An arbitrator may make an order requiring the production of documents under this section.

Division 3 — Proceedings before an arbitrator

181.Arbitrators to determine disputes

(1)A party to a dispute may apply to the Director in accordance with this Act and the DRD Rules for determination of the dispute by an arbitrator.

(2)A proceeding before an arbitrator commences when the application is accepted by the Director.

182.Who is to be given a copy of an application

(1)When an application is accepted by the Director the applicant is to give a copy of the application to —

(a)each other party;

(b)any other person entitled under this Act to a copy of, or notice of, the application; and

(c)any person to whom the applicant is directed by the Director to give a copy of the application.

(2)Subsection (1) does not require the applicant to give a copy of the application to a person mentioned in subsection (1) (a notifiable person) if —

(a)the Director has undertaken to give a copy of the application to the notifiable person; or

(b)under subsection (3) an arbitrator dispenses with the requirement to give a copy of the application to a notifiable person.

(3)An arbitrator may make an order dispensing with the requirement to give a copy of an application to a notifiable person specified in the order if satisfied —

(a)that the applicant has made all reasonable attempts to give a copy of the application to the notifiable person but has been unsuccessful; or

(b)that the hearing of the application without notice to the notifiable person would not cause injustice.

(4)The DRD Rules may provide for the manner in which and time within which subsection (1) is to be complied with.

183.Information exchange between parties

(1)When, and at times prescribed by the DRD Rules after, an application is made for a determination of a dispute by an arbitrator, each party to the dispute must provide to the other party and to the Director, in accordance with the DRD Rules, such documents, material and information as the DRD Rules require.

(2)Subject to section 206, a party to a dispute who fails to comply with a requirement of subsection (1) commits an offence.

Penalty: $2 000.

(3)Where a worker, after an injury has occurred, makes a statement in writing, in relation to the injury to the employer of the worker or to an insurer or to any person acting on behalf of the employer or insurer, that statement is not to be admitted in evidence if tendered by the employer or insurer or used by the employer or insurer in a proceeding before an arbitrator unless the employer or insurer has supplied to the worker or to a legal practitioner or agent acting on behalf of the worker in the proceeding a copy in writing of the statement.

(4)Any document, material or information that a party to a dispute has failed to provide in contravention of subsection (1) cannot be admitted on behalf of the party in a proceeding on the dispute before an arbitrator.

(5)A witness cannot appear in a proceeding on a dispute before an arbitrator if a party to the dispute has failed to file a statement from that witness in contravention of this section.

(6)Subsections (2), (4) and (5) do not apply if the party is a worker unless it is established that the worker was represented by a legal practitioner or agent (as defined in section 261) at the relevant time.

(7)The DRD Rules may provide for exceptions to subsections (4) and (5) and may authorise an arbitrator to permit —

(a)the admission in a proceeding before the arbitrator in specified circumstances of any document, material or information that would otherwise be not admissible under subsection (4); or

(b)the appearance in a proceeding before the arbitrator in specified circumstances of a witness who would otherwise not be permitted to appear under subsection (5).

(8)If an arbitrator is satisfied that a party has failed without reasonable excuse to comply with a requirement of this section, the arbitrator may do any one or more of the following —

(a)refer the matter to WorkCover WA;

(b)note the matter in a certificate issued by the arbitrator in respect of the dispute (together with details of the documents, material or information to which the failure relates);

(c)order that a specified amount or proportion of the costs that would otherwise be recoverable by the party in connection with the application to the arbitrator are not recoverable.

184.Interim assessment and minor claims

When an application is made under this Part, the Director may refer the application or any part of the application to be dealt with under Part XII if the application or that part of the application could have been made under that Part, and may defer determination of a dispute under this Part while the matter referred is being dealt with under that Part.

185.Arbitrator to attempt conciliation

(1)An arbitrator is not to determine a dispute without first using the arbitrator’s best endeavours to bring the parties to the dispute to a settlement acceptable to all of them.

(2)No objection may be taken to the determination of a dispute by an arbitrator on the ground that the arbitrator had previously used the arbitrator’s best endeavours to bring the parties to a dispute to a settlement.

(3)The DRD Rules may make provision for or with respect to conciliation.

186.Arbitrator may review decision

(1)In this section —

new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.

(2)If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and —

(a)vary or revoke the decision previously made; or

(b)make any further decision,

as the arbitrator considers appropriate having regard to the new information.

187.Decisions of arbitrator

(1)Except as otherwise provided by this Act a decision of an arbitrator —

(a)is final and binding on the parties and is not subject to an appeal; and

(b)is not to be vitiated because of any informality or want of form.

(2)A decision of an arbitrator or anything done under this Act in the process of coming to a decision of an arbitrator is not amenable to judicial review.

Division 4 — Practice and procedure

188.Practice and procedure, generally

(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.

(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —

(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the DRD Rules make them apply; and

(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.

(4)An arbitrator may —

(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and

(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.

(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.

189.Relief or redress not restricted to claim

The granting of relief or redress under this Act is not necessarily to be restricted to the specific claim made nor to the subject matter of the claim.

190.Directions

(1)An arbitrator may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.

(2)An arbitrator may give directions on the initiative of the arbitrator or on the application of a party.

(3)A directions hearing conducted by an arbitrator may be held for the purposes of this section before the hearing of the proceeding.

191.Dependants

In considering a question as to whether a person who resides outside the State is a dependant of a worker, an arbitrator is to require proof by or including documentary evidence that the worker has, wholly or in part as the case may be, supported the person and is not to accept as sufficient proof a statutory declaration or affidavit unsupported by documentary evidence to that effect.

192.Arbitrator may regard illegal contracts of employment as valid

If in any proceeding for the recovery under this Act of compensation for an injury it appears to an arbitrator that the contract under which the injured worker was engaged at the time when the injury occurred was illegal, the arbitrator may, if, having regard to all the circumstances of the case the arbitrator thinks proper to do so, deal with the matter as if the injured person had at that time been a worker under a valid contract.

193.Power of arbitrator to require information

(1)An arbitrator may order any person (whether or not a party to a dispute before the arbitrator) —

(a)to produce, at a time and place specified in the order, the documents or material specified in the order; or

(b)to furnish specified information within a time specified in the order.

(2)The order may require the documents or material to be produced or the information to be furnished —

(a)to the arbitrator or to another party to a dispute before the arbitrator, in the case of an order given to a party to the dispute; or

(b)to the arbitrator in the case of an order given to a person who is not a party to a dispute before the arbitrator.

(3)If a person fails without reasonable excuse to produce a document or material or furnish information in compliance with an order given to the person under this section, the person cannot as a party to a proceeding before a dispute resolution authority have the document, material or information admitted in the proceeding.

(4)An arbitrator may exercise powers under this section at the request of a party to a dispute before an arbitrator or of the arbitrator’s own motion.

