Workers’ Compensation (Dust Diseases) Act 1942 (NSW)

Workers' Compensation (Dust Diseases) Act 1942 No 14 An Act to make further and more extensive provisions regarding the payment of compensation in the case of workers who suffer death or disablement owing to the disease known as silicosis of the lungs, or owing to other diseases of the pulmonary or respiratory organs caused by exposure to silica dust; to validate certain payments; to repeal the Workmen's Compensation (Silicosis) Act 1920–1936, as amended by subsequent Acts; and for purposes connected therewith. 1 Name of Act etc (1) This Act may be cited as the Workers' Compensation (Dust Diseases) Act 1942 and shall be construed with the Workers Compensation Act 1987, hereinafter called the Principal Act. (2) This Act shall commence on a day to be appointed by the Governor and notified by proclamation published in the Gazette. 2 Repeal of Workmen's Compensation (Silicosis) Act 1920 and schemes made thereunder (1) The Workmen's Compensation (Silicosis) Act 1920 is hereby repealed, and the schemes made thereunder shall, as from the commencement of this Act, cease to have effect. (2) (a) All awards, orders, and determinations, made in pursuance of the Workmen's Compensation (Silicosis) Scheme, No 1 of 1938, as varied by any subsequent scheme, and the Workmen's Compensation (Silicosis) Scheme, No 2 of 1938, as varied by any subsequent scheme, or deemed to be so made and continuing in force immediately prior to the commencement of this Act, shall continue in force after such commencement, but shall be subject to the provisions of this Act. (b) Any application for an award of compensation pending, and any other matter incomplete immediately prior to the commencement of this Act, shall be carried on, and determined, completed or dismissed, in accordance with the procedure prescribed by or under this Act. (c) Nothing in this Act shall affect any right, obligation, or liability acquired, accrued, or incurred under the Workmen's Compensation (Silicosis) Scheme, No 1 of 1938, as varied by any subsequent scheme, and the Workmen's Compensation (Silicosis) Scheme, No 2 of 1938, as varied by any subsequent scheme, except in so far as may be otherwise prescribed by this Act. (3) (a) Any balance and investments at the credit of the Silicosis Fund immediately before the commencement of Part 2 of the Workers' Compensation (Dust Diseases) Amendment Act 1967 shall, as from that commencement, be transferred to the Fund established under this Act and any liability of the Silicosis Fund shall, as from that commencement, be and become a liability of the Fund established under this Act. (b) All property, assets, rights, books and documents that, immediately before the commencement of Part 2 of the Workers' Compensation (Dust Diseases) Amendment Act 1967, were vested in or in the custody or possession of or under the control of the Silicosis Committee shall, as from that commencement be vested in, or transferred to the custody, possession and control of, the board. (4) (Repealed) (5) Any worker who immediately before the commencement of Part 2 of the Workers' Compensation (Dust Diseases) Amendment Act 1967 was in receipt of continuing payments of compensation to which the worker was entitled under subsection (4), as enacted immediately before that commencement, shall be entitled to receive compensation from the Fund, as from that commencement, at the rate prescribed by or under this Act and appropriate to the case. 3 Definitions (1) For the purposes of this Act, unless the context or subject matter otherwise indicates or requires— Authority means the Workers Compensation (Dust Diseases) Authority constituted under this Act. chief executive means the chief executive of the Authority appointed under this Act. Dust means dust of such a nature that the inhalation thereof may give rise to a dust disease. Dust disease means any disease specified in Schedule 1, and includes any pathological condition of the lungs, pleura or peritoneum, that is caused by dust that may also cause a disease so specified. Dust Diseases Board means the Dust Diseases Board established by section 5AC. Dust occupation means industry or process prescribed as a dust occupation. Employer means an employer of workers in any industry or process, employment in which exposes the worker to the possibility of contracting a dust disease. function includes a power, authority or duty, and exercise a function includes perform a duty. Fund means the Workers' Compensation (Dust Diseases) Fund constituted under this Act. ICNSW means Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015. Medical Assessment Panel means the Medical Assessment Panel appointed under section 7. 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. Process includes occupation and any description of manual labour. Regulation means a regulation made under this Act. Silicosis Account means the Silicosis Contribution Account established under the Silicosis Act. Silicosis Act means the Workers' Compensation (Silicosis) Act 1942, as amended by subsequent Acts passed before the commencement of Part 2 of the Workers' Compensation (Dust Diseases) Amendment Act 1967. Silicosis Committee means the Workers' Compensation (Silicosis) Committee constituted under the Silicosis Act. Silicosis Fund means the Workers' Compensation (Silicosis) Fund established under the Silicosis Act. Silicosis Reserve Fund means the Silicosis Outstanding Liability Reserve Fund constituted under the Silicosis Act. SIRA means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. Spouse of a person means— (a) where the claim for compensation concerned was made by or in relation to the person before the commencement of Schedule 6 [2] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a person to whom the person is legally married, or (b) where the claim for compensation concerned was made by or in relation to the person after that commencement— (i) a person to whom the person is legally married, or (ii) the de facto partner of the person. