Accident Compensation Amendment Bill 2009
table of provisions
Clause Page
Clause Page
Part 1—Preliminary 1
1 Purpose 1
2 Commencement 2
Part 2—Workers' Entitlement to Compensation 3
3 Definitions 3
4 Pre-injury average weekly earnings 3
5 Calculation of additional amount 4
6 New subsection inserted in section 5A 4
7 References to $1130 substituted 4
8 Definition of full time student 4
9 Amendment of section 14(3) 5
10 New section 14AA inserted 5
14AA Municipal Councillors 5
11 New sections 16A and 17 inserted 6
16A Riders and drivers in certain races 6
17 Outworkers 7
12 Claims for mental injury 10
13 Further amendment of section 82 11
14 Definitions 11
15 New sections 82A to 82D inserted 14
82A Circumstances in which weekly payments are reduced because of conviction for drink-driving offence 14
82B Circumstances in which weekly payments are reduced because of conviction for drug-driving offence 16
82C No entitlement to compensation where conviction for certain serious road traffic offences 17
82D Where conviction or finding of guilt overturned 18
16 New section 114BA inserted 19
114BA Notice of reduction of weekly payments 19
17 New sections 239AAA, 239AAB and 239AAC inserted 20
239AAA Access to police records 20
239AAB Court to provide certificate of conviction 21
239AAC VicRoads may disclose information to Authority 22
18 Amendment of Road Safety Act 1986 23
Part 3—Ensuring Timely Access to Benefits 24
19 Amendment of section 103 24
20 Amendment of sections 105 and 108 27
21 New section 109 substituted 30
109 Responsibilities of self-insurers and the Authority 30
22 Amendment of section 242 33
23 New sections 242AA to 242AF inserted 33
242AA Offence to engage in discriminatory conduct 33
242AB Order for damages or reinstatement 35
242AC Procedure if prosecution is not brought under section 242AA 37
242AD Civil proceedings relating to discriminatory conduct 39
242AE Effect of orders on other orders under section 242AA, 242AB or 242AD 43
242AF Claims under section 242AB or 242AD 44
24 Proceedings under section 242AA to be instituted within
3 years 44
25 Amendment of section 138B 44
26 New section 252J inserted 44
252J Supreme Court—limitation of jurisdiction 44
27 New section 252K inserted 45
252K Supreme Court—limitation of jurisdiction 45
Part 4—Better Income Replacement 46
28 Definitions 46
29 New section 55AA inserted 47
55AA Referral of medical question without consent 47
30 New section 91E inserted 48
91E Definitions applicable to this Division 48
31 New sections 93A to 93CA substituted 50
93A Weekly payments in first entitlement period 50
93B Weekly payments in second entitlement period 53
93C Weekly payments after the second entitlement period 56
93CA Compensation for incapacity arising from surgery
after second entitlement period 58
32 Amendments consequential on new sections 93A to93CA 60
33 Further consequential amendments 61
34 New section 93CD substituted 62
93CD Continuation of weekly payments after second entitlement period 62
35 New section 93CDA inserted 65
93CDA Entitlement under section 93CD not affected by certain circumstances 65
36 Repeal of section 93DA 66
37 New section 93CE inserted 66
93CE Compensation in the form of superannuation contributions 66
38 Consequential amendment of section 59 70
39 State average weekly earnings 71
40 Amendment of section 96 71
41 Amendment of section 96A 73
42 Amendment of section 97 73
43 New section 109AA inserted 73
109AA Employer may request reasons for decision on a claim 73
44 New section 252L inserted 75
252L Supreme Court—limitation of jurisdiction 75
45 Amendment of section 114 75
46 New section 114AA inserted 78
114AA Termination of compensation in the form of superannuation contributions 78
47 New sections 114EA and 114EB inserted 79
114EA Outstanding superannuation contributions 79
114EB Alteration or termination of superannuation contributions 80
Part 5—Treatment Expenses 82
48 Prior approval of medical and like services 82
49 Amendment of section 99—extension to modifications of
home or car 82
50 Notice of cessation of compensation under section 99 83
51 Repeal of section 99AAA 83
52 Limits applying to contributions required towards supported accommodation costs 83
Part 6—Lump Sum Benefits 85
53 Amendment of section 91 85
54 Compensation for non-economic loss 85
55 Alignment of lump sum and common law pain and suffering damages 92
56 Amendment of section 100 92
Part 7—Access to Justice for Seriously Injured Workers 94
57 Actions for damages—amendment of section 134AB 94
58 New section 134ABAA inserted 98
134ABAA Determination of serious injury application
following death of worker 98
59 New section 134ABB inserted 102
134ABB Calculation of limitation of actions period 102
60 Repeal of section 134AD 102
61 Actions for damages—amendment of section 135A 102
62 New section 135BBA inserted 103
