WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998

New South Wales Consolidated Acts

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WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998

- As at 7 November 2008
- Act 86 of 1998

TABLE OF PROVISIONS

Long Title

CHAPTER 1 - PRELIMINARY

1. Name of Act
2. Commencement
3. System objectives
4. Definitions
5. Deemed employment of workers
6. Application of Act in certain respects
7. Act binds Crown
8. Certain Acts not affected
9. (Repealed)
9A. Application of Act in respect of coal industry

CHAPTER 2 - ADMINISTRATION

PART 1 - (Repealed)
None

PART 2 - WORKCOVER AUTHORITY OF NEW SOUTH WALES

Division 1 - Constitution of Authority

14. Constitution of Authority
15. Board of Directors
16. General Manager
17. (Repealed)

Division 2 - Management of Authority

18. The Minister
19. Board of Directors
19A. Investment Board
20. General Manager
21. Delegation of functions

Division 3 - Functions of Authority

22. General functions of the Authority
23. Specific functions
23A. Nominal Insurer functions of Authority

PART 3 - (Repealed)
None

PART 4 - WORKERS COMPENSATION AND WORKPLACE OCCUPATIONAL HEALTH AND SAFETY COUNCIL OF NEW SOUTH WALES

28. Constitution of Council
29. Membership and procedure of Council
30. Functions of Council
31. (Repealed)

PART 5 - INDUSTRY REFERENCE GROUPS

32. Industry Reference Groups
33. Functions of Industry Reference Groups

PART 6 - FINANCIAL PROVISIONS

Division 1 - WorkCover Authority Fund

34. WorkCover Authority Fund
35. Payments into and from Fund
35A. Certain ongoing costs of Compensation Court jurisdiction
36. Investment

Division 2 - Contributions to WorkCover Authority Fund

37. Definitions
38. Assessment by Authority of amount to be contributed to Fund
39. Contributions to Fund by specialised insurers and self-insurers
39A. Contributions to Fund by Comcare employers

Division 3 - Financial year of Authority

40. Financial year of Authority

CHAPTER 3 - WORKPLACE INJURY MANAGEMENT

41. Object and application of Chapter
41A. Chapter applies even when liability disputed
42. Definitions
42A. Injury management pilot projects
42B. Claims assistance
43. Injury management programs
44. Early notification of workplace injury
45. Injury management plan for worker with significant injury
45A. Injury management consultants
46. Employer’s injury management plan obligations
47. Worker’s injury management plan obligations
48. Injured worker’s obligation to return to work
49. Employer must provide suitable work
50. Payment of cost of treatment of injured worker
51. (Repealed)
52. Workplace rehabilitation
53. Vocational re-education etc provided by Authority
54. Second-injury scheme
55. Compliance by insurers
55A. Compliance by scheme agents
56. Compliance by employer
57. Compliance by worker
58. Liability not affected
59. Regulations

CHAPTER 4 - WORKERS COMPENSATION

PART 1 - COMPENSATION-GENERAL

60. Liability, benefits, common law and other matters

PART 2 - COMPENSATION-CLAIMS AND PROCEEDINGS

Division 1 - Notice of injury etc and claims for compensation

60A. Application of Division
61. Notice of injury to be given to employer
62. Provisions relating to giving of notice of injury
63. Register of injuries
64. Notice of incapacity, medical etc treatment and damage to property
65. Making a claim for compensation
66. Manner of making claim for compensation
67, 68. (Repealed)
69. Action by employer in respect of claims

Division 2 - Administration by insurers of claims for compensation or damages

70. Definitions
71. Duty of claimant to co-operate
72. Inspection of relevant claims information
73. Insurer to provide copies of reports to worker
74. Insurers to give notice and reasons when liability disputed
74A. Duty of insurer to pay compensation promptly
75. Report about delays and the incurring of unreasonable costs by insurers

