Western Australia
Workers’ Compensation and Injury Management Act 1981
Western Australia
Workers’ Compensation and Injury Management Act 1981
CONTENTS
Part I — Preliminary
1. Short title 2
2. Commencement 2
3. Purposes 2
4. General application 3
5. Definitions 5
5A. Indexation of certain amounts 19
Part II — Application of this Act in respect of certain persons and bodies
6. Local governments and other authorities 20
7. Tributers 20
8. Baptist clergymen 20
9. Anglican clergy 20
10. Other clergymen 21
10A. Working directors 21
11. Exclusion of certain persons who are contestants in sporting or athletic activities 23
11A. Jockeys 23
12. Compensation not payable in certain cases 24
13. Continued operation of this Act where compensation previously paid 24
14. Application to worker in employment of Crown 25
16. Act to apply as to injury to persons employed on Western Australian ships 25
17. Crew of fishing vessel 27
Part III — Compensation
Division 1 — Injury: general
18. Liability of employers to workers for injuries 28
19. Personal injury by accident arising out of or in course of employment 28
20. Compensation not payable unless worker’s employment connected with this State 29
21. Compensation from date of incapacity 31
22. Serious and wilful misconduct 31
23. Person not to be compensated twice 32
Division 1a — Determination by courts and recognition of determination
23A. Definition 32
23B. Determination of State with which worker’s employment is connected in proceedings under this Act33
23C. Determination by the District Court of State with which worker’s employment is connected33
23D. Recognition of previous determinations 33
23E. Determination may be made by consent 34
Division 2 — Discontinued regime for lump sum payments for specified injuries
24. Compensation for injuries mentioned in Schedule 2 34
24A. Lump sum compensation for noise induced hearing loss 35
24B. Election under section 24 or 24A 37
25. “Loss of ” 38
26. Subsequent injuries 38
27. Compensation in accordance with table at date of accident 39
28. Limit on compensation of worker electing 39
29. Compensation while incapacity continues 40
30. Compensation payable before election 40
31. Schedule 2 interpretation 41
Division 2A — New regime for lump sum payments for specified injuries
31A. Application of Division 41
31B. Degree of permanent impairment 42
31C. Compensation for impairments mentioned in Schedule 2 42
31D. Schedule 2 impairment assessment 43
31E. Lump sum compensation for noise induced hearing loss 44
31F. Lump sum compensation for AIDS 45
31G. Subsequent injuries 47
31H. Election under section 31C or 31E 48
31I. Effect of election 49
31J. Limit on compensation of worker electing 50
31K. Compensation payable before election 50
Division 3 — Injury: specified industrial diseases
32. Compensation of worker dying from or affected by certain industrial diseases (Schedule 3)50
33. Pneumoconiosis, mesothelioma or lung cancer 51
34. Worker suffering from chronic bronchitis and pneumoconiosis 52
35. Worker suffering from lung cancer and pneumoconiosis 52
36. Reference to medical panel 52
37. Oral submission by medical practitioner 53
38. Questions for determination by a medical panel 54
39. Worker disabled by tuberculosis and pneumoconiosis 55
40. Interpretation of this Division in cases of death without prior incapacity 55
41. Last employer liable but may join others 56
42. Relevant earnings 57
43. Employer to whom notice to be given 57
44. Disease deemed due to nature of employment 57
45. Additions to Schedule 3 57
46. Compensation limited to prescribed amount 58
47. Certain workers not to benefit 59
48. Notification of disease 60
Division 4 — Injury: specified losses of functions
49. Injury occurs when loss of function renders worker less able to earn full wages 61
51. Compensation recoverable from last employer 61
52. How compensation calculated 62
53. Employer to whom notice given 62
54. Loss of function deemed due to nature of employment 62
55. Additions to Schedule 4 63
Division 5 — Commencement, review, suspension, and cessation of payments
56. Entitlement to weekly payments ceasing on account of age 63
57. Saving as to expenses 64
57A. Claims procedure — insured employer 64
57B. Claims procedure — self‑insurer or uninsured employer 67
57BA. Notices under sections 57A and 57B 69
57C. Notification to Commission 71
57D. Confidentiality 73
58. Arbitrator may determine liability 73
59. Information as to remunerated work 75
60. Application for discontinuance or reduction of weekly payments 77
61. Unlawful discontinuance of weekly payments 78
62. Review of weekly payments 81
63. No compensation during suspension 81
64. Medical examination 81
65. Periodical medical examination 82
66. Regulations as to medical examination 82
66A. Additional medical examinations 82
67. Lump sum in redemption of weekly payments 83
68. Calculation of lump sum 84
69. Worker not residing in the State 85
70. Furnishing medical reports 85
71. Recovery of payments 86
72. Suspension of payments during custody 86
72A. Suspension or cessation of payments for failure to undergo medical examination 87
72B. Suspension or cessation of payments for failure to participate in return to work program 88
Division 6 — Disputes between employers
73. Worker entitled but dispute between employers 89
74. Dispute between insurers 90
74A. Apportionment under sections 73 and 74 91
75. Obligation to make weekly payments preserved 91
Division 7 — Agreements
76. Registration of memorandum of agreement 92
77. Registration obligatory 95
78. Effect of non‑registration of agreement 95
Division 8 — Other matters affecting compensation
79. Wilful and false representation 95
80. Effect on annual leave, long service leave and sick leave 96
81. Effect on public holidays pay 97
82. Recovery of cost of services rendered 97
83. Industrial award and partial incapacity 97
84. Worker not to be prejudiced by resuming work 98
84AA. Employer to keep position available during worker’s incapacity 98
84AB. Employer to notify worker and WorkCover WA of intention to dismiss worker 99
Part IV — Civil proceedings in addition to or independent of this Act
Division 1 — General
85. Saving — motor vehicle cases 101
86. Saving — independent liability 101
87. Costs between solicitor and client in common law actions 101
91. Where action brought for injury for which compensation is payable under this Act 102
92. Both damages and compensation not recoverable 102
93. Remedies against stranger 105
Division 1a — Choice of law
93AA. The applicable substantive law for work injury claims 107
93AB. Claims to which Division applies 108
93AC. What constitutes injury and employment 108
93AD. Claim in respect of death included 109
93AE. Meaning of “substantive law” 109
93AF. Availability of action in another State not relevant 110
Division 2 — Constraints on awards of common law damages
Subdivision 1 — Preliminary provisions
93A. Definitions for this Division 111
93B. Application of this Division 111
93C. Limit on powers of courts 112
Subdivision 2 — 1993 scheme
93CA. Meaning of “AMA Guides” in this Subdivision 112
93CB. Limits on application of this Subdivision 113
93CC. Application of this Subdivision 113
93D. Assessment of disability 114
93E. Restrictions on awarding of damages and payment of compensation 117
93EA. Referring questions with fresh evidence in particular cases120
93EB. Referring questions in certain other cases 122
93EC. Extended time for commencing proceedings 124
93F. Restrictions on awarding and amount of damages if disability less than 30% 125
93G. Regulations 127
Subdivision 3 — 2004 scheme
93H. Terms used in this Subdivision 128
93I. Application of this Subdivision 128
93J. No damages for noise induced hearing loss if not an injury129
93K. Restrictions on awarding, and amount of, damages 129
93L. Election to retain right to seek damages 132
93M. Termination day 133
93N. Special evaluation if condition has not sufficiently stabilised136
93O. Employer to give worker notice of certain things 137
93P. How election may affect statutory compensation 137
93Q. Special provisions about HIV and AIDS 139
93R. Special provisions about specified industrial diseases 140
93S. Regulations 141
Part V — WorkCover Western Australia Authority
Division 1 — Constitution, purposes, and powers
94. WorkCover Western Australia Authority 142
95. WorkCover WA’s governing body 143
96. Term of office 145
97. Meetings 146
98. Defects not to invalidate proceedings 147
99. Conditions of appointment 147
100. Functions of WorkCover WA 147
100A. Advisory committees 149
100B. Disclosure of information 150
101. Powers 151
101AA. Delegation by WorkCover WA 152
101A. Borrowings by WorkCover WA 152
101B. Guarantees of borrowings 153
102. Limitation on powers 154
103A. Returns 154
104. Publishing and furnishing information 155
Division 1AA — Personal interest
104AA. Disclosure of interests 155
104AB. Exclusion of interested member 155
104AC. Resolution that section 104AB inapplicable 156
104AD. Quorum where section 104AB applies 156
104AE. Minister may declare sections 104AB and 104AD inapplicable 156
Division 2 — Accounts and audit
105. Application of Financial Management Act 2006 and Auditor General Act 2006 157
Division 3 — Workers’ Compensation and Injury Management General Fund
106. General Account 157
107. Estimates 158
108. Total contributions 159
109. Contributions to General Account by insurers 160
Division 4 — Workers’ Compensation and Injury Management Trust Fund
110. Trust Account 163
Division 5 — Ministerial control
111. Minister may give directions 164
111A. Minister to have access to information 165
Part VII — Medical assessment and assessment for specialised retraining programs
Division 1 — Medical assessment panels
145. Exclusion 167
145A. Questions that have to be referred 167
145B. Register for panel membership 168
145C. Panel to be constituted 168
145D. Procedures 169
145E. Determinations 170
145F. Review 171
145G. Remuneration 172
Division 2 — Assessing degree of impairment
146. Degree of impairment 172
146A. Evaluation of impairment generally 173
146B. Evaluation for the purposes of Part III Division 2A 174
146C. Evaluation for purposes of Part IV Division 2 Subdivision 3174
146D. Evaluation for the purposes of Part IXA 175
146E. Evaluation for the purposes of clause 18A 175
146F. Approved medical specialist 176
146G. Powers of approved medical specialist 177
146H. Outcome of assessment 178
146I. Release of information relevant to assessment 180
146J. Decisions of approved medical specialist 180
Division 3 — Approved medical specialist panels
146K. Panel to be constituted 180
146L. Procedures 181
146M. Failure to comply with requirement of approved medical specialist panel 182
146N. Assessment of impairment by approved medical specialist panel 183
146O. Outcome of assessment by approved medical specialist panel 183
146P. No assessment without unanimous agreement 185
146Q. Remuneration 185
Division 4 — WorkCover Guides
146R. WorkCover Guides 185
Division 5 — Assessment for specialised retraining programs
146S. Register for panel membership 186
146T. Panel to be constituted 186
146U. Procedures 187
146V. Assessments 188
146W. Remuneration 189
Part VIII — Premium rates
151. Fixing premiums 191
151A. Report as to rates 192
152. Loading not to exceed 100% unless permitted by WorkCover WA 192
153. Fixing maximum loading or discount 192
153A. Minimum premiums 193
154. Appeals 193
154A. Regulations for provision of information 194
154AB. Special directions by Minister 195
154AC. Regulations for subsidy from Supplementation Fund 195
Part IX — Injury management
155. Terms used in this Part 196
155A. Code of practice (injury management) 196
155B. Establishment of injury management systems for employer’s workers 197
155C. Establishment of return to work programs for individual workers 197
155D. Injury management: insurers’ obligations 198
156. Approval of vocational rehabilitation providers 199
156A. Vocational rehabilitation services 200
156B. Arbitrators’ powers in relation to return to work programs200
157. Information about injury management matters 201
157A. Early identification of injuries that require, or may require, management 201
157B. Mediation and assistance 203
Part IXA — Specialised retraining programs
158. Meaning of “retraining criteria” 204
158A. Eligibility to participate in specialised retraining programs 205
158B. Final day for recording agreed matters, referring disputed matters for determination 206
158C. Disputes as to degree of permanent whole of person impairment 208
158D. Disputes as to retraining criteria 209
158E. Specialised retraining program agreements 210
158F. WorkCover WA to direct payments in relation to specialised retraining programs 211