135BBA Actions by terminally ill workers continued after
death of worker 103
63 New section 135AD inserted 104
135AD Limitation of Actions Act 1958 104
Part 8—Payments for Family Members
following Work-related Deaths 105
64 Definition 105
65 Jurisdiction of Magistrates' Court—amendment of section 43 106
66 Consequential amendments 106
67 Compensation for death of a worker—amendment of
section 92 106
68 Revised compensation for death of worker—amendment of section 92A 108
69 New section 92AA inserted 111
92AA Reimbursement of expenses incurred by
non-dependent family members of a deceased worker 111
70 Weekly pensions for dependants of worker who dies—amendment of section 92B 114
71 New section 92D inserted 115
92D Provisional payment 115
72 Indexation—amendment of section 100 119
73 New section 252H inserted 122
252H Supreme Court—limitation of jurisdiction 122
Part 9—Transparency in Decision-making and Efficient Resolution of Disputes 123
74 Definitions 123
75 Jurisdiction of the Magistrates' Court—amendment of
section43 126
76 Medical questions—amendment of section 45 126
77 New section 48A inserted 128
48A Use of documents relating to worker's claim 128
78 Certain proceedings referred for conciliation—amendment
of section49 129
79 Appointment of Conciliation Officers—amendment of section52D 129
80 Substitution of section 52F 129
52F Senior Conciliation Officer 129
52FA Data to be collected by the Senior Conciliation
Officer 130
81 Removal from office—amendment of section 52I 132
82 New section 55AB inserted 132
55AB Production and disclosure of information 132
83 Procedures before Conciliation Officers—amendment of section56 133
84 Conciliation of disputes—amendment of section 57 134
85 Disputes relating to weekly payments—amendment of
section59 135
86 Certain evidence inadmissible in proceedings—amendment
of section61A 135
87 Costs—amendment of section 62 135
88 Establishment and constitution—amendment of section 63 136
89 Procedures and powers—amendment of section 65 137
90 Opinions—amendment of section 68 138
91 New Division 3AA inserted in Part IV 139
Division 3AA—Employer objections 139
114H Definition 139
114I Objection by employer in respect of liability 139
114J Objection lodged out of time 141
114K Authority may refuse to review a decision to which a claimed employer has objected 141
114L Withdrawal of lodged objection 142
114M Request for information and suspension of review 142
114N Decision following review 144
114O Appeals 145
114P Grounds of appeal 146
114Q Hearing of appeal by Supreme Court 146
114R Costs of worker 147
92 New section 252M inserted 147
252M Supreme Court—limitation of jurisdiction 147
93 Amendment of Magistrates' Court Act 1989 147
Part 10—Employer Premiums 148
Division 1—Accident Compensation Act 1985 148
94 Definitions 148
95 Section 5C substituted and new sections 5D and 5E inserted 149
5C Value of remuneration comprising fringe benefits 149
5D Remuneration—motor vehicle allowance 149
5E Remuneration—accommodation allowance 151
96 New Division 4 inserted in Part II 152
Division 4—Independent review 152
35 Review of setting of premium and contributions by selfinsurers 152
97 New section 248AB inserted 153
248AB False or misleading statements 153
98 Investigation of fraud—amendment of section 248B 154
99 New section 248BA inserted 154
248BA Liability of premium adviser 154
Division 2—Accident Compensation (WorkCover Insurance) Act1993 155
100 Definitions 155
101 Compulsory WorkCover insurance—amendment of section 7 155
102 WorkCover insurance policy—amendment of section 9 159
103 Premiums order—general provisions—amendment of
section 16 160
104 New section 17A inserted 161
17A Authority may serve notice of premium 161
105 Adjustment of premium—amendment of section 21 161
106 New section 21A inserted 161
21A Premium notices in respect of deemed policy periods 161
107 Repeal of section 22 and consequential amendments 162
108 New section 26A inserted 163
26A Premium avoidance schemes 163
109 Repeal of sections 27, 28, 28A and 28B 164
110 Consequential amendments 164
111 Application of review and adjustment powers—amendment
of section31 164
112 Section 31A substituted 165
31A Refund of premium may be offset 165
113 Default penalty where failure to provide full true disclosure—amendment of section 31B 165
114 New Part 2A inserted 165
Part 2A—Premium review 165
32 Definition 165
33 Employer may apply for review of premium under
this Part 167
34 Payment of premium pending review 168
35 Review only as permitted under this Act 169
36 Time for lodging, and form of, application for review 169
36A Applications for review lodged out of time 170
36B Authority may decline application for review 170
36C Withdrawal of application for review 171
36D Time period for review 171
36E Request for information and suspension of review 171
36F Determination of review 173
36G Payments following review 175