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998. worker does not include a worker in or about a mine. (2), (3) (Repealed) 4 (Repealed) 5 Constitution and functions of Authority (1) There is constituted by this Act a corporation with the corporate name of the Workers Compensation (Dust Diseases) Authority. (2) The Authority is a NSW Government agency. Note— See section 13A of the Interpretation Act 1987. (3) The Authority has the following functions— (a) to determine claims for compensation under this Act, (b) such other functions as are conferred or imposed on it by or under this or any other Act. 5AA Chief executive (1) The Minister is to appoint a person as the chief executive of the Authority. Note— Schedule 1B contains provisions relating to the chief executive of the Authority. (2) The affairs of the Authority are to be managed and controlled by the chief executive. (3) Any act, matter or thing done in the name of, or on behalf of, the Authority by the chief executive is taken to have been done by the Authority. 5AB Delegation (1) The Authority may delegate to an authorised person any of the functions of the Authority (other than this power of delegation). (2) In this section— authorised person means— (a) a member of staff of Insurance and Care NSW, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations. 5AC Dust Diseases Board (1) There is established a Dust Diseases Board comprising the following members appointed by the Minister— (a) 3 persons appointed to represent employers, (b) 3 persons appointed to represent employees, (c) representatives of dust diseases sufferers' support, advocacy or awareness groups or organisations, (d) persons involved in research into dust diseases or in academic matters relating to dust diseases, (e) health professionals, (f) an independent chairperson. (2) The Dust Diseases Board has such functions as are conferred or imposed on it by or under this or any other Act. (3) Subject to the regulations, a member of the Dust Diseases Board holds office for such period (not exceeding 3 years) as is specified in the member's instrument of appointment. (4) Subject to the regulations, the procedure for the calling of meetings of the Dust Diseases Board and for the conduct of business at those meetings is to be determined by the Chairperson of the Dust Diseases Board. (5) The regulations may make provision for or with respect to the members and procedure of the Dust Diseases Board. 5A Board may use its services and facilities for other purposes (1) The Authority may, upon payment of such fee (if any) and compliance with such conditions (if any) as it thinks appropriate, make its services and diagnostic facilities available to any person otherwise than in connection with its other functions under this Act. (2) Any fee payable under subsection (1) may be recovered by the Authority as a debt in a court of competent jurisdiction. 6 Constitution of Fund (1) There shall be established a Workers' Compensation (Dust Diseases) Fund which shall consist of— (a) all balances, investments and moneys of which the Silicosis Fund consisted immediately before the commencement of Part 2 of the Workers' Compensation (Dust Diseases) Amendment Act 1967 and all moneys that, immediately before that commencement, were owing to the Silicosis Fund and are paid after that commencement, and (a1) all balances, investments and moneys of which the fund established under the scheme of the Workmen's Compensation (Broken Hill) Act 1920 consisted immediately before the repeal of that Act, and all moneys that, immediately before that repeal, were owing to that fund and are paid after that repeal, (b) all money paid to the Authority as contributions by insurers under and in accordance with this section, and (c) any moneys provided by Parliament for the purposes of the Fund, and (d) any fees paid under section 5A, and (e) all amounts that immediately before the commencement of this paragraph stood to the credit of the Dust Diseases Reserve Fund, and (f) all amounts contributed by insurers under subsection (6) or (7D), and (g) the investment earnings accruing from the investment of the Fund. (2) The Authority is responsible for administering the Fund and is required to pay out of the Fund— (a) all compensation payable under this Act, (b) the costs incurred by or on behalf of a NSW Government agency in providing services (including staff and facilities) for or in connection with the compensation scheme established under this Act, (c) the costs (as approved by the Minister administering Part 3 of the State Insurance and Care Governance Act 2015) incurred by the State Insurance Regulatory Authority in exercising functions in connection with that scheme, (d) the fees payable to the Medical Assessment Panel, (d1) the costs involved in reimbursing workers under section 9A, (d2) to the Minister administering the District Court Act 1973, such of the costs of operation of the District Court relating to appeals under section 8I, being costs incurred after 30 June 2005, as the Minister administering the District Court Act 1973 and the Minister administering this Act agree are to be paid from the Fund, (e) the costs of administering this Act and any other money that the Authority is required to pay under this Act, and (f) the costs involved in the operation of the Dust Diseases Tribunal of New