Workers' Compensation and Rehabilitation Regulation 2003


Queensland Crest
Workers’ Compensation and Rehabilitation Regulation 2003
Queensland Workers’ Compensation and Rehabilitation Act 2003 Workers’ Compensation and Rehabilitation Regulation 2003 Current as at 8 November 2013
Information about this reprint This reprint shows the legislation current as at the date on the cover and is authorised by the Parliamentary Counsel. A new reprint of the legislation will be prepared by the Office of the Queensland Parliamentary Counsel when any change to the legislation takes effect. This change may be because a provision of the original legislation, or an amendment to it, commences or because a particular provision of the legislation expires or is repealed. When a new reprint is prepared, this reprint will become a historical reprint. Also, if it is necessary to replace this reprint before a new reprint is prepared, for example, to include amendments with a retrospective commencement, an appropriate note would be included on the cover of the replacement reprint and on the copy of this reprint at www.legislation.qld.gov.au. The endnotes to this reprint contain detailed information about the legislation and reprint. For example— The table of reprints endnote lists any previous reprints and, for this reprint, gives details of any discretionary editorial powers under the Reprints Act 1992 used by the Office of the Queensland Parliamentary Counsel in preparing it. The list of legislation endnote gives historical information about the original legislation and the legislation which amended it. It also gives details of uncommenced amendments to this legislation. For information about possible amendments to the legislation by Bills introduced in Parliament, see the Queensland Legislation Current Annotations at www.legislation.qld.gov.au/Leg_Info/ information.htm. The list of annotations endnote gives historical information at section level. All Queensland reprints are dated and authorised by the Parliamentary Counsel. The previous numbering system and distinctions between printed and electronic reprints are not continued.
Queensland Workers’ Compensation and Rehabilitation Regulation 2003 Contents Part 1 1 2 3 5 Part 2 Division 1 6 7 8 9 10 11 12 14 15 15A Division 2 16 Division 3 19 20 20A 21 22 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 WorkCover’s capital adequacy—Act, s 453 . . . . . . . . . . . . . . . . . 17 Employer insurance Policies and premium assessments Application for policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Policies and renewals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Assessment of premium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Declaration of wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Value of board and lodging. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Payment of premium by instalments. . . . . . . . . . . . . . . . . . . . . . . 20 Additional premium for late payment of premium—Act, ss 61 and 62 ....................................... 21 Premium for appeals—Act, s 569(2)(a) . . . . . . . . . . . . . . . . . . . . 22 Former employer may apply to cancel policy . . . . . . . . . . . . . . . . 22 Cancellation of policy if workers no longer employed. . . . . . . . . . 23 Employer excess Excess period—Act, s 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Self-insurance Application fees—Act, s 70. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Annual levy—Act, s 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Provisional annual levy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Additional amount for late payment of levy—Act, s 82 . . . . . . . . . 26 Conditions of licence—Act, s 83. . . . . . . . . . . . . . . . . . . . . . . . . . 26
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 23 23A 24 Part 3 Division 1 25 26 Division 2 27 28 Division 3 29 Division 4 30 31 32 Part 4 Division 1 Subdivision 1 33 Subdivision 2 34 35 36 37 38 39 40 41 42 43 Subdivision 3 44 45 Premium payable after cancellation of self-insurer’s licence—Act, s 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deemed levy for appeals—Act, s 569(2)(a) . . . . . . . . . . . . . . . . . Actuarial procedure—self-insurers . . . . . . . . . . . . . . . . . . . . . . . . Other insurances Students Insurance of work experience students . . . . . . . . . . . . . . . . . . . . Insurance of vocational placement students . . . . . . . . . . . . . . . . Eligible persons Proposal for contract of insurance—Act, s 24 . . . . . . . . . . . . . . . Documents to be kept by eligible person . . . . . . . . . . . . . . . . . . . Other persons Contracts of insurance for other persons . . . . . . . . . . . . . . . . . . . Contracts of insurance generally Entitlements of persons mentioned in ch 1, pt 4, div 3, sdivs 1, 2 and 4 ........................................ WorkCover not liable if premium not paid. . . . . . . . . . . . . . . . . . . Duty to report injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amount of calculation of liability for self-insurers Outstanding liability Purpose of div 1 Purpose of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculation Appointment of actuary for calculation . . . . . . . . . . . . . . . . . . . . . Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulator to give actuaries information . . . . . . . . . . . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement on calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to arbiter if no agreement . . . . . . . . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for outstanding liability . . . . . . . . . . . . . . . . . Transfer of claims information. . . . . . . . . . . . . . . . . . . . . . . . . . . . Recalculation Purpose of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of sdiv 3 for group employers. . . . . . . . . . . . . . . . . . . 27 28 28 28 30 31 31 32 32 33 33 34 34 34 35 35 36 36 36 37 37 37 38 38 Page 2
46 47 48 49 50 51 52 53 54 Division 2 55 56 57 58 59 60 61 62 63 64 65 Division 3 66 67 68 69 70 71 72 73 74 75 Division 3A 75A 75B 75C Workers’ Compensation and Rehabilitation Regulation 2003 Contents Appointment of actuary for recalculation . . . . . . . . . . . . . . . . . . . Recalculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulator to give actuaries information . . . . . . . . . . . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement on recalculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to arbiter if no agreement . . . . . . . . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for recalculation . . . . . . . . . . . . . . . . . . . . . . Total liability Purpose of div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of actuary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parties to give actuaries information . . . . . . . . . . . . . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement on calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to arbiter if no agreement . . . . . . . . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for total liability . . . . . . . . . . . . . . . . . . . . . . . Transfer of claims information. . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability after cancellation of self-insurer’s licence Purpose of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of actuary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Former self-insurer to give actuaries information . . . . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to actuarial arbiter if no agreement . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for liability . . . . . . . . . . . . . . . . . . . . . . . . . . . Estimated claims liability Purpose of div 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition for div 3A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approved actuary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 38 39 39 41 41 41 41 41 43 43 43 44 44 45 45 45 46 46 46 47 47 47 47 48 49 49 49 49 49 50 50 50 Page 3
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 75D 75E 75F 75G 75H 75I 75J 75K 75L Division 3B Subdivision 1 75M 75N Subdivision 2 75O 75P 75Q 75R 75S 75T 75U 75V 75W Subdivision 3 75X 75Y 75Z 75ZA 75ZB 75ZC 75ZD 75ZE 75ZF 75ZG Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Self-insurer to give Regulator and approved actuary information Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copy of actuarial report to Regulator and self-insurer . . . . . . . . . Regulator to advise self-insurer whether agreement . . . . . . . . . . Reference to Regulator’s actuary if no agreement . . . . . . . . . . . . Agreement on estimated claims liability . . . . . . . . . . . . . . . . . . . . Reference to arbiter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Self-insurers who become non-scheme employers Preliminary Purpose of div 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition for div 3B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculation Appointment of actuary for calculation . . . . . . . . . . . . . . . . . . . . . Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-scheme employer to give actuaries information . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to actuarial arbiter if no agreement . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for liability . . . . . . . . . . . . . . . . . . . . . . . . . . . Recalculation Purpose of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of actuary for recalculation . . . . . . . . . . . . . . . . . . . Recalculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . WorkCover to give actuaries information . . . . . . . . . . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement on recalculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to arbiter if no agreement . . . . . . . . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for recalculation . . . . . . . . . . . . . . . . . . . . . . 50 51 51 52 53 53 53 53 54 54 54 54 54 55 55 56 57 57 57 57 58 58 58 59 59 60 60 61 61 61 Page 4
Division 3C 75ZH 75ZI 75ZJ 75ZK 75ZL 75ZM 75ZN 75ZO 75ZP 75ZQ 75ZR Division 4 76 77 78 79 Part 5 Division 1 80 81 82 83 84 Division 2 85 85A 86 87 88 89 91 Division 3 92 Workers’ Compensation and Rehabilitation Regulation 2003 Contents Total liability—member of a group who becomes non-scheme employer Purpose of div 3C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of actuary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parties to give actuaries information . . . . . . . . . . . . . . . . . . . . . . Actuarial report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement on calculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference to arbiter if no agreement . . . . . . . . . . . . . . . . . . . . . . Arbiter’s costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment of amount for total liability . . . . . . . . . . . . . . . . . . . . . . . Transfer of claims information. . . . . . . . . . . . . . . . . . . . . . . . . . . . Actuarial arbiter Function of actuarial arbiter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of actuarial arbiter . . . . . . . . . . . . . . . . . . . . . . . . . . Decision of arbiter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Arbiter’s decision is final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compensation Calculation of NWE Calculation of NWE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . What amounts may or may not be taken into account . . . . . . . . . NWE if impracticable to calculate rate of worker’s remuneration . NWE if worker worked for 2 or more employers . . . . . . . . . . . . . . NWE if insurer considers calculation unfair . . . . . . . . . . . . . . . . . Compensation application and other procedures Application for compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for compensation for assessment of DPI—Act, s 132A Certificate given by dentist, doctor or nurse practitioner . . . . . . . If dentist, doctor or nurse practitioner not available . . . . . . . . . . . Examination of claimant or worker—Act, ss 135 and 510 . . . . . . Payment for treatment arranged by employer other than self-insurer ..................................... Special medical treatment, hospitalisation or medical aid . . . . . . Entitlement to compensation for permanent impairment Calculating lump sum compensation—Act, s 180 . . . . . . . . . . . . 62 62 63 63 63 65 65 65 65 65 66 66 66 67 67 68 68 68 69 69 69 70 71 71 72 72 73 74 Page 5
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 95A 96 97 Part 6 Division 1 98 99 Division 2 99B 99C Division 3 101 103 104 105 106 106A 107 108 109 110 Part 7 111 112 112A 112B Part 7A 112C 112D 112E 112F Page 6 Additional lump sum compensation—workers with latent onset injuries that are terminal conditions—Act, s 128B . . . . . . . . . . . . Additional lump sum compensation for certain workers—Act, s 192 ......................................... Additional lump sum compensation for gratuitous care—Act, s 193 ......................................... Rehabilitation Caring allowance Further information required in occupational therapist’s report—Act, s 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extent of liability for caring allowance—Act, s 225 . . . . . . . . . . . . Rehabilitation and return to work coordinators Functions of rehabilitation and return to work coordinator—Act, s 41(b) ......................................... Employer’s obligation to appoint rehabilitation and return to work coordinator—Act, s 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard for rehabilitation Who this division applies to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard for rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Doctor’s approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Worker’s file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rehabilitation and return to work plan . . . . . . . . . . . . . . . . . . . . . Suitable duties program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Case notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Early worker contact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Damages Notice of claim for damages—Act, s 275 . . . . . . . . . . . . . . . . . . . Notice of claim and urgent proceedings—Act, s 276 . . . . . . . . . . Insurer may add another person as contributor—Act, s 278A . . . Contributor’s response—Act, s 278B . . . . . . . . . . . . . . . . . . . . . . Assessment of damages Prescribed amount of damages for loss of consortium or loss of servitium—Act, s 306M . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rules for assessing injury scale value—Act, s 306O(1)(c)(i) . . . . General damages calculation provisions—Act, s 306P . . . . . . . . Prescribed amount of award for future loss—Act, s 306R . . . . . . 74 74 74 75 75 76 77 77 78 78 78 78 79 79 80 80 80 81 85 86 86 87 87 88 88
Part 8 Division 1 113 Division 2 114 115 116 117 118 Part 8A 118A 118B 118C 118D 118E 118F 118G Part 9 119 120 120A 120B Part 10 Division 1 121 122 Division 2 123 124 Workers’ Compensation and Rehabilitation Regulation 2003 Contents Costs Proceeding before industrial magistrate or industrial commission Costs—proceeding before industrial magistrate or industrial commission ..................................... Claim for damages Who this division applies to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition for div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs before proceeding started . . . . . . . . . . . . . . . . . . . . . . . . . Costs after proceeding started . . . . . . . . . . . . . . . . . . . . . . . . . . . Outlays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Medical assessment tribunals Medical assessment tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of General Medical Assessment Tribunal . . . . . . . . . Chairperson and deputy chairperson of General Medical Assessment Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of specialty medical assessment tribunal . . . . . . . . . Chairperson and deputy chairperson of specialty medical assessment tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of composite tribunals . . . . . . . . . . . . . . . . . . . . . . . Chairperson and deputy chairperson of composite tribunal . . . . . Miscellaneous Documents to be kept—Act, s 520 . . . . . . . . . . . . . . . . . . . . . . . . Reasons for decisions must address certain matters—Act, ss 540(4) and 546(3AA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Declaration of designated courts—Act, s 114 . . . . . . . . . . . . . . . Declaration of provisions that are a State’s legislation about damages for work related injury—Act, s 322 . . . . . . . . . . . . . . . . Transitional provisions Provisions for Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2004 Estimated claims liability for ss 20 and 23A . . . . . . . . . . . . . . . . . Adjustment of annual levy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provisions for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Regulation (No. 1) 2004 Costs in proceedings before industrial magistrate . . . . . . . . . . . . Excess period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 90 90 90 91 92 93 93 94 95 95 95 97 97 98 99 99 100 100 101 101 Page 7
Workers’ Compensation and Rehabilitation Regulation 2003 Contents Division 3 125 126 127 Division 4 128 Division 5 129 Schedule 1 Schedule 2A 1 2 Schedule 3 1 2 Schedule 4 1 2 Schedule 5 1 2 Schedule 5A 1 Schedule 6 Schedule 7 Schedule 8 Part 1 1 Provisions for Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2008 Excess period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rehabilitation and return to work coordinators. . . . . . . . . . . . . . . Adding person as contributor . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 Excess period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional provision for Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2013 General Medical Assessment Tribunal constituted before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Graduated scale for additional compensation for workers with terminal latent onset injuries . . . . . . . . . . . . . . . . . . . . . . Graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to use this graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . Graduated scale of additional compensation for certain workers ..................................... Graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to use the graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . . Graduated scale for additional compensation for gratuitous care ......................................... Graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to use this graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . Graduated scale of care required for payment of caring allowance ...................................... Graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How to use this graduated scale . . . . . . . . . . . . . . . . . . . . . . . . . High risk industries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Categorisation of industries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal professional costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Designated courts and provisions that are a State’s legislation about damages for work related injury . . . . . . . . . Matters to which court is to have regard in the application of schedule 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Objectives of schedule 9 (Ranges of injury scale values) Objectives of sch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 102 102 103 103 105 106 106 106 108 108 108 111 111 111 113 113 113 115 115 118 119 120 120 Page 8
Part 2 Division 1 2 3 4 5 6 7 Division 2 8 9 10 11 12 13 14 Schedule 9 Part 1 1 2 3 4 5 6 7 8 9 Part 2 10 11 12 13 Part 3 Division 1 14 15 Workers’ Compensation and Rehabilitation Regulation 2003 Contents How to use schedule 9 Injury Injury mentioned in sch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple injuries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple injuries and maximum dominant ISV inadequate . . . . . . Adverse psychological reaction . . . . . . . . . . . . . . . . . . . . . . . . . . Mental disorder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravation of pre-existing condition . . . . . . . . . . . . . . . . . . . . . . Other matters Court must have regard to particular provisions of sch 9 . . . . . . . Court may have regard to other matters. . . . . . . . . . . . . . . . . . . . DPI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Medical report stating DPI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Greater weight to assessments based on AMA 5 . . . . . . . . . . . . Greater weight to assessments of PIRS rating. . . . . . . . . . . . . . . ISV must be a whole number . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ranges of injury scale values . . . . . . . . . . . . . . . . . . . . . . . . . Central nervous system and head injuries Quadriplegia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paraplegia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hemiplegia or severe paralysis of more than 1 limb. . . . . . . . . . . Monoplegia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extreme brain injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious brain injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate brain injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor brain injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor head injury, other than an injury mentioned in part 3 . . . . . Mental disorders Extreme mental disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious mental disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate mental disorder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor mental disorder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Facial injuries Skeletal injuries of the facial area Extreme facial injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious facial injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 121 122 122 123 123 123 124 124 124 125 125 125 126 126 127 128 128 128 131 132 134 136 138 138 138 139 139 140 Page 9
