Workers Compensation Act 1987 (NSW)

Workers Compensation Act 1987 No 70 An Act to provide for the compensation and rehabilitation of workers in respect of work related injuries; to repeal the Workers' Compensation Act 1926 and certain other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Workers Compensation Act 1987. 2 Commencement (1) Sections 1 and 2 and Parts 19 and 20 of Schedule 6 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette. 2A Relationship to Workplace Injury Management and Workers Compensation Act 1998 (1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act. (2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act. (3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency. 3 Definitions (cf former s 6 (1), (2), (13)) (1AA) In this Act, words and expressions have the same meanings as they have in the 1998 Act, unless this Act provides otherwise. (1) In this Act— agency arrangement means the contract or other arrangement by which a scheme agent is appointed. Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. former Act means the Workers' Compensation Act 1926. former licensed insurer means a person (not being a licensed insurer) who— (a) was previously a licensed insurer under this Act or under section 27 of the former Act, and (b) continues to have liabilities under policies of insurance previously issued or renewed by the person. group means the employers who constitute a group under Division 2A of Part 7. GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. Guarantee Fund means the Insurers' Guarantee Fund established under section 227. ICNSW means Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015. injury is defined by section 4. Insurance Fund means the Workers Compensation Insurance Fund established under section 154D. licensed insurer means an insurer who is the holder of a licence granted under Division 3 of Part 7 and in force. mine means a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 10 (2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, is a place to which that Act does not apply. Nominal Insurer means the Workers Compensation Nominal Insurer referred to in section 154A. NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009. premium income— (a) in relation to contributions payable under this Act by an insurer (other than a specialised insurer) in respect of a financial year—means the amount the insurer receives during that financial year as premiums in respect of policies of insurance issued or renewed by the insurer (whether the policies are issued or renewed during that financial year or during a previous financial year), or (b) in relation to contributions payable under this Act by a specialised insurer in respect of a financial year—means the amount the insurer receives, whether during or after that financial year, as premiums in respect of policies of insurance issued or renewed by the insurer during that financial year, and, in relation to contributions payable by any insurer, includes any amount comprising or attributable to GST and any amount prescribed by the regulations as included for the purposes of this definition in relation to that financial year, but does not include any amount prescribed by the regulations as excluded for the purposes of this definition in relation to that financial year. regulations means regulations made under this Act. scheme agent means a person appointed under section 154G to act as agent for the Nominal Insurer in connection with the exercise of any of the functions of the Nominal Insurer. self-insurer means— (a) the holder of a licence in force under Division 5 of Part 7, and (b) a subsidiary of the licence holder covered for the time being by the licence (as provided by section 211A), and (c) any Government employer covered for the time being by the Government's managed fund scheme (as provided by section 211B). specialised insurer means a licensed insurer whose licence is endorsed with a specialised insurer endorsement. Workers Compensation Market Practice and Premiums Guidelines means guidelines issued by the Authority under section 168 and in force. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) A reference to a worker who has been injured includes, if the worker is dead, a reference to the worker's legal personal representative or the worker's dependants, or any other person to whom or for whose benefit compensation is payable. (2) (Repealed) (3) The exercise of the functions of a public or local authority shall, for the purposes of this Act, be treated as its trade or business. (4) The operations of a racing or recreation club shall, for the purposes of this Act, be treated as its trade or business. (5) The Crown shall, for the purposes of this Act, be treated as the employer of members of the Police Force. (6) Notes included in the text of this Act do not form part of this Act. 4 Definition of "injury" (cf former s 6 (1)) In this Act— injury— (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means— (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 4A Directors of uninsured employer not entitled to compensation If an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer's liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability. 5 (Repealed) 6 Act binds Crown (1) This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities. (2) (Repealed) 7 Certain Acts not affected (cf former s 5) Nothing in this Act affects the operation of the following Acts— Workers' Compensation (Dust Diseases) Act 1942, Workers' Compensation (Brucellosis) Act 1979, Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. 7A Application of Act in respect of coal industry (1) The workers compensation company (within the meaning of the Coal Industry Act 2001) is taken to be a licensed insurer that is a specialised insurer under, and for the purposes of, this Act. (2) However, the following provisions of this Act do not apply to or in respect of the workers compensation company— (a) Division 6 of Part 4, (b) sections 156 and 156B, (c) Divisions 1A, 2–5, 6A and 7 of Part 7. (3) For avoidance of doubt— (a) an employee of an employer in the coal industry is not eligible to make a claim under Division 6 of Part 4, and (b) a person who is taken, under Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998, to be a worker employed by another person is not entitled to make a claim referred to in paragraph (a) if the other person by whom the person is taken to be employed is engaged in the coal industry. (4) The workers compensation company is taken to be the insurer under this Act of all employers in the coal industry (whether or not any such employer maintains a policy of insurance with that company). (5) In this section— employer in the coal industry has the same meaning as in the Coal Industry Act 2001. 8 (Repealed) Part 2 Compensation—liability 9 Liability of employers for injuries received by workers—general (cf former s 7 (1) (a)) (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment. 9AA Liability for compensation (1) Compensation under this Act is only payable in respect of employment that is connected with this State. (2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State. (3) A worker's employment is connected with— (a) the State in which the worker usually works in that employment, or (b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or (c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located. (4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered. (5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if— (a) the worker is in this State when the injury happens, and (b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter. (6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months. (7) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker's employment. (8) In this section— ship means any kind of vessel used in navigation by water, however propelled or moved, and includes— (a) a barge, lighter, or other floating vessel, and (b) an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water. State includes Territory and, in a geographical sense, a State's or Territory's relevant adjacent area as described in Schedule 1. 9AB Recognition of determination of State of connection in another State (1) If a designated court makes a determination of the State with which a worker's employment is connected for the purposes of a corresponding law, that State is to be recognised for the purposes of section 9AA as the State with which the worker's employment is connected. (2) This section does not prevent or affect the operation of a determination of the State with which a worker's employment is connected for the purposes of section 9AA made by the Commission or a court of this State before the determination is made by a designated court. (3) This section does not prevent any appeal relating to any such determination of a designated court. If the determination is altered on appeal, the altered determination is to be recognised under subsection (1). (4) In this section— corresponding law means the provisions of the statutory workers compensation scheme of another State that corresponds with section 9AA. designated court means— (a) the Supreme Court of a State in which a corresponding law is in force, or (b) a court, tribunal or other decision-making body of a State in which a corresponding law is in force that is declared by the regulations to be a designated court for the purposes of this section. State includes Territory. 