158G. Obligations of employers, insurers 213
158H. 3 monthly reviews of performance, payments under specialised retraining programs 214
158I. WorkCover WA may direct modification, suspension, cessation of payments under specialised retraining programs214
158J. Cessation of payments 215
158K. Directions not open to challenge etc. 215
158L. Other effects of participation in specialised retraining program 215
Part X — Insurance
Division 1 — Liability of employers and insurers
160. Employer to obtain insurance 217
160A. Insurance in respect of working directors 220
161A. Penalty — issue or renewal of policy without approval 220
161. Approvals 221
162. The State Government Insurance Commission sole insurer against certain industrial diseases222
163. Payment of industrial disease premium and issue of policy223
164. Exempt employer 223
165. Review of exemptions 224
166. Other cancellations 226
167. Effect of cessation of exemption 226
168. Cessation of exemption 226
169. Forms of policy 227
170. Penalty — uninsured worker 227
171. Insurance offices to furnish certain statements 230
172. WorkCover WA may pass on certain information to insurer232
173. Worker’s rights against insurer 232
174. Payment to worker from General Account 233
174AA. Recovery from responsible officers of body corporate 235
174AB. WorkCover WA may exercise rights of employer 236
174AC. WorkCover WA’s right of subrogation 237
174A. Insurer may not refuse to indemnify in certain circumstances238
Division 2 — Insurance by principals, contractors, and sub‑contractors
175. Principal contractor and sub‑contractor deemed employers238
175AA. Certain persons deemed workers 240
Division 3 — Inspectors
175A. Authorisation 242
175B. Powers 243
175C. Interpreters 245
175D. Offences 245
Part XA — Infringement notices and modified penalties
175E. Definitions 247
175F. Authorised officers 247
175G. Giving of notice 248
175H. Content of notice 248
175I. Extension of time 249
175J. Withdrawal of notice 249
175K. Benefit of paying modified penalty 249
175L. No admission implied by payment 249
175M. Application of penalties collected 250
Part XI — Dispute resolution
Division 1 — General
176. Exclusive jurisdiction 251
177. Evidence of communication between worker and injury management officer 251
Division 2 — Requirements before commencing proceeding
178. Notice of injury and claim 252
179. Service of notice of injury 253
180. Provision of certain documents before commencement of proceeding 254
Division 3 — Proceedings before an arbitrator
181. Arbitrators to determine disputes 256
182. Who is to be given a copy of an application 257
183. Information exchange between parties 257
184. Interim assessment and minor claims 259
185. Arbitrator to attempt conciliation 259
186. Arbitrator may review decision 260
187. Decisions of arbitrator 260
Division 4 — Practice and procedure
188. Practice and procedure, generally 261
189. Relief or redress not restricted to claim 262
190. Directions 262
191. Dependants 262
192. Arbitrator may regard illegal contracts of employment as valid 262
193. Power of arbitrator to require information 263
194. Arbitrator may provide documents, material and information to party 264
195. Representation 265
196. Arbitrator may appoint guardian 265
197. Interpreters and assistants 266
198. Electronic hearings and proceedings without hearings 266
199. Hearings to be held in private 267
200. Notice of hearings 267
201. Expert or professional assistance 268
202. Summoning witnesses 268
203. Powers relating to witnesses 268
204. Privilege against self‑incrimination 269
205. Legal professional privilege in relation to medical reports 269
206. Other claims of privilege 270
207. Oaths and affirmations 270
208. Authorising person to take evidence 270
209. Dealing with things produced 271
210. Referral of medical dispute for assessment 271
Division 5 — Decisions
Subdivision 1 — General provisions
211. Decisions generally 272
212. Conditional and ancillary orders and directions 273
213. Form and content of decision and reasons 273
214. Validity of decision 274
215. When decision has effect 274
216. Correcting mistakes 274
Subdivision 2 — Particular orders
217. Order as to total liability 275
218. Order relating to payment of compensation in respect of persons under legal disability or who are dependants276
Subdivision 3 — Enforcement of decisions
219. Enforcement of decisions 277
Division 6 — Miscellaneous
220. Evidence not admissible in common law proceedings 278
221. Payment of compensation awarded 278
222. Interest before order for payment 278
223. Interest after order for payment 279
224. Interest on agreed payment of lump sum compensation 279
225. Regulations may exclude interest 280
Part XII — Interim orders and minor claims
Division 1 — Preliminary
226. Interpretation 281
227. Exercise of functions under this Part 281
228. Provisions of Part XI apply 281
229. Arbitrator may direct that matter be dealt with under Part XI282
230. DRD Rules apply 282
Division 2 — Interim payment orders
231. Application for interim payment order 282
232. Orders for interim weekly payments 283
233. Orders for interim payment of statutory expenses 284
234. Limits on interim payment orders 285
235. Effect of interim payment order 285
236. Recovery of payments 286
237. Revocation of interim payment order 286
Division 3 — Interim suspension or reduction orders
238. Interim suspension or reduction order 287
239. Effect of Part XI determination on the same matter as a matter determined under this Division288
240. Revocation of interim suspension or reduction order 289
Division 4 — Expedited determination of minor claims
241. Application for determination of minor claim 290
242. Limits on minor claims orders 292
243. No recovery of compensation 292
244. Production of documents 292
Part XIII — Questions of law and appeals
245. Application of Part XI 293
246. Reference of question of law to Commissioner 293
247. Appeal against decision of arbitrator 294
248. Commencing appeal 295
249. Commissioner hearing to be held in public 295
250. Effect of decision against which appeal made 296
251. Commissioner may state case 296
252. Indemnity as to costs 297
253. Decisions of Commissioner 297
254. Appeal against decision of Commissioner 297
Part XIV — Offences
255. Failing to comply with decision 299
256. Failing to comply with summons 300
257. Failing to give evidence as required 300
258. Giving false or misleading information 300
259. Misbehaviour and other conduct 300
260. Contempt of Commissioner 301
Part XV — Costs
Division 1 — General
261. Terms used in this Part 302
262. Costs to which this Part applies 303
263. This Part prevails over Legal Practice Act 2003 303
Division 2 — Costs of parties in proceedings and costs of proceedings
264. Costs to be determined by dispute resolution authority 303
265. Costs unreasonably incurred by representative 304
266. Agent’s costs 305
267. Appeal costs 305
268. Regulations for assessment of costs 305
Division 3 — Maximum costs
269. Costs Committee 306
270. Constitution and procedure of Costs Committee 307
271. Costs determination 307
272. Consultation 308
273. Approval and publication of determination 308
274. Effect of costs determination 309
275. Agreement as to costs 309
276. Division does not apply to Part IV proceedings 309
Part XVI — Registered agents
277. Who may register as an agent 310
Part XVII — The Dispute Resolution Directorate
Division 1 — Establishment and objectives
278. DRD established 312
279. Main objectives of the DRD 312
280. DRD’s constitution 313
Division 2 — Commissioner
281. Appointment of Commissioner 313
282. Terms and conditions of service 313
283. Declaration of inability to act 313
284. Acting appointment 314
285. Functions of Commissioner 315
Division 3 — Arbitrators
286. Arbitrators 315
287. Control and direction of arbitrators 316
Division 4 — Director Dispute Resolution and staff
288. Director Dispute Resolution 316
289. Functions and responsibilities of Director 316
290. Delegation by Director 317
291. Staff of DRD 317
Part XVIII — Regulations, rules and practice notes
292. Regulations 318
293. DRD Rules 320
294. Practice notes 322
Part XIX — Miscellaneous
295. Public Service 323
296. Delegation by chief executive officer 323
297. Agreements and receipts under this Act exempt from stamp duty 324
298. Order for detention of ship 324
299. Judicial notice 325
300. District Court to provide information to WorkCover WA 326
301. Prohibition of contracting out 326
302. Deductions towards compensation not lawful 326
303. Payments not assignable 327
303A. Making employment conditional on avoidance arrangement327
304. Protection from liability 328
305. Immunity 328
306. Protection for compliance with this Act 329
307. Proceedings for defamation not to lie 330
308. Fraud 330
309. Who can take proceedings for offences 330
310. Time limit for taking proceedings 331
311. General penalty 331
312. Fines 331
313. Penalties not affected 331
314. WorkCover WA may specify alternative form of sending information 331
315. Publication of prescribed amount and average weekly earnings 332
Part XX — Repeal, savings, and transitional
316. Definitions 333
317. Repeal 333
318. Operation of Interpretation Act 1918 333
319. No renewal of liability or entitlement 334
320. Moneys paid under repealed Act taken into account 334
321. Compensation for injuries mentioned in Schedule 2 334
322. Child’s allowance 335
323. Continuation 335
324. References to the Board, the Supplementary Board or officers 337
Schedule 1 — Compensation entitlements
1. Death — dependants wholly dependent — notional residual entitlement 340
1A. Death — dependants wholly dependent — child’s allowance341
1B. Death — dependants wholly dependent — notional residual entitlement or child’s allowance341
1C. Determination of entitlement under clause 1B 343
2. Death — partial dependants who are not children 344
3. Death — partial dependants who are children 344
4. Death — no dependant 345
5. Death — where not resulting from the injury but weekly payments had been made 345
7. Amount of compensation in case of total or partial incapacity346
8. Deemed total incapacity 347
9. No incapacity — medical expenses 348
10. Absence from work for medical attendance 348
11. Weekly earnings 348
12. Part‑time worker 352
13. Concurrent contracts 352
14. Casual or seasonal worker 353
15. Board and lodging 353
16. Variation of weekly payments 353
17. Payment of medical and other expenses 354
18. Hospital charges 356
18A. Payment of additional expenses 356
18B. Final day for clause 18A(1b) application 359
18C. Dispute as to degree of permanent whole of person impairment 361
18D. Interim payment of additional expenses 361
19. Travelling 362
Schedule 2 — Table of compensation payable
Part 1
Part 2
Schedule 3 — Specified industrial diseases
Schedule 4 — Specified losses of functions
Schedule 5 — Exceptions to cessation of weekly payments by reason of age
1. Definitions 373
1A. Successive lung diseases to be regarded as one 374
2. Incapacity for work resulting from injuries other than pneumoconiosis, mesothelioma and lung cancer374
3. Incapacity for work resulting from injuries of pneumoconiosis, mesothelioma and lung cancer — weekly payments374
4. Election to take redemption amount as lump sum or supplementary amount weekly 377
5. Requirements for election under clause 4 378
6. Effect of receiving the redemption amount as a lump sum 379
7. Effect of receiving supplementary amount 379
8. Payment of supplementary amount 380
9. Death of a worker prior to commencement of section 49 of Workers’ Compensation and Assistance Amendment Act 1990381
Schedule 6 — Adjacent areas
1. Terms used in this Schedule 382
2. Adjacent areas 382
Schedule 7 — Noise induced hearing loss
1. Definitions 384
2. Audiometric tests 384
3. Employer to arrange and pay for audiometric test 385
4. Carrying out of audiometric tests 385
5. Communication and storage of audiometric test results 386
6. Reference to medical assessment panel 386
7. Re‑test of person’s hearing 387
8. Determination of hearing loss 387
9. Audiometric test not conclusive proof that hearing loss is noise induced 388
10. Prescribed workplaces 388
Schedule 8 — Terms and conditions of service of Commissioner
1. Tenure of Commissioner’s office 389
2. Vacating office prematurely 389
3. Commissioner’s status as District Court Judge 389
4. Completion of matters 390
Notes
Compilation table 391
Provisions that have not come into operation 398
Western Australia
Workers’ Compensation and Injury Management Act 1981
An Act to amend and consolidate the law relating to compensation for, and the management of, employment‑related injuries, to provide for the WorkCover Western Australia Authority and a Dispute Resolution Directorate, and for related purposes.