(5)The regulations or DRD Rules may make provision for or with respect to any of the following matters —

(a)exempting specified kinds of documents, material or information from the operation of this section;

(b)specifying cases and circumstances in which an arbitrator is required to exercise the arbitrator’s powers under this section;

(c)specifying cases and circumstances in which an arbitrator is not to exercise the arbitrator’s powers under this section.

(6)An arbitrator may order a person to produce a document, material or information despite any rule of law relating to privilege or the public interest in relation to the production of documents.

194.Arbitrator may provide documents, material and information to party

(1)When a document or other material or information relevant to a proceeding before an arbitrator is produced or furnished to the arbitrator by a party to the proceeding or another person (whether or not pursuant to a requirement under this Part), the arbitrator may produce or furnish the document, material or information to —

(a)any other party to the proceeding;

(b)any other party’s legal representative or registered agent; or

(c)a medical practitioner (including a medical assessment panel and an approved medical specialist panel).

(2)The arbitrator may, when producing or furnishing documents, material or information, to another person direct that the person must not cause or permit disclosure of the information, or information in the documents or material, or any specified part of that information, to another person.

195.Representation

(1)At any hearing or conference before an arbitrator, a party to the proceeding may appear in person or may be represented by —

(a)a legal practitioner;

(b)a registered agent;

(c)if the party is a body corporate, a director, secretary, or other officer of the body corporate; or

(d)if the party is a public sector body as defined in section 3(1) of the Public Sector Management Act 1994, a public sector employee authorised by the party to represent the party.

(2)In any proceeding an arbitrator may refuse to permit an employer or an insurer to be represented by a legal practitioner or registered agent if a party who is a worker is not represented by a legal practitioner or registered agent.

(3)A person who has been struck off the roll of practitioners of the Supreme Court cannot represent a party.

(4)An arbitrator may refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party.

(5)The regulations or the DRD Rules may prevent specified persons, or persons of a specified class, from representing a party.

196.Arbitrator may appoint guardian

If a child is a party or potential party to a proceeding or proposed proceeding, an arbitrator may appoint a litigation guardian in accordance with the DRD Rules to conduct the proceeding on the child’s behalf.

197.Interpreters and assistants

(1)Unless the arbitrator directs otherwise, a party or a party’s representative may be assisted in the course of a proceeding by an interpreter or another person necessary or desirable to make the proceeding intelligible to that party and to enable the party to communicate adequately.

(2)A person may present a written submission or evidence in a language other than English if it is accompanied by a translation into English and a statutory declaration by the translator to the effect that the translation accurately reproduces in English the contents of the original document.

198.Electronic hearings and proceedings without hearings

(1)A proceeding before an arbitrator need not be conducted by formal hearing and may, if the DRD Rules so provide or if the arbitrator thinks it appropriate, be conducted by way of a conference between the parties.

(2)If an arbitrator thinks it appropriate, the arbitrator is to allow the parties and their representatives and any witnesses (or one or more of them) to participate in a conference or hearing of a proceeding by means of telephones, video links, or any other system or method of communication.

(3)If an arbitrator thinks it appropriate, the arbitrator may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a conference or hearing.

(4)An arbitrator may take into account a written submission prepared by a legal practitioner acting for a party to a proceeding and submitted by or on behalf of the party, whether or not the party is represented by a legal practitioner at any conference or hearing of the proceeding.

(5)If an arbitrator conducts a proceeding in accordance with this section, the arbitrator is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the arbitrator with the attendance in person of all persons involved in the proceeding.

(6)Provisions of this Act applying to hearings apply with any necessary modifications in relation to a conference or proceeding conducted in accordance with subsection (3).

199.Hearings to be held in private

Hearings and conferences before an arbitrator are to be conducted in private unless —

(a)the arbitrator conducting the hearing or conference decides that it should be conducted in public; or

(b)the DRD Rules otherwise provide.

200.Notice of hearings

(1)Notice of the time and place for the hearing of a proceeding is to be given in accordance with the DRD Rules to —

(a)each party to the proceeding;

(b)each other person entitled to notice of the hearing under this Act.

(2)If a person, including a party, to whom notice has been given in accordance with the DRD Rules fails to attend, the hearing may be held in the absence of that person.

(3)The failure of a party to attend a hearing of a proceeding does not affect the validity of any decision made in relation to the proceeding.

201.Expert or professional assistance

(1)An arbitrator may refer any technical or specialised matter to an expert and accept that expert’s report as evidence.

(2)An arbitrator who obtains an expert’s report is to call the expert for examination on the subject matter of the report if a party to the proceedings so requests.

202.Summoning witnesses

The Director or an arbitrator may issue a summons requiring the attendance of a person before an arbitrator.

203.Powers relating to witnesses

(1)In any proceeding before an arbitrator, the arbitrator may —

(a)call any person to give evidence;

(b)examine any witness on oath or affirmation, or by use of a statutory declaration;

(c)examine or cross‑examine any witness to such extent as the arbitrator thinks proper; and

(d)require any witness to answer questions put to the witness.

(2)Nothing in subsection (1) enables an arbitrator to require a witness to answer a question if the witness —

(a)is excused by section 206(1) from answering the question; or

(b)has a reasonable excuse (other than on the ground mentioned in section 204(1) or 205) for refusing to answer the question.

204.Privilege against self‑incrimination

(1)A person is not excused from complying with a requirement under this Part to answer a question, produce a document or other material, or furnish information, on the ground that the answer, the production of the document or other material, or the furnishing of the information, might incriminate the person or render the person liable to a penalty.

(2)However neither —

(a)an answer given by that person that was given to comply with the requirement; nor

(b)the fact that a document or other material produced by the person, or information furnished by the person, to comply with the requirement was produced or furnished,

is admissible in evidence in any criminal proceedings against the person other than proceedings for perjury or for an offence against this Act arising out of the false or misleading nature of an answer.

205.Legal professional privilege in relation to medical reports

(1)A legal practitioner is not excused from complying with a requirement under this Part to answer a question in relation to a medical report or produce a medical report on the ground that the answer to the question would disclose, or the report contains, a privileged communication made by or to the legal practitioner in his capacity as a legal practitioner.

(2)Subsection (1) does not apply in respect of a question that does not relate directly to the treatment, or nature or extent of impairment, or assessment of degree of impairment, of a worker.

(3)A medical report may be produced by the legal practitioner in compliance with a requirement under this Part with the omission of passages that —

(a)do not relate directly to the treatment, or nature or extent of impairment, or assessment of degree of impairment, of a worker; and

(b)contain a privileged communication made by or to the legal practitioner in his capacity as a legal practitioner.

206.Other claims of privilege

(1)Unless it would be contrary to section 204 or 205 or an order under section 193, a person is excused from answering a question or producing or furnishing a document, material or information in a proceeding if the person could not be compelled to answer the question or produce or furnish the document, material or information in proceedings in the Supreme Court.

