Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 No 86 An Act to provide for the effective management of work-related injuries and injury compensation for workers in respect of such injuries; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Workplace Injury Management and Workers Compensation Act 1998. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 System objectives The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives— (a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury, (b) to provide— • prompt treatment of injuries, and • effective and proactive management of injuries, and • necessary medical and vocational rehabilitation following injuries, in order to assist injured workers and to promote their return to work as soon as possible, (c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses, (d) to be fair, affordable, and financially viable, (e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work, (f) to deliver the above objectives efficiently and effectively. 4 Definitions (cf 1987 s 3; 1989 s 3) (1) In this Act— Authority means the State Insurance Regulatory Authority constituted under the State Insurance and Care Governance Act 2015. claim means a claim for compensation or work injury damages that a person has made or is entitled to make. claimant means a person who makes or is entitled to make a claim. coal miner matter means any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a mine. Commission means the Personal Injury Commission of New South Wales established by the Personal Injury Commission Act 2020. Commission rules has the same meaning as in the Personal Injury Commission Act 2020. compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts. Compensation Court means the Compensation Court of New South Wales constituted under the Compensation Court Act 1984. current work capacity—see Schedule 3 to the 1987 Act. death benefit compensation means compensation under Division 1 (Compensation payable on death) of Part 3 of the 1987 Act. dependants of a worker means such of the members of the worker's family as were wholly or in part dependent for support on the worker at the time of the worker's death, or would but for the incapacity due to the injury have been so dependent, and includes— (a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in the place of a parent to the worker, and (b) a divorced spouse of the worker so dependent, and (c) a person so dependent who— (i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—although not legally married to the worker, lived with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or (ii) in relation to an injury received after that commencement—is the de facto partner of the worker. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. Deputy President means a Deputy President of the Commission. doctor means a medical practitioner. dust disease has the same meaning as it has in the Workers' Compensation (Dust Diseases) Act 1942. employer includes— (a) the legal personal representative of a deceased employer, or (b) a government employer, or (c) a former employer. Without limiting the meaning of the expression, an employer can be an individual, a corporation, a firm, an unincorporated body of persons, a government agency or the Crown. exercise a function includes perform a duty. existing claim has the same meaning as in Chapter 7 (New claims procedures). existing claim matter has the same meaning as in Chapter 7 (New claims procedures). financial year means a year commencing 1 July. former 1926 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, the 1987 Act or section 27 of the former 1926 Act, and (b) continues to have liabilities under policies of insurance previously issued or renewed by the person. function includes a power, authority or duty. government agency means any department, person or body exercising executive or administrative functions on behalf of the Government. government employer means the Crown or any government agency, and includes— (a) a public health organisation within the meaning of the Health Services Act 1997, and (a1) a person exercising employer functions for the Crown or a government agency in relation to a worker, and Example— The Government Sector Employment Act 2013, sections 26 and 31 provide for Secretaries of Departments and certain other heads of Public Service agencies to exercise the employer functions of the Government of New South Wales. (b) an employer prescribed by the regulations. government worker means a worker whose employer is a government employer. GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth. ICNSW means Insurance and Care NSW constituted under the State Insurance and Care Governance Act 2015. incapacity includes a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment. Independent Review Officer means the Independent Review Officer appointed under Schedule 5 to the Personal Injury Commission Act 2020. injury— (a) means a personal injury arising out of or in the course of employment, and (b) includes— (i) a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but (c) does not include (except in the case of a worker employed in or about a mine)— (i) a dust disease, or (ii) the aggravation, acceleration, exacerbation or deterioration of a dust disease. insurance includes indemnity. lump sum compensation means compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act. mandatory notification requirement—see section 40D. mediator means a person appointed as a mediator for the purposes of this Act under the Personal Injury Commission Act 2020. medical assessment means assessment of a medical dispute by a medical assessor under Part 7 of Chapter 7. medical assessor means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act. medical certificate means a certificate given by a medical practitioner. medical dispute has the meaning given by section 319. medical expenses compensation