[Long title amended by No. 96 of 1990 s. 4; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 4.]
Part I — Preliminary
1. Short title
This Act may be cited as the Workers’ Compensation and Injury Management Act 1981 1.
[Section 1 amended by No. 96 of 1990 s. 5; No. 42 of 2004 s. 5.]
2. Commencement
The provisions of this Act shall come into operation on such day or days as is or are, respectively, fixed by proclamation1.
3. Purposes
The purposes of this Act are —
(a) to make provision for the compensation of —
(i) workers who suffer an injury; and
(ii) certain dependants of those workers where the death of the worker results from such an injury;
(b) to make provision for the management of workers’ injuries in a manner that is directed at enabling injured workers to return to work;
(ba) to make provision for specialised retraining programs for certain injured workers;
(c) to promote safety measures in and in respect of employment aimed at preventing or minimising occurrences of injuries; and
(d) to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers’ compensation matters in a manner that is fair, just, economical, informal and quick.
[Section 3 amended by No. 72 of 1992 s. 4; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 6, 146 and 148(1).]
4. General application
(1) In this section “proclaimed date” means the date on which this section comes into operation 1.
(2) This Act —
(a) applies to and in respect of —
(i) liability and the extent of liability to pay compensation and to pay for the provision of other benefits;
(ii) the requirement to obtain and keep current a policy of insurance for the full amount of that liability; and
(iii) entitlement and the extent of entitlement to receive compensation and other benefits,
in relation to injury or death, as set out in the following cases —
(iv) for incapacity occurring, or continuing to occur, on or after the proclaimed date, whether the injury from which the incapacity resulted occurred or first occurred before, on, or after that date, but in the case of an injury which occurred before that date, only if that injury was, or was deemed to be, a compensable injury under the repealed Act;
(v) for injuries and impairments from injury mentioned in Schedule 2, whether the date of the accident whereby that injury was caused to the worker occurred before, on, or after that date, but in the case of an accident which occurred before that date only if that injury was an injury under the Second Schedule of the repealed Act;
(vi) for death which occurs on or after the proclaimed date, where death resulted from an injury which occurred or first occurred before, on, or after the proclaimed date, but in the case of an injury which occurred before that date only if that injury was, or was deemed to be, a compensable injury under the repealed Act;
(vii) for death which occurs on or after the proclaimed date, where death did not result from the injury but for the purposes of clause 5 the period of 6 months referred to in that clause commenced before, on, or after that date;
(viii) for weekly amounts payable to children in respect of periods on and after the proclaimed date for death which occurred before, on, or after that date;
(ix) for such expenses as are provided for in clauses 4, 9, 17, 18, and 19, incurred on and after the proclaimed date, and for amounts payable under clause 10 for absences from work, on or after the proclaimed date whether the events or circumstances giving rise to those expenses or absences from work occurred or first occurred before, on, or after the proclaimed date, but in the case of events or circumstances which occurred before that date only if they would have given rise to payment of those expenses or for absences from work under the repealed Act;
(b) applies to and in respect of the injury management of a worker under Part IX, whether the injury referred to in that Part occurred or first occurred before, on, or after the proclaimed date; and
(c) applies to and in respect of the exercise of functions and powers and the performance of duties in relation, and incidental, to the matters referred to in paragraphs (a) and (b).
[Section 4 amended by No. 42 of 2004 s. 7, 146 and 147.]
5. Definitions
(1) In this Act, unless the contrary intention appears —
“approved insurance office” means an insurance office approved under section 161;
“approved medical specialist” means a person for the time being designated under section 146F as an approved medical specialist;
“approved medical specialist panel” means an approved medical specialist panel constituted under Part VII Division 3;
“approved treatment” means occupational therapy, clinical psychology, speech therapy and any treatment of a kind approved by the Minister for the purposes of this definition by notice published in the Gazette;
“approved vocational rehabilitation provider” means a person approved under section 156 as a vocational rehabilitation provider;
“arbitrator” means an officer of WorkCover WA approved under section 286(2) as an arbitrator;
“chief executive officer” means the person appointed under the Public Sector Management Act 1994 to the office of chief executive officer of WorkCover WA and includes a person appointed to act in the place and during the absence of the chief executive officer while that person is so acting;
“child’s allowance” means —
(a) for the financial year ending on 30 June 1982, the amount of $15.37;
(b) for any financial year ending after 30 June 1982 but before 1 July 1985, the amount obtained by varying the child’s allowance for the preceding financial year by the percentage by which the minimum award rate varies between the second‑last 1 April before the financial year commences and the last 31 March before the financial year commences; and
(c) for any subsequent financial year, the nearest multiple of 10 cents to the amount obtained by varying the child’s allowance for the preceding financial year by the percentage by which the minimum award rate varies between the second‑last 1 April before the financial year commences and the last 31 March before the financial year commences, or if the relevant minimum award rates are not published, the amount obtained by varying the child’s allowance for the preceding financial year in accordance with the regulations (with an amount that is 5 cents more than a multiple of 10 cents being rounded off to the next highest multiple of 10 cents);
“chiropractor” means a person who is resident in this State and is registered as a chiropractor under the Chiropractors Act 2005;
“clause” means —
(a) where the term is used in or in respect of a particular Schedule, a clause in that Schedule; and
(b) otherwise, a clause of Schedule 1;
“Commissioner” means the Commissioner appointed under section 281;
“company” means a company or a registered body within the meaning of the Corporations Act 2001 of the Commonwealth, other than a registered body specified, or of a kind specified, in the regulations;
“contract of insurance” includes a cover note;
“decision” includes an order, award, direction or determination;
“de facto partner” in relation to compensation payable in respect of the death of a worker means —
(a) a person who, immediately before the death of the worker, was living in a de facto relationship with the worker and had been living on that basis with that worker for at least the previous 2 years; and
(b) any former de facto partner of the worker if the worker was legally obliged immediately before the death of the worker to make provision for that former de facto partner with respect to financial matters;
“dentist” means —
(a) a person who is resident in a State or Territory of the Commonwealth and is entitled to practise as a dentist in accordance with the laws of that State or Territory; or
(b) a person who is not resident in a State or Territory of the Commonwealth but who is recognised as a dentist for the purposes of this Act by WorkCover WA;
“dependants” means such members of the worker’s family as were wholly or in part dependent upon the earnings of the worker at the time of his death, or would, but for the injury, have been so dependent;
“Director” means the officer of WorkCover WA approved under section 288(2) as the Director Dispute Resolution;
“disease” includes any physical or mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development;
“dispute resolution authority” means the Director, an arbitrator or the Commissioner;
“District Court” means The District Court of Western Australia established under the District Court of Western Australia Act 1969;
“Division” means a Division of the Part wherein the term is used;
“DRD” means the Dispute Resolution Directorate established under section 278;
“DRD Rules” means the rules made under section 293;
“drug of addiction” means drug of addiction as defined by section 5 of the Poisons Act 1964;
“earnings” includes weekly payments of compensation under this Act;
“employer” includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer, and, where the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of employment the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the worker whilst he is working for that other person;
the term “employer” shall extend to any person for or by whom any worker, as defined in paragraph (a) or (b) of the definition of “worker”, works or is engaged; and
“employer” in relation to liability to pay compensation for or in respect of an injury to a worker, means the employer in the relevant employment;
“estimate” means the estimate prepared and approved as provided by section 107(1);
“General Account” means the Workers’ Compensation and Injury Management General Account established under this Act;
“industrial agreement” means an agreement which wholly or partially regulates the terms or conditions of employment;
“industrial award” means —
(a) an award or order (including an enterprise order or General Order) made by The Western Australian Industrial Relations Commission under the Industrial Relations Act 1979;
(b) an industrial agreement as defined in the Industrial Relations Act 1979;
(c) an award under the Coal Industry Tribunal of Western Australia Act 1992; or
(d) an award or certified agreement, as those terms are defined in the Workplace Relations Act 1996 of the Commonwealth,
as the relevant employment requires;
“industrial disease premium” means the additional industrial disease premium fixed pursuant to section 151(a)(iii);
“injury” means —
(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions;
(b) a disease because of which an injury occurs under section 32 or 33;
(c) a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree;
(d) the recurrence, aggravation, or acceleration of any pre‑existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree; or
(e) a loss of function that occurs in the circumstances mentioned in section 49,
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer;
“injury management” means the management of workers’ injuries in a manner that is directed at enabling injured workers to return to work;
“inspector” means a person authorised as an inspector under section 175A(1);
“medical assessment panel” means a medical assessment panel constituted under Part VII Division 1;
“medical practitioner” means —
(a) a person who is resident in a State or Territory of the Commonwealth and is entitled to practise as a medical practitioner in accordance with the laws of that State or Territory; or
(b) a person who is not resident in a State or Territory of the Commonwealth but who is recognised as a medical practitioner for the purposes of this Act by WorkCover WA;
“medical report” includes a medical opinion;
“member of a family” means spouse, de facto partner, parent, grandparent, step‑parent; any person who stands in the place of a parent to another person and also that other person, son, daughter, ex‑nuptial son, ex‑nuptial daughter, grandson, grand‑daughter, step‑son, step‑daughter (whether the step‑son or step‑daughter is legally adopted by the worker or not), brother, sister, half‑brother, half‑sister; and with respect to an ex‑nuptial worker includes the worker’s parents, and his brothers and sisters, whether legitimate or ex‑nuptial, who have at least one parent in common with the worker;
“mesothelioma” means primary malignant neoplasm of the mesothelium (diffuse mesothelioma) of the pleura or the peritoneum;
“mine” or “mining operation” means a mine or mining operation of a class prescribed for the purposes of this definition;
“minimum award rate” means the weighted average minimum award rate for adult males under Western Australian State Awards, as published by the Australian Statistician;
“noise induced hearing loss” means a noise induced loss or diminution of a worker’s hearing that is permanent and is due to the nature of any employment in which the worker was employed, other than a personal injury by accident;
“notional residual entitlement” in relation to a deceased worker, means a sum equal to —
(a) if section 56 or Schedule 5 clause 2 applied to any incapacity resulting from the relevant injury, the aggregate of weekly payments for total incapacity of the worker at a rate calculated and varied in accordance with Schedule 1 as at the date of his death, for a period from that date up to the date when weekly payments of compensation would have ceased by reason of age, less the amount of any lump sum paid in redemption of weekly payments and the amount of any sum paid under Schedule 2, for the injury or impairment resulting from the injury; or
(b) the NRE amount as at the date of the worker’s death, less the amount of any weekly payments made, the amount of any lump sum paid in redemption of weekly payments, and the amount of any sum paid under Schedule 2, for the injury suffered by the worker or impairment resulting from the injury,
whichever is the less;
“NRE amount” means —
(a) in relation to any financial year ending on or before 30 June 2005, the prescribed amount in relation to that financial year;
(b) in relation to the financial year ending on 30 June 2006, $200 000;
(c) in relation to any subsequent financial year, the nearest whole number of dollars to —
(i) the amount obtained by varying the NRE amount for the preceding financial year by the percentage by which the amount that the Australian Statistician published as the Wages Cost Index, ordinary time hourly rates of pay (excluding bonuses) for Western Australia (“WCI”) varied between the second‑last December quarter before the financial year commenced and the last December quarter before the financial year commenced; or
(ii) if the calculation under subparagraph (i) cannot be performed in relation to a financial year because the WCI for a relevant quarter was not published, the amount obtained by varying the NRE amount for the preceding financial year in accordance with the regulations,
with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars;
“officer of the DRD” refers to —
(a) the Director;
(b) an arbitrator; and
(c) any other officer of WorkCover WA made available under section 291;
“participate”, in relation to a return to work program established under section 155C(1), means to participate in the program in a cooperative manner including attending appointments as required under the program;
“physiotherapist” means a person who is resident in the Commonwealth or a Territory of the Commonwealth and is registered as a physiotherapist in accordance with the laws of a State or Territory of the Commonwealth;
“prescribed amount” means —
(a) in relation to the financial year ending on 30 June 2000, $119 048;
Note: This is the nearest whole number of dollars to the amount obtained by multiplying by 208 the average of the amounts that the Australian Statistician published as the all employees average weekly total earnings in Western Australia for pay periods ending in the months of May, August and November 1998 and February 1999.