(2)An arbitrator may require a person to produce a document or other material to the arbitrator for the purpose of determining whether or not it is a document or material that the arbitrator has power to require the person to produce.

207.Oaths and affirmations

An arbitrator may administer an oath or take an affirmation for the purposes of this Act.

208.Authorising person to take evidence

(1)An arbitrator may authorise, in writing, a person (whether or not an arbitrator) to take evidence on behalf of the arbitrator for the purposes of any proceeding.

(2)The arbitrator may authorise evidence to be taken under this section outside Western Australia.

(3)The arbitrator may give directions as to the taking of evidence under this section.

(4)If a person other than an arbitrator is authorised to take evidence the person has all the powers of an arbitrator in relation to the taking of evidence.

(5)Evidence taken under this section is to be regarded as having been given to the arbitrator.

209.Dealing with things produced

An arbitrator may inspect any document or other material produced before the arbitrator, and retain it for as long as the arbitrator reasonably thinks fit, and make copies of any document or any of its contents.

210.Referral of medical dispute for assessment

(1)If permitted by section 145A to do so, an arbitrator may refer a question as to —

(a)the nature or extent of an injury;

(b)whether an injury is permanent or temporary; or

(c)a worker’s capacity for work,

for determination by a medical assessment panel.

(2)Without limiting subsection (1), that subsection applies to —

(a)questions as to the permanent or other loss of the efficient use of any part or faculty of the body for the purposes of Part III Division 2, or to the degree of that loss;

(b)questions as to the degree of disability assessed in accordance with section 93D(2);

(c)questions for the purposes of section 31F as to whether a worker has contracted AIDS.

(3)Subsection (1) does not apply to questions as to —

(a)the permanent or other impairment of the efficient use of any part or faculty of the body for the purposes of Part III Division 2A, or to the degree of that impairment;

(b)the degree of permanent whole of person impairment for the purposes of Part IV Division 2 Subdivision 3;

(c)the degree of whole of person impairment for the purposes of Part IXA; or

(d)the degree of permanent whole of person impairment for the purposes of clause 18A.

Division 5 — Decisions

Subdivision 1 — General provisions

211.Decisions generally

(1)Subject to this Act, an arbitrator may make such decisions as the arbitrator thinks fit.

(2)Subject to the provisions of Part XII, an arbitrator may confirm, vary or revoke a direction or order made under Part XII Division 2 or 3.

212.Conditional and ancillary orders and directions

A power of an arbitrator to make an order or give a direction (the primary power) includes the power to make the order subject to conditions and the power to make any ancillary order or direction the arbitrator considers appropriate for achieving the purpose for which the arbitrator may exercise the primary power.

213.Form and content of decision and reasons

(1)A decision of an arbitrator is to be given in writing to a party to a proceeding if —

(a)the DRD Rules state that the decision is to be given in writing to that party; or

(b)within 14 days after the arbitrator makes the decision, the party requests that the decision be given in writing.

(2)An arbitrator’s decision in writing is to include information as to appeal rights that may be available to the parties under this Act.

(3)The reasons for a decision of an arbitrator are to be given in writing to a party to a proceeding if —

(a)the DRD Rules state that the reasons are to be given in writing to that party; or

(b)within 14 days after the arbitrator makes the decision, the party requests that the reasons for the decision be given in writing.

(4)The reasons for an arbitrator’s decision —

(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so;

(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so;

(c)need not canvass all the evidence given in the case; and

(d)need not canvass all the factual and legal arguments or issues arising in the case.

(5)A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient compliance with the requirement for the decision or reasons to be in writing.

(6)The fact that a decision is, or reasons are, given orally or in accordance with subsection (4) or (5) is not of itself a ground for reversing or modifying the decision on an appeal.

214.Validity of decision

A failure of an arbitrator to comply with a requirement of this Subdivision does not affect the validity of a decision.

215.When decision has effect

(1)A decision of an arbitrator comes into effect immediately after it is given, or at such later time as is specified in it.

(2)Subsection (1) does not prevent a stay of the effect of the decision from being given under section 250.

216.Correcting mistakes

An arbitrator may correct a decision an arbitrator gives or a statement of the reasons an arbitrator has given for the decision to the extent necessary to rectify —

(a)a clerical mistake;

(b)an error arising from an accidental slip or omission;

(c)a material miscalculation of figures or a material mistake in the description of any person, thing, or matter referred to in the decision; or

(d)a defect of form.

Subdivision 2 — Particular orders

217.Order as to total liability

(1)This section applies where —

(a)an arbitrator considers that an injury to a worker that is compensable under this Act has resulted in the permanent total incapacity for work of the worker;

(b)an order for redemption of the liability for the incapacity has not already been made under section 67;

(c)no memorandum of agreement for the payment of a lump sum in redemption of the liability for the incapacity has been recorded under section 76; and

(d)the total weekly payments by way of compensation payable under clause 7 for that injury have reached the prescribed amount.

(2)If this section applies, the arbitrator may, subject to this section, make any order as to the total liability of the employer for the incapacity that the arbitrator thinks proper in the circumstances.

(3)An arbitrator is not to make an order under subsection (2) unless the arbitrator considers an order ought to be made, having regard to the social and financial circumstances and the reasonable financial needs of the worker.

(4)The total liability of the employer ordered under this section is not to exceed the lesser of —

(a)an amount equal to 75% of the prescribed amount; or

(b)weekly payments at the rate to which the worker was entitled at the time when the total weekly payments for the injury of the worker reached the prescribed amount —

(i)for the period of the expectation of life of the worker; or

(ii)if section 56 or Schedule 5 clause 2 applies in respect of the incapacity, up to the date when weekly payments would cease by reason of age,

whichever is the shorter.

(5)An arbitrator is to deal with the payment of the final liability by ordering weekly payments at such rate as the arbitrator thinks proper in the circumstances, having regard to the matters referred to in subsection (3), but not at a rate that exceeds the rate to which the worker was entitled at the time when the total weekly payments for the injury of the worker reached the prescribed amount.

(6)In making an order as to final liability under this section an arbitrator may order payment of an amount for arrears of such weekly payments from the time when the total weekly payments for the worker’s injury reached the prescribed amount to the date of the order.

218.Order relating to payment of compensation in respect of persons under legal disability or who are dependants

(1)A question as to the payment of compensation that is payable to —

(a)a person under a legal disability to give an effective discharge for payment; or

(b)a dependant or dependants of a deceased worker,

may be determined on application under this Part as a dispute.

(2)An arbitrator may order that compensation that is payable to a person under a legal disability to give an effective discharge for payment is to be paid to WorkCover WA and applied in the manner specified in the order.

(3)An arbitrator may order that all or any of the compensation that is payable to a dependant or dependants of a deceased worker —

(a)is to be paid to WorkCover WA and applied in the manner specified in the order; or

(b)is to be paid to a dependant or dependants of the deceased worker as specified in the order.