means compensation under Division 3 (Compensation for medical, hospital and rehabilitation expenses etc) of Part 3 of the 1987 Act. member of a family means spouse (including wife or husband), father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister. motor accident damages means damages to which Part 6 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017 applies. new claim has the same meaning as in Chapter 7 (New claims procedures). new claim matter has the same meaning as in Chapter 7 (New claims procedures). no current work capacity—see Schedule 3 to the 1987 Act. non-presidential member means a member of the Commission other than a presidential member. pain and suffering compensation means compensation for pain and suffering under section 67 of the 1987 Act. permanent impairment compensation means compensation for permanent impairment under section 66 of the 1987 Act. policy of insurance means a policy of insurance that an employer obtains under the 1987 Act or the former 1926 Act. premium income— (a) in relation to contributions payable under this Act or the 1987 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 or the 1987 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. President means the President of the Commission. presidential member has the same meaning as in the Personal Injury Commission Act 2020. principal registrar means the principal registrar of the Commission. records includes books, accounts, minutes, registers, deeds, documents and any other sources of information compiled, recorded or stored in written form, on microfilm, by electronic process or in any other manner. related body corporate has the same meaning as it has in the Corporations Act 2001 of the Commonwealth. SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011. Self Insurance Corporation means the NSW Self Insurance Corporation constituted by the NSW Self Insurance Corporation Act 2004. spouse of a person means— (a) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998—a person to whom the person is legally married (including a husband or wife), or (b) in relation to an injury received after that commencement— (i) a person to whom the person is legally married (including a husband or wife), or (ii) a de facto partner of the person. suitable employment—see section 32A of the 1987 Act. the 1987 Act means the Workers Compensation Act 1987. training contract has the meaning it has in the Apprenticeship and Traineeship Act 2001. Note— A training contract is a contract entered into for the purpose of establishing an apprenticeship or traineeship. weekly payment, in relation to compensation, means a weekly payment of compensation under Division 2 of Part 3 of the 1987 Act in respect of a period of total or partial incapacity for work. work capacity decision—see section 43 of the 1987 Act. work health and safety legislation means— (a) the Work Health and Safety Act 2011 and the instruments under that Act, or (b) any other Act or instrument (or part) prescribed by the regulations under this Act. work injury means an injury in respect of which compensation is payable. work injury damages has the same meaning as in Chapter 7 (New claims procedures). Workers Compensation Guidelines means guidelines issued under section 376. Workers Compensation Operational Fund means the Workers Compensation Operational Fund established under this Act. worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include— (a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or (b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or (c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or (d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978) while— (i) participating in an authorised activity (within the meaning of that Act) of that organisation, or (ii) engaged in training or preparing himself or herself with a view to so participating, or (iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged, if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things. Workers Compensation Acts means this Act and the 1987 Act. workers compensation legislation means— (a) this Act and the instruments under this Act, or (b) the 1987 Act and the instruments under that Act, or (c) the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 and the instruments under that Act, or (d) the Workers' Compensation (Dust Diseases) Act 1942 and the instruments under that Act, or (e) any other Act or instrument (or part) prescribed by the regulations. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Extended meaning of injured worker A reference in this Act 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. (3) Notes Notes in the text of this Act do not form part of this Act. (4) (Repealed) (5) Meaning of "related" The following provisions have effect for the purposes of this section— (a) Persons are related if— (i) one is the parent, or another ancestor, of the other, or (ii) one is the child, or another descendant, of the other, or (iii) they have a parent in common. (b) For the purposes of paragraph (a)— (i) a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child, and (ii) the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective, and (iii) the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent, and (iv) a person who has been adopted more than once is taken to be the child of each person by whom he or she has been adopted. (c) In paragraph (b), adopted means adopted under the law of any place, whether in Australia or not, relating to the adoption of children. (5A) Subsection (5) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. (6) Certain references to "mines" A reference to a mine in the definitions of coal miner matter and injury is a reference to 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 a reference to 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. Note— Section 2A of the 1987 Act provides that the 1987 Act is to be construed with, and as if it formed part of, this Act. Accordingly, a reference in this Act to this Act generally includes a reference to the 1987 Act. 5 Deemed employment of workers (cf 1987 s 5) Schedule 1 has effect. 