(b) in relation to any subsequent financial year, the nearest whole number of dollars to —
(i) the amount obtained by varying the prescribed amount for the preceding financial year by the percentage by which the amount that the Australian Statistician published as the Wages Cost Index, ordinary time hourly rates of pay (excluding bonuses) for Western Australia (the “WCI”) varied between the second‑last December quarter before the financial year commenced and the last December quarter before the financial year commenced; or
(ii) if the calculation under subparagraph (i) cannot be performed in relation to a financial year because the WCI for a relevant quarter was not published, the amount obtained by varying the prescribed amount for the preceding financial year in accordance with the regulations,
with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars;
“registered agent” means a person registered under regulations made under section 277;
“relevant employment” means —
(a) the employment in which the personal injury by accident occurred;
(b) the last employment, during the period of one year mentioned in section 32 or, in the case of pneumoconiosis or mesothelioma, the last employment, to the nature of which the Schedule 3 disease is, or was, due;
(c) the employment in the course of which the disease was contracted and which was a contributing factor and contributed to a significant degree;
(d) the employment which contributed and contributed to a significant degree to the recurrence, aggravation, or acceleration of the pre‑existing disease; or
(e) the last employment, during the period of 3 years mentioned in section 49, to the nature of which the Schedule 4 loss of function is, or was, due,
as the case requires;
“repealed Act” means the Act repealed by section 317;
“return to work”, in relation to a worker who has suffered an injury compensable under this Act, means —
(a) the worker holding or returning to the position held by the worker immediately before the injury occurred, if it is reasonably practical for the employer who employed the worker at the time the injury occurred to provide that position to the worker; or
(b) if the position is not available, or if the worker does not have the capacity to work in that position, the worker taking a position —
(i) for which the worker is qualified; and
(ii) that the worker is capable of performing,
whether with the employer who employed the worker at the time the injury occurred, or another employer;
“self‑insurer” means employer whom, or employer belonging to a group of employers which, the Governor exempts under section 164 from the obligation to insure pursuant to this Act except for the obligation to insure against liability to pay compensation for any industrial disease of the kinds referred to in section 151(a)(iii);
“ship” means any kind of vessel used in navigation by water, however propelled or moved, and includes —
(a) a barge, lighter, or other floating vessel; and
(b) an air‑cushion vehicle, or other similar craft,
used wholly or primarily in navigation by water;
“specialised retraining assessment panel” means a specialised retraining assessment panel constituted under Part VII Division 5;
“specialised retraining program” means a program directed at enabling a worker to return to work by assisting the worker to undertake formal vocational training or study through technical or tertiary training courses of no longer than 3 years duration;
“specialist” means a medical practitioner —
(a) who is resident in the State and who is registered as a specialist under section 11A of the Medical Act 1894; or
(b) who is not resident in the State, but who is recognised as a specialist for the purposes of this Act by WorkCover WA;
“spouse” in relation to compensation payable in respect of the death of a worker, includes any former spouse of the worker if the worker was legally obliged immediately before the death of the worker to make provision for that former spouse with respect to financial matters;
“State” includes Territory;
“State Government Insurance Commission” means the State Government Insurance Commission 2 established by the Insurance Commission of Western Australia Act 1986;
“State Government Insurance Corporation” means the State Government Insurance Corporation 3 established by the Insurance Commission of Western Australia Act 1986;
“the Chairman of WorkCover WA” means the person appointed to the office of Chairman of WorkCover WA’s governing body and includes a person appointed to act in the place and during the absence of the Chairman while that person is so acting;
“tributer” means a person who works a mine under an agreement with the lessee or owner of the mine to pay or receive from the lessee or owner a portion of the percentage product taken from the mine;
“Trust Account” means the Workers’ Compensation and Injury Management Trust Account established under this Act;
“vocational rehabilitation”, in relation to a worker who has suffered an injury compensable under this Act, means the provision to the worker of prescribed services, according to the worker’s assessed needs, for the purpose of enabling the worker to return to work;
“weekly payments of compensation”, in respect of the prescribed amount, include payments made under clause 10 and weekly payments of the supplementary amount made under Schedule 5 clause 2;
“WorkCover Guides” means the directions published by WorkCover WA under section 146R;
“WorkCover WA” means the WorkCover Western Australia Authority referred to in section 94;
“worker” does not include a person whose employment is of a casual nature and is not for the purpose of the employer’s trade or business, or except as hereinafter provided in this definition a member of the police force, or except as hereinafter provided in this definition a member of the employer’s family dwelling in his house; but save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise and whether the contract is expressed or implied, is oral or in writing;
the term “worker”, save as hereinbefore provided in this definition, includes a member of the police force, who suffers an injury and dies as a result of that injury, and any member of the employer’s family dwelling in his house whose name, employment, and estimated wages are disclosed, at the time of employment and thereafter from time to time when the insurance is renewed, in writing to the insurer of the employer’s liability to pay compensation under this Act;
the term “worker” save as aforesaid, also includes —
(a) any person to whose service any industrial award or industrial agreement applies; and
(b) any person engaged by another person to work for the purpose of the other person’s trade or business under a contract with him for service, the remuneration by whatever means of the person so working being in substance for his personal manual labour or services,
and any reference to a worker who has suffered an injury shall, where the worker is dead, include a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable.
[(2) repealed]
(3) A reference in this Act to a “personal injury by accident” is a reference to an injury of a kind referred to in paragraph (a) of the definition of “injury” in subsection (1).
(4) For purposes of the definition of “injury”, the matters are as follows —
(a) the worker’s dismissal, retrenchment, demotion, discipline, transfer or redeployment;
(b) the worker’s not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c) the worker’s expectation of —
(i) a matter; or
(ii) a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
(5) In determining whether the employment contributed, or contributed to a significant degree, to the contraction, recurrence, aggravation or acceleration of a disease for purposes of the definitions of “injury” and “relevant employment”, the following shall be taken into account —
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) the likelihood of the contraction, recurrence, aggravation or acceleration of the disease occurring despite the employment;
(d) the existence of any hereditary factors in relation to the contraction, recurrence, aggravation or acceleration of the disease;
(e) matters affecting the worker’s health generally; and
(f) activities of the worker not related to the employment.
[Section 5 amended by No. 79 of 1983 s. 2; No. 44 of 1985 s. 3; No. 51 of 1986 s. 46(2); No. 85 of 1986 s. 4; No. 86 of 1986 s. 5 and 6; No. 21 of 1987 s. 3; No. 36 of 1988 s. 4; No. 96 of 1990 s. 6; No. 72 of 1992 s. 16(3); No. 48 of 1993 s. 18, 21, 28(1) and 29; No. 62 of 1994 s. 109; No. 34 of 1999 s. 4 and 32(1); No. 10 of 2001 s. 218; No. 28 of 2003 s. 214; No. 36 of 2004 s. 4; No. 42 of 2004 s. 8, 146, 147, 150 and 154(4); No. 16 of 2005 s. 30(2); No. 31 of 2005 s. 109; No. 77 of 2006 s. 17.]
5A. Indexation of certain amounts
(1) An amount that a provision of this Act describes as applying in accordance with this section is —
(a) before 1 July 1997, the amount that was prescribed for the purposes of that provision; and
(b) for a financial year commencing on or after 1 July 1997, the nearest whole number of dollars to the amount obtained by varying the amount applying at the commencement of the preceding financial year by the percentage by which the March CPI varies from the March CPI for the preceding financial year, or if the relevant index numbers are not published, the amount obtained by varying the amount applying at the commencement of the preceding financial year in accordance with the regulations (with an amount that is 50 cents more than a whole number of dollars being rounded off to the next highest whole number of dollars).
(2) In this section “March CPI”, for a financial year, means the index number for the quarter ending on the last 31 March before the financial year commences, as shown in the Consumer Price Index Numbers (All Groups Index) for Perth published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth.
[Section 5A inserted by No. 34 of 1999 s. 5.]
Part II — Application of this Act in respect of certain persons and bodies
6. Local governments and other authorities
The exercise and performance of the powers and duties of a local government or other public, or statutory authority shall, for the purposes of this Act, be treated as the trade or business of such local government or other authority.
[Section 6 amended by No. 14 of 1996 s. 4.]