(4)After it has been ordered under subsection (2) or (3)(a) that compensation be paid to WorkCover WA, a question as to —

(a)whether the compensation should be applied differently; or

(b)if the order was under subsection (3)(a), whether all or any of the compensation should be paid to a dependant or dependants of the deceased worker,

may be determined on application under this Part as a dispute.

(5)An arbitrator may make such orders under subsections (1) and (4) as the arbitrator thinks fit.

Subdivision 3 — Enforcement of decisions

219.Enforcement of decisions

(1)A person to whom money is to be paid under a decision of an arbitrator may enforce the decision by filing in a court of competent jurisdiction —

(a)a copy of the decision that the Director has certified to be a true copy; and

(b)an affidavit as to the amount not paid under the decision.

(2)No charge is to be made for filing a copy of a decision or affidavit under this section.

(3)On filing, the decision is to be taken to be an order of that court, and may be enforced accordingly, and section 142(1) of the Supreme Court Act 1935 applies to the amount not paid under the decision as if it were payable under a judgment of the court.

Division 6 — Miscellaneous

220.Evidence not admissible in common law proceedings

Evidence of a statement made in a proceeding before an arbitrator is not admissible in an action brought by a worker for damages independently of this Act unless the person who made the statement agrees to the evidence being admitted.

221.Payment of compensation awarded

A sum awarded as compensation, unless paid into the custody of WorkCover WA and in the absence of any order to the contrary, is to be paid to the person to whom it is payable under any agreement, award, or order.

222.Interest before order for payment

(1)In any proceeding before an arbitrator, the arbitrator may order that there is to be included, in any sum to be paid, interest on the whole or any part of the sum for the whole or any part of the period before the sum is payable.

(2)Interest payable under an order made under subsection (1) is to be calculated at a rate prescribed by or determined under the regulations.

(3)This section does not —

(a)authorise the giving of interest upon interest; or

(b)apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.

223.Interest after order for payment

(1)Unless an arbitrator orders in any particular case that interest is not payable, interest is payable on so much of the amount of any sum ordered to be paid by an arbitrator as is from time to time unpaid.

(2)Interest payable under subsection (1) in respect of any sum ordered to be paid —

(a)is to be calculated as from the date when the order was made or from such later date as an arbitrator in any particular case fixes;

(b)is to be calculated at a rate prescribed by or determined under the regulations; and

(c)forms part of the sum ordered to be paid, but not so as to require the payment of interest on interest.

(3)Despite subsections (1) and (2), where an amount ordered to be paid is paid in full within the period prescribed or determined under the regulations, interest is not payable on the amount so paid.

224.Interest on agreed payment of lump sum compensation

(1)An arbitrator may order, in accordance with the regulations, that interest is payable on so much of the amount of any sum agreed to be paid under this Act as is from time to time unpaid.

(2)Interest payable under subsection (1) in respect of any sum so agreed to be paid —

(a)is to be calculated as from the date provided by the agreement as the date when the sum is due to be paid or, if the agreement does not so provide, the date that is 21 days after the date the agreement was made;

(b)is to be calculated at a rate prescribed by or determined under the regulations; and

(c)forms part of the sum agreed to be paid, but not so as to require the payment of interest on interest.

225.Regulations may exclude interest

Interest is not payable under section 222, 223 or 224 in the circumstances prescribed in the regulations.

Part XII  Interim orders and minor claims

Division 1 — Preliminary

226.Interpretation

In this Part —

statutory expenses means a compensation entitlement under clause 17.

227.Exercise of functions under this Part

(1)Without limiting section 198, an arbitrator may make a decision under this Part on the basis of —

(a)documents and information provided when the relevant application was made; and

(b)advice given to the arbitrator by an officer of the DRD.

(2)An arbitrator is not to conduct a formal hearing under this Part.

(3)An arbitrator is not required to give reasons in writing for a decision under this Part.

(4)A decision under this Part is not subject to an appeal or amenable to judicial review.

228.Provisions of Part XI apply

Except where provision to the contrary is made in this Part or in the DRD Rules, the provisions of Part XI apply to and in relation to proceedings and decisions under this Part.

229.Arbitrator may direct that matter be dealt with under Part XI

An arbitrator may direct that a matter under this Part, or a matter referred under section 184 to be dealt with under this Part, is to be dealt with instead under Part XI.

230.DRD Rules apply

(1)An application under this Part is to be made in the manner, and is to include the information, prescribed by the DRD Rules.

(2)The giving of directions and orders under this Part is subject to the provisions of the DRD Rules relating to those directions and orders.

Division 2 — Interim payment orders

231.Application for interim payment order

(1)An application for an order as to payment of weekly payments before liability for those weekly payments is otherwise determined under this Act may be made under this Division by a worker at any time after —

(a)a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 178(1)(b); and

(b)the worker suffering the injury has served on the employer a certificate signed by a medical practitioner —

(i)in or to the effect prescribed by the regulations containing substantially the information sought in the form; or

(ii)to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as first referred to has previously been served.

(2)An application for an order as to payment of statutory expenses before liability for those expenses is otherwise determined under this Act may be made by a worker at any time after —

(a)a claim for compensation by way of payment of statutory entitlements has been made on an employer in accordance with section 178(1)(b); and

(b)the worker suffering the injury has served on the employer a certificate in or to the effect prescribed and signed by a medical practitioner to the effect that the expenses claimed are expenses incurred by the worker for treatment or services required in relation to the injury.

232.Orders for interim weekly payments

(1)Subject to section 234, if —

(a)a period of not less than 21 days has elapsed since a worker served on the worker’s employer the documents referred to in section 231(1); and

(b)the worker has not received the first of the weekly payments claimed,

an arbitrator may order the employer to pay weekly payments to the worker.

(2)An order under subsection (1) is referred to in this Division as an interim payment order.

(3)An arbitrator may make an interim payment order for weekly payments of compensation on an application under this Division unless it appears to the arbitrator that —

(a)the claim concerned would have minimal prospects of success under Part XI;

(b)insufficient medical evidence is available concerning the nature or period of incapacity of the worker; or

(c)circumstances exist that are prescribed by the DRD Rules as circumstances in which such an order is not to be made.

(4)An interim payment order can be made subject to conditions.

(5)A further interim payment order can be made after the expiry of any earlier order.

233.Orders for interim payment of statutory expenses

(1)Subject to section 234, if —

(a)a period of not less than 21 days has elapsed since a worker served on the worker’s employer the documents referred to in section 231(2); and

(b)the worker has not received the statutory expenses claimed,

an arbitrator may order the employer to pay statutory expenses to the worker.

(2)An order under subsection (1) is referred to in this Division as an interim payment order.