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 16 17 18 Division 2 19 20 21 22 Part 4 Division 1 Division 2 23 24 25 26 27 28 29 Division 3 30 31 32 33 Division 4 34 35 Part 5 Division 1 36 37 38 39 Division 2 40 41 Moderate facial injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor facial injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injury to teeth or gums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scarring to the face Extreme facial scarring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious facial scarring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate facial scarring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor facial scarring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injuries affecting the senses General comment Injuries affecting the eyes Total sight and hearing impairment . . . . . . . . . . . . . . . . . . . . . . . Total sight impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complete sight impairment in 1 eye with reduced vision in the other eye . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Complete sight impairment in 1 eye or total loss of 1 eye . . . . . . Serious eye injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate eye injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor eye injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injuries affecting the ears Extreme ear injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious ear injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate ear injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor ear injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Impairment of taste or smell Total loss of taste or smell, or both . . . . . . . . . . . . . . . . . . . . . . . . Partial loss of smell or taste, or both . . . . . . . . . . . . . . . . . . . . . . Injuries to internal organs Chest injuries Extreme chest injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious chest injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate chest injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor chest injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lung injury other than asthma Extreme lung injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious lung injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 143 144 145 145 146 146 147 147 148 148 149 149 149 150 151 152 152 153 154 154 155 156 157 160 161 Page 10
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 42 43 Division 3 44 45 46 47 Division 4 48 49 50 51 Division 5 52 53 Division 6 Subdivision 1 54 55 56 57 Subdivision 2 58 59 60 61 Division 7 62 63 64 65 Division 8 66 67 68 69 Moderate lung injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor lung injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Asthma Extreme asthma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Severe asthma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate asthma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor asthma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injuries to male reproductive system Impotence and sterility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of part or all of penis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of both testicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of 1 testicle. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injuries to female reproductive system Infertility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Any other injury to the female reproductive system . . . . . . . . . . . Injuries to digestive system Injury caused by trauma Extreme injury to the digestive system caused by trauma . . . . . . Serious injury to the digestive system caused by trauma . . . . . . Moderate injury to the digestive system caused by trauma . . . . . Minor injury to the digestive system caused by trauma . . . . . . . . Injury not caused by trauma Extreme injury to the digestive system not caused by trauma . . . Serious injury to the digestive system not caused by trauma . . . Moderate injury to the digestive system not caused by trauma . . Minor injury to the digestive system not caused by trauma . . . . . Kidney or ureter injuries Extreme injury to kidneys or ureters. . . . . . . . . . . . . . . . . . . . . . . Serious injury to kidneys or ureters . . . . . . . . . . . . . . . . . . . . . . . Moderate injury to kidneys or ureters . . . . . . . . . . . . . . . . . . . . . . Minor injury to kidneys or ureters . . . . . . . . . . . . . . . . . . . . . . . . . Liver, gall bladder or biliary tract injuries Extreme injury to liver, gall bladder or biliary tract . . . . . . . . . . . . Serious injury to liver, gall bladder or biliary tract . . . . . . . . . . . . . Moderate injury to liver, gall bladder or biliary tract . . . . . . . . . . . Minor injury to liver, gall bladder or biliary duct . . . . . . . . . . . . . . 162 162 163 164 164 164 165 166 167 167 168 169 171 172 173 173 174 175 177 178 179 180 181 181 182 182 183 184 Page 11
Workers’ Compensation and Rehabilitation Regulation 2003 Contents Division 9 70 71 72 73 Division 10 74 75 76 77 Division 11 78 79 80 Division 12 81 82 83 Part 6 Division 1 84 85 86 87 88 Division 2 89 90 91 92 93 Division 3 94 95 Bowel injuries Extreme bowel injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious bowel injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate bowel injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor bowel injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bladder, prostate or urethra injuries Extreme bladder, prostate or urethra injury . . . . . . . . . . . . . . . . . Serious bladder, prostate or urethra injury . . . . . . . . . . . . . . . . . . Moderate bladder, prostate or urethra injury . . . . . . . . . . . . . . . . Minor bladder, prostate or urethra injury . . . . . . . . . . . . . . . . . . . Spleen and pancreas injuries Injuries to the pancreas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of spleen (complicated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Injury to the spleen or uncomplicated loss of spleen . . . . . . . . . . Hernia injuries Severe hernia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate hernia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor hernia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Orthopaedic injuries Cervical spine injuries Extreme cervical spine injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious cervical spine injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate cervical spine injury— fracture, disc prolapse or nerve root compression or damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate cervical spine injury—soft tissue injury . . . . . . . . . . . . Minor cervical spine injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thoracic spine or lumbar spine injuries Extreme thoracic or lumbar spine injury . . . . . . . . . . . . . . . . . . . . Serious thoracic or lumbar spine injury . . . . . . . . . . . . . . . . . . . . Moderate thoracic or lumbar spine injury— fracture, disc prolapse or nerve root compression or damage. . . . . . . . . . . . . . Moderate thoracic or lumbar spine injury—soft tissue injury . . . . Minor thoracic or lumbar spine injury . . . . . . . . . . . . . . . . . . . . . . Shoulder injuries Extreme shoulder injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious shoulder injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 185 185 186 187 187 187 188 189 190 191 191 192 192 193 194 196 197 198 200 201 202 203 204 205 206 Page 12
96 97 Division 4 98 99 Division 5 100 101 102 103 Division 6 104 105 106 107 Division 7 108 109 110 111 112 113 114 115 116 117 118 119 Division 8 120 121 122 Workers’ Compensation and Rehabilitation Regulation 2003 Contents Moderate shoulder injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor shoulder injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amputation of upper limbs Loss of both upper limbs, or loss of 1 arm and extreme injury to the other arm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Loss of 1 upper limb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elbow injuries Extreme elbow injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious elbow injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate elbow injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor elbow injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wrist injuries Extreme wrist injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious wrist injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate wrist injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor wrist injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hand injuries Total or effective loss of both hands . . . . . . . . . . . . . . . . . . . . . . . Serious injury to both hands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Total or effective loss of 1 hand . . . . . . . . . . . . . . . . . . . . . . . . . . Amputation of the thumb or part of the thumb . . . . . . . . . . . . . . . Amputation of index, middle and ring fingers, or any 2 of them . . Amputation of individual fingers . . . . . . . . . . . . . . . . . . . . . . . . . . Amputation of thumb and all fingers. . . . . . . . . . . . . . . . . . . . . . . Any other injury to 1 or more of the fingers or the thumb . . . . . . . Extreme hand injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious hand injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate hand injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor hand injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Upper limb injuries, other than injuries mentioned in divisions 3 to 7 Extreme upper limb injury, other than an injury mentioned in divisions 3 to 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious upper limb injury, other than an injury mentioned in divisions 3 to 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate upper limb injury, other than an injury mentioned in divisions 3 to 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 208 209 210 212 213 213 214 215 216 216 217 218 218 219 220 221 222 223 224 227 228 228 229 229 231 232 Page 13
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 123 Division 9 124 125 126 127 Division 10 Subdivision 1 128 129 Subdivision 2 130 131 Division 11 132 133 134 135 Division 12 136 137 138 139 Division 13 140 141 142 143 Division 14 Subdivision 1 144 145 Page 14 Minor upper limb injury, other than an injury mentioned in divisions 3 to 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pelvis or hip injuries Extreme pelvis or hip injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious pelvis or hip injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate pelvis or hip injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor pelvis or hip injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amputation of lower limbs Amputation of both lower limbs Loss of both lower limbs above or through the knee . . . . . . . . . . Below the knee amputation of both lower limbs . . . . . . . . . . . . . . Amputation of 1 lower limb Above or through the knee amputation of 1 lower limb . . . . . . . . Below the knee amputation of 1 lower limb . . . . . . . . . . . . . . . . . Lower limb injuries, other than injuries mentioned in division 9 or 10 or divisions 12 to 15 Extreme lower limb injury, other than an injury mentioned in division 9 or 10 or divisions 12 to 15 . . . . . . . . . . . . . . . . . . . . . . Serious lower limb injury, other than an injury mentioned in division 9 or 10 or divisions 12 to 15 . . . . . . . . . . . . . . . . . . . . . . Moderate lower limb injury, other than an injury mentioned in division 9 or 10 or divisions 12 to 15 . . . . . . . . . . . . . . . . . . . . . . Minor lower limb injury, other than an injury mentioned in division 9 or 10 or divisions 12 to 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knee injuries Extreme knee injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious knee injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate knee injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor knee injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ankle injuries Extreme ankle injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious ankle injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate ankle injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor ankle injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foot injuries Amputations Amputation of both feet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amputation of 1 foot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 234 235 236 237 238 239 240 240 241 242 243 244 246 246 247 248 248 249 250 250 251 252
Workers’ Compensation and Rehabilitation Regulation 2003 Contents Subdivision 2 146 147 148 149 Division 15 150 151 152 153 Division 16 Part 7 154 Part 8 Part 9 155 156 157 Part 10 158 159 160 161 Schedule 10 Part 1 1 2 Part 2 3 4 5 6 7 8 Part 3 9 Other foot injuries Extreme foot injury that is not an amputation . . . . . . . . . . . . . . . . Serious foot injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate foot injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor foot injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Toe injuries Extreme toe injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious toe injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate toe injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor toe injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limb disorders Scarring to parts of the body other than the face Scarring to a part of the body other than the face . . . . . . . . . . . . Burn injuries Injuries affecting hair Extreme injury affecting head hair . . . . . . . . . . . . . . . . . . . . . . . . Serious injury affecting head hair . . . . . . . . . . . . . . . . . . . . . . . . . Moderate injury affecting head hair or loss of body hair. . . . . . . . Dermatitis Extreme dermatitis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Serious dermatitis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moderate dermatitis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minor dermatitis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Matters relevant to PIRS assessment by medical expert . . . Explanation of the PIRS PIRS rates permanent impairment caused by mental disorder . . Areas of functional impairment. . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment of PIRS rating Medical expert must comply with requirements . . . . . . . . . . . . . . How to assess a PIRS rating . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment if pre-existing mental disorder . . . . . . . . . . . . . . . . . How to work out a median class score . . . . . . . . . . . . . . . . . . . . . Conversion table. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Example worksheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Particular cases Refusal of treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 253 254 254 254 256 257 257 260 264 264 265 265 265 266 266 267 267 267 268 268 269 270 270 272 272 Page 15
Workers’ Compensation and Rehabilitation Regulation 2003 Contents 10 11 Part 4 12 Schedule 11 Schedule 12 1 2 3 4 Schedule 13 Cognitive impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-existing mental disorder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Report of PIRS rating Court to be given PIRS report . . . . . . . . . . . . . . . . . . . . . . . . . . . Psychiatric impairment rating scale . . . . . . . . . . . . . . . . . . . . General damages calculation provisions . . . . . . . . . . . . . . . . General damages calculation provision—1 July 2010 to 30 June 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General damages calculation provision—1 July 2011 to 30 June 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General damages calculation provision—1 July 2012 to 30 June 2013 ......................................... General damages calculation provision—1 July 2013 . . . . . . . . . Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 273 274 276 288 288 289 291 293 295 Endnotes 1 2 3 4 5 6 7 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information about retrospectivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 300 301 301 302 305 321 Page 16
Workers’ Compensation and Rehabilitation Regulation 2003 Part 1 Preliminary [s 1] Workers’ Compensation and Rehabilitation Regulation 2003 [as amended by all amendments that commenced on or before 8 November 2013] Part 1 Preliminary 1 Short title This regulation may be cited as the Workers’ Compensation and Rehabilitation Regulation 2003 . 2 Commencement This regulation commences on 1 July 2003. 3 Definitions Schedule 13 defines particular words used in this regulation. 5 WorkCover’s capital adequacy—Act, s 453 In order to maintain capital adequacy for section 453(b) of the Act, WorkCover’s total assets must at least be equal to its total liabilities. Current as at 8 November 2013 Page 17
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 6] Part 2 Employer insurance Division 1 Policies and premium assessments 6 Application for policy An application for a policy must be made to WorkCover in the approved form. 7 Policies and renewals (1) On payment of the premium shown as payable in a premium notice issued by WorkCover to an employer, WorkCover must issue to the employer a policy, in the approved form, for the period of insurance stated in the notice. (2) A policy has no force or effect until— (a) WorkCover receives the premium payable to WorkCover for the policy or its renewal; or (b) WorkCover enters into an instalment plan for the policy under section 11. 8 Assessment of premium (1) This section does not apply to a policy for household workers. (2) WorkCover must assess premium payable under a policy for each period of insurance shown in a premium notice. (3) For a period of insurance before 1 July 2003, an assessment of premium must be made in accordance with the provisions of a former Act in force at the time of the relevant period of insurance. (4) If, after the premium is assessed, WorkCover is satisfied that premium for the period has been overpaid, WorkCover must refund or credit the amount of overpayment to the employer to whom the premium notice is given. Page 18 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 9] (5) If, after the premium is assessed, WorkCover is satisfied that premium for the period has been underpaid, the employer to whom the premium notice is given must pay the premium as assessed. 9 Declaration of wages (1) This section does not apply to an employer who employs only household workers. (2) Each employer, other than a self-insurer, must, on or before 31 August in each year, lodge with WorkCover a declaration of wages so WorkCover can assess the employer’s premium. (3) The declaration must be in— (a) the approved form; or (b) with WorkCover’s approval—another form acceptable to WorkCover. (4) If an employer does not comply with subsection (2), the employer must pay an additional premium under schedule 1. (5) The additional premium payable under schedule 1 is the amount specified opposite the time after 31 August in a year when the employer complies with subsection (2). 10 Value of board and lodging (1) This section applies if an employer provides, or is to provide, board to a worker during a period of insurance. (2) The value of board provided is taken to be wages paid, or to be paid, by the employer to the worker. (3) For each week the employer provides, or is to provide, board, the value of board is not less than— (a) the weekly allowance for board provided for under the industrial instrument governing the calling in which the worker is engaged; or (b) if paragraph (a) does not apply—6% of QOTE. Current as at 8 November 2013 Page 19