7. Tributers
(1) For the purposes of this Act a tributer, and any wages man employed by the tributer, shall be deemed a worker, and the lessee or owner of the mine let on tribute shall be deemed an employer of the tributer or wages man.
(2) The earnings of the tributer shall be deemed to be equal to the ruling rate of wages for miners as prescribed for the time being by the current industrial award in force in the district in which the mine is situated.
[Section 7 amended by No. 42 of 2004 s. 9.]
8. Baptist clergymen
In this Act “worker” includes a clergyman who is recognised as an accredited minister and who is in full‑time active ministry in an affiliated Baptist Church under the constitution and by‑laws of the Baptist Union of Western Australia Incorporated and the Baptist Union of Western Australia Incorporated is, for the purposes of this Act, deemed to be the employer of such a clergyman.
9. Anglican clergy
In this Act “worker” includes a member of the clergy of the Anglican Church of Australia being a bishop, or a member of the clergy licensed by the bishop, of a diocese of the church in the State and, for the purpose of this Act, the Anglican Archbishop of Perth is deemed to be the employer.
[Section 9 inserted by No. 72 of 1992 s. 5.]
10. Other clergymen
At the request of the governing body of any other church, the Minister —
(a) may, by notice published in the Gazette, declare that in this Act “worker” includes a clergyman, as defined in the notice, of that church and, if the Minister so declares, he shall also declare, in the same notice, who is, for the purposes of this Act, deemed to be the employer of such a clergyman, and thereupon the notice shall have effect according to its terms as if they were provided in this Act; and
(b) may at any time by subsequent notice so published cancel or amend the first‑mentioned notice and thereupon the subsequent notice shall have effect according to its terms as if they were provided in this Act.
10A. Working directors
(1) In this section —
“company” means a company as defined in section 5(1) other than a public company as that term is defined in the Corporations Act 2001 of the Commonwealth;
“corporate body” has the same meaning as “company” in section 5(1);
“director” has the meaning given to that term in the Corporations Act 2001 of the Commonwealth;
“earnings” means wages, salary and other remuneration;
“working director”, in relation to a company, means a director of the company, whether or not the director would be a worker if this section did not apply —
(a) who executes work for or on behalf of the company; and
(b) whose earnings as a director of the company by whatever means are in substance for personal manual labour or services.
(2) Despite anything in section 5, a director of a corporate body is not a worker of that corporate body for the purposes of this Act unless this section makes the director a worker.
(3) A company may apply to an approved insurance office under section 160(2) on the basis that a working director of the company is a worker.
(4) If a company complies with section 160 in respect of a working director of the company on the basis that the director is a worker, then, for the purposes of this Act —
(a) the director is a worker; and
(b) the company is the employer of the director.
(5) Subsection (4) ceases to apply if the circumstances described in subsection (7) arise.
(6) If a company that is an employer is, or is one of a group of employers that is, exempt under section 164, then, for the purposes of this Act —
(a) a director of the company who is a working director is a worker; and
(b) the company is the employer of the director.
(7) If a company (other than a company that is, or is one of a group of employers that is, exempt under section 164) does not comply with section 160 on the basis that a working director of the company is a worker, then, for the purposes of this Act, the working director is not a worker.
(8) Subsection (7) does not prevent the company from applying as described in subsection (3), and subsection (7) ceases to apply if the circumstances described in subsection (4) arise.
[Section 10A inserted by No. 16 of 2005 s. 9(1) 4.]
11. Exclusion of certain persons who are contestants in sporting or athletic activities
Notwithstanding anything in section 5 and subject to section 11A, a person is deemed not to be a worker within the meaning of this Act while he is, pursuant to a contract —
(a) participating as a contestant in any sporting or athletic activity;
(b) engaged in training or preparing himself with a view to his so participating;
(ba) engaged in promotional activities in accordance with the contract pursuant to which he so participates; or
(c) engaged on any regular journey, daily, or other periodic journey, or other journey in connection with his so participating or being so engaged,
if, under that contract, he is not entitled to any remuneration other than remuneration for the doing of those things.
[Section 11 amended by No. 44 of 1985 s. 5; No. 34 of 1999 s. 7.]
11A. Jockeys
(1) Notwithstanding section 11, for the purposes of this Act “worker” includes a person licensed as a jockey under the Racing and Wagering Western Australia Act 2003 —
(a) riding a horse in any race run under the management of a racing club registered under the Racing and Wagering Western Australia Act 2003; or
(b) engaged on a racecourse in riding work, or carrying out the usual duties of a jockey, for a trainer licensed as a trainer under the Racing and Wagering Western Australia Act 2003,
and Racing and Wagering Western Australia is, for the purposes of this Act, deemed to be the employer of such a person.
(2) The earnings of a person included as a worker under subsection (1) shall be deemed to be equal to the rate of wages, including special allowances, prescribed for stable foremen under the Horse Training Industry Award 1976 as made under the Conciliation and Arbitration Act 1904 5 of the Commonwealth and amended from time to time.
[Section 11A inserted by No. 44 of 1985 s. 6; amended by No. 35 of 2003 s. 244.]
12. Compensation not payable in certain cases
(1) A person is not entitled to claim or receive compensation under this Act, in respect of an injury to or the death of a person that occurred before the coming into operation of section 3 of the Workers’ Compensation Act Amendment Act (No. 2) 1977 6 if, had that section been in force when the injury or death occurred, the person who was injured or died would not have been a worker within the meaning of this Act by reason only of the amendments made by that section.
(2) Subsection (1) does not apply to or in relation to compensation in respect of which proceedings had been commenced in the Board before 5 July 1977.
[Section 12 amended by No. 42 of 2004 s. 11, 146 and 147.]
13. Continued operation of this Act where compensation previously paid
Nothing in sections 11 or 12 in any way affects or limits the operation of this Act apart from those sections in relation to an injury to or the death of a person if any person, at any time before 28 November 1977, received compensation under the repealed Act in respect of that injury or death, and this Act continues to apply to the liability for and the right to compensation in respect of that injury or death as if those sections were not in this Act.
[Section 13 amended by No. 42 of 2004 s. 146 and 147.]
14. Application to worker in employment of Crown
(1) In this section “Crown” means Crown in right of the State.
(2) This Act applies to workers employed by or under the Crown to whom this Act would apply if the employer were a private person.
(2a) For the purposes of this Act, a person —
(a) who is not a worker referred to in subsection (2), but who holds a judicial or other statutory office; or
(b) who is a member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992,
is deemed to be a worker employed by or under the Crown.
(3) All moneys payable under this Act by or on behalf of the Crown shall be paid out of moneys to be provided by Parliament.
(4) In all claims against the Crown, whether arising out of injuries to workers employed by or under the Crown, or in respect of any other claim under this Act by any other person, proceedings may be taken and prosecuted under this Act by suit against the Attorney General as representing the Crown in his representative capacity and without imposing any personal liability upon the occupant of the office of Attorney General.
[Section 14 amended by No. 44 of 1985 s. 7; No. 40 of 1992 s. 13; No. 42 of 2004 s. 148(1).]
[15. Repealed by No. 36 of 2004 s. 5.]
16. Act to apply as to injury to persons employed on Western Australian ships
[(1) repealed]
(2) This Act applies with the following modifications in respect of an injury occurring to a worker employed on a ship where under section 20 the worker’s employment is connected with this State —
(a) the notice of injury and the claim for compensation may, except where the person injured is the master, be served on the master of the ship as if he were the employer, but where the injury occurred and incapacity commenced on board the ship it is not necessary to give notice of the injury;
(b) in the case of the death of the worker leaving no dependants, no compensation is payable if the owner of the ship is, under the Merchant Shipping Act 1894 of the United Kingdom, liable to pay the expenses of burial;
(c) where incapacity for work results from the injury, the owner of the ship may deduct from the payment due to the injured worker under this Act any expenses of maintenance which the owner of the ship is, under the Merchant Shipping Act 1894 of the United Kingdom, liable to defray and has, in fact, defrayed;
(d) any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything in section 503 7 of the Merchant Shipping Act 1894 of the United Kingdom (which relates to the limitation of a ship‑owner’s liability in certain cases of loss of life, injury, or damage), but the limitation on the owner’s liability imposed by that section shall apply to the amount recoverable by way of indemnity, under the provisions of this Act relating to remedies both against employer and stranger, as if the indemnity were damages for loss of life or injury; and
(e) section 174(2) and (3) of the Merchant Shipping Act 1894 of the United Kingdom (which relates to the recovery of wages of seamen lost with their ship), apply in respect of proceedings for the recovery of compensation by the dependants of a worker lost with his ship as they apply with respect to proceedings for the recovery of wages due to seamen and apprentices; and proceedings for the recovery of compensation are in such a case maintainable if the claim is made within 18 months of the date at which the ship is deemed to have been lost with all hands.
[Section 16 amended by No. 44 of 1985 s. 8; No. 36 of 2004 s. 6 and 16; No. 42 of 2004 s. 147 and 148(3).]
17. Crew of fishing vessel
This Act does not apply in respect of injuries occurring to such members of the crew of a fishing vessel as contribute to the cost of working that vessel, and are remunerated by shares in the profits or the gross earnings of the working of that vessel.
[Section 17 amended by No. 42 of 2004 s. 148(1).]
Part III — Compensation
Division 1 — Injury: general
[Heading inserted by No. 42 of 2004 s. 12.]
18. Liability of employers to workers for injuries
If an injury of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1.
[Section 18 amended by No. 42 of 2004 s. 146.]
19. Personal injury by accident arising out of or in course of employment
(1) Without limiting the generality of section 18, a worker shall be treated as having suffered personal injury by accident arising out of or in the course of the worker’s employment if the injury occurs —
(a) during the worker’s attendance at a place for educational purposes if —
(i) the attendance is required by the worker’s terms of employment or apprenticeship; or
(ii) the attendance is for the purpose of, or in connection with, the worker’s employment with the employer and the employer agrees to the attendance;
(b) during the attendance at a place for treatment or attendance of a kind referred to in clause 17 of Schedule 1; or
(c) during the attendance at a place for the purpose of receiving payment of compensation to which the worker is entitled under this Act.
(2) A worker shall not be treated as having suffered personal injury by accident arising out of or in the course of the worker’s employment if the worker suffers an injury —
(a) during a journey —
(i) between a place of residence of the worker and the worker’s place of employment;
(ii) between a place of residence of the worker and a place mentioned in subsection (1); or
(iii) if the worker has more than one place of residence, between those places;
or
(b) during a journey arising out of or in the course of the worker’s employment if the injury is incurred during, or after, any substantial interruption of, or substantial deviation from, the journey, made for any reason unconnected with the worker’s employment or attendance mentioned in subsection (1).
(3) In subsection (2) —
“place of residence” includes a place of temporary residence;
“substantial interruption” prima facie includes any interruption of the journey for a period of more than one hour.
[Section 19 inserted by No. 48 of 1993 s. 30.]
20. Compensation not payable unless worker’s employment connected with this State
(1) In this section —
“State”, in a geographical sense, includes a State’s relevant adjacent area as described in Schedule 6.