(3)An arbitrator may make an interim payment order for statutory expenses unless it appears to the arbitrator that —

(a)the claim concerned would have minimal prospects of success under Part XI;

(b)insufficient evidence is available as to whether or not the expenses claimed are reasonable; or

(c)circumstances exist that are prescribed by the DRD Rules as circumstances in which such an order is not to be made.

(4)An interim payment order can be made subject to conditions.

(5)A further interim payment order can be made after the expiry of any earlier order.

234.Limits on interim payment orders

(1)An arbitrator is not to order the payment of weekly payments of compensation for a period that exceeds 12 weeks.

(2)An arbitrator may order payment of weekly payments during a period that is before the order is made, but that period is not to exceed 10 weeks.

(3)An arbitrator is not to make an interim payment order for payment of statutory expenses for an amount that is more than 5% of the prescribed amount.

235.Effect of interim payment order

(1)The payment of compensation in accordance with an interim payment order —

(a)is not an admission of liability by the person paying the compensation; and

(b)does not prevent a question of liability from being heard and determined on an application under section 58 or otherwise under this Act as if the compensation had not been paid.

(2)Refusal to make an interim payment order is not a finding as to liability in respect of the matter concerned.

236.Recovery of payments

If an arbitrator subsequently determines that a person is not liable to pay compensation by way of the weekly payments or statutory expenses that have been paid in accordance with an interim payment order, the following provisions apply —

(a)the worker or other person who received that compensation is not required to refund the compensation unless the arbitrator otherwise orders under paragraph (b);

(b)if the arbitrator is satisfied that the claim for compensation was wholly or partly fraudulent or made without proper justification, the arbitrator may order the worker or other person concerned to refund the whole or a specified part of the compensation;

(c)the arbitrator may (instead of making an order for a refund) order any other person whom the arbitrator determines was liable for the whole or any part of the compensation to reimburse the person who paid the compensation;

(d)the compensation is to be excluded from any determinations of the claims experience of the employer for the purposes of calculating the premium payable by the employer for a policy of insurance.

237.Revocation of interim payment order

(1)An arbitrator may revoke an interim payment order at any time.

(2)When an interim payment order is revoked the obligation to pay compensation under the order ceases.

(3)The revocation of an interim payment order does not affect the requirement to pay the compensation before the revocation.

(4)Revocation of, or refusal to revoke, an interim payment order is not a finding as to liability in respect of the matter concerned.

Division 3 — Interim suspension or reduction orders

238.Interim suspension or reduction order

(1)An application for an order suspending or reducing weekly payments may be made under this Division by an employer —

(a)at the same time as lodging an application under Part XI in respect of the same matter (the Part XI application); or

(b)after lodging an application under Part XI in respect of the same matter (the Part XI application) and before that application is determined.

(2)The arbitrator may order that a specified number of weekly payments are suspended or reduced but is not to suspend or reduce more than 12 weekly payments.

(3)An order under subsection (2) is referred to in this Division as an interim suspension orderor an interim reduction order, as the case requires.

(4)The arbitrator may make the interim suspension or reduction order unless it appears to the arbitrator that —

(a)the Part XI application has minimal prospects of success; or

(b)circumstances exist that are prescribed by the DRD Rules as circumstances in which such an order is not to be made.

(5)An interim suspension or reduction order can be made subject to conditions.

(6)A further interim suspension or reduction order can be made after the expiry of any earlier order.

239.Effect of Part XI determination on the same matter as a matter determined under this Division

(1)If —

(a)an interim suspension order is made under section 238(2); and

(b)an arbitrator dismisses the Part XI application,

the weekly payments of the worker during the period of suspension are to be paid.

(2)If —

(a)an interim suspension order is made under section 238(2); and

(b)on the Part XI application an arbitrator orders that the weekly payments be increased or reduced,

the weekly payments of the worker during the period of suspension are to be paid as if the order under Part XI had effect during that period.

(3)If —

(a)an interim reduction order is made under section 238(2); and

(b)on the Part XI application an arbitrator dismisses the application or orders that the weekly payments be increased,

the weekly payments of the worker during the period of reduction are to be paid as if the order under Part XI had effect during that period.

(4)Nothing in this Division affects the operation of section 71 in relation to a determination under Part XI of an application in respect of the same matter as an application that has been dismissed under this Division.

240.Revocation of interim suspension or reduction order

(1)An arbitrator may revoke an interim suspension or reduction order at any time.

(2)When an interim suspension order is revoked —

(a)the obligation to make weekly payments recommences from the date on which the suspension is revoked; and

(b)the worker is to be paid the weekly payments that were not paid during the period of suspension unless the arbitrator orders otherwise.

(3)When an interim reduction order is revoked —

(a)the obligation to make weekly payments as if the interim reduction order had not been made recommences from the date on which the interim reduction order is revoked; and

(b)the worker is to be paid any amount of weekly payments to which the worker would have been entitled if the interim reduction order had not been made unless the arbitrator orders otherwise.

(4)Revocation of, or refusal to revoke, an interim suspension or reduction order is not a finding as to liability in respect of the matter concerned.

Division 4 — Expedited determination of minor claims

241.Application for determination of minor claim

(1)An application for an order as to payment of not more than 12 weekly payments in respect of a period prior to the application may be made under this Division by a worker at any time after —

(a)a claim for compensation by way of weekly payments for total or partial incapacity has been made on an employer in accordance with section 178(1)(b); and

(b)the worker suffering the injury has served on the employer a certificate signed by a medical practitioner —

(i)in or to the effect prescribed by the regulations containing substantially the information sought in the form; or

(ii)to the effect that the worker is unfit for work because of a recurrence of an injury in respect of which a certificate as first referred to has previously been served.

(2)An application for an order as to payment of statutory expenses not exceeding 5% of the prescribed amount may be made by a worker at any time after —

(a)a claim for compensation under this Act by way of payment of statutory entitlements has been made on an employer in accordance with section 178(1)(b); and

(b)the worker suffering the injury has served on the employer a certificate in or to the effect prescribed by the regulations and signed by a medical practitioner to the effect that the expenses claimed are expenses incurred by the worker for treatment or services required in relation to the injury.

(3)If —

(a)a period of not less than 21 days has elapsed since a worker served on the worker’s employer the documents referred to in subsection (1) or (2), as the case requires;

(b)the worker has not received the first of the weekly payments or the statutory expenses claimed; and

(c)an arbitrator is satisfied that the worker is entitled to some or all of the compensation claimed,

the arbitrator may order the employer to pay the compensation to which it appears to the arbitrator the worker is entitled.

(4)An arbitrator may make an order for weekly payments of compensation unless it appears to the arbitrator that —

(a)the claim would have minimal prospects of success under Part XI;

(b)insufficient medical evidence is available concerning the nature or period of incapacity of the worker; or

(c)circumstances exist that are prescribed by the DRD Rules as circumstances in which such an order is not to be made.