6 Application of Act in certain respects (cf 1987 s 3 (3), (4), (5)) (1) Public or local authority For the purposes of this Act, the exercise of the functions of a public or local authority is taken to be its trade or business. (2) Racing or recreation club For the purposes of this Act, the operations of a racing or recreation club are taken to be its trade or business. (3) NSW Police Force For the purposes of this Act, the Crown is taken to be the employer of members of the NSW Police Force. Note— Members of the NSW Police Force who are contributors to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906 are not workers within the meaning of this Act. That fund was closed to new members on and from 1 April 1988. Accordingly members of the NSW Police Force who are not contributors to that fund are workers within the meaning of this Act. 7 Act binds Crown (cf 1987 s 6) (1) This Act binds the Crown in right of New South Wales and also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) (Repealed) 8 Certain Acts not affected (cf 1987 s 7) Nothing in this Act affects the operation of the following Acts— Workers' Compensation (Dust Diseases) Act 1942, Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. 9 (Repealed) 9A 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) sections 146 and 146A, (b) Parts 3, 4, 5, 6, 7, 8 and 9 of Chapter 5. (3) For avoidance of doubt— (a) an employee of an employer in the coal industry is not eligible to make a claim under Part 9 of Chapter 5, and (b) a person who is taken, under Schedule 1, 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. Chapter 2 Administration Part 1 10–13 (Repealed) Part 2 General workers compensation functions 14–21 (Repealed) 22 Objectives and general functions of Authority under workers compensation legislation (1) The principal objectives of the Authority in exercising its functions under the workers compensation legislation are as follows— (a) to promote the prevention of injuries and diseases at the workplace and the development of healthy and safe workplaces, (b) to promote the prompt, efficient and effective management of injuries to persons at work, (c) to ensure the efficient operation of workers compensation insurance arrangements, (d) to ensure the timely and effective resolution of disputes arising under the workers compensation legislation, (e) to ensure the appropriate co-ordination of arrangements for the administration of the schemes to which the workers compensation legislation relates. (2) The general functions of the Authority under the workers compensation legislation are as follows— (a) to be responsible for ensuring compliance with the workers compensation legislation, (b) to be responsible for the day to day operational matters relating to the workers compensation scheme, (c) to establish procedures for dealing with complaints made by employers and by injured workers in relation to matters arising under the workers compensation scheme, (d) to monitor and report to the Minister on the operation and effectiveness of the workers compensation legislation and on the performance of the workers compensation scheme, (e) to undertake such consultation as it thinks fit in connection with current or proposed legislation relating to the workers compensation scheme, (f) to monitor and review key indicators of financial viability and other aspects of the workers compensation scheme, (g) to report and make recommendations to the Minister on such matters as the Minister requests or the Authority considers appropriate. 23 Specific functions (cf 1989 s 13) (1) The Authority has, in particular, the following functions— (a) to initiate and encourage research to identify efficient and effective strategies for the prevention and management of work injury and for the rehabilitation of injured workers, (b) to ensure the availability of high quality education and training in such prevention, management and rehabilitation, (c) to develop equitable and effective programs to identify areas of unnecessarily high costs in or for schemes to which the workers compensation legislation relates, (d) to foster a co-operative relationship between management and labour in relation to the health, safety and welfare of persons at work, (e) (Repealed) (f) to identify (and facilitate or promote the development of programs that minimise or remove) disincentives for injured workers to return to work or for employers to employ injured workers, or both, (g) to assist in the provision of measures to deter and detect fraudulent workers compensation claims, (h) to develop programs to meet the special needs of target groups, including— • workers who suffer severe injuries • injured workers who are unable to return to their pre-injury occupation • injured workers who are unemployed • persons who live in remote areas • women • persons of non-English speaking background • persons who have a disability, (i) to facilitate and promote the establishment and operation of return-to-work programs, (j) to investigate workplace accidents, (j1) to enter into arrangements with SafeWork NSW for or in connection with the enforcement of the work health and safety legislation, (k) to develop policies for injury management, worker rehabilitation, and assistance to injured workers, (l) to monitor the operation of requirements and arrangements imposed or made by or under the workers compensation legislation, including requirements and arrangements for all or any of the following— • injury management • worker rehabilitation • workers compensation insurance • workers compensation insurer licensing, and to commence and conduct prosecutions for offences in connection with any such requirements and arrangements, (m) to