(2) Compensation under this Act is only payable in respect of employment that is connected with this State.
(3) The fact that a worker is outside this State when the injury occurs does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(4) A worker’s employment is connected with —
(a) the State in which the worker usually works in that employment;
(b) if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment; or
(c) if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.
(5) In the case of a worker working on a ship, if no State or no one State is identified by subsection (4), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(6) If no State is identified by subsection (4) or (if applicable) (5), a worker’s employment is connected with this State if —
(a) a worker is in this State when the injury occurs; and
(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(7) In deciding whether a worker usually works in a State, regard must be had to —
(a) the worker’s work history with the employer over the preceding period of 12 months; and
(b) the intentions of the worker and employer,
but regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
(8) Subject to subsection (7), in deciding whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers’ compensation scheme of that State the person is regarded as a worker or as working or employed in that State.
(9) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.
[Section 20 inserted by No. 36 of 2004 s. 7; amended by No. 36 of 2004 s. 17(4).]
21. Compensation from date of incapacity
An employer is liable to pay compensation under this Act from the date of incapacity resulting from the injury but clause 9 applies in any case.
[Section 21 amended by No. 42 of 2004 s. 147.]
22. Serious and wilful misconduct
If it is proved that the injury of a worker is attributable to his —
(a) voluntary consumption of alcoholic liquor or of a drug of addiction, or both, which impairs the proper functioning of his faculties;
(b) failure, without reasonable excuse, proof of which is on him, to use protective equipment, clothing, or accessories provided by his employer for the worker’s use; or
(c) other serious and wilful misconduct,
any compensation claimed in respect of that injury shall be disallowed unless the injury has serious and permanent effects or results in death.
[Section 22 amended by No. 42 of 2004 s. 13 and 147.]
23. Person not to be compensated twice
(1) Compensation under this Act is not payable in respect of anything to the extent that —
(a) compensation has been received under the laws of a place other than this State; or
(b) judgment has been obtained against the employer independently of this Act.
(2) If a person receives compensation under this Act and, for the same matter, subsequently —
(a) receives compensation under the laws of a place other than this State; or
(b) obtains judgment against the employer independently of this Act,
the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).
(3) The amount that is recoverable under subsection (2) is —
(a) the amount of compensation paid under this Act; or
(b) the amount of compensation received under the laws of a place other than this State or for which judgment was obtained independently of this Act,
whichever is less.
[Section 23 inserted by No. 36 of 2004 s. 8.]
Division 1a — Determination by courts and recognition of determination
[Heading inserted by No. 36 of 2004 s. 9.]
23A. Definition
In this Division —
“court” includes a tribunal constituted by a judicial officer.
[Section 23A inserted by No. 36 of 2004 s. 9.]
23B. Determination of State with which worker’s employment is connected in proceedings under this Act
(1) If the question of whether this State is connected with a worker’s employment arises in proceedings in a court in relation to a claim for compensation under this Act, that court must —
(a) determine the State with which the worker’s employment is connected in accordance with section 20; and
(b) cause that determination to be entered in the records of the court.
(2) Subsection (1) does not apply if there is a determination that is to be recognised under section 23D.
[Section 23B inserted by No. 36 of 2004 s. 9.]
23C. Determination by the District Court of State with which worker’s employment is connected
(1) If a claim for compensation has been made under this Act, a party to the claim may apply to the District Court for a determination of the question of which State is the State with which the worker’s employment is connected.
(2) The District Court must determine an application under subsection (1) in accordance with section 20 and cause that determination to be entered in the records of the court.
(3) An application under subsection (1) is not to be made or heard if there is a determination that is to be recognised under section 23D.
[Section 23C inserted by No. 36 of 2004 s. 9.]
23D. Recognition of previous determinations
(1) This section applies if a determination of the State with which a worker’s employment is connected has been made —
(a) by a court of this State under section 23B or 23C;
(b) by a court of another State under a provision of a law that corresponds with section 23B or 23C; or
(c) by a court of this State or another State in the course of proceedings on a claim for damages to which Part IV Division 1a applies or to which provisions of a law of another State corresponding to that Division apply.
(2) The State determined as mentioned in subsection (1) is to be recognised for the purposes of this Act as the State with which the worker’s employment is connected.
(3) This section does not prevent any appeal relating to the determination.
(4) If the determination is altered on appeal, the altered determination is to be recognised under subsection (2).
[Section 23D inserted by No. 36 of 2004 s. 9.]
23E. Determination may be made by consent
In this Division a reference to a determination made by a court in a proceeding includes a reference to a determination made by the court with the consent of the parties to the proceeding.
[Section 23E inserted by No. 36 of 2004 s. 9.]
Division 2 — Discontinued regime for lump sum payments for specified injuries
[Heading inserted by No. 42 of 2004 s. 14.]
24. Compensation for injuries mentioned in Schedule 2
(1) In this section —
“amendment day” means the day on which section 21 of the Workers’ Compensation Reform Act 2004 comes into operation 1.
(2) Notwithstanding Schedule 1, in respect of compensable personal injuries by accident, if the worker himself so elects during his lifetime as provided by section 24B, the compensation payable for the injuries mentioned in column 1 of Part 1 of the table set out in Schedule 2 shall, subject to the provisions of this Act relating to Schedule 2, be the percentage ratios of the prescribed amount indicated in column 2 of that Part, but the compensation payable for each such injury shall be in accordance with the percentage ratio of the prescribed amount indicated in that column in respect of such an injury at the date of the accident whereby that injury was caused to the worker, irrespective of when the worker so elects.
(3) This Division does not apply if the compensable personal injury by accident occurs on or after the amendment day.
(4) This Division does not apply in relation to noise induced hearing loss shown on or after the amendment day by an audiometric test under Schedule 7 clause 4.
[Section 24 amended by No. 44 of 1985 s. 9; No. 36 of 1988 s. 5; No. 42 of 2004 s. 15.]
24A. Lump sum compensation for noise induced hearing loss
(1) Subject to Schedule 7 and this section, a worker suffering from noise induced hearing loss shall be entitled to compensation for that loss under item 6 of Part 1 of the table set out in Schedule 2 if the worker so elects as provided by section 24B, but the compensation payable for that hearing loss shall, subject to the provisions of this Act relating to Schedule 2, be in accordance with the percentage ratio of the prescribed amount indicated in column 2 of Part 1 of the table set out in Schedule 2 in respect of item 6 at the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred, irrespective of when the worker so elects.
(2) A worker is entitled to compensation under this section only in respect of noise induced hearing loss incurred after the date on which this section comes into operation and —
(a) in respect of the worker’s first election under this section, where that noise induced hearing loss is at least a 10% loss of hearing; and
(b) in respect of a subsequent election by the worker under this section after a successful first election under paragraph (a) —
(i) where that noise induced hearing loss is at least a further 5% loss of hearing; or
(ii) where the worker has reached the age of 65 years or on the worker’s retirement from work before that age, where that noise induced hearing loss is any further percentage of loss of hearing.
(3) Nothing in subsection (2) operates to stop a worker who —
(a) has retired from work before attaining the age of 65 years;
(b) has made a successful election under subsection (2)(b)(ii); and
(c) subsequently returns to work,
from making an election under subsection (2)(b) in respect of further loss of hearing.
(4) A worker is not entitled to compensation under this section in respect of noise induced hearing loss incurred after the worker has attained the age of 65 years.
(5) In subsection (2), loss of hearing means percentage loss of hearing calculated in accordance with the National Acoustic Laboratory Tables prescribed.
(6) Schedule 7 applies and noise induced hearing loss shall be ascertained and measured for the purposes of this section in accordance with that Schedule.
[Section 24A inserted by No. 36 of 1988 s. 6; amended by No. 42 of 2004 s. 16.]
24B. Election under section 24 or 24A
(1) A worker elects for the purposes of section 24 or 24A(1) where —
(a) the worker signs a prescribed form of election containing prescribed particulars in respect of the relevant injury or hearing loss; and
(b) that form of election is filed with the Director, and a copy of it is served by or on behalf of the worker on the employer who, in the case of an election for the purposes of section 24A, shall be the employer who last employed the worker in employment to the nature of which noise induced hearing loss is due.
(2) A form of election referred to in subsection (1) is not binding upon a worker unless the Director is satisfied that it contains a statement in clear terms of the effect the election will have on the worker’s future entitlements to compensation under this Act.
(3) If not satisfied in accordance with subsection (2), the Director shall within 7 days notify the employer and the worker accordingly.
(4) Subject to this Act, a worker who elects as provided by subsection (1) is entitled to continue to receive any weekly payments of compensation to which he or she is entitled until —
(a) an agreement with respect to the election is registered under section 76; or
(b) an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election,
whichever is sooner.
(5) Where a worker makes an election under subsection (1) for the purposes of section 24A, this Division and Part XI shall apply as if the noise induced hearing loss in respect of which the election was made was a compensable personal injury by accident arising out of or in the course of the worker’s employment and for that purpose a reference to the time or date of the personal injury by accident shall, in respect of compensable noise induced hearing loss, be construed as a reference to the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred.
[Section 24B inserted by No. 36 of 1988 s. 6; amended by No. 48 of 1993 s. 28(1); No. 34 of 1999 s. 8; No. 42 of 2004 s. 17 and 149.]
25. “Loss of ”
For the purpose of the table set out in Schedule 2, “loss of ” includes —
(a) “permanent loss of the use of ”; and
(b) “permanent loss of the efficient use of ”, but in such case such percentage of the appropriate amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount.
26. Subsequent injuries
(1) When, by a compensable personal injury by accident, a worker has already suffered a permanent loss of any percentage of the full efficient use of —
any part or faculty of the body referred to in column 1 of Part 1 of the table set out in Schedule 2 —
and by subsequent compensable personal injury by accident suffers further loss of the full efficient use of —
that part or faculty of the body —
the compensation payable under the provisions of that table in respect of each such subsequent injury shall be proportionate to any increase (resulting from that subsequent injury) in the percentage of loss of that full and efficient use, and the compensation payable shall be calculated at the rates applicable at the time of occurrence of each subsequent injury.
(2) Where a worker has received compensation payable under the provisions of that table for 100% of the loss of, or the permanent loss of the efficient use of, any part or faculty of the body referred to in column 1 of that table —
whether in one payment for permanent total loss of, or permanent total loss of the efficient use of —
that part or faculty of the body —
or in several payments, each of which has been made for a permanent partial loss of, or a permanent partial loss of the efficient use of —
that part or faculty of the body, then and in such case, the worker is not entitled to any further payment under the provisions of that table in respect of that part or faculty.
[Section 26 amended by No. 42 of 2004 s. 18.]
27. Compensation in accordance with table at date of accident
Notwithstanding the other provisions of this Act and in particular section 118, where any decision, ruling, order, award, judgment, settlement, or agreement was given, made, or registered before 18 May 1978, on the basis that compensation payable for an injury under the table set out in Schedule 2 was in accordance with the amount indicated in column 2 of that table in respect of that injury at the date of the accident whereby that injury was caused to the worker, that decision, ruling, order, award, judgment, settlement, or agreement shall not be rescinded, altered, or amended, and the worker shall not be entitled to any further payment under the provisions of that table in respect of that injury, by reason that it was given, made, or registered on that basis.