(5)An arbitrator may make an order for payment of statutory expenses unless it appears to the arbitrator that —

(a)the claim concerned would have minimal prospects of success under Part XI;

(b)insufficient evidence is available as to whether or not the expenses claimed are reasonable; or

(c)circumstances exist that are prescribed by the DRD Rules as circumstances in which such an order is not to be made.

242.Limits on minor claims orders

(1)An arbitrator is not to order the payment of weekly payments of compensation for a period that exceeds the period set out in the application.

(2)An arbitrator is not to make an order for payment of statutory expenses for an amount that exceeds the amount set out in the application.

243.No recovery of compensation

A worker cannot be required to refund compensation paid to the worker under this Division.

244.Production of documents

A worker or an employer may make an application under this Division for an order as to the production of documents, material or information under section 70 or 180 and an arbitrator may make the order accordingly.

Part XIII   Questions of law and appeals

245.Application of Part XI

(1)Unless the contrary intention appears in this Part —

(a)the provisions of Part XI apply to and in relation to the exercise of jurisdiction of the Commissioner under this Part as if references in Part XI to an arbitrator were references to the Commissioner; and

(b)in the exercise of jurisdiction under this Part the Commissioner has and may exercise or perform all of the powers, duties, responsibilities, authorities and jurisdictions of an arbitrator.

(2)A party to a proceeding or a witness appearing before the Commissioner has the same duties and responsibilities as a party to a proceeding or a witness appearing before an arbitrator.

(3)A person representing a party in a proceeding before the Commissioner has the same duties and responsibilities as a person representing a party in a proceeding before an arbitrator.

246.Reference of question of law to Commissioner

(1)A novel or complex question of law arising in a proceeding before an arbitrator under Part XI may be referred by the arbitrator for the determination of the Commissioner.

(2)A question of law arising in a proceeding before an arbitrator under Part XI may, with the leave of the Commissioner, be referred by a party to the proceeding for the determination of the Commissioner.

(3)The Commissioner is not to grant leave unless satisfied that the question involves a novel or complex question of law.

(4)The reference of a question of law under this section may be by stating a case on a question of law.

(5)On hearing a matter referred under this section, the Commissioner has jurisdiction to make such orders as the Commissioner thinks fit with regard to the matter and to the costs of and incidental to the hearing and determination of it.

247.Appeal against decision of arbitrator

(1)A party to a dispute may, with the leave of the Commissioner, appeal to the Commissioner against a decision in respect of the dispute by an arbitrator under Part XI.

(2)Subject to subsection (3), the Commissioner is not to grant leave to appeal unless —

(a)in the case of an appeal in which an amount of compensation is at issue —

(i)a question of law is involved and the amount at issue in the appeal is both —

(I)at least $5 000 or such other amount as may be prescribed by the regulations; and

(II)at least 20% of the amount awarded in the decision appealed against;

or

(ii)a question of law is involved and, in the opinion of the Commissioner, the matter is of such importance that, in the public interest, an appeal should lie;

and

(b)in any other case, a question of law is involved.

(3)The Commissioner may grant leave to appeal from a decision of an arbitrator on a matter referred under section 93D(10) if the appeal involves a question of law.

(4)An appeal cannot be made later than 28 days after the making of the decision appealed against.

(5)An appeal under this section is to be by way of review of the decision appealed against.

(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the Commissioner except with the leave of the Commissioner.

(7)On hearing an appeal made under this section, the Commissioner may —

(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and

(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the Commissioner thinks fit.

248.Commencing appeal

(1)A person appealing to the Commissioner against a decision of an arbitrator is to do so in accordance with this Act.

(2)An appeal commences when the application is accepted by the Director.

249.Commissioner hearing to be held in public

(1)Unless otherwise provided under this Act, hearings of the Commissioner are to be held in public.

(2)On the application of a party or on its own initiative the Commissioner may, in the circumstances described in subsection (3), order that a hearing or any part of it be held in private.

(3)The Commissioner may make an order under subsection (2) if the Commissioner considers it is necessary to do so —

(a)to avoid prejudicing the administration of justice;

(b)to avoid endangering the physical or mental health or safety of any person;

(c)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

(d)for any other reason in the interests of justice.

250.Effect of decision against which appeal made

(1)The Commissioner may, by order, stay the operation of a decision of an arbitrator pending the determination of an application for leave to appeal from the decision and of any appeal.

(2)Subject to any order made by the Commissioner, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision.

251.Commissioner may state case

(1)When a question of law arises before the Commissioner, the Commissioner may state a case for the decision of the Full Court of the Supreme Court on that matter.

(2)A case may be stated under this section despite a decision having been made or given by the Commissioner.

252.Indemnity as to costs

(1)If the Commissioner has stated a case for the decision of the Full Court of the Supreme Court, the Commissioner may in the Commissioner’s absolute discretion indemnify any of the parties against the costs or part of the costs of the proceedings resulting from a case being stated.

(2)Any moneys payable to a party by reason of an indemnity under subsection (1) when certified by the Commissioner as payable are to be paid by WorkCover WA from moneys standing to the credit of the General Fund.

253.Decisions of Commissioner

(1)Except as otherwise provided by this Act a decision of the Commissioner —

(a)is final and binding on the parties and is not subject to an appeal; and

(b)is not to be vitiated because of any informality or want of form.

(2)A decision of the Commissioner or anything done under this Act in the process of coming to a decision of the Commissioner is not amenable to judicial review.

(3)The Commissioner may reconsider any matter that has been dealt with by the Commissioner and rescind, alter or amend any decision previously made or given by the Commissioner.

254.Appeal against decision of Commissioner

(1)A party to a proceeding before the Commissioner may by leave of the Supreme Court appeal to the Supreme Court from a decision of the Commissioner in the proceeding on a question of law.

(2)The appeal is to be heard and determined by the Full Court of the Supreme Court.

(3)The Supreme Court may —

(a)affirm, vary, or set aside the decision of the Commissioner;

(b)make any decision that the Commissioner could have made in the proceeding; or

(c)send the matter back to the Commissioner for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the Court considers appropriate,

and, in any case, may make any order the Court considers appropriate.

(4)An appeal, or an application for leave to appeal, is to be made in accordance with the rules of the Supreme Court and within the period of 28 days after —

(a)the day on which the Commissioner’s decision is given; or

(b)if the Commissioner gives a decision that is not in writing and the party then requests the Commissioner to give a written decision, the day on which the written reasons are given.

(5)If leave is granted, the appeal is to be instituted in accordance with the rules of the Supreme Court and within the period of 21 days after the day on which leave is granted.

(6)The Supreme Court may extend a time limit fixed by this section, and the extension may be given even though the time limit has passed.

Part XIV  Offences

255.Failing to comply with decision

(1)A person who fails to comply with a decision of a dispute resolution authority commits an offence.

Penalty: $5 000.