36H Interest payable under section 36L 176
36I Deemed decisions of the Authority 177
36J Appeals 178
36K Hearing of appeal by Supreme Court 178
36L Premium review by Authority at its discretion 179
36M Adjustment of premium after review 179
115 Registration of section 55(2)(a) employer—amendment of section 58 179
116 Groups—amendment of section 66 180
117 Joint and several liability of group members—amendment of section 66A 184
118 Evidence—amendment of section 71 184
119 Supreme Court—limitation of jurisdiction—amendment of section 77 185
120 Consequential amendments 185
Part 11—Recoveries 186
121 Indemnity by third party—new subsection (4A) inserted 186
122 Indemnity by third party—new subsections (6) to(9) inserted 186
123 New section 252I inserted 187
252I Supreme Court—limitation of jurisdiction 187
Part 12—Self-Insurance 188
124 Definitions 188
125 Repeal of section 33A 188
126 Part V substituted 188
Part V—self-insurers 188
Division 1—General 188
139 Definitions 188
139A Student workers 190
139B Municipal Association of Victoria as self-insurer 191
Division 2—Application for approval as selfinsurer 191
140 Determination of eligibility to apply for approval as selfinsurer 191
141 Application for approval as self-insurer 192
141A Estimated rateable remuneration 194
141B Adjustment of application fee 194
Division 3—Approval as self-insurer 196
142 Approval as self-insurer 196
142A Terms and conditions of approval 198
143 Notice to be given to employer if application refused 199
144 Period that approval has effect 200
145 Review of approval 201
145A Revocation of approval 203
145B Cost associated with revocation recoverable from employer 205
145C Non-WorkCover employer ceases to be a selfinsurer 206
Division 4—Contributions to WorkCover Authority Fund 206
146 Payment of contribution 206
146A Submission of return by self-insurer 207
Division 5—Liability for claims for compensation 208
Subdivision 1—Liability of self-insurer 208
147 Self-insurer's liability to pay compensation 208
147A Claims management 208
148 Liabilities of self-insurer to be guaranteed 209
149 Payments by Authority 211
Subdivision 2—Election by self-insurer to assume liability
for tail claims 212
150 Movement from scheme insurance to self-insurance 212
150A Acquisition of scheme-insured body corporate by selfinsurer 213
150B Guarantee of liability for tail claims 215
150C Payment of settlement amount and other arrangements on assumption of liability for tail claims 216
150D Subsequent divestment of scheme-insured body corporate 217
Subdivision 3—Employer or subsidiary of employer ceases
to be self-insurer 218
151 Employer ceases to be selfinsurer 218
151A General provisions applying to assessment by an
actuary 220
151B Initial assessment of liability for tail claims 221
151C Annual assessment of tail claims liabilities and adjustment of payments 222
151D Provision of guarantees 223
151E Review of final revised assessment at the end of the liability period 227
152 Subsidiary of self-insurer becomes a non-WorkCover employer 228
Division 6—Miscellaneous 230
153 Guidelines 230
154 Investigation of self-insurer by Ombudsman 232
155 Secrecy provisions 233
127 New Schedules 4 and 5 inserted 236
SCHEDULE 4—Self-insurers—Pre-application Eligibility Fee 236
1 Pre-application eligibility fee 236
SCHEDULE 5—Application Fee for Approval as
Selfinsurer 238
1 Application fee 238
2 Assessment remuneration 238
3 Fee limit 239
Part 13—Return to Work 241
128 Repeal of section 93D 241
129 New Part VIIB inserted 241
PART VIIB—RETURN TO WORK 241
Division 1—Preliminary 241
189 Purpose 241
190 Obligations of employers and workers 242
191 Part does not derogate from other provisions in Act 242
192 Definitions 242
193 Application of Part 244
Division 2—Obligations of employers 245
194 Provide employment 245
195 Plan return to work 248
196 Consult about the return to work of a worker 249
197 Nominate a return to work co-ordinator 250
198 Make return to work information available 252
199 Host to co-operate with labour hire employer 253
Division 3—Obligations of workers 254
200 Participate in planning for return to work 254
201 Use occupational rehabilitation services 254
202 Participate in assessments 254
203 Return to work 254
204 Participate in an interview 256
Division 4—Termination of compensation 256
205 Failure to comply with Division 3 256
206 Notification of return to work 259
Division 5—General provisions 259
207 Resolution of return to work issues 259
208 Information about the employer obligation period 260
209 Authority may give direction 261
210 Compliance code 262
211 Effect of compliance codes 263
212 Disallowance of certain compliance code orders 263
213 Effect of compliance with compliance codes 264
213A Functions of Authority in respect of compliance
codes 264
214 Provisions applying to directions issued by the
Minister 264