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 11] (4) In this section— board means accommodation, meals, laundry services or any other entitlement having a monetary value provided when lodging. 11 Payment of premium by instalments (1) WorkCover may accept payment of premium by instalments under an instalment plan approved by WorkCover if WorkCover is satisfied that payment of premium by the due date would impose financial hardship on the employer. (2) The instalment plan is subject to the following conditions— (a) interest at a rate specified by WorkCover’s board by gazette notice must be added to the amount of each instalment; (b) interest must be calculated from the due date; (c) the interest rate that applies at the start of the instalment plan remains constant until the plan ends; (d) on acceptance of the instalment plan, the employer must, if required by WorkCover, enter into a payment arrangement acceptable to WorkCover; (e) if an instalment of premium is not paid on or before the due date for payment of the instalment— (i) the total amount of unpaid instalments and interest on outstanding instalments to that day immediately becomes payable to WorkCover; and (ii) additional premium under section 12 applies to the unpaid instalments and interest; and (iii) the policy for which the premium is payable ceases to have effect; and (iv) the employer contravenes section 48 of the Act. Page 20 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 12] 12 Additional premium for late payment of premium—Act, ss 61 and 62 (1) This section applies if, on or before the due date, an employer does not pay— (a) the amount of premium payable under a premium notice; or (b) the amount by which a final assessment of premium by an industrial magistrate or the Industrial Court is more than the amount of assessment of premium paid under section 551(4) of the Act. (2) To remove any doubt, this section does not apply if WorkCover has accepted payment of the amount under an instalment plan and instalments are paid under the plan. (3) This section does not apply to an employer who employs only household workers. (4) The additional premium payable under section 61 or 62 of the Act is— (a) if payment of the amount is made to WorkCover within 30 days after the due date—5% of the amount; or (b) if payment of the amount is made to WorkCover after 30 days but within 60 days of the due date—10% of the amount; or (c) if payment of the amount is made to WorkCover after 60 days of the due date or if no payment is made—10% of the amount plus interest at the annual rate mentioned in section 11(2)(a) for the period from the due date, or a later date decided by WorkCover, until the amount and all additional premium is paid to WorkCover. Current as at 8 November 2013 Page 21
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 14] 14 Premium for appeals—Act, s 569(2)(a) (1) For section 569(2)(a) of the Act, premium, for an employer for a period of insurance, is an amount calculated under the formula— P = W ---- 1 --- 0 - × -- 0 --- R --- (2) In subsection (1)— P means premium. R means the rate for the employer’s industry or business specified in the notice under section 54 of the Act that applies to the period of insurance. W means— (a) the wages of the employer for the preceding period of insurance; or (b) if the employer has only been insured for part of a period of insurance—a reasonable estimate of the wages of the employer for the period of insurance. 15 Former employer may apply to cancel policy (1) This section applies if a person wishes to cancel a policy because the person has stopped employing workers (a former employer ). (2) This section does not apply to a former employer of only household workers. (3) The former employer must give WorkCover— (a) written notice that the former employer— (i) stopped employing workers on and from a date stated in the notice; and (ii) wishes to cancel the policy; and (b) written details of— (i) the address to which any document addressed to the former employer may be sent; and Page 22 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 15A] (ii) the former employer’s wages in relation to the period starting on 1 July last preceding the day on which employment of workers stopped and ending on that day ( last employment period ). 15A Cancellation of policy if workers no longer employed (1) This section applies if— (a) a person (a former employer ) has notified WorkCover under section 15 that the former employer has stopped employing workers; or (b) WorkCover is satisfied, after making reasonable enquiries, that a person has stopped employing workers (also a former employer ). (2) WorkCover may cancel the former employer’s policy. Editor’s note For WorkCover’s liability to pay compensation for an injury sustained by a worker, see section 109(2) (Who must pay compensation) of the Act. (3) WorkCover must assess the premium payable by the former employer for the period during which the former employer was required by the Act to maintain a policy. (4) If the premium paid by the former employer for the last employment period is— (a) greater than the amount of premium assessed under subsection (3)—WorkCover must refund to the former employer the amount overpaid; or (b) less than the amount of premium assessed under subsection (3)—the former employer must pay WorkCover the amount of the deficit on or before the due date under a final premium notice issued for the amount of the deficit. (5) This section does not limit anything in chapter 2, part 3, division 2 of the Act. Current as at 8 November 2013 Page 23
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 16] Division 2 Employer excess 16 Excess period—Act, s 65 For section 65(2) of the Act, the amount prescribed is the lesser of the following— (a) QOTE; (b) the amount of weekly compensation payable to a worker under chapter 3, part 9 of the Act. Division 3 Self-insurance 19 Application fees—Act, s 70 For section 70 of the Act, the amount of the application fee is— (a) for a single employer—$15000; or (b) for a group employer—$20000. 20 Annual levy—Act, s 81 (1) For section 81 of the Act, the amount of the levy payable by a self-insurer for each financial year or part of a financial year of a licence is an amount calculated under the formula— L = ( ECL × R) + $ 10000 (2) In subsection (1)— ECL means estimated claims liability calculated under part 4, division 3A stated in the most recent actuarial report agreed by the Regulator, or decided by the arbiter, under that division, before a date fixed by the Regulator by gazette notice. L means annual levy. R means the rate published in the gazette notice under section 81 of the Act for the particular financial year. Page 24 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 20A] 20A Provisional annual levy (1) If— (a) the Regulator and the self-insurer have not agreed on the calculation of estimated claims liability under part 4, division 3A; and (b) the arbiter has not decided the estimated claims liability; the Regulator may use the amount of the estimated claims liability assessed by the approved actuary to calculate a provisional annual levy for a financial year under section 20 to ensure the self-insurer’s compliance with section 81 of the Act. (2) If the Regulator and the self-insurer agree to the amount of the estimated claims liability ( agreed amount ), the Regulator must give the self-insurer an adjusted levy notice based on the agreed amount within 14 days after the Regulator and the self-insurer agree to the amount of the estimated claims liability. (3) If the Regulator and the self-insurer do not agree to the amount of the estimated claims liability and the amount decided by the arbiter (the decided amount ) is not the same as the amount of the estimated claims liability used to calculate the provisional annual levy, the Regulator must give the self-insurer an adjusted levy notice based on the decided amount within 14 days after the Regulator or the self-insurer receives the statement of the arbiter’s decision about the estimated claims liability. (4) If the amount of the adjusted levy is more than the provisional annual levy, the self-insurer must pay the Regulator the difference between the amount of the provisional annual levy and the amount of the annual levy actually payable by the self-insurer . (5) If the amount of the adjusted levy is less than the provisional annual levy paid by the self-insurer, the Regulator must pay the self-insurer the difference between the actual annual levy payable and the amount paid as the provisional annual levy . Current as at 8 November 2013 Page 25
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 21] 21 Additional amount for late payment of levy—Act, s 82 (1) This section applies if, on or before the due date, a self-insurer does not pay the amount of levy payable under a notice given by the Regulator under section 81 of the Act. (2) The additional amount payable under section 82 of the Act is— (a) if payment of the amount is made to the Regulator within 30 days after the due date—5% of the amount; or (b) if payment of the amount is made to the Regulator after 30 days but within 60 days of the due date—10% of the amount; or (c) if payment of the amount is made to the Regulator after 60 days of the due date or if no payment is made—10% of the amount plus interest at a rate specified by the Regulator by gazette notice for the period from the due date, or a later date decided by the Regulator, until the amount and all additional amounts are paid to the Regulator. 22 Conditions of licence—Act, s 83 A self-insurer’s licence is subject to the following conditions— (a) the self-insurer must lodge with the Regulator, for each year or part of a year of a licence, a declaration in the approved form of the self-insurer’s wages; (b) the unconditional bank guarantee lodged under section 84 of the Act— (i) must be issued by a bank or Queensland Treasury Corporation; and (ii) must not be issued by a bank that is a related body corporate to the self-insurer; and (iii) must be satisfactory to the Regulator. Page 26 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 2 Employer insurance [s 23] 23 Premium payable after cancellation of self-insurer’s licence—Act, s 98 (1) This section applies if a former self-insurer continues to be an employer after the self-insurer’s licence is cancelled. (2) The premium payable by the former self-insurer for the first 2 periods of insurance after cancellation is to be calculated according to the method and at the rate specified by WorkCover by gazette notice under section 54 of the Act as if the employer were a new employer. (3) However, the rate under subsection (2) can not be less than the rate calculated under the following formula— R = ( --- P ----- + ----- L ----- + - W ---- A ---- ) ---- x ---- 1 --- 0 --- 0 -- (4) In subsection (3)— A means the administrative costs associated with claims incurred during the final period of licence, calculated by multiplying P + L by 0.095. final period of licence means— (a) for an employer licensed as a self-insurer for 3 or more years immediately before cancellation of the licence—3 years; or (b) for an employer licensed as a self-insurer for less than 3 years immediately before cancellation of the licence—the period of the licence. L means an actuarial estimate of the outstanding liability at the end of the self-insurer’s licence for claims incurred during the final period of licence, excluding liability for the excess period. P means the actual payments made by the former self-insurer, less recoveries received and payments made that are the equivalent of amounts payable for the excess period, for claims incurred during the final period of licence. R means the premium rate. Current as at 8 November 2013 Page 27
Workers’ Compensation and Rehabilitation Regulation 2003 Part 3 Other insurances [s 23A] W means the wages of the self-insurer during the final period of licence. 23A Deemed levy for appeals—Act, s 569(2)(a) (1) For section 569(2)(a) of the Act, deemed levy, for a self-insurer for a financial year of the self-insurer’s licence, is an amount calculated under the formula— DL = ECL × R (2) In subsection (1)— DL means deemed levy. ECL means estimated claims liability calculated under part 4, division 3A that was used to calculate the annual levy under section 20. R means the rate published in the gazette under section 81 of the Act for the particular financial year. 24 Actuarial procedure—self-insurers (1) Actuarial estimates required under this division must be carried out by an actuary. (2) The actuary must calculate the estimate under guidelines issued by the Regulator by gazette notice. Part 3 Other insurances Division 1 Students 25 Insurance of work experience students (1) In this section— Page 28 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 3 Other insurances [s 25] chief executive (education) means the chief executive of the department in which the Education (General Provisions) Act 2006 is administered. educational establishment see the Education (Work Experience) Act 1996 , section 5. student see the Education (Work Experience) Act 1996 , schedule. work experience has the meaning given by the Education (Work Experience) Act 1996 , section 4. work experience place means a place where work experience is, or is to be, provided for a student. (2) WorkCover may enter into a contract of insurance with an educational establishment or the chief executive (education) to insure the educational establishment or the chief executive (education) against liability for compensation for injury to a student arising out of work experience. (3) For this section, when deciding whether an injury arises out of, or in the course of, work experience, chapter 1, part 4, division 6, subdivisions 2 and 3 of the Act apply as if— (a) the student were a worker; and (b) work experience were the employment; and (c) the work experience place were the place of employment; and (d) the chief executive (education) or the educational establishment were the employer. (4) A student has the same entitlements to compensation as a worker. (5) For the entitlements of a student to compensation, all the provisions of the Act under which entitlements are decided apply to the student in the same way as they would apply to a worker including, for example— the provisions of chapter 3 (Compensation) the provisions of chapter 11 (Medical assessment Current as at 8 November 2013 Page 29
Workers’ Compensation and Rehabilitation Regulation 2003 Part 3 Other insurances [s 26] tribunals) the provisions of chapter 13 (Reviews and appeals). (6) However, insurance cover provided under a contract of insurance under this section is limited to compensation under chapter 3, parts 10 and 11 of the Act. (7) Also, the contract does not cover payment of damages for injury sustained by the student. (8) WorkCover has a liability under a contract of insurance entered into under this section only if the premium assessed for the contract has been paid in full. 26 Insurance of vocational placement students (1) In this section— vocational placement has the meaning given by the Vocational Education, Training and Employment Act 2000 , section 17, but does not include a paid placement. vocational placement place means a place where vocational placement is, or is to be, provided for a vocational placement student. vocational placement student means a student undertaking a course at a registered training organisation. (2) WorkCover may enter into a contract of insurance with a registered training organisation to insure the organisation against liability for compensation for injury to a vocational placement student arising out of a vocational placement. (3) For this section, when deciding whether an injury arises out of, or in the course of, vocational placement, chapter 1, part 4, division 6, subdivisions 2 and 3 of the Act apply as if— (a) the vocational placement student were a worker; and (b) vocational placement were the employment; and (c) the vocational placement place were the place of employment; and (d) the registered training organisation were the employer. Page 30 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 3 Other insurances [s 27] (4) A vocational placement student has the same entitlements to compensation as a worker. (5) For the entitlements of a vocational placement student to compensation, all the provisions of the Act under which entitlements are decided apply to the student in the same way as they would apply to a worker including, for example— the provisions of chapter 3 (Compensation) the provisions of chapter 11 (Medical assessment tribunals) the provisions of chapter 13 (Reviews and appeals). (6) However, insurance cover provided under a contract of insurance under this section is limited to compensation under chapter 3, parts 10 and 11 of the Act. (7) Also, the contract does not cover payment of damages for injury sustained by the student. (8) WorkCover has a liability under a contract of insurance entered into under this section only if the premium assessed for the contract has been paid in full. Division 2 Eligible persons 27 Proposal for contract of insurance—Act, s 24 For section 24 of the Act, an eligible person is taken to express a wish to enter into a contract of insurance with WorkCover by lodging a fully completed and signed proposal in the approved form with WorkCover. 28 Documents to be kept by eligible person (1) This section applies if WorkCover has entered into a contract of insurance for chapter 1, part 4, division 3, subdivision 4 of the Act with an eligible person. (2) The eligible person must keep documents showing the remuneration or other benefit for performing work, or Current as at 8 November 2013 Page 31
Workers’ Compensation and Rehabilitation Regulation 2003 Part 3 Other insurances [s 29] providing services, that the eligible person has received as an eligible person. (3) If the eligible person applies for weekly payments of compensation under chapter 3, part 9, division 4, subdivision 4 or division 5, subdivision 2 of the Act but can not substantiate remuneration or other benefit received, WorkCover may pay an amount WorkCover considers is reasonable. Division 3 Other persons 29 Contracts of insurance for other persons (1) This section applies if a contract of insurance for chapter 1, part 4, division 3, subdivision 5 of the Act provides for a matter to be decided by a medical assessment tribunal in accordance with chapter 11 of the Act or for an appeal to a court in accordance with chapter 13 of the Act. (2) The provisions of the Act apply and jurisdiction is conferred on the tribunal or court to hear and decide the matter. Division 4 Contracts of insurance generally 30 Entitlements of persons mentioned in ch 1, pt 4, div 3, sdivs 1, 2 and 4 For the entitlements of a person mentioned in chapter 1, part 4, division 3, subdivision 1, 2 or 4 of the Act to compensation, all the provisions of the Act apply to the person in the same way as they would apply to a worker including, for example— the provisions of chapter 11 (Medical assessment tribunals) the provisions of chapter 13 (Reviews and appeals). Page 32 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 3 Other insurances [s 31] 31 WorkCover not liable if premium not paid WorkCover is not liable under a contract of insurance under chapter 1, part 4, division 3 of the Act if the premium for the contract has not been paid in full to WorkCover on or before the due date. 32 Duty to report injury (1) This section applies if a person who is entitled to compensation under chapter 1, part 4, division 3 of the Act and is covered by a contract of insurance sustains an injury for which compensation may be payable. (2) However, this section does not apply to an eligible person. (3) The person with whom WorkCover has entered into the contract must complete a report in the approved form and send it to the nearest office of WorkCover. (4) The report must be sent immediately after the first of the following happens— (a) the person with whom WorkCover has entered into the contract knows the injury has been sustained; (b) the person covered by the contract reports the injury to the person with whom WorkCover has entered into the contract; (c) the person with whom WorkCover has entered into the contract receives WorkCover’s written request for a report. (5) If the person with whom WorkCover has entered into the contract fails to comply with subsection (3) within 10 days after any of the circumstances mentioned in subsection (4), the person commits an offence, unless the person has a reasonable excuse. Maximum penalty—20 penalty units. Current as at 8 November 2013 Page 33