Division 3 - Conciliation of disputes by conciliator

75A. Division applies only to existing claims
76. Definition of “dispute”
77. Principal Conciliator and other conciliators
78. Referral of disputes for conciliation
79. Conciliation of disputes
79A. Exchange of information before conciliation
80. Power of conciliator to require information
81. Power of conciliator to provide information and documents to a party
81A. Parties to conciliation to provide copies of documents before conciliation conference
82. Summons to appear at conciliation conference
83. Role for conciliator in preparing for medical panel
84. Certificates as to conciliation of disputes
85. Time within which disputes must be referred to conciliation
86. Agreements arising from conciliation
87. Control and direction of conciliators
88. Conciliation costs
89. Protection of conciliators
90. Proceedings before conciliators
91. Regulations

Division 4 - Special provisions with respect to weekly payments of compensation

91A. Division applies only to existing claims
92. Definitions
93. Claims for weekly compensation-commencement of payments
94. Offences-commencement of weekly payments
95. Direction by conciliator-commencement or continuation of weekly payments
96. Maximum period of weekly payments of compensation under direction of conciliator
97. Revocation of directions of conciliator
98. Offence-failure to comply with directions
99. Payment under direction etc not admission of liability
100. Direction under section 95 not to be challenged on technicality

Division 5 - Restrictions on commencing court proceedings

100A. Division applies only to existing claims
101. Restrictions on commencing court proceedings about weekly payments
102. Restrictions on commencing court proceedings for lump sum compensation
103. Restrictions on commencing court proceedings about medical, hospital and other expenses
104. Court rules and regulations providing for evidence of compliance

Division 6 - Proceedings before Commission or the Compensation Court

105. Jurisdiction of Commission and Compensation Court
106. Authority may intervene in proceedings
107. Applications to be heard together
108. Interim awards
109. Interest before order for payment
110. Interest after order for payment
111. Interest on agreed payment of lump sum compensation
111A. Costs provisions apply only to existing claim matters
112. Costs
113. Regulations fixing maximum costs recoverable by legal practitioners or agents
114. Maximum fees recoverable by medical practitioners for medico-legal services
115. Limit on recovery of costs unreasonably incurred
116. Solicitor/client costs in compensation proceedings
117. Admissibility of statements by injured workers
118. Registration of certain persons involving interpreting etc services

Division 7 - Medical examinations and disputes

118A. Application of certain provisions of Division only to existing claims
119. Medical examination of workers at direction of employer
120. Medical examination of worker at direction of Commission
121. Assessment of medical disputes by approved medical specialists
122. Referral of medical disputes to referee or panel on application of worker or employer
123. Reference of medical disputes by Principal Conciliator
124. Submission by Court, conciliator etc of matters to medical referee or panel for report
125. Reimbursement of worker for loss of wages and expenses associated with medical examination
126. Copies of certain medical reports to be supplied to worker
127. Admissibility of medical reports
128. Admissibility and evidentiary value of certificates and reports of medical referees and panels
129. Power to correct mistakes in medical reports or certificates
130. Rules of Court and regulations with respect to medical evidence

Division 8 - Prohibited conduct relating to touting for claims

131. Definitions
132. Prohibited conduct by agents
133. Offence of engaging in prohibited conduct
134. Consequences of prohibited conduct for recovery of fees by agents
135. Consequences of prohibited conduct for lawyers
136. Lawyers and agents can be requested to certify as to prohibited conduct
137. Power to restrict or ban recovery of costs by agents who engage in prohibited conduct
138. Power to restrict or ban recovery of costs by solicitors
139. Power to restrict or ban agents who engage in prohibited conduct
140. Past conduct included in assessing persistent conduct
141. Duty of claimants to comply with requests for information about agents and lawyers
142. Regulation of advertising