South Wales (including the remuneration payable to the registrar and other staff of that Tribunal). (2AA) The Authority may invest money in the Fund that is not immediately required for the Fund— (a) if the Authority is a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way that the Authority is permitted to invest money under that Part, or (b) if the Authority is not a GSF agency for the purposes of Part 6 of the Government Sector Finance Act 2018—in any way approved by the Minister with the concurrence of the Treasurer. (2A) The Dust Diseases Board is authorised to make from the fund— (a) grants for the purpose of clinical or research work relating to the prevention and treatment of dust diseases or for any other purpose relating to the prevention and treatment of dust diseases, and (b) grants for the purpose of providing assistance to groups or organisations that provide support for victims of dust diseases or their families. (2B) Where, in the opinion of the Authority, employment in a particular industry or location exposes workers in that industry or location to a substantial risk of contracting a dust disease, the Authority may expend money from the Fund in arranging for, and causing to be carried out, medical examinations of such of those workers as it thinks fit. (3) The Authority shall, from time to time, make a determination as to the class or classes of employment (in this section hereinafter referred to as determined class or classes of employment) in any industry or process, which employment is of such a nature as to expose the worker to the risk of contracting a dust disease and shall from time to time notify ICNSW and SIRA of its determination. (4) The Authority shall as required by ICNSW or SIRA in each year make an estimate of the amount to be expended out of the Fund for the next following year commencing on 1st July. (5) Any such estimate shall— (a) include particulars of any moneys provided by Parliament for the purposes of the Fund in respect of the relevant period, (b) be set out in writing in a certificate signed by the chief executive, (c) be forwarded as soon as practicable after the making thereof to ICNSW and SIRA, and (d) be accompanied by a statement certified by the chief executive setting forth the liability estimated by the Authority to be outstanding under awards made by it to or in respect of workers employed in any industry or process employment in which is of such a nature as to expose workers to the risk of contracting a dust disease and the basis upon which such liability is estimated. (6) The amount of such estimate (less the moneys referred to in subsection (5) (a)) shall be paid to the Authority by way of contributions by insurers in accordance with the provisions of this section. The contributions to be so paid by any insurer shall be of such amount and shall be made at such times as SIRA determines. (7) SIRA shall, in respect of any such estimate, determine— (a) the insurers or classes of insurers by whom the contributions under this section are to be paid, (b) the amount of the contributions to be so paid by such insurers or classes of insurers, (c) the times at which such contributions shall be so paid. SIRA may determine different amounts of contributions in respect of different insurers or classes of insurers. SIRA shall make a determination under and in accordance with this section— (i) in respect of the estimate made for the year ending on 30th June next following the commencement of section 3 of the Workers' Compensation (Amendment) Act 1945 as soon as practicable after the commencement of the Workers' Compensation (Amendment) Act 1946, and (ii) in respect of the estimate made for any succeeding year as soon as practicable after the estimate made for such year has been forwarded to SIRA. (7A) (a) Any determination under subsection (7) (a) may be made so as to apply to insurers or classes of insurers insuring or indemnifying employers against liability under the Principal Act or the 1998 Act in respect of any class or classes of employment other than a determined class or classes of employment as well as to insurers or classes of insurers insuring or indemnifying employers against liability under the Principal Act or the 1998 Act in respect of any determined class or classes of employment. (b) Without prejudice to the generality of any power conferred on SIRA by this section SIRA may determine that the amount of any contribution payable by an insurer in respect of any determined class or classes of employment shall be at the rate which prior to 1st July 1945 had been levied by the Silicosis Committee for the purposes of the Silicosis Fund upon the wages paid to workers in such determined class or classes of employment or at such other rate as SIRA deems equitable in the circumstances. (c) In determining the contributions payable by a self-insurer SIRA may have regard to the number of workers employed by such self-insurer and to the wages paid to workers so employed and to the premium which such self-insurer would have paid had the self-insurer's liability been insured under the Principal Act or the 1998 Act respecting workers so employed with an insurer licensed under the Principal Act or the 1998 Act. (7B) An insurer may, subject to the provisions of the Principal Act and the 1998 Act, adjust the premium payable in respect of a policy of insurance or indemnity required by that Act to be obtained by an employer so as to include an amount equivalent to such part of the contributions payable by the insurer under this section as relates to that employer and that policy. (7C) (Repealed) (7D) SIRA may determine additional amounts of contributions to be paid by insurers from