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 33] Part 4 Amount of calculation of liability for self-insurers Division 1 Outstanding liability Subdivision 1 Purpose of div 1 33 Purpose of div 1 This division sets out the process for the calculation of an amount for a self-insurer’s outstanding liability for section 87 of the Act. Subdivision 2 Calculation 34 Appointment of actuary for calculation WorkCover and the employer must each appoint an actuary to calculate an amount for the outstanding liability. 35 Calculation (1) The calculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the outstanding liability; and (c) as far as practicable, be based on the employer’s claims experience from claims incurred before the employer becomes or became a self-insurer; and (d) apply the risk free rate of return; and (e) include claims administration expenses of 7% of the outstanding liability; and (f) not include a prudential margin. Page 34 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 36] (2) The calculation must be based on data as at the last day (the assessment day ) of the financial quarter immediately before the day the application for self-insurance is lodged. 36 Regulator to give actuaries information The Regulator must give the actuaries the information necessary to enable the actuaries to complete the calculation within the time mentioned in section 37(3). 37 Actuarial report (1) After completing the calculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the calculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the employer; and (ii) the average amount of claims for damages against the employer; and (iii) claims anticipated to have been incurred by the employer for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the employer; and (v) the frequency of claims for damages against the employer; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value after allowing for income from assets set aside by the employer to pay the outstanding liability; and Current as at 8 November 2013 Page 35
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 38] (viii) the rate of inflation used; and (c) state the following about the data used in the calculation— (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the calculation; and (e) state the results of the calculation; and (f) state the actuary’s confidence in the results of the calculation. (3) The actuaries must complete the calculations and the reports within 35 days after the day the application for self-insurance is lodged. 38 Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. (2) The actuaries must give a copy of the completed summary report to the Regulator, WorkCover and the employer within 2 months after the day the application for self-insurance is lodged. 39 Agreement on calculation WorkCover and the employer may agree on the calculation having regard to the summary report. 40 Reference to arbiter if no agreement If WorkCover and the employer can not agree on the calculation, the Regulator must refer the summary report to the arbiter for decision within 14 days after the Regulator is Page 36 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 41] given a copy of the summary report. 41 Arbiter’s costs The arbiter’s costs in deciding on the calculation are to be paid by WorkCover and the employer in equal amounts. 42 Payment of amount for outstanding liability (1) The amount WorkCover must pay for the employer’s outstanding liability is the amount agreed to by WorkCover and the employer (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided amount ). (2) WorkCover must pay the employer— (a) 75% of the agreed or decided amount on the day the licence commences; and (b) the balance within 1 month after the day the licence commences. (3) The agreed or decided amount paid to the employer must be adjusted by WorkCover’s actuary to take into account— (a) compensation and damages payments made between the assessment day and the day the employer becomes liable for the employer’s outstanding liability; and (b) claims lodged against the employer between the assessment day and the day the employer becomes liable for the employer’s outstanding liability. 43 Transfer of claims information WorkCover must give the employer claims information in relation to the employer’s outstanding liability before the day the licence commences. Current as at 8 November 2013 Page 37
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 44] Subdivision 3 Recalculation 44 Purpose of sdiv 3 This subdivision sets out the process for the recalculation of an amount for a self-insurer’s outstanding liability if the self-insurer has made an election under the repealed WorkCover Queensland Regulation 1997 , part 9, division 1, subdivision 2, as in force immediately before its repeal, to accept an interim payment on account of the outstanding liability. 45 Application of sdiv 3 for group employers If the self-insurer is a group employer, this subdivision applies only in relation to— (a) the members of the group as at the day the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability; or (b) if the self-insurer applied, on or before the day the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability, for WorkCover’s consent to change the group membership on the licence—the proposed members of the group as at that day. 46 Appointment of actuary for recalculation At the end of 5 years after the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability, WorkCover and the self-insurer must each appoint an actuary to recalculate an amount for the outstanding liability. 47 Recalculation (1) The recalculation must— (a) be prepared under the actuarial standard; and Page 38 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 48] (b) apply a central estimate of the outstanding liability; and (c) as far as practicable, be based on the self-insurer’s claims experience from claims incurred before the self-insurer became a self-insurer; and (d) apply the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2; and (e) include claims administration expenses of 7% of the outstanding liability; and (f) not include a prudential margin; and (g) have regard to compensation and damages payments made in relation to the liability between the day the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability and the end of 5 years after that day; and (h) exclude an amount for liability in relation to a change in the self-insurer’s membership after the day the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability. (2) The recalculation must be based on data as at the last day (the assessment day ) of the last financial quarter for which data is available at the end of 5 years after the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability. 48 Regulator to give actuaries information The Regulator must give the actuaries the information necessary to enable the actuaries to complete the recalculation within the time mentioned in section 49(3). 49 Actuarial report (1) After completing the recalculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— Current as at 8 November 2013 Page 39
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 49] (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the recalculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the self-insurer; and (ii) the average amount of claims for damages against the self-insurer; and (iii) claims anticipated to have been incurred by the self-insurer for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the self-insurer; and (v) the frequency of claims for damages against the self-insurer; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value as calculated at the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2; and (viii) the rate of inflation used; and (c) state the following about the data used in the recalculation— (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the recalculation; and (e) state the results of the recalculation; and (f) state the actuary’s confidence in the results of the recalculation. Page 40 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 50] (3) The actuaries must complete the recalculations and the reports within 35 days after the end of 5 years after the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability. 50 Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. (2) The actuaries must give a copy of the completed summary report to the Regulator, WorkCover and the self-insurer within 2 months after the end of 5 years after the self-insurer became liable for compensation and damages for the self-insurer’s outstanding liability. 51 Agreement on recalculation WorkCover and the self-insurer may agree on the recalculation having regard to the summary report. 52 Reference to arbiter if no agreement If WorkCover and the self-insurer can not agree on the recalculation, the Regulator must refer the summary report to the arbiter for decision within 14 days after the Regulator is given a copy of the summary report. 53 Arbiter’s costs The arbiter’s costs in deciding on the recalculation are to be paid by WorkCover and the self-insurer in equal amounts. 54 Payment of amount for recalculation (1) If the amount agreed to by WorkCover and the self-insurer (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided amount ), for the Current as at 8 November 2013 Page 41
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 54] recalculation is more than the interim payment made under subdivision 2 on account of the outstanding liability— (a) the amount WorkCover must pay for the self-insurer’s outstanding liability is the agreed or decided amount; and (b) WorkCover must pay the self-insurer— (i) the difference between the interim payment and the amount for the outstanding liability; and (ii) interest on the difference, from the day the whole of the interim payment was paid, at the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2. (2) If the agreed or decided amount is less than the interim payment— (a) the amount WorkCover must pay for the self-insurer’s outstanding liability is— (i) the interim payment; less (ii) 30% of the difference between the interim payment and the agreed or decided amount; and (b) the self-insurer must pay WorkCover— (i) the difference between the interim payment and the amount for the outstanding liability; and (ii) interest on the difference, from the day the whole of the interim payment was paid, at the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2. (3) WorkCover or the self-insurer must pay the amount of the difference within 28 days after— (a) WorkCover and the self-insurer agree on the recalculation; or (b) if there is no agreement—WorkCover or the self-insurer receives the statement of the arbiter’s decision about the recalculation. Page 42 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 55] (4) On payment of the amount, no further amount is payable for the outstanding liability. Division 2 Total liability 55 Purpose of div 2 This division sets out the process for the calculation of an amount for total liability for section 90(1), (3), (5) or (7) of the Act because of a change in a self-insurer’s membership. 56 Appointment of actuary The party with whom the liability currently resides (the old insurer ) and the party assuming liability (the new insurer ) must each appoint an actuary to calculate an amount for the total liability. 57 Calculation (1) The calculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the total liability; and (c) as far as practicable, be based on the claims experience of the employer or member of a group employer that is the subject of the transfer of liability; and (d) apply the risk free rate of return; and (e) include claims administration expenses of 7% of the total or residual liability; and (f) not include a prudential margin. (2) The calculation must be based on data as at the last day (the assessment day ) of the financial quarter immediately before the day the self-insurer applies to the Regulator under section 89 of the Act for a change in the group membership on the licence. Current as at 8 November 2013 Page 43
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 58] 58 Parties to give actuaries information The parties must give the actuaries, in the form approved by the Regulator, the information necessary to enable the actuaries to complete the calculation within the time mentioned in section 59(3). 59 Actuarial report (1) After completing the calculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the calculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the employer or member; and (ii) the average amount of claims for damages against the employer or member; and (iii) claims anticipated to have been incurred by the employer or member for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the employer or member; and (v) the frequency of claims for damages against the employer or member; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value after allowing for income from assets set aside by the employer or member to pay the total liability; and (viii) the rate of inflation used; and (c) state the following about the data used in the calculation— Page 44 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 60] (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the calculation; and (e) state the results of the calculation; and (f) state the actuary’s confidence in the results of the calculation. (3) The actuaries must complete the calculations and the reports within 35 days after the Regulator approves the application for the change in the self-insurer’s membership (the consent day ). 60 Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. (2) The actuaries must give a copy of the completed summary report to the parties and the Regulator within 2 months after the consent day. 61 Agreement on calculation The parties may agree on the calculation having regard to the summary report. 62 Reference to arbiter if no agreement If the parties can not agree on the calculation, the Regulator must refer the summary report to the arbiter for decision within 14 days after the Regulator is given the summary report. Current as at 8 November 2013 Page 45
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 63] 63 Arbiter’s costs The arbiter’s costs in deciding on the calculation are to be paid by the parties in equal amounts. 64 Payment of amount for total liability (1) The amount the old insurer must pay the new insurer for the total liability is the amount agreed to by them (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided amount ). (2) The old insurer must pay the agreed or decided amount— (a) within 3 months after the consent day; or (b) on a later day agreed to by the parties. (3) The agreed or decided amount paid to the new insurer must be adjusted by the actuary of the old insurer to take into account— (a) compensation and damages payments made between the assessment day and the day the new insurer assumes liability; and (b) claims lodged against the employer or member between the assessment day and the day the new insurer assumes liability. (4) The old insurer must advise the Regulator of the following no later than the day total liability is paid— (a) the amount of the liability; (b) the day the new insurer assumes liability; (c) details of the parties and the member leaving or becoming part of the self-insurer. 65 Transfer of claims information The old insurer must give the new insurer claims information in relation to the liability no later than the day the agreed or decided amount is paid. Page 46 Current as at 8 November 2013
Division 3 Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 66] Liability after cancellation of self-insurer’s licence 66 Purpose of div 3 This division sets out the process for the calculation of an amount for a former self-insurer’s liability for section 102 of the Act. 67 Appointment of actuary WorkCover and the former self-insurer must each appoint an actuary to calculate an amount for the liability. 68 Calculation (1) The calculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the liability; and (c) as far as practicable, be based on the former self-insurer’s claims experience; and (d) apply the risk free rate of return; and (e) include claims administration expenses of 7% of the liability; and (f) not include a prudential margin. (2) The calculation must be based on data as at the last day (the assessment day ) of the financial quarter immediately before the day the former self-insurer’s licence is cancelled (the cancellation day ). 69 Former self-insurer to give actuaries information The former self-insurer must give the actuaries, in the form approved by the Regulator, the information necessary to enable the actuaries to complete the calculation within the time mentioned in section 70(3). Current as at 8 November 2013 Page 47
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 70] 70 Actuarial report (1) After completing the calculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the calculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the former self-insurer; and (ii) the average amount of claims for damages against the former self-insurer; and (iii) claims anticipated to have been incurred by the former self-insurer for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the former self-insurer; and (v) the frequency of claims for damages against the former self-insurer; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value after allowing for income from assets set aside by the former self-insurer to pay the liability; and (viii) the rate of inflation used; and (c) state the following about the data used in the calculation— (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the calculation; and (e) state the results of the calculation; and Page 48 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 71] (f) state the actuary’s confidence in the results of the calculation. (3) The actuaries must complete the calculations and the reports within 35 days after the cancellation day. 71 Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. (2) The actuaries must give a copy of the completed summary report to the Regulator, WorkCover and the former self-insurer within 2 months after the cancellation day. 72 Agreement WorkCover and the former self-insurer may agree on the calculation having regard to the summary report. 73 Reference to actuarial arbiter if no agreement If WorkCover and the former self-insurer can not agree on the calculation, the Regulator must refer the summary report to the actuarial arbiter for decision within 14 days after the Regulator is given the summary report. 74 Arbiter’s costs The arbiter’s costs in deciding on the calculation are to be paid by WorkCover and the former self-insurer in equal amounts. 75 Payment of amount for liability (1) The amount the former self-insurer must pay WorkCover for the liability is the amount agreed to by WorkCover and the former self-insurer (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided Current as at 8 November 2013 Page 49
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75A] amount ). (2) The agreed or decided amount paid to WorkCover must be adjusted by the former self-insurer’s actuary to take into account— (a) compensation and damages payments made between the assessment day and the cancellation day; and (b) claims lodged against the former self-insurer between the assessment day and the cancellation day. Division 3A Estimated claims liability 75A Purpose of div 3A This division sets out how to calculate estimated claims liability. 75B Definition for div 3A In this division— approved actuary means an actuary approved by the Regulator under section 84(3) of the Act to assess the self-insurer’s estimated claims liability. 75C Approved actuary The approved actuary must calculate the estimated claims liability. 75D Calculation (1) The calculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the liability; and (c) as far as practicable, be based on the self-insurer’s claims experience; and Page 50 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75E] (d) apply the risk free rate of return; and (e) include claims administration expenses of 7% of the liability; and (f) not include a prudential margin. (2) The calculation must be based on data ( self-insurer’s data ) necessary to enable the actuary to calculate the self-insurer’s estimated claims liability and prepare and give to the Regulator and the self-insurer an actuarial report on the calculation— (a) as at the last day of the financial quarter immediately before the anniversary of the self-insurer’s licence renewal day; or (b) as at another day fixed by the Regulator. 75E Self-insurer to give Regulator and approved actuary information The self-insurer must give the Regulator and the approved actuary, in the form approved by the Regulator, the self-insurer’s data necessary to enable the actuary to calculate the self-insurer’s estimated claims liability and prepare and give to the Regulator an actuarial report on the calculation. 75F Actuarial report (1) After completing the calculation, the approved actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the calculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the self-insurer; and Current as at 8 November 2013 Page 51