[Section 27 amended by No. 48 of 1993 s. 28(1); No. 34 of 1999 s. 9.]
28. Limit on compensation of worker electing
A worker who elects under section 24B is not in any case (including the case of a worker suffering by the same accident more than one of the injuries mentioned in Schedule 2) entitled to more than the prescribed amount, in addition to payment of such expenses as are provided for in clauses 9, 17, 18, 18A and 19 which clauses are hereby made applicable to each worker entitled to compensation under this Division until that worker so elects and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.
[Section 28 amended by No. 44 of 1985 s. 13; No. 36 of 1988 s. 7; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 19 and 149.]
29. Compensation while incapacity continues
Sections 24 and 24A do not limit the amount of compensation that is payable to a worker for any period of incapacity resulting from the injuries referred to in those sections unless the worker elects under section 24B and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.
[Section 29 amended by No. 44 of 1985 s. 14; No. 36 of 1988 s. 8; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 149.]
30. Compensation payable before election
Subject to section 28, when a worker elects under section 24B, any amount of compensation that was paid or payable to him for any period of incapacity resulting from the injuries referred to in section 24 or 24A and occurring before he so elects and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election shall not be deducted from the amount payable in accordance with the table set out in Schedule 2.
[Section 30 amended by No. 44 of 1985 s. 15; No. 36 of 1988 s. 9; No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 149.]
31. Schedule 2 interpretation
In the application of Part 1 of the table set out in Schedule 2 the following apply —
(a) loss of arm includes such loss resulting from injury to the shoulder;
(b) loss of leg includes such loss resulting from injury to the hip;
(c) if an eye or foot or other member is deemed lost or permanently and wholly useless or a finger has lost 2 joints, that constitutes the total loss of the eye, foot, member, or finger;
(d) except in the case of eyes, determination of a percentage of loss is not to be made while using artificial aids;
(e) determination of loss of sight is to be made on a corrective basis and item 5 of Schedule 2 shall not apply where loss of binocular vision is caused solely by the total loss of sight or substantial loss of sight of one eye.
[Section 31 amended by No. 42 of 2004 s. 20.]
Division 2A — New regime for lump sum payments for specified injuries
[Heading inserted by No. 42 of 2004 s. 21.]
31A. Application of Division
(1) In this section —
“amendment day” means the day on which section 21 of the Workers’ Compensation Reform Act 2004 comes into operation 1.
(2) This Division does not apply in respect of a compensable personal injury by accident that occurs before the amendment day.
(3) This Division does not apply in relation to noise induced hearing loss shown before the amendment day by an audiometric test under Schedule 7 clause 4.
[Section 31A inserted by No. 42 of 2004 s. 21.]
31B. Degree of permanent impairment
In this Division —
“degree of permanent impairment” means —
(a) except as provided in paragraph (b), the degree of permanent impairment of a part or faculty of the body, evaluated as described in sections 146A and 146B;
(b) in the case of scarring referred to in item 80 or 81 of Schedule 2, the degree of permanent whole of person impairment, evaluated as described in sections 146A and 146B,
resulting from the injury or injuries arising from a single accident.
[Section 31B inserted by No. 42 of 2004 s. 21.]
31C. Compensation for impairments mentioned in Schedule 2
(1) Despite Schedule 1, in respect of a permanent impairment from a compensable personal injury by accident, if the worker so elects during the lifetime of the worker as provided by section 31H in respect of an impairment mentioned in column 1 of Part 2 of the table in Schedule 2, the compensation payable for the impairment is, subject to subsection (2) and the provisions of this Act relating to Schedule 2, to be the percentage ratio of the prescribed amount indicated in column 2 of that Part.
(2) Except as provided in sections 31E and 31F(3), the compensation payable for each such impairment from injury is to be in accordance with the percentage ratio of the prescribed amount indicated in column 2 of Part 2 of the table in Schedule 2 in respect of such an impairment at the date of the accident by which that injury was caused to the worker, irrespective of when the worker so elects.
[Section 31C inserted by No. 42 of 2004 s. 21.]
31D. Schedule 2 impairment assessment
(1) In subsection (2) —
“full amount”, in relation to an injury, means the amount payable under this Division if the degree of permanent impairment resulting from the injury is 100%.
(2) If compensation is payable under section 31C but the degree of permanent impairment from the injury of the worker is less than 100%, a percentage of the full amount equal to the degree of permanent impairment is to be awarded in lieu of the full amount.
(3) If —
(a) there is not agreement between an employer and a worker as to the degree of permanent impairment of the worker; and
(b) the worker has a certificate of an approved medical specialist given under section 146H indicating that the worker has not less than the degree of permanent impairment alleged by the worker,
the worker may apply to have the question as to the degree of permanent impairment arising from the injury concerned determined by an arbitrator.
(4) An arbitrator to whom an application to determine a question is made under subsection (3) may —
(a) determine the degree of permanent impairment; or
(b) refer the question as to the degree of permanent impairment for assessment by an approved medical specialist panel and make a determination as to the degree of permanent impairment according to that assessment.
(5) If a determination is made that the worker’s degree of permanent impairment arising from the injury concerned is not less than that alleged by the worker, the arbitrator may order the employer to pay all or any of the costs connected with the dispute, including any costs connected with referral to an approved medical specialist panel.
[Section 31D inserted by No. 42 of 2004 s. 21.]
31E. Lump sum compensation for noise induced hearing loss
(1) Subject to Schedule 7 and this section, a worker suffering from noise induced hearing loss is entitled to compensation for that loss under item 44 of Part 2 of the table in Schedule 2 if the worker so elects as provided by section 31H.
(2) The compensation payable for noise induced hearing loss is to be, subject to the provisions of this Act relating to Schedule 2, in accordance with the percentage ratio of the prescribed amount indicated in column 2 of Part 2 of the table in Schedule 2 in respect of item 44 at the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred, irrespective of when the worker so elects.
(3) A worker is entitled to compensation under this section only in respect of noise induced hearing loss incurred after 1 March 1991 and —
(a) in respect of the worker’s first election under this section (if the worker has not made a successful first election under section 24A), where that noise induced hearing loss is at least a 10% loss of hearing; and
(b) in respect of a subsequent election by the worker under this section after a successful first election under section 24A or paragraph (a) of this section —
(i) where that noise induced hearing loss is at least a further 5% loss of hearing; or
(ii) where the worker has reached the age of 65 years or on the worker’s retirement from work before that age, where that noise induced hearing loss is assessed under Schedule 7 as any further percentage of loss of hearing.
(4) Nothing in subsection (3) operates to stop a worker who —
(a) has retired from work before attaining the age of 65 years;
(b) has made a successful election under section 24A(2)(b)(ii) or subsection (3)(b)(ii) of this section; and
(c) subsequently returns to work,
from making an election under subsection (3)(b) in respect of further loss of hearing.
(5) A worker is not entitled to compensation under this section in respect of noise induced hearing loss incurred after the worker has attained the age of 65 years.
(6) In subsection (3), loss of hearing means percentage loss of hearing calculated in accordance with the National Acoustic Laboratory Tables prescribed by the regulations.
(7) Schedule 7 applies and noise induced hearing loss is to be ascertained and measured for the purposes of this section in accordance with that Schedule.
[Section 31E inserted by No. 42 of 2004 s. 21.]
31F. Lump sum compensation for AIDS
(1) In this section and in the table in Schedule 2 —
“AIDS” means acquired immune deficiency syndrome;
“HIV” means human immunodeficiency virus;
“prohibited drug” has the meaning given to that term by the Misuse of Drugs Act 1981 section 3.
(2) Subject to this section, for the purposes of this Division —
(a) the infection of a worker by HIV by accident arising out of or in the course of employment, or whilst the worker is acting under the employer’s instructions, is taken to be a personal injury by accident; and
(b) if that worker subsequently contracts AIDS, the contracting of AIDS —
(i) is taken to be a compensable personal injury by accident;
(ii) is taken to result in a degree of permanent impairment of 100%; and
(iii) is taken to have occurred on the date on which the worker contracted the HIV infection referred to in paragraph (a).
(3) Despite section 31C the compensation payable for the contracting of AIDS in the circumstances set out in subsection (2) is 100% of the prescribed amount at the date on which a certificate is given by a medical practitioner that the worker has contracted AIDS.
(4) The regulations may make provision for methods of deciding for the purposes of this section whether a worker is HIV infected or has contracted AIDS.
(5) Sections 31C(2) and 31D do not apply to an impairment that is AIDS.
(6) A worker is not entitled to compensation under this Division in respect of an impairment that is AIDS if the impairment resulted from the unlawful use of any prohibited drug or from voluntary sexual activity.
(7) Subsection (6) does not limit the operation of section 22.
(8) A worker is not entitled to compensation under this Division in respect of an impairment that is AIDS if the accident by which the worker became HIV infected occurred on a day before the coming into operation of section 21 of the Workers’ Compensation Reform Act 2004 1.
[Section 31F inserted by No. 42 of 2004 s. 21.]
31G. Subsequent injuries
(1) In this section —
“impairment” includes a loss of full and efficient use of a part or faculty of the body to which the provisions of Division 2 apply.
(2) When —
(a) by a compensable personal injury by accident, a worker has already suffered a permanent impairment of any part or faculty of the body referred to in column 1 of the table in Schedule 2; and
(b) by a subsequent compensable personal injury by accident the worker suffers further permanent impairment of that part or faculty of the body,
the compensation payable under the provisions of the table in Schedule 2 and this Division in respect of each such subsequent injury is to be proportionate to any increase (resulting from that subsequent injury) in the degree of permanent impairment, and the compensation payable is to be calculated at the rates applicable at the time of occurrence of each subsequent injury.
(3) Where a worker has received compensation payable under the provisions of the table in Schedule 2 and Division 2 or this Division in respect of an impairment of a part of the body or a faculty for a degree of permanent impairment of 100%, whether in one payment for a degree of permanent impairment of 100% or in several payments, each of which has been made for a degree of permanent impairment of less than 100%, then and in such case, the worker is not entitled to any further payment under the provisions of that table and this Division in respect of that impairment.
[Section 31G inserted by No. 42 of 2004 s. 21.]
31H. Election under section 31C or 31E
(1) A worker elects under this section for the purposes of section 31C or 31E when —
(a) the worker signs a form of election prescribed by the regulations containing particulars prescribed by the regulations in respect of the impairment or loss; and
(b) that form of election is filed with the Director, and a copy of it is served by or on behalf of the worker on the employer.
(2) A worker can elect for the purposes of section 31C only if —
(a) the worker and the worker’s employer agree as to the worker’s degree of permanent impairment resulting from the injury concerned; or
(b) a determination has been made under section 31D(4) in respect of the worker’s degree of permanent impairment resulting from the injury concerned or the worker has a certificate given for the purposes of section 31F(3) that the worker has contracted AIDS.