(2)Subsection (1) does not apply if, or to the extent that —

(a)the person is excused by section 206 from complying with that decision;

(b)the person has a reasonable excuse (other than an excuse mentioned in section 204(1) or 205) for failing to comply with the decision; or

(c)the decision is an order of the dispute resolution authority requiring the payment of money.

(3)If the dispute resolution authority made the decision without giving a person an opportunity to be heard, subsection (1) only applies to that person on the person being given personally or in accordance with subsection (4) —

(a)a copy of the decision that the Director has certified to be a true copy; and

(b)a copy of this section.

(4)If a dispute resolution authority is satisfied that it is not possible or appropriate for a person to be personally given the documents referred to in subsection (3), the dispute resolution authority may specify another method for service of the documents on the person under that subsection.

256.Failing to comply with summons

A person who, without reasonable excuse, fails to comply with a summons issued by a dispute resolution authority under this Act commits an offence.

Penalty: $2 000.

257.Failing to give evidence as required

A person appearing before a dispute resolution authority commits an offence if the person —

(a)refuses to swear an oath or make an affirmation or statutory declaration when required by the dispute resolution authority to do so; or

(b)when required by a dispute resolution authority to give evidence that the person is competent and compellable to give, does not do so.

Penalty: $2 000.

258.Giving false or misleading information

A person who gives to a dispute resolution authority information knowing it to be false or misleading in a material particular commits an offence.

Penalty: $5 000.

259.Misbehaviour and other conduct

A person who —

(a)insults, or obstructs or hinders the performance of the functions of, a dispute resolution authority;

(b)insults, obstructs or hinders a person attending a hearing before a dispute resolution authority;

(c)misbehaves at a hearing before a dispute resolution authority;

(d)interrupts a hearing before a dispute resolution authority; or

(e)obstructs or hinders a person from complying with an order or direction of a dispute resolution authority or a summons to attend before the dispute resolution authority,

commits an offence.

Penalty: $2 000.

260.Contempt of Commissioner

(1)If the Commissioner is satisfied that an act or omission of a person would constitute a contempt of the Court if a proceeding of the Commissioner were a proceeding in the Supreme Court, the Commissioner may report that act or omission to the Supreme Court and the Court has jurisdiction to deal with the matter as if it were a contempt of that Court.

(2)If —

(a)subsection (1) applies to an act or omission by a person and that act or omission is also an offence under this Part; and

(b)the person has been dealt with under subsection (1) for the act or omission,

the person is not liable to be punished for the offence under this Act.

Part XV  Costs

Division 1 — General

261.Terms used in this Part

In this Part —

agent means a person who acts as agent for a person in connection with a dispute under this Act;

agent service means any service performed by a person —

(a)in the person’s capacity as an agent; and

(b)in or for the purposes of a proceeding before a dispute resolution authority;

costs means —

(a)costs of a party (including fees, charges and disbursements);

(b)costs of a proceeding; and

(c)such other costs as may be prescribed by regulation;

costs determination means a determination published under section 273;

costs of a proceeding means costs of, or incidental to, a proceeding of a dispute resolution authority, other than costs of a party, or costs of the kind referred to in section 31D(5) and clause 18C(2) in relation to an approved medical specialist panel;

legal service means any service performed by a person —

(a)in the person’s capacity as a legal practitioner; and

(b)in or for the purposes of a proceeding before a dispute resolution authority.

262.Costs to which this Part applies

(1)This Part applies to and in respect of costs payable on a party and party basis, on a practitioner and client basis or on any other basis, unless this Part or a regulation otherwise provides.

(2)The regulations may make provision for or with respect to excluding any class of matters from any or all of the provisions of this Part.

263.This Part prevails over Legal Practice Act 2003

This Part and any regulations under this Part prevail to the extent of any inconsistency with the Legal Practice Act 2003, and in particular Part 13 of that Act.

Division 2 — Costs of parties in proceedings and costs of proceedings

264.Costs to be determined by dispute resolution authority

(1)Subject to this Division, costs are in the discretion of the relevant dispute resolution authority.

(2)A dispute resolution authority may determine by whom, to whom and to what extent costs are to be paid.

(3)A dispute resolution authority may order costs to be assessed on the basis set out in Part 13 Division 3 of the Legal Practice Act 2003 (or in relevant regulations under section 268) or on an indemnity basis.

(4)Any party to a proceeding may apply to a dispute resolution authority for an order as to costs.

(5)A dispute resolution authority is not to order the payment of costs by a worker unless the dispute resolution authority is satisfied that the costs relate to an application made by the worker that was frivolous or vexatious, fraudulent or made without proper justification.

(6)If a dispute resolution authority is satisfied that a part only of the application was frivolous or vexatious, fraudulent or made without proper justification, the dispute resolution authority may order the worker to pay the costs relating to that part of the application.

(7)Without limiting section 265, the regulations may make provision in relation to the making of orders for the payment by a party of the costs of another party so as to —

(a)promote the early settlement of issues and disputes by agreement; and

(b)discourage unnecessary delay, excessive attendances and excessive preparation of documentation.

265.Costs unreasonably incurred by representative

(1)If in any proceeding before a dispute resolution authority or in any matter under this Act which is resolved by agreement, costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, of a legal practitioner or agent representing a party (the representative), a dispute resolution authority may make an order —

(a)disallowing the costs, as between the representative and the client;

(b)directing the representative to repay the client costs which the client has been ordered to pay to any other party to the proceeding; and

(c)directing the representative personally to indemnify any other person than the client against costs payable by the person indemnified.

(2)A dispute resolution authority may by order exempt any costs or proportion of any costs from the operation of this section if of the opinion that it would be unjust not to do so because the representative concerned made all reasonable efforts to avoid unnecessary litigation in the proceeding or for any other reason should not be held responsible for the incurring of the costs concerned.

266.Agent’s costs

An agent is not entitled to be paid or recover any amount for an agent service unless the agent is a registered agent.

267.Appeal costs

Despite section 264 —

(a)an order for costs on the ground that an appeal was successful is not to be made by the Commissioner against a worker; and

(b)if the appellant is a worker and is unsuccessful on an appeal, the Commissioner is not to make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal.

268.Regulations for assessment of costs

(1)If a dispute resolution authority makes an order for the payment of costs and does not fix the amount of costs, that amount is to be assessed or settled in accordance with the regulations.

(2)Without limiting subsection (1), the regulations may —

(a)make provision for or with respect to any matter for or in connection with which provision is made by Part 13 Division 3 of the Legal Practice Act 2003;

(b)adopt, with or without modification, any of the provisions of Part 13 Division 3 of the Legal Practice Act 2003; and

(c)make provision for or with respect to the assessment of costs by an arbitrator or another officer of the DRD.

(3)To the extent that regulations under this section make provision for the costs payable to a legal practitioner, those regulations displace the provisions of the Legal Practice Act 2003.

Division 3 — Maximum costs

269.Costs Committee

(1)In this section —

Legal Costs Committee means the Legal Costs Committee established under the Legal Practice Act 2003.