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75G] (ii) the average amount of claims for damages against the self-insurer; and (iii) claims anticipated to have been incurred by the self-insurer for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the self-insurer; and (v) the frequency of claims for damages against the self-insurer; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value after allowing for income from assets set aside by the self-insurer to pay the liability; and (viii) the rate of inflation used; and (c) state the following about the data used in the calculation— (i) the nature of the data; (ii) the approved actuary’s assessment of its accuracy; (iii) how the approved actuary interpreted the data; and (d) state the actuarial model used in the calculation; and (e) state the results of the calculation; and (f) state the approved actuary’s confidence in the results of the calculation; and (g) state the estimated claims liability. 75G Copy of actuarial report to Regulator and self-insurer The approved actuary must give a copy of the actuarial report to the Regulator and the self-insurer by the day fixed by the Regulator for the purpose or a later day agreed between the Regulator and the actuary. Page 52 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75H] 75H Regulator to advise self-insurer whether agreement Within 35 days after the approved actuary gives the Regulator a copy of the actuarial report, the Regulator must advise the self-insurer whether the Regulator agrees or does not agree with the approved actuary’s assessment of the estimated claims liability. 75I Reference to Regulator’s actuary if no agreement (1) After receiving a copy of the approved actuary’s report, the Regulator may ask an actuary ( Regulator’s actuary ) to calculate the amount of the self-insurer’s estimated claims liability and give the Regulator an actuarial report on the calculation the actuary made in accordance with section 75F. (2) The Regulator must give the Regulator’s actuary the approved actuary’s report and the self-insurer’s data. 75J Agreement on estimated claims liability If, at any time, the Regulator and the self-insurer agree on the calculation of estimated claims liability having regard to the approved actuary’s actuarial report or any Regulator’s actuary’s actuarial report the estimated claims liability is the amount agreed to by the Regulator and the self-insurer. 75K Reference to arbiter (1) If the Regulator and the self-insurer can not agree on the calculation, the Regulator must refer the approved actuary’s report, the self-insurer’s data and any Regulator’s actuary’s actuarial report to the arbiter for decision. (2) The Regulator must make the referral within 14 days after the day the Regulator advises the self-insurer that the Regulator does not agree with the self-insurer’s approved actuary’s actuarial report under section 75H. Current as at 8 November 2013 Page 53
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75L] 75L Arbiter’s costs The arbiter’s costs in deciding on the calculation are to be paid by the Regulator and the self-insurer in equal amounts. Division 3B Self-insurers who become non-scheme employers Subdivision 1 Preliminary 75M Purpose of div 3B This division sets out the process for the calculation of an amount for a non-scheme employer’s liability for section 105I of the Act. 75N Definition for div 3B In this division— continued licence , of a non-scheme employer, see section 105B(2) of the Act. Subdivision 2 Calculation 75O Appointment of actuary for calculation WorkCover and the non-scheme employer must each appoint an actuary to calculate an amount for the non-scheme employer’s liability. 75P Calculation (1) The calculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the liability; and Page 54 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75Q] (c) as far as practicable, be based on the non-scheme employer’s claims experience; and (d) apply the risk free rate of return; and (e) include claims administration expenses of 7% of the liability; and (f) not include a prudential margin. (2) The calculation must be based on data as at the last day (the assessment day ) of the financial quarter immediately before the day the non-scheme employer’s continued licence is cancelled under section 105E (the cancellation day ) of the Act. (3) The data may only relate to the period before the exit date. 75Q Non-scheme employer to give actuaries information The non-scheme employer must give the actuaries, in the form approved by the Regulator, the information necessary to enable the actuaries to complete the calculation within the time mentioned in section 75R(3). 75R Actuarial report (1) After completing the calculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the calculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the non-scheme employer; and (ii) the average amount of claims for damages against the non-scheme employer; and Current as at 8 November 2013 Page 55
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75S] (iii) claims anticipated to have been incurred by the non-scheme employer for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the non-scheme employer; and (v) the frequency of claims for damages against the non-scheme employer; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value after allowing for income from assets set aside by the non-scheme employer to pay the liability; and (viii) the rate of inflation used; and (c) state the following about the data used in the calculation— (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the calculation; and (e) state the results of the calculation; and (f) state the actuary’s confidence in the results of the calculation. (3) The actuaries must complete the calculations and the reports within 35 days after the cancellation day. 75S Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. Page 56 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75T] (2) The actuaries must give a copy of the completed summary report to the Regulator, WorkCover and the non-scheme employer within 2 months after the cancellation day. 75T Agreement WorkCover and the non-scheme employer may agree on the calculation having regard to the summary report. 75U Reference to actuarial arbiter if no agreement If WorkCover and the non-scheme employer can not agree on the calculation, the Regulator must refer the summary report to the arbiter for decision within 14 days after the Regulator is given the summary report. 75V Arbiter’s costs The arbiter’s costs in deciding on the calculation are to be paid by WorkCover and the non-scheme employer in equal amounts. 75W Payment of amount for liability (1) The amount the non-scheme employer must pay WorkCover for the liability is the amount agreed to by WorkCover and the non-scheme employer (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided amount ). (2) The agreed amount or decided amount paid to WorkCover must be adjusted by the non-scheme employer’s actuary to take into account— (a) compensation and damages payments made between the assessment day and the cancellation day; and (b) claims lodged against the non-scheme employer between the assessment day and the cancellation day. Current as at 8 November 2013 Page 57
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75X] Subdivision 3 Recalculation 75X Purpose of sdiv 3 This subdivision sets out the process for the finalisation under section 105I(5) of the Act of an amount for a non-scheme employer’s liability. 75Y Appointment of actuary for recalculation At the end of 4 years after the non-scheme employer’s continued licence is cancelled under section 105E of the Act, WorkCover and the non-scheme employer must each appoint an actuary to recalculate an amount for the non-scheme employer’s liability under section 105I of the Act. 75Z Recalculation (1) The recalculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the liability; and (c) as far as practicable, be based on the self-insurer’s claims experience; and (d) apply the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2; and (e) include claims administration expenses of 7% of the liability; and (f) not include a prudential margin; and (g) have regard to compensation and damages payments made in relation to the liability between the day WorkCover became liable for compensation and damages for the non-scheme employer’s liability and the end of 4 years after that day. Page 58 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZA] (2) The recalculation must be based on data as at the last day of the last financial quarter for which data is available at the end of 4 years after the day WorkCover became liable for compensation and damages for the non-scheme employer’s outstanding liability. (3) The data may only relate to the period before the exit date. 75ZA WorkCover to give actuaries information WorkCover must give the actuaries the information necessary to enable the actuaries to complete the recalculation within the time mentioned in section 75ZB(3). 75ZB Actuarial report (1) After completing the recalculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the recalculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the non-scheme employer; and (ii) the average amount of claims for damages against the non-scheme employer; and (iii) claims anticipated to have been incurred by the non-scheme employer for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the non-scheme employer; and (v) the frequency of claims for damages against the non-scheme employer; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and Current as at 8 November 2013 Page 59
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZC] (vii) the net present value of the inflated value as calculated at the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2; and (viii) the rate of inflation used; and (c) state the following about the data used in the recalculation— (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the recalculation; and (e) state the results of the recalculation; and (f) state the actuary’s confidence in the results of the recalculation. (3) The actuaries must complete the recalculations and the reports within 35 days after the end of 4 years after the day WorkCover became liable for compensation and damages for the non-scheme employer’s liability. 75ZC Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. (2) The actuaries must give a copy of the completed summary report to the Regulator, WorkCover and the non-scheme employer within 2 months after the end of 4 years after the day WorkCover became liable for compensation and damages for the non-scheme employer’s liability. 75ZD Agreement on recalculation WorkCover and the non-scheme employer may agree on the recalculation having regard to the summary report. Page 60 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZE] 75ZE Reference to arbiter if no agreement If WorkCover and the non-scheme employer can not agree on the recalculation, the Regulator must refer the summary report to the arbiter for decision within 14 days after the Regulator is given a copy of the summary report. 75ZF Arbiter’s costs The arbiter’s costs in deciding on the recalculation are to be paid by WorkCover and the non-scheme employer in equal amounts. 75ZG Payment of amount for recalculation (1) If the amount agreed to by WorkCover and the non-scheme employer (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided amount ), for the recalculation is more than the amount calculated under subdivision 2— (a) the amount the non-scheme employer must pay WorkCover for the non-scheme employer’s liability is the agreed amount or decided amount; and (b) the non-scheme employer must pay WorkCover— (i) the difference between the amount of the payment made under section 75W ( interim payment ) and the agreed amount or decided amount for the non-scheme employer’s liability; and (ii) interest on the difference, from the day the whole of the interim payment was paid, at the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2. (2) If the agreed amount or decided amount is less than the interim payment— (a) the amount the non-scheme employer must pay WorkCover for the non-scheme employer’s liability is the agreed amount or decided amount; and Current as at 8 November 2013 Page 61
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZH] (b) WorkCover must pay the non-scheme employer— (i) the difference between the interim payment and the agreed amount or decided amount for the liability; and (ii) interest on the difference, from the day the whole of the interim payment was paid, at the same risk free rate of return that was used in the calculation of an amount for the liability under subdivision 2. (3) WorkCover or the non-scheme employer must pay the amount of the difference within 28 days after— (a) WorkCover and the non-scheme employer agree on the recalculation; or (b) if there is no agreement, WorkCover or the non-scheme employer receives the statement of the arbiter’s decision about the recalculation. (4) On payment of the amount— (a) the non-scheme employer’s liability is finalised for section 105I(5) of the Act; and (b) no further amount is payable for the liability. Division 3C Total liability—member of a group who becomes non-scheme employer 75ZH Purpose of div 3C This division sets out the process for the calculation of an amount for total liability for section 105O of the Act because a member of a group employer that is a self-insurer becomes a non-scheme employer ( non-scheme member ). 75ZI Appointment of actuary (1) The self-insurer of which the non-scheme member was a Page 62 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZJ] member (the old insurer ) and WorkCover must each appoint an actuary to calculate an amount for the total liability. (2) The actuary appointed by the old insurer must be approved by the non-scheme member. 75ZJ Calculation (1) The calculation must— (a) be prepared under the actuarial standard; and (b) apply a central estimate of the total liability; and (c) as far as practicable, be based on the claims experience of the non-scheme member; and (d) apply the risk free rate of return; and (e) include claims administration expenses of 7% of the total or residual liability; and (f) not include a prudential margin. (2) The calculation must be based on data as at the last day (the assessment day ) of the financial quarter immediately before the day the non-scheme member stops being a member of the old insurer under section 105M of the Act ( final day ). (3) The data may only relate to the period before the exit date. 75ZK Parties to give actuaries information The old insurer and WorkCover must give the actuaries, in the form approved by the Regulator, the information necessary to enable the actuaries to complete the calculation within the time mentioned in section 75ZL(3). 75ZL Actuarial report (1) After completing the calculation, each actuary must prepare an actuarial report on the calculation the actuary made. (2) The report must— Current as at 8 November 2013 Page 63
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZL] (a) be prepared under the actuarial standard; and (b) clearly state the key assumptions made for the calculation and how the assumptions have been derived, including— (i) the average amount of claims for compensation against the non-scheme member; and (ii) the average amount of claims for damages against the non-scheme member; and (iii) claims anticipated to have been incurred by the non-scheme member for which no formal claim has been lodged; and (iv) the frequency of claims for compensation against the non-scheme member; and (v) the frequency of claims for damages against the non-scheme member; and (vi) the net amount of the claims after allowing for future inflation ( inflated value ); and (vii) the net present value of the inflated value after allowing for income from assets set aside by the non-scheme member to pay the total liability; and (viii) the rate of inflation used; and (c) state the following about the data used in the calculation— (i) the nature of the data; (ii) the actuary’s assessment of its accuracy; (iii) how the actuary interpreted the data; and (d) state the actuarial model used in the calculation; and (e) state the results of the calculation; and (f) state the actuary’s confidence in the results of the calculation. (3) The actuaries must complete the calculations and the reports within 35 days after the final day. Page 64 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZM] 75ZM Summary report (1) The actuaries must jointly prepare a summary report that— (a) includes the individual actuarial reports; and (b) states how the individual reports agree or differ. (2) The actuaries must give a copy of the completed summary report to the old insurer, WorkCover and the Regulator within 2 months after the final day. 75ZN Agreement on calculation The old insurer and WorkCover may agree on the calculation having regard to the summary report. 75ZO Reference to arbiter if no agreement If the old insurer and WorkCover can not agree on the calculation, the Regulator must refer the summary report to the arbiter for decision within 14 days after the Regulator is given the summary report. 75ZP Arbiter’s costs The arbiter’s costs in deciding on the calculation are to be paid by the old insurer and WorkCover in equal amounts. 75ZQ Payment of amount for total liability (1) The amount the old insurer must pay WorkCover for the non-scheme member’s total liability is the amount agreed to by them (the agreed amount ) or, if there is no agreement, the amount decided by the arbiter (the decided amount ). (2) The old insurer must pay the agreed amount or decided amount— (a) within 3 months after the final day; or (b) on a later day agreed to by the old insurer and WorkCover. Current as at 8 November 2013 Page 65
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 75ZR] (3) The agreed amount or decided amount paid to WorkCover must be adjusted by the actuary of the old insurer to take into account— (a) compensation and damages payments made between the assessment day and the final day; and (b) claims lodged against the non-scheme member between the assessment day and the final day. (4) The old insurer must advise the Regulator of the following no later than the day total liability is paid— (a) the amount of the total liability; (b) the day WorkCover assumes liability; (c) details of the old insurer and the non-scheme member. 75ZR Transfer of claims information The old insurer must give WorkCover claims information in relation to the liability no later than the day the agreed or decided amount is paid. Division 4 Actuarial arbiter 76 Function of actuarial arbiter The function of the actuarial arbiter is to consider the actuarial reports and the calculations of an amount for liability made under this part and decide on an amount for the liability. 77 Appointment of actuarial arbiter (1) The actuarial arbiter is to be selected by a selection panel consisting of— (a) 2 individuals nominated by the Regulator; and (b) 2 individuals nominated by WorkCover; and Page 66 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 4 Amount of calculation of liability for self-insurers [s 78] (c) 2 individuals nominated by the Association of Self Insured Employers of Queensland. (2) The individual selected must be a Fellow of the Institute of Actuaries or be an Accredited Member of the Institute. (3) The Regulator must appoint the individual selected to be the arbiter for a term of not more than 3 years. (4) The arbiter’s conditions of appointment are to be set out in the contract made between the Regulator and the arbiter. 78 Decision of arbiter (1) After considering the actuarial reports and the calculations of an amount for the liability by the actuaries, the arbiter must decide on— (a) the central estimate for the liability; and (b) an amount for the liability. (2) An amount for the liability decided by the arbiter can not be more than the higher of the amounts calculated by the actuaries and can not be less than the lower of the amounts. (3) The arbiter must give a written statement of the arbiter’s decision and the reasons for the decision within 21 days after the summary report is referred to the arbiter. 79 Arbiter’s decision is final The arbiter’s decision is final. Current as at 8 November 2013 Page 67
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 80] Part 5 Compensation Division 1 Calculation of NWE 80 Calculation of NWE Normal weekly earnings of a worker from employment are to be calculated under this division. 81 What amounts may or may not be taken into account (1) Amounts paid to the worker by way of overtime, higher duties, penalties and allowances (other than amounts mentioned in subsection (2)) that are of a regular nature, required by an employer and that would have continued if not for the injury may be taken into account. (2) Amounts mentioned in the Act, schedule 6, definition wages , paragraphs (a) to (d) are not to be taken into account. 82 NWE if impracticable to calculate rate of worker’s remuneration (1) This section applies if it is impracticable, at the date of injury to the worker, to calculate the rate of the worker’s remuneration because of— (a) the period of time for which a worker has been employed; or (b) the terms of the worker’s employment. (2) Regard must be had to— (a) the normal weekly earnings during the 12 months immediately before the date of injury of a person in the same grade, employed in the same work, by the same employer, as that of the worker; or (b) if there is no such person—the normal weekly earnings of a person in the same grade, employed in the same Page 68 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 83] class of employment, and in the same district as that of the worker. 83 NWE if worker worked for 2 or more employers (1) This section applies if a worker has worked under concurrent contracts of service with 2 or more employers, under which the worker has worked at 1 time for 1 employer and at another time for another of the employers. (2) The worker’s normal weekly earnings are to be calculated as if earnings under all the contracts were earnings in the employment of the employer for whom the worker was working when the injury was sustained. 84 NWE if insurer considers calculation unfair (1) This section applies if an insurer considers that the calculation of normal weekly earnings under this division would be unfair. (2) The normal weekly earnings may be calculated in the way the insurer considers to be fair, and the calculation under this subsection is taken to be the normal weekly earnings of the worker. Division 2 Compensation application and other procedures 85 Application for compensation (1) For section 132(3)(b) of the Act, a claimant must give the insurer, to the extent the insurer reasonably requires— (a) proof of injury and its cause; and (b) proof of the nature, extent and duration of incapacity resulting from the injury; and (c) if the injury is, or results in, the death of a worker—proof of— Current as at 8 November 2013 Page 69