collect, analyse and publish data and statistics, as the Authority considers appropriate, (n) to provide advisory services to workers, employers, insurers and the general community (including information in languages other than English), (o) to provide funds for or in relation to— • measures for the prevention or minimisation of work injuries or diseases • work health and safety education, (p) to arrange, or facilitate the provision of, interpreter services to assist injured workers, (q) to provide and administer (subject to the regulations) a legal aid service for persons who are parties to proceedings relating to workers compensation. (r) (Repealed) (2) (Repealed) 23A (Repealed) Parts 3–5 24–33 (Repealed) Part 6 Financial provisions Division 1 Workers Compensation Operational Fund 34 Workers Compensation Operational Fund (cf 1989 s 18) The Authority is required to establish and maintain a Workers Compensation Operational Fund. 35 Payments into and from Fund (cf 1989 s 19) (1) The following is to be paid into the Workers Compensation Operational Fund— (a) money contributed by insurers, self-insurers and deemed insurers under Division 2, (a1) money approved by the Minister to be paid into the Fund from the Insurance Fund under subsection (1A), (a2) the investment earnings accruing from the investment of the Fund, (b) money required to be paid into the Fund by or under this or any other Act, (c) all other money received by the Authority and not otherwise appropriated. (1A) The Minister may approve the payment into the Fund of amounts from the Insurance Fund having regard to the estimates, provisions and determinations made by the Authority under section 38 and any need for additional funding to provide for the proper exercise of the Authority's functions. (2) The following is to be paid from the Workers Compensation Operational Fund— (a) the remuneration, allowances, office accommodation and other associated costs of the Board of the Authority and the members of staff of the Authority to the extent that those costs relate to the administration of this Act and the 1987 Act, (b) the remuneration, allowances, office accommodation and other associated costs of SafeWork NSW, (c) the remuneration of the Independent Review Officer and staff of the Independent Review Officer and costs incurred in connection with the exercise of the functions of the Independent Review Officer arising under the Workers Compensation Acts, (d), (e) (Repealed) (e1) the costs associated with the establishment and operation of the Workers Compensation Division of the Commission arising from the Workers Compensation Acts, including— (i) the expenditure incurred by the Commission in providing medical assessments and reviews of medical assessments for the purposes of those Acts, and (ii) the expenditure incurred by the Commission in providing services (including mediation services) in respect of claims for work injury damages, (f) payments required to be made under section 35A (Residual and ongoing costs of Compensation Court jurisdiction), (f1) fees the Authority is required to pay to the Civil and Administrative Tribunal for applications made under the State Insurance and Care Governance Act 2015, section 26F in connection with the provision of relevant services for the purposes of this Act, (g) all payments required to meet expenditure incurred in relation to the functions of the Authority, (h) all other money required by or under this or any other Act to be paid from the Fund. (3) The maximum amount payable from the Workers Compensation Operational Fund for the costs of operation of the Compensation Court is to be the amount determined by the Minister administering the Compensation Court Act 1984 after consultation with the Minister administering this Act. (4) The Authority may pay from the Fund into the Insurance Fund any amount by which the Authority determines the Fund to be in surplus from time to time. Any such surplus may be paid to the Insurance Fund by transfer of any investment held by the Fund (as an alternative to the payment of money). 35A Certain ongoing costs of Compensation Court jurisdiction (1) The following costs are payable from the Workers Compensation Operational Fund— (a) the costs of operation of the Compensation Court (until the repeal of the Compensation Court Act 1984), (b) such of the costs of operation of the District Court, incurred on or before 30 June 2005, relating to matters that would have been matters within the jurisdiction of the Compensation Court (had the repeal Act not been enacted) as the Ministers agree are to be paid from the Fund, and (c) such of the ongoing costs of operation of the Compensation Court (those costs determined as if the repeal Act had not been enacted) as the Ministers agree are to be paid from the Fund, and (d) such other costs resulting from the operation of the repeal Act as the Ministers agree are to be paid from the Fund. (2) The costs of operation of a court include— (a) the remuneration (including allowances) of Judges of the court and of officers and employees of the public service employed in connection with the exercise of functions of the court, and (b) costs associated with the employment and remuneration of those Judges and officers and employees and of retired Judges of the court (such as contributions for and payments of pensions and superannuation benefits), and (c) court accommodation. (3) In this section— repeal Act means the Compensation Court Repeal Act 2002. the Ministers means the Minister administering the District Court Act 1973 and the Minister administering this Act. 36 Investment The Authority may invest money in the Workers Compensation Operational Fund that is not immediately required for the purposes of 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. Division 2 Contributions to Workers Compensation Operational Fund 37 Definitions (cf 1987 s 258) In this Division—