their premium income to the Authority if it considers that it is necessary having regard to relevant prevailing circumstances and the financial stability of the Fund. (7E) If any contribution payable under subsection (6) or (7D) is not paid within the time determined by SIRA the amount of such contribution may be recovered by the Authority as a debt and the insurer concerned shall be guilty of an offence against this Act and liable to a penalty not exceeding 20 penalty units. Proceedings in respect of the recovery of any such contribution or the enforcement of any such penalty may be instituted by the Authority. (7F) A certificate by SIRA setting forth the fact that any determination has been made under and in accordance with subsection (7) or (7D) and the amount of contribution payable by any insurer shall in any proceedings for the recovery of any contribution payable under this section or in proceedings for a penalty under subsection (7E) be conclusive evidence of the matters stated in such certificate. (8) Every insurer shall in each year at such time as SIRA may notify, furnish to SIRA such particulars as it may require for the purpose of enabling it to make any determination under this section. (9) No contribution shall be payable under this section by the operator of a mine, or by an insurer of any such operator, in so far as the business of the insurer relates to insurance of liability under the Principal Act or the 1998 Act of any such operator. (10) The Authority is to furnish to a relevant body such information as the relevant body may require in regard to any of the following— (a) employment in any industry or process which is of such a nature as to expose the worker to the risk of contracting a dust disease, (b) the compensation paid and payable to workers in such employment, (c) the financial position of the Fund, (d) such other matters arising out of the relevant body's functions under this Act as the body considers will assist it in carrying out its functions. For the purposes of this section, relevant body means ICNSW or SIRA. (11), (12) (Repealed) 7 Medical Assessment Panel (1) The Medical Assessment Panel is to consist of 3 legally qualified medical practitioners who shall be appointed by the Minister, one of whom shall be appointed chairperson, another of whom shall be nominated by employers who employ workers in any industry or process, employment in which exposes the worker to the possibility of contracting a dust disease, and another by such workers. The Minister may appoint one or more deputies of each member of the Medical Assessment Panel. Each such deputy shall have the like qualification and shall be appointed on the like nomination (if any) as is required for the appointment of the member for whom the person is to act as deputy. In the event of the absence of any member from a meeting of the Medical Assessment Panel a deputy of such member shall be entitled to act in the member's place at such meeting, and, while so acting shall, for all purposes, be deemed to be a member of the Medical Assessment Panel. Every nomination under this subsection shall be in writing and shall be made at such times and in such manner as may be prescribed. (1A) A member of the Medical Assessment Panel holds office for such period (not exceeding 3 years) as is specified in the member's instrument of appointment and is eligible for reappointment. (1B) (Repealed) (2) A certificate affecting the compensation of any person shall be issued only after consideration of the case has been given by the Medical Assessment Panel at a meeting at which at least 2 members are present. At any meeting of the Medical Assessment Panel the decision of 2 or more members on any question shall be the decision of the Medical Assessment Panel. (3) The Medical Assessment Panel shall undertake such duties and make such examinations and furnish reports thereon as the Authority or the Minister may require. (4) If a medical practitioner has given evidence or agreed to give evidence as a medical practitioner in connection with any legal proceedings taken by or on behalf of a worker or by any employer of the worker, the medical practitioner must not act as a member of a Medical Assessment Panel in connection with any case involving those proceedings. (5) The certificate of a Medical Assessment Panel shall, subject to section 8I, be conclusive evidence as to the matters certified. (6) No action or suit shall be brought or maintained against any person who is, or at any time has been, a member of the Medical Assessment Panel for anything done or omitted by the member pursuant to the duties imposed upon the member by or under this Act, nor shall any action, suit or other proceeding lie against the member, nor any costs be payable by the member, in respect of any proceeding before the Medical Assessment Panel. 8 Certificate of Medical Assessment Panel and rates of compensation (1) Subject to this Act— (a) where the Medical Assessment Panel certifies that a person is totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, such person shall, if the Authority finds— (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the Medical Assessment Panel, further finds that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the Authority has found that the person was a worker in such occupation, be entitled to an award from the Authority, and to receive compensation at the prescribed rates from the Fund, (b) where the Medical Assessment Panel certifies that a person died from a dust disease and that the person's death was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, the dependants of such person shall, if the Authority finds— (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the