(3) In the case of an election for the purposes of section 31E, the employer on whom the copy of the form of election is served is to be the employer who last employed the worker in employment to the nature of which noise induced hearing loss is due.
(4) Where a worker makes an election under subsection (1) for the purposes of section 31E, this Division and Part XI apply as if the noise induced hearing loss in respect of which the election was made were a compensable personal injury by accident arising out of or in the course of the worker’s employment, and for that purpose a reference to the time or date of a personal injury by accident is, in respect of compensable noise induced hearing loss, to be construed as a reference to the date of the audiometric test under Schedule 7 that showed that a loss or diminution of the worker’s hearing had been incurred.
[Section 31H inserted by No. 42 of 2004 s. 21; amended by No. 16 of 2005 s. 16.]
31I. Effect of election
(1) A form of election referred to in section 31H(1) is not binding upon a worker unless the Director is satisfied that it contains a statement in clear terms of the effect the election will have on the worker’s future entitlements to compensation under this Act.
(2) If not satisfied in accordance with subsection (1), the Director is to, within 7 days of so determining, notify the employer and the worker accordingly.
(3) Subject to this Act, a worker who elects as provided by section 31H(1) is entitled to continue to receive any weekly payments of compensation to which the worker is entitled until —
(a) an agreement with respect to the election is registered under section 76; or
(b) an order of an arbitrator is made with respect to the amount of compensation payable under the election,
whichever is the sooner.
(4) Sections 31C and 31E do not limit the amount of compensation that is payable to a worker for any period of incapacity resulting from the impairments or losses referred to in those sections unless the worker elects under section 31H and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.
[Section 31I inserted by No. 42 of 2004 s. 21.]
31J. Limit on compensation of worker electing
(1) A worker who elects under section 31H is not in any case (including the case of a worker suffering by the same accident more than one of the impairments mentioned in Schedule 2) entitled to more than the prescribed amount, in addition to payment of such expenses as are provided for in clauses 9, 17, 18, 18A and 19.
(2) Clauses 9, 17, 18, 18A and 19 are by this section made applicable to each worker entitled to compensation under this Division until that worker elects under section 31H and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election.
[Section 31J inserted by No. 42 of 2004 s. 21.]
31K. Compensation payable before election
Subject to section 31J, when a worker elects under section 31H, any amount of compensation that was payable to the worker for any period of incapacity resulting from the injuries referred to in section 31C or 31E and occurring before the worker so elects and an agreement is registered or an order of an arbitrator is made with respect to the amount of compensation payable pursuant to the election is not to be deducted from the amount payable in accordance with the table in Schedule 2.
[Section 31K inserted by No. 42 of 2004 s. 21.]
Division 3 — Injury: specified industrial diseases
[Heading inserted by No. 42 of 2004 s. 22.]
32. Compensation of worker dying from or affected by certain industrial diseases (Schedule 3)
Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by, any disease, except pneumoconiosis, mesothelioma, or lung cancer, mentioned in column 1 of Schedule 3 and the disease is or was due to the nature of any employment in which the worker was employed at any time within one year previous to the date of being so rendered, whether under one or more employers, an injury, being that disease, of the worker occurs and this Act applies to that injury subject, however, to this Division.
[Section 32 amended by No. 42 of 2004 s. 23, 146 and 147.]
33. Pneumoconiosis, mesothelioma or lung cancer
Where a worker is rendered less able to earn full wages by reason of suffering from, or his death is caused by —
(a) pneumoconiosis;
(b) on and after 8 May 1970, mesothelioma; or
(c) on and after the date on which this section comes into operation, lung cancer,
and the disease is, or was, due to the nature of any employment in which the worker was employed at any time previous to the date of being so rendered and it is shown to the satisfaction of an arbitrator that, since he was last employed in the State in any employment of that nature, the worker —
(a) has not been absent from the State for a period of, or periods aggregating, more than 6 months; or
(b) having been absent from the State for a period of, or periods aggregating, more than 6 months, has not during that period or those periods been employed in any employment of that nature,
an injury, being pneumoconiosis, mesothelioma, or lung cancer, as the case may be, of the worker occurs and this Act applies to that injury subject, however, to this Division.
[Section 33 amended by No. 48 of 1993 s. 28(1); No. 42 of 2004 s. 24, 146, 147 and 149.]
34. Worker suffering from chronic bronchitis and pneumoconiosis
Whenever a worker is rendered less able to earn full wages, by reason of suffering from chronic bronchitis in association with pneumoconiosis, he is deemed to be so rendered by pneumoconiosis and this Act applies subject, however, to this Division; but a worker who, after receiving compensation pursuant to this section, is subsequently employed in any process entailing exposure to mineral dusts harmful to the lungs whether by the same or any other employer, is not entitled to any further compensation or benefit, in respect of any period of incapacity due to pneumoconiosis of any kind or to the aggravation or acceleration of any such disease, arising from his subsequent employment in that process.
[Section 34 amended by No. 42 of 2004 s. 25.]
35. Worker suffering from lung cancer and pneumoconiosis
Whenever after the proclaimed date a worker is rendered less able to earn full wages by reason of suffering from lung cancer in association with that form of pneumoconiosis known as asbestosis, he is deemed to be so rendered by pneumoconiosis and this Act applies subject, however, to this Division: but a worker who, after receiving compensation pursuant to this section, is subsequently employed in any process entailing substantial exposure to asbestos dust whether by the same or any other employer, is not entitled to any further compensation or benefit, in respect of any period of incapacity due to asbestosis or to the aggravation or acceleration of such disease, arising from his subsequent employment in that process.
[Section 35 amended by No. 42 of 2004 s. 26.]
36. Reference to medical panel
(1) Whenever a claim is made by, or in relation to, a worker for compensation under section 33 or 34, the employer shall within 14 days of the making of the claim send particulars of the claim to WorkCover WA, and the chief executive officer shall refer the question of the worker’s condition and fitness for employment to a medical panel comprising 2 or 3 physicians —
(a) all of whom are to be nominated by the chief executive officer from amongst physicians who specialise in diseases of the chest or in occupational diseases; and
(b) at least one of whom specialises in diseases of the chest.
(2) An employer who fails to comply with subsection (1) commits an offence.
(3) The Chairman of a medical panel shall be appointed by the Minister on the nomination of the chief executive officer.
[Section 36 amended by No. 28 of 1984 s. 101; No. 44 of 1985 s. 17; No. 33 of 1986 s. 4; No. 86 of 1986 s. 5; No. 96 of 1990 s. 7; No. 30 of 1993 s. 13; No. 48 of 1993 s. 32; No. 34 of 1999 s. 10; No. 42 of 2004 s. 150 and 152.]
37. Oral submission by medical practitioner
On a reference under section 36, any medical practitioner who has examined or treated the worker on his own behalf or has examined him on behalf of the employer may attend and make oral submissions to the medical panel, and the chief executive officer shall make arrangements with the medical panel to give such a medical practitioner the opportunity to attend, and, where such a medical practitioner does so attend the medical panel shall so certify to the chief executive officer, and the practitioner shall be paid from moneys standing to the credit of the General Account such witness fee as he would have been entitled to receive if he had attended to give evidence in a hearing before an arbitrator.
[Section 37 amended by No. 86 of 1986 s. 5; No. 30 of 1993 s. 13; No. 48 of 1993 s. 28(1); No. 49 of 1996 s. 64; No. 42 of 2004 s. 27 and 152; No. 77 of 2006 s. 17.]
38. Questions for determination by a medical panel
(1) On a reference under section 36, the medical panel, following such examination and tests as it may require, having given the opportunity for oral submissions to be made, and having considered such oral submissions as have been made pursuant to section 37, and perused such certificates of other medical practitioners as either party may in person or by his solicitor or agent tender to that medical panel, shall thereupon consider and determine the following questions —
(a) is, or was, the worker suffering from pneumoconiosis, mesothelioma or lung cancer?
(b) if so, is, or was, the worker thereby less able to earn full wages?
(c) to what extent if any does, or did —
(i) pneumoconiosis;
(ii) mesothelioma;
(iii) lung cancer,
adversely affect the worker’s ability to undertake physical effort?
(d) what other, if any, disease or physical condition is, or was, contributing to the worker’s being less able to earn full wages, or death and to what extent?
(e) is, or was, the worker fit for work? If so, at what level — light, moderate, or heavy?
(2) The determination of the medical panel shall, as far as is practicable in each case, be in the form and contain answers to the questions prescribed.
(3) Where the medical panel comprises 2 members who fail to agree on its determination, the chief executive officer shall add a third member to the panel in accordance with section 36.
(4) The determination of the medical panel or a majority of its members is final and conclusive and binding on the worker, on his employer, and on any tribunal in which such determination is relevant.
[Section 38 amended by No. 44 of 1985 s. 18; No. 86 of 1986 s. 5; No. 48 of 1993 s. 33; No. 42 of 2004 s. 28 and 152.]
39. Worker disabled by tuberculosis and pneumoconiosis
Subject to this Division, where a worker is rendered less able to earn full wages, by reason of suffering from tuberculosis in association with pneumoconiosis, and any of those diseases is, or was, due to the nature of any employment in which the worker was employed at any time prior to the date of being so rendered, that person is deemed to be totally incapacitated for work, during such period as the tuberculosis is active, and, thereafter, for a further period of 3 months or for the period that he is unemployed, whichever period is the shorter, and, during that period and further period, the person is —
(a) if in receipt of payments under the Tuberculosis Allowance (Commonwealth) Scheme, established under the Tuberculosis Act 1948 of the Commonwealth, entitled to compensation in weekly payments equal to the maximum weekly income permissible under that Scheme; and
(b) if not in receipt of payments mentioned in paragraph (a), entitled to such compensation as that to which he would be entitled, if totally incapacitated by pneumoconiosis.
[Section 39 amended by No. 42 of 2004 s. 29.]
40. Interpretation of this Division in cases of death without prior incapacity
A reference in this Division to the date on which, or time at which, a worker was rendered less able to earn full wages is, in the case of a death of a worker who was not rendered less able to earn full wages before the worker died, a reference to the date of the worker’s death.
[Section 40 inserted by No. 42 of 2004 s. 30.]
41. Last employer liable but may join others
(1) Subject to subsections (2), (3) and (4), the compensation is recoverable from the employer who last employed the worker during the period of one year mentioned in section 32, or, in the case of pneumoconiosis, mesothelioma, or lung cancer, who last employed the worker, in the employment to the nature of which the disease is, or was, due.
(2) The worker or his dependants shall, if so required, furnish that employer with such information as to the names and addresses of all the other employers who employed him in the employment during that period of one year, or in the case of pneumoconiosis, mesothelioma, or lung cancer, at any time previous to the date on which the worker was rendered less able to earn full wages, as he or they may possess.
(3) If that employer alleges that the disease was in fact contracted whilst the worker was in the employment of some other employer and not whilst in his employ, he may join such other employer as a party to the proce