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 85A] (i) the worker’s death; and (ii) the identity of the worker; and (iii) the relationship to the worker and dependency of persons claiming to be the worker’s dependants. (2) Also, if the injury is a latent onset injury that is a terminal condition and the worker has dependants, a claim for compensation in relation to the dependency must be supported by proof of the relationship to the worker of persons claiming to be the worker’s dependants. (3) In this section— dependant , of a worker, means a member of the worker’s family who is completely or partly dependent on the worker’s earnings. member of the family , of a worker, means— (a) the worker’s— (i) spouse; or (ii) parent, grandparent and step-parent; or (iii) child, grandchild and stepchild; or (iv) brother, sister, half-brother and half-sister; or (b) if the worker stands in the place of a parent to another person—the other person; or (c) if another person stands in the place of a parent to the worker—the other person. 85A Application for compensation for assessment of DPI—Act, s 132A For section 132A(3)(c)(ii) of the Act, a worker must give the insurer, to the extent the insurer reasonably requires— (a) proof of injury and its cause; and (b) proof of the nature, extent and duration of incapacity resulting from the injury. Page 70 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 86] 86 Certificate given by dentist, doctor or nurse practitioner (1) The certificate required by section 132(3)(a) or 132A(3)(c)(i) of the Act to accompany an application for compensation must be in the approved form. (2) However, if a worker sustains an injury in another State or country, the insurer must accept from the dentist, doctor or nurse practitioner who attends the worker a written certificate that is substantially to the effect of the approved form. (3) A dentist, doctor or nurse practitioner attending a worker who has sustained an injury must give the insurer a detailed report on the worker’s condition within 10 days after receiving the insurer’s request to do so. (4) The fee payable to the dentist, doctor or nurse practitioner for the report is an amount accepted by the insurer to be reasonable, having regard to the relevant table of costs. 87 If dentist, doctor or nurse practitioner not available (1) This section applies if a claimant does not lodge a medical certificate with an application for compensation because a person by whom the certificate is required to be given under section 132 of the Act was not available to attend the claimant. (2) The claimant must complete and lodge with the insurer a declaration in the approved form. (3) For a non-fatal injury, the declaration— (a) can be accepted by the insurer only once for injury to a claimant in any 1 event; and (b) is acceptable proof of incapacity of a claimant for not more than 3 days. Current as at 8 November 2013 Page 71
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 88] 88 Examination of claimant or worker—Act, ss 135 and 510 (1) For sections 135 and 510 of the Act, a personal examination must be requested in writing to the claimant or worker. (2) The request must specify— (a) the name of the doctor or other registered person, who is not employed by the insurer under a contract of service, engaged to make the examination; and (b) if the doctor is a specialist—the field of specialty; and (c) the day, time and place when and where the examination is to be made. (3) A doctor or other registered person who makes a personal examination of a claimant or worker must give the insurer, within 10 days after the examination— (a) a written report on the examination; and (b) an itemised account for the examination. (4) Fees payable to a doctor or other registered person for a personal examination of a claimant or worker— (a) are payable by the insurer; and (b) are payable for— (i) making the examination; and (ii) giving a report to the insurer; and (c) are the costs accepted by the insurer to be reasonable, having regard to the relevant table of costs. 89 Payment for treatment arranged by employer other than self-insurer (1) An employer, other than a self-insurer, may, with WorkCover’s consent, make an arrangement or agreement, on behalf of WorkCover, with a doctor, hospital or institution to provide— (a) medical treatment; or Page 72 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 91] (b) hospitalisation; or (c) medical aid; to a worker who has sustained injury. (2) WorkCover may ratify an arrangement or agreement made by an employer without WorkCover’s consent if WorkCover is satisfied that— (a) the case was one of emergency; and (b) in the interests of the worker, it was necessary to take immediate action. (3) WorkCover is liable to pay the reasonable expenses of medical treatment, hospitalisation or medical aid provided to the worker under the arrangement or agreement. 91 Special medical treatment, hospitalisation or medical aid (1) This section applies if an insurer considers that the injury sustained by a worker would require— (a) special medical treatment; or (b) special hospitalisation; or (c) special medical aid. (2) The insurer may make an arrangement or agreement with a doctor, hospital or institution to provide the worker with the special medical treatment, hospitalisation or medical aid. (3) For special hospitalisation, the insurer may make the arrangement or agreement only to the extent specified in section 216 of the Act. (4) The insurer is liable to pay the cost of the special medical treatment, hospitalisation or medical aid provided to the worker under the arrangement or agreement. Current as at 8 November 2013 Page 73
Workers’ Compensation and Rehabilitation Regulation 2003 Part 5 Compensation [s 92] Division 3 Entitlement to compensation for permanent impairment 92 Calculating lump sum compensation—Act, s 180 The amount of lump sum compensation for a worker’s DPI is calculated by multiplying the maximum statutory compensation by the worker’s DPI. Example A worker’s DPI is assessed as 10%. The maximum statutory compensation is $296,165. The lump sum compensation is $29,616.50. 95A Additional lump sum compensation—workers with latent onset injuries that are terminal conditions—Act, s 128B The additional lump sum compensation payable for workers with latent onset injuries that are terminal conditions is set out in schedule 2A. 96 Additional lump sum compensation for certain workers—Act, s 192 The additional lump sum compensation payable for certain workers is set out in schedule 3. 97 Additional lump sum compensation for gratuitous care—Act, s 193 (1) The additional lump sum compensation payable for gratuitous care is set out in schedule 4. (2) For section 193(5) of the Act, the assessment report of an occupational therapist must state whether, in the relationship between the worker and the other person, the day-to-day care— (a) was provided to the worker before the worker sustained the impairment; and (b) would ordinarily be provided in the worker’s home; and Page 74 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 6 Rehabilitation [s 98] (c) is likely to continue to be provided in the worker’s home. (3) The method of assessing a worker’s level of dependency is the method stated in the modified barthel index. (4) In deciding the amount of the worker’s entitlement to additional compensation, an insurer must have regard to the information in the report. Part 6 Rehabilitation Division 1 Caring allowance 98 Further information required in occupational therapist’s report—Act, s 224 (1) An occupational therapist’s assessment report must contain the information mentioned in section 97(2). (2) In paying the caring allowance, an insurer must have regard to the information in the report. 99 Extent of liability for caring allowance—Act, s 225 (1) An insurer must decide the number of hours of care required for a worker having regard to the occupational therapist’s report and the graduated scale in schedule 5. (2) The method of assessing a worker’s level of dependency is the method stated in the modified barthel index. (3) The amount of the caring allowance— (a) must be decided having regard to the number of hours of care required; and (b) must be paid at an hourly rate equal to the carer pension rate divided by 35. Current as at 8 November 2013 Page 75
Workers’ Compensation and Rehabilitation Regulation 2003 Part 6 Rehabilitation [s 99B] (4) In subsection (3)(b)— carer pension rate means the weekly amount of the maximum single carer pension rate payable from time to time under a Commonwealth law but does not include an amount for allowances, for example, rent assistance or family payment. Division 2 Rehabilitation and return to work coordinators 99B Functions of rehabilitation and return to work coordinator—Act, s 41(b) The functions of a rehabilitation and return to work coordinator include the following— (a) initiating early communication with an injured worker to clarify the nature and severity of the worker’s injury and to compile initial notification information; (b) providing overall coordination of the worker’s return to work; (c) developing the suitable duties program component of a rehabilitation and return to work plan, if a plan is required, in consultation with the worker and the worker’s employer and ensuring the program is consistent with the current medical certificate or report for the worker’s injury; (d) liaising with— (i) any person engaged by the employer to help in the worker’s rehabilitation and return to work; and (ii) the insurer about the worker’s progress and indicating, as early as possible, if there is a need for the insurer to assist or intervene. Page 76 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 6 Rehabilitation [s 99C] 99C Employer’s obligation to appoint rehabilitation and return to work coordinator—Act, s 226 (1) An employer meets the criteria for being required to appoint a rehabilitation and return to work coordinator if— (a) for an employer who employs workers at a workplace in a high risk industry—the wages of the employer in Queensland for the preceding financial year were more than 2600 times QOTE; or (b) otherwise—the wages of the employer in Queensland for the preceding financial year were more than 5200 times QOTE. (2) Subsection (3) applies if, when an employer first meets the criteria, the employer already has an established workplace or employs workers at a workplace. (3) For section 226(3) of the Act, the employer is taken to establish a workplace or start to employ workers at a workplace when the employer first meets the criteria. (4) An employer may appoint 1 rehabilitation and return to work coordinator for more than 1 workplace if the person can reasonably perform the person’s functions as a rehabilitation and return to work coordinator for each workplace. (5) In this section— high risk industry means an industry stated in schedule 5A. Division 3 Standard for rehabilitation 101 Who this division applies to This division applies to anyone who is required, under chapter 4, parts 3 and 4 of the Act, to provide or manage the rehabilitation of workers. Current as at 8 November 2013 Page 77
Workers’ Compensation and Rehabilitation Regulation 2003 Part 6 Rehabilitation [s 103] 103 Standard for rehabilitation For section 228 of the Act, the standard of rehabilitation must be in accordance with this division. 104 Doctor’s approval Approval of a worker’s treating doctor must be obtained and documented for a rehabilitation and return to work plan if the doctor does not give sufficient information in the doctor’s medical certificate or report on which to base the development of the plan. 105 Worker’s file A file must be kept for each worker undertaking rehabilitation and must contain copies of all relevant documentation, correspondence and accounts. 106 Rehabilitation and return to work plan (1) A rehabilitation and return to work plan must be developed for each worker undertaking rehabilitation. (2) The plan must be consistent with the worker’s needs and with the current medical certificate or report for the worker’s injury. (3) The plan must be developed in consultation with the insurer, the worker, the worker’s employer, the worker’s treating registered persons and any person engaged by the worker’s employer to help in the worker’s rehabilitation and return to work. (4) Any amendment of the plan must comply with subsections (2) and (3). (5) The plan must contain at least the following matters— (a) clear and appropriate objectives with ways of achieving the objectives; (b) details of rehabilitation required to meet the objectives; Page 78 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 6 Rehabilitation [s 106A] (c) the time frames for rehabilitation; (d) review mechanisms and dates for review; (e) progress to date; (f) if it is practicable to provide the worker with suitable duties, a suitable duties program. 106A Suitable duties program (1) An employer must develop a suitable duties program for a worker undertaking rehabilitation. (2) The employer must develop the program in consultation with the worker. (3) The program and any amendments to the program must be consistent with the current medical certificate or report for the worker’s injury. (4) The program must document what are suitable duties for the worker. (5) Suitable duties assigned to a worker must be meaningful and have regard to the objective of the worker’s rehabilitation. (6) The employer must give the insurer a copy of the suitable duties program. (7) The employer must review a worker’s suitable duties on a regular basis and progressively upgrade the program consistent with the worker’s recovery. 107 Case notes (1) Accurate and objective case notes must be kept for each worker undertaking rehabilitation. (2) Case notes must contain details of— (a) all communications between the worker, the insurer, the worker’s employer, the worker’s treating registered persons, the rehabilitation and return to work coordinator and any person engaged by the employer to Current as at 8 November 2013 Page 79
Workers’ Compensation and Rehabilitation Regulation 2003 Part 6 Rehabilitation [s 108] help in the worker’s rehabilitation and return to work; and (b) actions and decisions; and (c) reasons for actions and decisions. 108 Early worker contact A worker who sustains an injury and who requires rehabilitation must be contacted about rehabilitation and return to work as soon as practicable after the injury is sustained or is reported. 109 Rehabilitation (1) Rehabilitation must be goal directed with timely and appropriate service provision having regard to— (a) the worker’s injury; and (b) the objectives of the rehabilitation and return to work plan; and (c) the worker’s rate of recovery. (2) Strategies used in rehabilitation must be evaluated as the case progresses to monitor their effectiveness. (3) The worker’s employer must ensure rehabilitation for a worker is coordinated with and understood by line managers, supervisors and coworkers. (4) A worker must be treated with appropriate respect and equity. 110 Confidentiality (1) Information obtained during rehabilitation must be treated with sensitivity and confidentiality by all parties. (2) If it is necessary to obtain or release information associated with the worker’s rehabilitation, the worker’s authority to obtain or release the information must be obtained. Page 80 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7 Damages [s 111] (3) The worker’s authority is not required for the release of information to the Regulator or the insurer. Part 7 Damages 111 Notice of claim for damages—Act, s 275 (1) A notice of claim must be made in the approved form and include the following particulars— (a) full particulars of the claimant, including— (i) full name and any other known names; and (ii) if the claimant is not the worker—the worker’s full name; and (iii) residential address; and (iv) date of birth; and (v) gender; and (vi) usual occupation and, if that differs from the nature of employment at the time of the event, the nature of the employment at the time of the event; and (vii) the name and address of every employer of the worker at the time of the event; (b) full particulars of the event, including— (i) the date, time and place of the event; and (ii) a description of the facts, as the claimant understands or recalls them to be, of the circumstances surrounding the event; and (iii) names and addresses of all witnesses to the event, and their relationship, if any, to the worker; and (iv) name and address of any person on behalf of the claimant’s employer to whom the claimant Current as at 8 November 2013 Page 81
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7 Damages [s 111] Page 82 reported the event and their employment details; and (v) full particulars of the negligence alleged against the claimant’s employer and any other party on which the claim is based; and (vi) whether, and to what extent, liability expressed as a percentage is admitted for the injury and, if another party is involved, the liability expressed as a percentage that the claimant holds the other party responsible; and (vii) if another party is involved—details of the notice given to the party; (c) full particulars of the nature and extent of— (i) all injuries alleged to have been sustained by the claimant because of the event; and (ii) the degree of permanent impairment that the claimant alleges has resulted from the injuries; and (iii) the amount of damages sought under each head of damage claimed by the claimant and the method of calculating each amount; and (iv) how the claimant is presently affected by the injuries; (d) the name and address of each hospital at which the claimant has been treated for the injury, and the name and address of each doctor by whom the claimant has been treated for the injury; (e) the name and address of each provider of treatment or rehabilitation services who has made an assessment of, or provided treatment or rehabilitation services for, permanent impairment arising from the injury; (f) all personal injuries, illnesses and impairments of a medical, psychiatric or psychological nature sustained by the claimant either before or after the event that may affect the extent of the permanent impairment resulting Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7 Damages [s 111] from the injury to which the claim relates, or may affect the amount of damages in another way; (g) all personal injuries, illnesses and impairments of a medical, psychiatric or psychological nature sustained by the claimant either before or after the event for which the claimant has claimed damages, compensation or benefits, the name and address of any person against whom a claim for damages or compensation was made and, if an insurer, whether or not within the meaning of the Act, was involved, the name and address of the insurer; (h) the name and address of each hospital at which the claimant has been treated for an injury, illness or impairment mentioned in paragraph (f) or (g), and the name and address of each doctor by whom the claimant has been treated for the injury, illness or impairment; (i) all steps taken by the worker to mitigate their loss; (j) if the claimant claims damages for diminished income earning capacity—particulars of the claimant’s employment during the 3 years immediately before and since the event including— (i) the name and address of each of the claimant’s employers; and (ii) the period of employment by each employer; and (iii) the capacity in which the claimant was employed by each employer; and (iv) the claimant’s gross and net (after tax) earnings for each period of employment; and (v) the periods during which the claimant was in receipt of payments from Centrelink on behalf of the department in which the Social Security Act 1991 (Cwlth) is administered; and (vi) the periods during which the claimant received no income, and the reasons why the claimant was not receiving any income. Current as at 8 November 2013 Page 83