Medical Assessment Panel, further finds that the person's death was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the Authority has found that the person was a worker in such occupation, be entitled to an award from the Authority, and to receive compensation at the prescribed rates from the Fund, (c) where a person dies and— (i) immediately before the person's death the person was receiving, or was entitled under an award of the Authority or of the Silicosis Committee to receive, continuing payments of compensation at the prescribed rates from the Fund in respect of the person's disablement for work from a dust disease, or (ii) (a) the person had before the person's death applied to the Authority or to the Silicosis Committee for compensation under the provisions of this Act or to be examined by the Medical Assessment Panel and— (i) the Medical Assessment Panel had before the person's death examined such person and certified either before or after the person's death pursuant to the last examination of such person made by the Medical Assessment Panel before the person's death that such person was at the time of that examination totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, or (ii) the Medical Assessment Panel had not before the person's death examined such person pursuant to such application but after the person's death certifies that such person was immediately before the person's death totally or partially disabled for work from a dust disease and that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due, and (b) the Authority finds— (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and the Medical Assessment Panel further certifies that the person's disablement was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the Authority has found that the person was a worker in such occupation, the dependants of such person shall, if they are not entitled under paragraph (b) of this subsection to an award from the Authority and to receive compensation at the prescribed rates from the Fund, be entitled under this paragraph to an award from the Authority and to receive compensation at the prescribed rates from the Fund— Provided that the Authority may refuse to make an award in favour of and to pay to the dependants of a person referred to in subparagraph (i) of paragraph (a) of subparagraph (ii) of this paragraph the whole or any part of the compensation to which such dependants would, but for this proviso, be entitled under the provisions of this Act if that person before the person's death refused, neglected or failed, without reasonable cause, to submit for examination by the Medical Assessment Panel in accordance with a request of the Authority or the Silicosis Committee made to the person after the last examination of the person made by the Medical Assessment Panel before the person's death. (1A) The Authority is to decide whether to accept or refuse a claim for compensation within 2 working days after— (a) the Medical Assessment Panel issues a certificate under subsection (1), or (b) the Authority is provided with the information required by the Authority to enable the claim to be determined, whichever is the later. (1AA) However any decision by the Authority made after that 2-day period in respect of the claim is not invalid merely because of when it is made. (2) The prescribed rates of compensation payable under an award of the Authority made pursuant to subsection (1), not being an award to which subsection (2B) applies, shall, subject to this section, be— (a) where the award is made pursuant to paragraph (a) of that subsection—the weekly compensation payments prescribed by Division 2 of Part 3 of, and Schedule 6 to, the Principal Act, (b) where the award is made pursuant to paragraph (b) of that subsection—the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award, (c) where the award is made pursuant to paragraph (c) of that subsection and the disablement for work from the dust disease was— (i) total—the compensation payments prescribed by Division 1 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers who die before the commencement of that Division, calculated as if those provisions as in force at the date of death had been in force at the date of the injury to the person whose dependants are entitled to the award, (ii) partial—such percentage of the compensation payments that would have been payable under subparagraph (i) had the disablement been total as is equal to the percentage of the person's disablement for work from the dust disease as certified by the Medical Assessment Panel, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (i) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), at the last examination of the person made by the Medical Assessment Panel before the person's death or, where the dependants of the person are entitled to compensation payments by reason of the operation of subparagraph (ii) of paragraph (a) of subparagraph (ii) of paragraph (c) of subsection (1), in the certificate issued by the Medical Assessment Panel pursuant to subparagraph (ii) of the said paragraph (a), (d) where medical or related treatment or hospital treatment or occupational rehabilitation service or ambulance service becomes reasonably necessary as a result of the dust disease—the benefits prescribed by Division 3 of Part 3 of the Principal Act. All compensation payments authorised to be made under this Act shall be made from the Fund established by section 6. (2A) The Authority is to pay from the Fund the reasonable expenses of a deceased person's funeral not exceeding the sum prescribed by or under section 26 of the Principal Act, but only if— (a)