CHAPTER 5 - (Repealed)
None

CHAPTER 6 - MISCELLANEOUS

230A. Premium Discount Schemes
231. Posting summary of Act
232. Worker’s right to information
233. No contribution from workers
234. No contracting out
235. Non-assignability of compensation
235A. Fraud on workers compensation scheme
235B. Remedy available where claim fraudulent
235C. False claims
235D. Order for refund of overpayments of compensation
236. Service of notices
237. Service of documents
238. Powers of entry and inspection by officers of Authority
238A. Search warrant
238AA. Power to obtain information, documents and evidence
238B. Protection from incrimination
238C. Authorised officer may request assistance
239. Authority may obtain documents from certain registries
240. Personal liability
241. Seals
242. Recovery of money by Authority
243. Disclosure of information
243A. Information gathering and use by Authority and Nominal Insurer
244. Offences by corporations
245. Proceedings for offences
245A. Evidence-criminal proceedings under OHS legislation
246. Penalty notices
247. Time for instituting proceedings
248. Regulations
248A. Review of Act
249. Repeal of WorkCover Administration Act 1989 No 120

CHAPTER 7 - NEW CLAIMS PROCEDURES

PART 1 - PRELIMINARY

250. Interpretation
251. Application of Chapter

PART 2 - GIVING NOTICE OF INJURY AND MAKING A CLAIM

Division 1 - Notice of injury

252. Application of Division
253. Interpretation
254. Notice of injury must be given to employer
255. How notice of injury is given
256. Register of injuries
257. Notice of incapacity, medical etc treatment and damage to property
258. Offence

Division 2 - Making a claim for compensation or damages

259. Application of Division
260. How a claim is made
261. Time within which claim for compensation must be made
262. Time within which claim for work injury damages must be made
263. Lump sum compensation claims to be made at same time
264. Action by employer in respect of claims, injuries and compensation

PART 3 - DEALING WITH CLAIMS

Division 1 - Special provisions for commencement of weekly payments after initial notification of injury

265. Application of Division
266. Meaning of initial notification of injury
267. Duty to commence weekly payments following initial notification of injury
268. Insurer must notify worker of reasonable excuse for not commencing weekly payments
269. Notice to be given of commencement of weekly payments
270. Obligations of worker to provide authorisations and medical evidence
271. Liability to make weekly payments not affected by making of claim
272. Recovery by insurer
273. Provision for recovery of excess for provisional payments

Division 2 - Claims for weekly payments

274. Liability to be accepted and weekly payments commenced within 21 days
275. Duty to commence provisional weekly payments if claim is first notification of injury
276. Continuation of provisional payments started before claim made
277. Provision for recovery of excess for provisional payments
278. Early acceptance of liability not prevented

Division 3 - Claims for medical expenses

279. Liability to be accepted within 21 days
280. Provisional acceptance of liability

Division 4 - Claims for lump sum compensation and work injury damages

280A. Claim for lump sum compensation a pre-condition to damages claim
281. Liability to be accepted and settlement offer made
282. Relevant particulars about a claim

Division 5 - Enforcement of claims obligations

283. Offence of failing to determine a claim for compensation
284. Insurer liable to pay fee if claim goes to assessment
285. Offence of referring non-genuine disputes
286. Partial acceptance of liability

PART 4 - COMPENSATION DISPUTE DETERMINATION

287. Disputes to which Part applies
287A. Reviews prior to referral
288. Referral of disputes to Commission
289. Restrictions as to when dispute can be referred to Commission
289A. Further restrictions as to when a dispute can be referred to Commission
290. Information exchange between parties
291. Duties of insurer when dispute referred to Commission
292. Expedited assessment
293. Medical assessment
294. Certificate of Commission’s determination
294A. Rules and regulations concerning medical evidence

PART 5 - EXPEDITED ASSESSMENT

Division 1 - Preliminary

295. Disputes to which Part applies
296. Exercise of functions of Registrar

Division 2 - Disputes concerning weekly payments or medical expenses

297. Directions for interim payment of weekly payments or medical expenses compensation
298. Period for which interim payment of weekly payments can be directed
299. Revocation of interim payment direction
300. Offence of failure to comply with interim payment direction
301. Effect of payment under interim payment direction
302. Rules relating to interim payment directions
303. Commission can give interim payment direction
304. Recovery of payments