(2)A committee called the Costs Committee is established.

(3)The Costs Committee is to be constituted by the following members —

(a)a presiding member who is to be a member of WorkCover WA;

(b)one or more other members of WorkCover WA; and

(c)2 members of the Legal Costs Committee nominated by the chairperson of that Committee.

(4)The members are to be appointed by WorkCover WA.

(5)If the chairperson of the Legal Costs Committee fails to nominate a member under subsection (3)(c) within 30 days after receiving a written request from WorkCover WA, WorkCover WA may appoint a person as a member for the purposes of subsection (3)(c) in place of a member of the Legal Costs Committee.

270.Constitution and procedure of Costs Committee

(1)Subject to section 269, the constitution and procedure of, and other matters relating to, the Costs Committee —

(a)may be prescribed by the regulations;

(b)if not prescribed by the regulations, may be as directed in writing by WorkCover WA.

(2)To the extent that the procedure of the Costs Committee is not prescribed by the regulations or directed by WorkCover WA, the Costs Committee may determine its own procedure.

271.Costs determination

(1)The Costs Committee may make a determination —

(a)fixing maximum costs for legal services and agent services;

(b)fixing maximum costs for matters that are not legal services or agent services but are related to a claim for compensation (for example, expenses for witnesses or medical reports).

(2)A provision of the determination —

(a)may authorise any matter or thing to be determined, applied or regulated by a specified person or body;

(b)may fix a cost or amount by reference to a cost or amount fixed by a legal costs determination under the Legal Practice Act 2003.

(3)The power under this section to make a determination for services or matters includes power to make a determination that no amount is recoverable for a particular service or matter or class of services or matters, with the result that a legal practitioner or agent is not entitled to be paid or recover any amount for the service or matter concerned.

(4)A costs determination may be amended or revoked by a subsequent costs determination.

272.Consultation

(1)Before making a determination the Costs Committee may —

(a)publish notice of its intention and consider any submissions made to it in respect of the proposed determination; and

(b)make such other inquiries as it considers necessary to facilitate the making of the determination.

(2)In making a determination the Costs Committee —

(a)is not bound by the rules of evidence and may inform itself as it thinks fit; and

(b)is not required to conduct any proceeding in a formal manner.

273.Approval and publication of determination

(1)The Costs Committee is to report to the Minister —

(a)a determination under section 271; and

(b)the reasons for its decisions in respect of the determination.

(2)If the Minister approves the determination, the determination is to be published in the Gazette.

(3)A costs determination takes effect on and from —

(a)the day on which it is published in the Gazette; or

(b)if a later day is specified in the determination, the later day.

(4)Judicial notice is to be taken of —

(a)a costs determination published in the Gazette; and

(b)the day of publication of the determination.

274.Effect of costs determination

(1)A legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by a costs determination.

(2)An agent is not entitled to be paid or recover for an agent service or other matter an amount that exceeds any maximum costs fixed for the service or matter by a costs determination.

(3)This section does not entitle a legal practitioner or agent to recover costs for a legal service or matter that a dispute resolution authority determines were unreasonably incurred.

275.Agreement as to costs

(1)An agreement is not to be made for a legal practitioner or agent to receive, for any legal service or agent service, any greater reward than is provided for in a costs determination.

(2)An agreement made contrary to this section is void.

276.Division does not apply to Part IV proceedings

Nothing in this Division affects the operation of section 87 in relation to an action for damages independently of this Act.

Part XVI  Registered agents

277.Who may register as an agent

(1)This section applies to the following persons —

(a)an officer of an organisation as defined in the Industrial Relations Act 1979;

(b)an officer of an association of employers or employees registered under the Workplace Relations Act 1996 of the Commonwealth;

(c)a person employed by an insurer or self‑insurer;

(d)a person (other than a legal practitioner) employed by a legal practitioner or an incorporated legal practice;

(e)an employee or officer of an organisation prescribed by the regulations;

(f)a person, or a person in a class of persons, prescribed by the regulations.

(2)A person to whom this section applies may apply for registration as an agent in accordance with the regulations.

(3)Regulations are to —

(a)provide for a scheme of registration of persons for the purposes of this section and the procedure for obtaining registration;

(b)prescribe the circumstances in which, and the procedures by which, a person may be refused registration, or registered subject to conditions, or the registration may be suspended or cancelled;

(c)provide for applications for review by the State Administrative Tribunal of decisions refusing, suspending or cancelling registration or imposing conditions upon registration; and

(d)provide for any other matter necessary or convenient to be prescribed for the purposes of this section.

(4)A person is not to be registered under this section unless that person can demonstrate that the person has professional indemnity insurance, or has sufficient material resources, of a kind prescribed by the regulations to provide professional indemnity.

Part XVII  The Dispute Resolution Directorate

Division 1 — Establishment and objectives

278.DRD established

A directorate called the Dispute Resolution Directorate is established.

279.Main objectives of the DRD

(1)The main objectives of the DRD are —

(a)to provide a fair and cost effective system for the resolution of disputes under this Act;

(b)to reduce administrative costs across the workers’ compensation system;

(c)to provide a dispute resolution service that —

(i)is timely and ensures that workers’ entitlements are paid promptly;

(ii)meets user expectations in relation to accessibility, approachability and professionalism;

(iii)is effective in settling matters;

(iv)leads to durable agreements between the parties in accordance with this Act;

and

(d)to establish effective communication and liaison with interested parties concerning the role of the DRD.

(2)In exercising their functions, the Commissioner, the arbitrators, the Director, and other officers of the DRD are to have regard to the DRD’s objectives.

280.DRD’s constitution

The following persons constitute the DRD —

(a)the Commissioner;

(b)the Director;

(c)the arbitrators;

(d)other officers of the DRD.

Division 2 — Commissioner

281.Appointment of Commissioner

(1)A person is to be appointed as the Commissioner by the Governor on the recommendation of the Minister.

(2)A person cannot be the Commissioner unless the person is a Judge of the District Court.

(3)Before recommending a person for appointment as the Commissioner, the Minister is to consult the Chief Justice of Western Australia and the Chief Judge of the District Court.

282.Terms and conditions of service

Schedule 8 has effect with respect to the tenure, remuneration and conditions of service of the Commissioner and other matters provided for in that Schedule.

283.Declaration of inability to act

The Commissioner may declare himself unable to act in respect of a particular matter by reason of —

(a)an actual or potential conflict of interest; or

(b)having to perform other functions under this Act.

284.Acting appointment

(1)The Governor may appoint a person who is a Judge of the District Court, or is eligible for appointment as a Judge of the District Court, to act in the office of Commissioner —

(a)during a vacancy in that office;

(b)during any period or during all periods when the person holding the office of Commissioner, or a person appointed under this subsection, is unable to perform the functions of that office or is absent from the State; or