9AC Person not to be compensated twice (1) Compensation under this Act is not payable in respect of any matter to the extent that compensation has been received under the laws of a place other than this State. (2) If a person receives compensation under this Act and, for the same matter, subsequently receives compensation under the laws of a place other than this State, the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3). (3) The amount that is recoverable under subsection (2) is— (a) the amount of compensation paid under this Act, or (b) the amount of compensation received under the laws of a place other than this State, whichever is less. 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Note— In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)— (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following— (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies. 9B No compensation for heart attack or stroke unless nature of employment results in significantly greater risk (1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature. (2) In this section— heart attack injury means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with— (a) any heart attack, or (b) any myocardial infarction, or (c) any myocardial ischaemia, or (d) any angina, whether unstable or otherwise, or (e) any fibrillation, whether atrial or ventricular or otherwise, or (f) any arrhythmia of the heart, or (g) any tachycardia, whether ventricular, supra ventricular or otherwise, or (h) any harm or damage to such a blood vessel or to any associated plaque, or (i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or (j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or (k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or (l) any haemorrhage from such a blood vessel, or (m) any aortic dissection, or (n) any consequential physical harm or damage, including harm or damage to the brain, or (o) any consequential mental harm or damage. stroke injury means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with— (a) any stroke, or (b) any cerebral infarction, or (c) any cerebral ischaemia, or (d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or (e) any subarachnoid haemorrhage, or (f) any haemorrhage from such a blood vessel, or (g) any harm or damage to such a blood vessel or to any associated plaque, or (h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or (i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or (j) any consequential physical harm or damage, including neurological harm or damage, or (k) any consequential mental harm or damage. 10 Journey claims (cf former s 7 (1) (b)–(d), (f), (g)) (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. (1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker. (1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. (1C) (Repealed) (1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury. (2) Subsection (1) does not apply if— (a) the injury was received during or after any interruption of, or deviation from, any such journey, and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. (3) The journeys to which this section applies are as follows— (a) the daily or other periodic journeys between the worker's place of abode and place of employment, (b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend, (c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation, (d) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3), (e) a journey between any camp or place— (i) where the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to reside temporarily, or (ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker's employment, and the worker's place of abode when not so residing, (f) a journey between the worker's place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act, (g) a journey between the worker's place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money— (i) due to the worker under the terms of his or her employment, and (ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment. (3A) A journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. (4) For the purposes of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated. (5) For the purposes of this section, if the worker is journeying from the worker's place of employment with one employer to the worker's place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer. (5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act. (6) In this section— educational institution means— (a) a trade, technical or other training school, or (b) a university or other college or school providing secondary or tertiary education. night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker's employment. place of abode includes— (a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and (b) the place to which the worker is journeying with the intention of there spending the night following a journey. 11 Recess claims (cf former s 7 (1) (e)) If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or training contract— (a) is temporarily absent from that place on that day during any ordinary recess or authorised absence, (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. 11A No compensation for psychological injury caused by reasonable actions of employer (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. (3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. (4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system. (5) (Repealed) (6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment. This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury). (7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as "stress" or "stress condition". (8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)— (a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and (b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with. 12 Claims by trade union representatives (cf former s 7 (1) (h)) If— (a) a worker is an accredited representative of a trade union of employees, or other organisation of employees, of which any person employed by the worker's employer is a member, (b) with the consent of or at the request of that employer or pursuant to an industrial award or agreement, the worker is carrying out his or her duties as such a representative (whether at the worker's place of employment or elsewhere) or is on an associated journey, and (c) the worker receives a personal injury while carrying out those duties or on that journey, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. 13 (Repealed) 14 Conduct of worker etc (cf former s 7 (2), (3)) (1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received— (a) acting in contravention of any statutory or other regulation applicable to the worker's employment, or of any orders given by or on behalf of the employer, or (b) acting without instructions from the worker's employer, if the act was done by the worker for the purposes of and in connection with the employer's trade or business. (2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement. (3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury. 15 Diseases of gradual process—employer liable, date of injury etc (cf former ss 7 (4), (4C), (5), 16 (1A)) (1) If an injury is a disease which is of such a nature as to be contracted by a gradual process— (a) the injury shall, for the purposes of this Act, be deemed to have happened— (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. (2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission. (2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case— where— C is the contribution to be calculated for the particular employer concerned. T is the amount of compensation to which the employer is required to contribute. A is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due. B is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due. (3) Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process. (4) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3. (4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease. (5) This section does not apply to an injury to which section 17 applies. 16 Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7 (4A), (5), 16 (1A)) (1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease— (a) the injury shall, for the purposes of this Act, be deemed to have happened— (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation w