The 2010 Amending Act (Workers Compensation Legislation Amendment Act 2010) By Stephanie Wigan | February 2011 Area of Expertise | Workers Compensation
Summary A Bill to amend the Workers Compensation Act 1987 (WCA 1987) and the Workers Compensation Act 1998 (WIM Act 1998) was passed through both Houses of the New South Wales Parliament and assented to on 16 November 2010. The Workers Compensation Legislation Amendment Act 2010 (‘the 2010 Amending Act’) has recently been proclaimed by Governor Bashir and came into effect on 1 February 2011.
Who Does This Impact? Insurers, employers, workers, legal representatives and the Workers Compensation Commission. However, the 2010 Amending Act does not apply to coal miners.
What Action Should Be Taken? An understanding of the changes to various aspects of the WCA 1987 and the WIM Act 1998 as brought about by the 2010 Amending Act.
Overview The 2010 Amending Act will impact on various aspects of the current workers compensation legislation, as discussed below. As indicated in the Explanatory Note to the Bill, the main purpose of the amending legislation was to extend the Commission’s jurisdiction in relation to disputes about medical treatment and services, to limit the matters that can be dealt with on appeal, and to restrict the circumstances in which new evidence can be relied upon in appeal proceedings. Some specific amendments are summarised below:
1. Appeal against the decision of an Arbitrator An Appeal is not a review or a rehearing. Rather, an Appeal is limited to determining ‘whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error’: Section 352(5) WIM Act 1998.
Whilst an Appeal stays the operation of the decision for which the Appeal was lodged, the Appeal does not affect the operation of the original decision in relation to the provision of weekly benefits which remain payable despite any Appeal: Section 352 (5A) WIM Act 1998.
The amendments to Section 352(8) of the WIM Act 1998 also remove the previous restrictions placed on appeals against interlocutory decisions.
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The 2010 Amending Act (Workers Compensation Legislation Amendment Act 2010) by Stephanie Wigan
2. Appeal against a Medical Assessment Certificate Any Review to be undertaken by an Appeal Panel is now limited to the grounds of Appeal as raised by the Appellant: Section 328(2) WIM Act 1998. The admission of ‘fresh evidence’ to be considered on an Appeal against a Medical Assessment Certificate will only be accepted if the additional information ‘was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment’: Section 327(3)(b) WIM Act 1998. Furthermore, as an alternative to an Appeal, the Registrar may refer a worker for a further medical assessment under Section 329: Section 327(6) WIM Act 1998. 3. Reconsideration of decisions of the Registrar or an Appeal Panel A Reconsideration must be completed within 2 months after the Application for Reconsideration is received: Section 378(4) WIM Act 1998. Under Section 378(2) of the WIM Act 1998, if the Registrar is satisfied that there has been ‘an obvious error’ in the text of a decision, the Registrar may alter the text so as to correct the error. Similarly, if an Appeal Panel is satisfied that a Medical Assessment Certificate or a Panel decision contains ‘an obvious error’, the Panel has the power to correct the error and issue a replacement Medical Assessment Certificate, if necessary. The replacement Certificate is to prevail over the previous Certificate: Section 378(3) WIM Act 1998. 4. Section 40 Weekly Benefits Section 40 of the WCA 1987 has been amended to specify that the ‘maximum statutory cap’ for weekly benefits in respect of a partial incapacity relates solely to the amount of weekly benefits compensation paid, and not to the combined total of a worker’s earnings (wages or salary) and weekly benefits entitlement: Sections 40(2) and 40(2A) WCA 1987. Accordingly, Section 40 now stipulates that the maximum statutory cap relates solely to the make-up pay component of a worker’s income. 5. Section 60 Medical Expenses Section 60(5) of the WCA 1987 has been inserted to include ‘any proposed’ future medical treatment or service and the compensation payable in respect of any such proposed treatment or service, within the Commission’s jurisdiction for determining a dispute about medical expenses. Furthermore, Section 289(2A) of the WIM Act 1998 now specifies that a dispute regarding whether a proposed treatment or service is reasonably necessary can be referred to the Commission. 6. Common Law Recovery Section 280B of the WIM Act 1998 now specifies that an injured worker cannot recover common law damages from an employer until lump sum compensation in respect of permanent impairment and pain and suffering has been paid. However, this section does not prevent a worker making a claim for common law damages before being paid compensation for permanent impairment and pain and suffering: Section 280B(2) WIM Act 1998. 7. Retirement Age Section 151IA of the WCA 1987 no longer specifies the retirement age as being at 65 years, and instead now refers to ‘pension age (as defined in the Social Security Act 1991 of the Commonwealth for persons other than veterans)’.
Conclusion We will monitor the interpretation of the changes brought about by the 2010 Amending Act, and will advise our clients of any decisions by the Commission in respect of the changes.
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The 2010 Amending Act (Workers Compensation Legislation Amendment Act 2010) by Stephanie Wigan
For more information, please contact: Stephanie Wigan Lawyer T: 02 8257 5707 stephanie.wigan@turkslegal.com.au
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