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7 Damages [s 111] Editor’s note See also section 276 (Noncompliance with s 275 and urgent proceedings) of the Act. (2) A notice of claim relating to an injury causing death must contain the following additional particulars (if relevant)— (a) if the claimant is the spouse of the deceased worker— (i) the date of marriage, the date of registration of the registered relationship or the date on which the de facto relationship started; and (ii) if the claimant and the deceased worker were— (A) married—the place of the marriage; or (B) in a registered relationship—the place where the registered relationship was registered; or (C) in a relationship taken to be registered as a registered relationship under the Relationships Act 2011 —the place where the registered relationship was entered into under the relevant corresponding law; or (D) de facto partners—the residential address where the de facto relationship started; and (iii) the claimant’s net (after tax) weekly income before and after the worker’s death; and (iv) the age to which the claimant intended to work and the basis of the claimant’s future employment i.e. whether full-time or part-time; and (v) details of any health problems that the claimant currently has; and (vi) the amount of average weekly financial benefit derived by the claimant from the deceased worker before the worker’s death and the method of calculating the amount; and (vii) the expected date of birth of a posthumous child of the relationship; and Page 84 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7 Damages [s 112] (viii) details of remarriage or start of a marriage-like relationship; (b) if the claimant is not the spouse of the deceased worker— (i) the claimant’s relationship to the deceased worker; and (ii) the claimant’s net (after tax) weekly earnings; and (iii) the age to which the claimant would have been dependent on the deceased worker and the basis of the dependency; and (iv) details of any health problems that the claimant currently has; and (v) the amount of average weekly financial benefit derived by the claimant from the deceased worker before the worker’s death and the method of calculating the amount. 112 Notice of claim and urgent proceedings—Act, s 276 (1) This section applies if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275 of the Act. (2) For section 276(4) of the Act, the claimant’s notice of claim must be faxed to the insurer at the insurer’s registered office. (3) The claimant’s notice of claim must include a cover page stating— (a) the sender’s name and address; and (b) the total number of pages sent, including the cover page; and (c) the fax number from which the notice is sent; and (d) the date of the transmission; and (e) the name and fax number of the person to whom the fax is being sent; and Current as at 8 November 2013 Page 85
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7 Damages [s 112A] (f) the name and phone number of a person to contact if there is a problem with the transmission; and (g) a statement that the transmission is for the giving of the notice of claim under section 276(4) of the Act. (4) If there is a dispute about the giving of the notice of claim under section 276(4) of the Act, the transmission advice generated by the sender’s fax machine confirming the transmission was successful must be included as an exhibit to any affidavit of service. 112A Insurer may add another person as contributor—Act, s 278A For section 278A(1) of the Act, the time prescribed is the later of the following— (a) 30 business days after the insurer receives the notice of claim; (b) 5 business days after the insurer identifies someone else as a contributor. 112B Contributor’s response—Act, s 278B For section 278B(1)(a) of the Act, the contributor’s response must state the following— (a) the contributor’s full name; (b) the contributor’s business address; (c) the contributor’s postal address; (d) the name and contact details of the contributor’s legal representatives, if appointed; (e) the contributor’s ABN, if any; (f) if the contributor is a corporation— (i) the corporation’s ACN; and (ii) the corporation’s registered office. Page 86 Current as at 8 November 2013
Part 7A Workers’ Compensation and Rehabilitation Regulation 2003 Part 7A Assessment of damages [s 112C] Assessment of damages 112C Prescribed amount of damages for loss of consortium or loss of servitium—Act, s 306M For section 306M(1)(b) of the Act, the amount prescribed is— (a) for an injury sustained on or after 1 July 2010 to and including 30 June 2011—$35340; or (b) for an injury sustained on or after 1 July 2011 to and including 30 June 2012—$36350; or (c) for an injury sustained on or after 1 July 2012 to and including 30 June 2013—$38290; or (d) for an injury sustained on or after 1 July 2013—$39430. 112D Rules for assessing injury scale value—Act, s 306O(1)(c)(i) (1) This section and schedules 8 to 11 provide the rules under which a court must assess the injury scale value for an injury. (2) Schedule 9 provides the ranges of injury scale values for particular injuries that the court is to consider in assessing the injury scale value for those injuries. (3) For an injury not mentioned in schedule 9, a court, in assessing an injury scale value for the injury, may have regard to the ranges prescribed in schedule 9 for other injuries. (4) Schedule 8 provides matters to which a court is to have regard in the application of schedule 9. (5) Schedule 11 provides the psychiatric impairment rating scale that may be used with schedule 9. (6) Schedule 10 provides matters relevant to the application of schedule 11 and requirements with which a medical expert must comply in assessing a PIRS rating for a mental disorder of an injured worker. Current as at 8 November 2013 Page 87
Workers’ Compensation and Rehabilitation Regulation 2003 Part 7A Assessment of damages [s 112E] 112E General damages calculation provisions—Act, s 306P (1) This section applies for section 306P of the Act. (2) Schedule 12, section 1 is prescribed as the general damages calculation provisions for an injury sustained on or after 1 July 2010 to and including 30 June 2011. (3) Schedule 12, section 2 is prescribed as the general damages calculation provisions for an injury sustained on or after 1 July 2011 to and including 30 June 2012. (4) Schedule 12, section 3 is prescribed as the general damages calculation provisions for an injury sustained on or after 1 July 2012 to and including 30 June 2013. (5) Schedule 12, section 4 is prescribed as the general damages calculation provisions for an injury sustained on or after 1 July 2013. 112F Prescribed amount of award for future loss—Act, s 306R For section 306R of the Act, the amount prescribed is— (a) for an injury sustained on or after 1 July 2010 to and including 30 June 2011—$117800; or (b) for an injury sustained on or after 1 July 2011 to and including 30 June 2012—$121160; or (c) for an injury sustained on or after 1 July 2012 to and including 30 June 2013—$127620; or (d) for an injury sustained on or after 1 July 2013—$131420. Page 88 Current as at 8 November 2013
Part 8 Workers’ Compensation and Rehabilitation Regulation 2003 Part 8 Costs [s 113] Costs Division 1 Proceeding before industrial magistrate or industrial commission 113 Costs—proceeding before industrial magistrate or industrial commission (1) The costs of a proceeding before an industrial magistrate or the industrial commission are in the discretion of the magistrate or commission. (2) However, if the magistrate or commission allows costs— (a) for costs in relation to counsel’s or solicitor’s fees— (i) the costs are to be under the Uniform Civil Procedure Rules 1999 , schedule 3, scale E; or (ii) if, because of— (A) the work involved; or (B) the importance, difficulty or complexity of the matter to which the proceedings relate; the industrial magistrate or the industrial commission considers the amount of costs provided for under subparagraph (i) are inadequate remuneration, the magistrate or commission may allow costs (in total or in relation to any item) in an amount up to 1.5 times the amount provided for under subparagraph (i) (in total or in relation to that item); and (b) for costs in relation to witnesses’ fees and expenses—the costs are to be under the Uniform Civil Procedure (Fees) Regulation 2009 , part 4; and (c) for costs in relation to bailiff’s fees—the costs are to be under the Uniform Civil Procedure (Fees) Regulation 2009 , schedule 2, part 2. (3) Subsection (4) applies if— Current as at 8 November 2013 Page 89
Workers’ Compensation and Rehabilitation Regulation 2003 Part 8 Costs [s 114] (a) the Regulator or an insurer is required to pay costs in a hearing in relation to a witness who is a doctor or otherwise is of a professional description; and (b) the amount of fees and expenses payable in relation to the witness by the party that called the witness is more than the amount of costs allowed by the industrial magistrate or the industrial commission. (4) The Regulator or the insurer may, on the application of the party that called the witness, pay an additional amount on account of the costs that the Regulator or the insurer accepts as reasonable, having regard to the subject matter of the hearing. Division 2 Claim for damages 114 Who this division applies to This division applies only to a claimant who is— (a) a worker whose DPI is 20% or more; or (b) a worker who has a terminal condition; or (c) a dependant. 115 Definition for div 2 In this division— net damages means damages recovered less compensation paid by an insurer. 116 Costs before proceeding started (1) This section prescribes the legal professional costs of a claim before a proceeding is started. (2) If a claimant recovers at least $150000 net damages, the costs are— (a) if the claim is settled— Page 90 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 8 Costs [s 117] (i) without holding a compulsory conference—120% of the amount in schedule 6, column A; or (ii) after a compulsory conference is held—the amounts in schedule 6, columns A and B; and (b) for investigation of liability by an expert—the amount in schedule 6, column C; and (c) for an application to the court—the amount in schedule 6, column D. (3) If a claimant recovers net damages of $50000 or more but less than $150000, the costs are 85% of the amount under subsection (2). (4) If a claimant recovers less than $50000 net damages, the costs are 85% of the amount calculated under subsection (2) multiplied by the proportion that the net damages bear to $50000. Example of subsection (4) If the net damages recovered are $30000, the costs are (85% of the amount calculated under subsection (2)) x 3 / 5 . (5) However, if a court in the proceeding awards the payment of solicitor-client costs, the costs recoverable under subsections (2), (3) and (4) are multiplied by 120%. 117 Costs after proceeding started (1) This section prescribes the legal professional costs of a claim after a proceeding is started. (2) The costs are chargeable under the relevant court scale of costs. (3) However, the costs under subsection (2) do not include— (a) the cost of work performed before the proceeding is started; or (b) the cost of work performed before the proceeding is started that is performed again after the proceeding is started. Current as at 8 November 2013 Page 91
Workers’ Compensation and Rehabilitation Regulation 2003 Part 8 Costs [s 118] 118 Outlays (1) In addition to legal professional costs, the following outlays incurred by the claimant are allowed— (a) 1 hospital report fee for each hospital that provided treatment for the worker’s injury; (b) 1 report fee for each doctor in general practice who provided treatment for the worker’s injury; (c) 1 medical specialist’s report fee for each medical discipline reasonably relevant and necessary for the understanding of the worker’s injury; (d) 1 report fee of an expert investigating liability, of not more than $1000, less any proportion of the fee agreed to be paid by the insurer; (e) Australian Taxation Office or tax agents’ fees for supplying copies of income tax returns; (f) fees charged by the claimant’s previous employers for giving information necessary for the claimant to complete the notice of claim, but not more than $50 for each employer; (g) fees charged by a mediator in an amount previously agreed to by the insurer; (h) filing fees or other necessary charges incurred in relation to an application to the court before a proceeding is started; (i) reasonable fees for sundry items properly incurred, other than photocopying costs. (2) The fees— (a) are allowable only for reports disclosed before the start of proceedings; and (b) for subsection (1)(a) to (c)—are payable according to the recommended Australian Medical Association scale of fees. Page 92 Current as at 8 November 2013
Part 8A Workers’ Compensation and Rehabilitation Regulation 2003 Part 8A Medical assessment tribunals [s 118A] Medical assessment tribunals 118A Medical assessment tribunals (1) Each of the following medical assessment tribunals is a tribunal continued in existence under section 635 of the Act— (a) a General Medical Assessment Tribunal; (b) the following specialty medical assessment tribunals— (i) Cardiac Assessment Tribunal; (ii) Orthopaedic Assessment Tribunal; (iii) Dermatology Assessment Tribunal; (iv) Ear, Nose and Throat Assessment Tribunal; (v) Neurology/Neurosurgical Assessment Tribunal; (vi) Ophthalmology Assessment Tribunal; (vii) Disfigurement Assessment Tribunal. (2) Also, a composite medical assessment tribunal ( composite tribunal ) is to be maintained for section 492 of the Act to assess workers with an injury or injuries who may require assessment by a number of different specialists. 118B Constitution of General Medical Assessment Tribunal (1) For deciding a matter referred to it, the General Medical Assessment Tribunal is constituted by— (a) if its chairperson is a specialist— (i) the chairperson; and (ii) 2 appointees to the panel of doctors for the Tribunal designated by the chairperson; or (b) if its chairperson is not a specialist and there is at least 1 deputy chairperson who is a specialist— (i) a deputy chairperson who is a specialist designated by the Regulator; and Current as at 8 November 2013 Page 93
Workers’ Compensation and Rehabilitation Regulation 2003 Part 8A Medical assessment tribunals [s 118C] (ii) 2 appointees to the panel of doctors for the Tribunal designated by the deputy chairperson; or (c) otherwise— (i) its chairperson; and (ii) 2 appointees to the panel of doctors for the Tribunal designated by the chairperson. (2) In designating a member of the panel to the Tribunal under subsection (1)(a)(ii), (b)(ii) or (c)(ii), the chairperson or deputy chairperson must have regard to the branch of medicine that is a recognised specialty under the Health Practitioner Regulation National Law that is relevant to the matters referred to the Tribunal. (3) In this section— specialist means a specialist in the branch of medicine that is a recognised specialty under the Health Practitioner Regulation National Law that is relevant to the matters referred to the Tribunal for decision. 118C Chairperson and deputy chairperson of General Medical Assessment Tribunal (1) Subject to subsections (2) and (3), the chairperson must preside over meetings of the General Medical Assessment Tribunal. (2) If a deputy chairperson is designated under section 118B(1)(b)(i) for deciding a matter referred to the General Medical Assessment Tribunal, the deputy chairperson must act as its chairperson and preside over the meetings of the Tribunal for deciding the matter. (3) If the chairperson is not available to attend to the business of the General Medical Assessment Tribunal, other than deciding a matter mentioned in subsection (2), a deputy chairperson must act as its chairperson. (4) A deputy chairperson may act as a member of the General Medical Assessment Tribunal only if the deputy chairperson has been designated for the purpose— Page 94 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 8A Medical assessment tribunals [s 118D] (a) under section 118B; or (b) by the chairperson. 118D Constitution of specialty medical assessment tribunal (1) For deciding a matter referred to it, a specialty medical assessment tribunal is constituted by— (a) its chairperson; and (b) 2 appointees to the panel of doctors for the tribunal, including persons appointed to the panel as deputy chairpersons, designated by the chairperson. (2) In designating a member of the panel to a specialty medical assessment tribunal, the chairperson must have regard to the branch of medicine that is a recognised specialty under the Health Practitioner Regulation National Law that is relevant to the matters referred to the tribunal for decision. 118E Chairperson and deputy chairperson of specialty medical assessment tribunal (1) The chairperson must preside over meetings of a specialty medical assessment tribunal. (2) If the chairperson is not available to attend to the business of a specialty medical assessment tribunal— (a) if there is only 1 deputy chairperson of the tribunal—the deputy chairperson must act as its chairperson; or (b) if there is more than 1 deputy chairperson of the tribunal—a deputy chairperson designated by the chairperson must act as its chairperson. 118F Constitution of composite tribunals (1) The constitution of a composite tribunal is to be decided by— (a) the chairperson of the composite tribunal; and Current as at 8 November 2013 Page 95
Workers’ Compensation and Rehabilitation Regulation 2003 Part 8A Medical assessment tribunals [s 118F] (b) the chairperson of each specialty medical assessment tribunal relevant to the matters to be decided; and (c) if the chairperson of the composite tribunal is not the chairperson of the General Medical Assessment Tribunal—the chairperson of the General Medical Assessment Tribunal. (2) The chairpersons must consult with the secretary of the composite tribunal about the constitution of the composite tribunal. (3) In deciding the constitution of the composite tribunal, the chairpersons must have regard to the branch of medicine that is a recognised specialty under the Health Practitioner Regulation National Law that is relevant to the matter referred to the composite tribunal for decision. (4) For deciding a matter referred to it, a composite tribunal is constituted by— (a) its chairperson; and (b) at least 2 but not more than 4 appointees to the panel of doctors for the composite tribunal designated by the chairperson. (5) The composite tribunal must consist of at least 1 specialist for each type of injury that is a subject of the reference to the tribunal. (6) However, the number of specialists for each type of injury must be equal. Example A worker has a post-traumatic stress disorder and a fractured arm, leg, and ribs. The tribunal would consist of— (a) 1 psychiatrist and 1 orthopaedic surgeon; or (b) 2 psychiatrists and 2 orthopaedic surgeons. (7) If, because of subsection (5), there would be an even number of members on the composite tribunal, the chairperson must also designate a physician to be a member of the tribunal. Page 96 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 9 Miscellaneous [s 118G] Example A worker has 3 different types of injuries. The tribunal would consist of the chairperson and 3 specialists. A physician is also to be a member of the tribunal. 118G Chairperson and deputy chairperson of composite tribunal (1) The chairperson must preside over meetings of a composite tribunal. (2) If the chairperson is not available to attend to the business of a composite tribunal— (a) if there is only 1 deputy chairperson of the tribunal—the deputy chairperson must act as its chairperson; or (b) if there is more than 1 deputy chairperson of the tribunal—a deputy chairperson designated by the chairperson must act as its chairperson. Part 9 Miscellaneous 119 Documents to be kept—Act, s 520 (1) An employer or contractor must keep the following documents for section 520 of the Act— (a) the time and wages record and the employee register, required to be kept under the Industrial Relations Act 1999 ; (b) documents, or accurate and complete copies of documents, required to be kept under a law of the Commonwealth for payments made to the employer’s workers or contractors for the performance of work, including, for example— (i) group certificates; and Current as at 8 November 2013 Page 97