Division 2A - Disputes concerning past weekly payments

304A. Disputes to which Division applies
304B. Registrar may deal with dispute

Division 3 - Disputes about non-compliance with Chapter 3

305. Disputes to which Division applies
306. Ways in which dispute can be dealt with
307. Registrar can recommend certain action
308. Compliance with recommendations of Registrar
309. Employers-representation and admissions
310. Referral of dispute to Commission

PART 6 - COURT PROCEEDINGS FOR WORK INJURY DAMAGES

Division 1 - Preliminary

311. Interpretation
312. Forum for court proceedings

Division 2 - Threshold for award of damages

313. Threshold dispute prevents service of pre-filing statement and commencement of court proceedings
314. What constitutes threshold dispute

Division 3 - Pre-filing statements

315. Requirement for pre-filing statement before commencing court proceedings
316. Defendant must respond to pre-filing statement
317. Defective pre-filing statement
318. Parties limited to pre-filing statement and defence

Division 4 - Mediation

318A. Mediation of claim before commencement of court proceedings
318B. Mediator to bring parties to agreement
318C. Legal and other assistance at mediation
318D. Powers of mediators
318E. Offers made at mediation not to be disclosed to court
318F. Appointment of mediators
318G. Protection of mediators
318H. Mediation fees

Division 5 - General

318I. Orders for access to information and premises

PART 7 - MEDICAL ASSESSMENT

319. Definitions
320. Appointment of approved medical specialists
321. Referral of medical dispute for assessment
322. Assessment of impairment
323. Deduction for previous injury or pre-existing condition or abnormality
324. Powers of approved medical specialist on assessment
325. Medical assessment certificate
326. Status of medical assessments
327. Appeal against medical assessment
328. Procedure on appeal
329. Referral of matter for further medical assessment or reconsideration
330. Costs of medical assessment
331. Guidelines

PART 8 - COSTS

Division 1 - Preliminary

332. Definitions
333. Costs to which Part applies
334. Part prevails over Legal Profession Act 2004
335. Assessment of costs
336. Exclusion of matters from this Part

Division 2 - Fixing of maximum costs and fees

337. Maximum lawyer and agent costs
338. Costs of obtaining medical and other reports
339. Maximum fees payable to health service providers

Division 3 - Special provisions for costs in compensation and damages assessment matters

340. Application of Division
341. Costs to be determined by Commission
342. Costs unreasonably incurred
343. Restrictions on recovery of solicitor/client costs
344. Liability of legal practitioner for client’s costs in certain cases
345. Costs penalties where appeal is unsuccessful

Division 3A - Special provisions for costs in work injury damages proceedings

346. Costs

Division 4 - Costs assessment

347. Regulations for costs assessment
348. (Repealed)

PART 9 - PROCEEDINGS BEFORE COMMISSION

349. Arrangement of business
350. Decisions of Commission
351. Reference of question of law on compensation claim to Commission constituted by Presidential member
352. Appeal against decision of Commission constituted by Arbitrator
353. Appeal against decision of Commission constituted by Presidential member
354. Procedure before Commission
355. Arbitrator to attempt conciliation
356. Representation before Commission
357. Power of Commission to require information
358. Power of Commission to provide documents and information to a party
359. Summons to appear at conference or hearing
360. Powers of Commission to require evidence
361. Protection of legal practitioners, witnesses and others
362. Recovery of amounts ordered to be paid
363. (Repealed)
364. Rules of the Commission
365. Publication of decisions and inspection of registers of agreements

PART 10 - ADMINISTRATION

Division 1 - Workers Compensation Commission

366. Establishment of Commission
367. Objectives of Commission
368. Members of Commission
369. Qualifications for appointment
370. Functions of members
371. Functions of Registrar
372. Control and direction of members of Commission
373. Provisions concerning members
374. Staff and facilities
375. Constitution of Commission for particular proceedings

Division 2 - WorkCover guidelines

376. Issue of guidelines
377. Special requirements relating to WorkCover Guidelines relating to impairment

PART 11 - RECONSIDERATION OF DECISIONS

378. Reconsideration of decisions
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 3A
Schedule 4 (Repealed)
SCHEDULE 5
SCHEDULE 5A
Schedule 6 (Repealed)

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