Workers’ Compensation and Rehabilitation Regulation 2003 Part 9 Miscellaneous [s 120] (ii) group employer’s reconciliation statements; and (iii) prescribed payment system payer’s reconciliation statements; (c) the person’s profit and loss account, to the extent it relates to amounts paid for wages for workers, or to contractors. (2) However, a document mentioned in subsection (1)(b) or (c) need not contain information an employer or contractor reasonably believes is confidential and not necessary to enable the Regulator or WorkCover to calculate the person’s actual expenditure on wages or for contracts for the period to which the document relates. Examples income and profit lines tax file numbers (3) An employer or contractor need not comply with subsection (1) if— (a) the Regulator or WorkCover has given the employer or contractor notice that a document need not be kept, and the notice remains in force; or (b) the employer or contractor was a corporation and has been wound up. (4) In this section— worker does not include a household worker. 120 Reasons for decisions must address certain matters—Act, ss 540(4) and 546(3AA) (1) For sections 540(4) and 546(3AA) of the Act, the reasons must— (a) cite the provision of the Act under which the decision is made; and (b) state the evidence considered for the decision; and Page 98 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 9 Miscellaneous [s 120A] (c) state the evidence that was accepted or rejected for the decision and why it was accepted or rejected; and (d) state the conclusions drawn from the evidence; and (e) disclose the link between the evidence, the conclusions and the relevant provision of the Act. (2) The reasons must also clearly state the decision made and be written in plain English. 120A Declaration of designated courts—Act, s 114 Each court, tribunal or decision-making body ( body ) mentioned in schedule 7, column 2, of the State, whose name is set out in schedule 7, column 1 opposite the body, is declared to be a designated court for the purposes of section 114 of the Act. 120B Declaration of provisions that are a State’s legislation about damages for work related injury—Act, s 322 Each provision mentioned in schedule 7, column 3 set out opposite the name of a State in schedule 7, column 1 is declared to be that State’s legislation about damages for work related injury for section 322 of the Act. Current as at 8 November 2013 Page 99
Workers’ Compensation and Rehabilitation Regulation 2003 Part 10 Transitional provisions [s 121] Part 10 Transitional provisions Division 1 Provisions for Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2004 121 Estimated claims liability for ss 20 and 23A (1) This section applies for the calculation of the following for the financial year or part of the financial year starting on 1 July 2004— (a) annual levy under section 20; (b) deemed premium under section 23A. (2) The estimated claims liability to be used in the calculations is the estimated claims liability assessed under section 84(3) of the Act before 1 February 2004. 122 Adjustment of annual levy (1) This section applies for the calculation of an adjusted annual levy for a self-insurer who holds a self-insurer licence for the financial year or part of the financial year ending on 30 June 2004. (2) If the amount of the deemed premium is more than the estimated deemed premium for the financial year or part of the financial year, the self-insurer must pay to the Authority the difference between the amounts calculated under the formula— AAL = R × ( D EDP ) (3) If the amount of the deemed premium is less than the estimated deemed premium for the financial year or part of the financial year, the Authority must pay to the self-insurer the difference between the amounts calculated under the formula— Page 100 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Part 10 Transitional provisions [s 123] AAL = R × ( EDP D ) (4) In this section— AAL means adjusted annual levy. D means the deemed premium for the self-insurer for the financial year or the part of the financial year starting on 1 July 2003, calculated under section 13 as in force immediately before 1 July 2004. EDP means the estimated deemed premium for the self-insurer for the end of the financial year starting on 1 July 2003, calculated under section 13 as in force immediately before 1 July 2004. R means the rate published in the gazette notice under section 81 of the Act for the particular financial year. Division 2 Provisions for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Regulation (No. 1) 2004 123 Costs in proceedings before industrial magistrate Section 113, as in force immediately before the commencement of this section, continues to apply in relation to a hearing that started before the commencement as if the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Regulation (No. 1) 2004 , section 17(4) had not been made. 124 Excess period Section 16, as in force immediately before the commencement of this section, continues to apply in relation to an injury sustained by a worker before 1 July 2005 as if the Workers’ Compensation and Rehabilitation and Other Current as at 8 November 2013 Page 101
Workers’ Compensation and Rehabilitation Regulation 2003 Part 10 Transitional provisions [s 125] Legislation Amendment Regulation (No. 1) 2004 , section 8 had not been made. Division 3 Provisions for Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2008 125 Excess period Section 16, as in force immediately before the commencement of this section, continues to apply in relation to an injury sustained by a worker before 1 May 2008 as if the Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2008 , section 5 had not been made. 126 Rehabilitation and return to work coordinators (1) A person who met the criteria for becoming a rehabilitation and return to work coordinator under old section 99A is, on the commencement, taken to meet the criteria to be a rehabilitation and return to work coordinator under section 99A(1). (2) In this section— commencement means the commencement of this section. old section 99A means section 99A as in force immediately before the commencement. 127 Adding person as contributor Section 112A, as in force immediately before the commencement of this section, continues to apply if an insurer received a notice of claim before 1 July 2008. Page 102 Current as at 8 November 2013
Division 4 Workers’ Compensation and Rehabilitation Regulation 2003 Part 10 Transitional provisions [s 128] Provision for Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 128 Excess period Section 16, as in force immediately before the commencement of this section, continues to apply in relation to an injury sustained by a worker before 1 July 2010 as if the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010 , section 37 had not been enacted. Division 5 Transitional provision for Workers’ Compensation and Rehabilitation Amendment Regulation (No. 1) 2013 129 General Medical Assessment Tribunal constituted before commencement (1) This section applies if— (a) before the commencement, the General Medical Assessment Tribunal was constituted under previous section 118B for deciding a matter referred to it; and (b) at the commencement, the Tribunal has not decided the matter. (2) For deciding the matter, the General Medical Assessment Tribunal continues to be constituted by the persons who constituted the Tribunal for deciding the matter before the commencement. (3) Subsection (2) applies despite section 118B. (4) In this section— commencement means the commencement of this section. Current as at 8 November 2013 Page 103
Workers’ Compensation and Rehabilitation Regulation 2003 Part 10 Transitional provisions [s 129] previous section 118B means section 118B as in force before the commencement. Page 104 Current as at 8 November 2013
Schedule 1 Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 1 Additional premium section 9 Time of lodgement of declaration of wages on or after 1 September and not later than 31 October in 1 calendar year on or after 1 November and not later than 30 November in 1 calendar year on or after 1 December and not later than 31 December in 1 calendar year on or after 1 January in the next calendar year Additional premium the greater of— (a) 5% of assessed premium for the period of insurance to which the declaration relates; or (b) $5 the greater of— (a) 10% of assessed premium for the period of insurance to which the declaration relates; or (b) $10 the greater of— (a) 15% of assessed premium for the period of insurance to which the declaration relates; or (b) $15 the greater of— (a) 20% of assessed premium for the period of insurance to which the declaration relates; or (b) $20 Current as at 8 November 2013 Page 105
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 2A Schedule 2A Graduated scale for additional compensation for workers with terminal latent onset injuries section 95A 1 Graduated scale (1) This schedule contains the graduated scale for additional compensation for a worker who has a terminal condition that is a latent onset injury. (2) The maximum amount of lump sum compensation payable under this schedule is $200000. 2 How to use this graduated scale (1) The age of the worker when the worker lodges the worker’s application for compensation is shown in column 1. (2) The worker’s additional lump sum compensation entitlement is shown for the corresponding entry in column 2. Graduated scale Column 1 Worker’s age Column 2 Additional lump sum compensation 70 years or under . . . . . . . . . . . . . . . . . . . . . . . . . . 71 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 200 000 180 000 160 000 140 000 120 000 100 000 80 000 Page 106 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 2A Column 1 Worker’s age Column 2 Additional lump sum compensation $ 77 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 years or over . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 000 40 000 20 000 nil Current as at 8 November 2013 Page 107
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 3 Schedule 3 Graduated scale of additional compensation for certain workers section 96 1 Graduated scale (1) This schedule contains the graduated scale for additional compensation for a worker who sustains an injury that results in a DPI of 30% or more. (2) The maximum amount of lump sum compensation payable under this schedule is $218400. 2 How to use the graduated scale A worker who sustains a DPI shown in column 1 is entitled to additional lump sum compensation in the amount shown for the corresponding entry in column 2. Graduated scale Column 1 DPI % 30 31 32 33 34 35 36 Column 2 Additional lump sum compensation $ 8 217 12 887 17 558 22 229 26 900 31 570 36 241 Page 108 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 3 Column 1 DPI % 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 Column 2 Additional lump sum compensation $ 40 912 45 583 50 253 54 924 59 595 64 266 68 936 73 607 78 278 82 948 87 619 92 290 96 961 101 631 106 302 110 973 115 644 120 314 124 985 129 656 134 327 138 997 143 668 148 339 153 010 157 680 162 351 167 022 Current as at 8 November 2013 Page 109
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 3 Column 1 DPI % 65 66 67 68 69 70 71 72 73 74 75–100 Column 2 Additional lump sum compensation $ 171 693 176 363 181 034 185 705 190 376 195 046 199 717 204 388 209 059 213 729 218 400 Page 110 Current as at 8 November 2013
Schedule 4 Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 4 Graduated scale for additional compensation for gratuitous care section 97 1 Graduated scale (1) This schedule contains the graduated scale for additional compensation for gratuitous care. (2) The maximum amount of lump sum compensation payable under this schedule is $226555. 2 How to use this graduated scale (1) The DPI is shown in column 1. (2) The range of dependency assessed under the modified barthel index is shown in column 2. (3) In column 2— moderate is a modified barthel index total score of 50–74 severe is a modified barthel index total score of 25–49 total is a modified barthel index total score of 0–24. (4) The worker’s additional lump sum compensation entitlement is shown for the corresponding entry in column 3. Current as at 8 November 2013 Page 111
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 4 Graduated scale Column 1 DPI % Column 2 Range of dependency (modified barthel index) Column 3 Additional lump sum compensation $ 15–39 40–49 50–59 60–69 70–79 80–89 90–94 95–100 moderate severe total moderate severe total moderate severe total moderate severe total moderate severe total moderate severe total moderate severe total moderate severe total 1 835 3 665 5 490 3 415 6 950 10 360 15 120 30 225 45 330 37 785 67 985 90 640 52 875 98 195 135 945 60 425 122 130 181 250 67 985 135 945 211 450 75 525 151 070 226 555 Page 112 Current as at 8 November 2013
Schedule 5 Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 5 Graduated scale of care required for payment of caring allowance section 99 1 Graduated scale This schedule contains the graduated scale for the payment of caring allowance. 2 How to use this graduated scale (1) The range of dependency assessed under the modified barthel index is shown in column 1. (2) In column 1— minimal is a modified barthel index total score of 91–99 mild is a modified barthel index total score of 75–90 moderate is a modified barthel index total score of 50–74 severe is a modified barthel index total score of 25–49 total is a modified barthel index total score of 0–24. (3) The maximum number of hours of care required in a week is shown for the corresponding entry in column 2. Current as at 8 November 2013 Page 113
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 5 Graduated scale Column 1 Range of dependency (modified barthel index) Column 2 Maximum hours of care required in a week minimal mild moderate severe total <10 13.0 20.0 23.5 27.0 Page 114 Current as at 8 November 2013
Schedule 5A Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 5A High risk industries section 99C(5), definition high risk industry 1 Categorisation of industries (1) Industries are categorised in this schedule using a system known as the Australian and New Zealand Industrial Classification (ANZSIC). (2) An industry stated in column 2 has the ANZSIC class stated in column 1. Column 1 ANZSIC class Column 2 Industry Agriculture, forestry and fishing 01 agriculture 02 aquaculture 03 forestry and logging 04 fishing, hunting and trapping 05 agriculture, forestry and fishing support services Mining 06 coal mining 07 oil and gas extraction 08 metal ore mining 09 non-metallic mineral mining and quarrying 10 exploration and other mining support services Manufacturing 11 food product manufacturing 12 beverage and tobacco manufacturing 13 textile, leather, clothing and footwear manufacturing 14 wood product manufacturing Current as at 8 November 2013 Page 115
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 5A Column 1 ANZSIC class Column 2 Industry 15 16 17 18 19 20 21 22 23 24 25 30 31 32 46 47 48 49 50 52 53 84 85 Page 116 pulp, paper and converted paper product manufacturing printing (including the reproduction of recorded media) petroleum and coal product manufacturing basic chemical and chemical product manufacturing polymer product and rubber product manufacturing non-metallic mineral product manufacturing primary metal and metal product manufacturing fabricated metal product manufacturing transport equipment manufacturing machinery and equipment manufacturing furniture and other manufacturing Construction building construction heavy and civil engineering construction construction services Transport and storage road transport rail transport water transport air and space transport other transport transport support services warehousing and storage Health care and social assistance hospitals medical and other health care services Current as at 8 November 2013
Column 1 ANZSIC class 86 29 77 0510 7711 1611 3020 7714 Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 5A Column 2 Industry residential care services Miscellaneous waste collection, treatment and disposal services public order, safety and regulatory services forestry support services police services printing non-residential building construction correctional and detention services Current as at 8 November 2013 Page 117
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 6 Schedule 6 Legal professional costs section 116 Column A Pre-proceeding notification and negotiation Column B Compulsory conference Column C Column D Investigation by Pre-proceedings expert court applications $2 000 $135 for the first hour or part of an hour $105 for each additional hour or part of an hour $270 $400 Page 118 Current as at 8 November 2013
Schedule 7 Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 7 Designated courts and provisions that are a State’s legislation about damages for work related injury sections 120A and 120B Column 1 Column 2 Column 3 State Designated court Provisions that are that State’s legislation about damages for work related injury Australian Capital Territory New South Wales South Australia Tasmania Victoria Western Australia Magistrates Court the provisions of the Workers Compensation Act 1951 (ACT) District Court of New South Wales Workers Compensation Commission of New South Wales the provisions of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) Workers Compensation the provisions of the Workers Tribunal Rehabilitation and Compensation Act 1986 (SA) Workers Rehabilitation the provisions of the Workers and Compensation Rehabilitation and Compensation Tribunal Act 1988 (Tas) County Court Magistrates’ Court of Victoria the provisions of the Accident Compensation Act 1985 (Vic) and the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) District Court of Western the provisions of the Workers’ Australia Compensation and Injury Management Act 1981 (WA) Current as at 8 November 2013 Page 119
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 8 Schedule 8 Matters to which court is to have regard in the application of schedule 9 section 112D(1) Part 1 Objectives of schedule 9 (Ranges of injury scale values) 1 Objectives of sch 9 The objectives of schedule 9 include promoting— (a) consistency between assessments of general damages awarded by courts for similar injuries; and (b) similar assessments of general damages awarded by courts for different types of injury that have a similar level of adverse impact on an injured worker. Notes Under the Act, section 306O(1), if general damages are to be awarded by a court in relation to an injury sustained on or after 1 July 2010, the court must assess an injury scale value as follows— the injured worker’s total general damages must be assigned a numerical value ( injury scale value ) on a scale running from 0 to 100—the Act, section 306O(1)(a); the scale reflects 100 equal graduations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind—the Act, section 306O(1)(b); in assessing the injury scale value, the court must— assess the injury scale value under any rules provided under a regulation; and have regard to the injury scale values given to similar injuries in previous proceedings—the Act, section 306O(1)(c). Under the Act, section 306O(2), if a court assesses an injury scale value for a particular injury to be more or less than any injury scale Page 120 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 8 value prescribed for or attributed to similar particular injuries under the Act, section 306O(1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value. Part 2 How to use schedule 9 Division 1 Injury 2 Injury mentioned in sch 9 (1) In assessing the injury scale value ( ISV ) for an injury mentioned in the injury column of schedule 9, a court must consider the range of injury scale values stated in schedule 9 for the injury. (2) The range of ISVs for the injury reflects the level of adverse impact of the injury on the injured worker. 3 Multiple injuries (1) Subject to section 9, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury of the multiple injuries. (2) To reflect the level of adverse impact of multiple injuries on an injured worker, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only. Note This section acknowledges that— the effects of multiple injuries commonly overlap, with each injury contributing to the overall level of adverse impact on the injured worker; and Current as at 8 November 2013 Page 121
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 8 if each of the multiple injuries were assigned an individual ISV and these ISVs were added together, the total ISV would generally be too high. 4 Multiple injuries and maximum dominant ISV inadequate (1) This section applies if a court considers the level of adverse impact of multiple injuries on an injured worker is so severe that the maximum dominant ISV is inadequate to reflect the level of impact. (2) To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV. (3) However, the ISV for the multiple injuries— (a) must not be more than 100; and Note Under the Act, section 306O(1)(a), an ISV is assessed on a scale running from 0 to 100. (b) should rarely be more than 25% higher than the maximum dominant ISV. (4) If the increase is more than 25% of the maximum dominant ISV, the court must give detailed written reasons for the increase. (5) In this section— maximum dominant ISV , in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries. 5 Adverse psychological reaction (1) This section applies if a court is assessing an ISV where an injured worker has an adverse psychological reaction to a physical injury. (2) The court must treat the adverse psychological reaction merely as a feature of the injury. Page 122 Current as at 8 November 2013
Workers’ Compensation and Rehabilitation Regulation 2003 Schedule 8 6 Mental disorder (1) This section applies if— (a) a court is assessing an ISV; and