On 25 July 2006, the Accident Compensation and Other Legislation
(Amendment) Act 2006 received Royal Assent.
The amending Act introduces a raft of changes to the Accident Compensation
Act 1985 ("the Act"). This bulletin provides a summary of the changes that
may directly impact upon you and when these changes commence.
Weekly Payments: 130 weeks
Claimants are entitled to 130 weeks of weekly payments of compensation
before the Claimant's payments can be terminated on the basis that the
Claimant has a current work capacity. The change applies to claims
received on or after 1 January 2005 and is effective from 1 July 2006.
Notice Provisions in relation to 130 Week Termination
A Claimant must be given at least 13 weeks notice when terminating weekly
benefits solely on the basis of the expiration of 130 weeks. This notice period
applies to claims lodged on or after 1 January 2005 and notices issued on or
after 1 July 2006 for claims lodged on or after 1 January 2005.
Amendments to Weekly Benefits - General Provisions
No changes have been made to weekly payments in the first 13 weeks of
incapacity.From 1 July 2006, irrespective of when the claim for compensation
was lodged (unless it is a claim to which the Grandfather provisions apply -
see below).
Claimants must, after 13 weeks of incapacity, be paid as follows:
75% of the Claimant's pre-injury average weekly earnings or $1,130.00
(which ever is lesser) if the Claimant has no current work capacity; or
The difference between 75% of the Claimant's pre-injury average weekly
earnings and 75% of the Claimant's notional earnings or the difference
between $1,190.00 and 75% of the Claimant's notional earnings (whichever
is lesser) if the Claimant has a partial incapacity; or
75% of the Claimant's pre-injury average weekly earnings or $1,130.00
(whichever is lesser) if the Claimant has a current work capacity and there
has been no offer of suitable employment.
Grandfather Provisions
Grandfather provisions apply if the Claimant lodged a claim and was entitled
to weekly payments on or at 12 November 1997. From 1 July 2006, Claimants
must, after 26 weeks of incapacity, be paid as follows:
70% of the Claimant's pre-injury average weekly earnings or $903.00 (whichever
is lesser) if the injury is not serious and the Claimant is totally incapacitated.
The difference between 70% of the Claimant's pre-injury average weekly earnings
and 70% of the Claimant's notional earnings or the difference between $953.00
and 70% of the Claimant's notional earnings (whichever is lesser) if the Claimant
does not have a serious injury and is partially incapacitated.
Please see the following link for a full copy of version 140 of the Act: http://www.dms.dpc.vic.gov.au/
Voluntary Settlements
A distinction has been included with respect to the amount of weekly payments
that must have been paid before a Claimant can be eligible for a voluntary
settlement. For claims lodged prior to 1 January 2005, the Claimant must have
received 104 weeks of weekly payments and for claims lodged after 1 January
2005, the period is 130 weeks.
Weekly Payments after Retirement
Working Claimants over the age of 65 who have an incapacity for work that
arises on or after 1 July 2006 may make an application in writing to receive
compensation under section 93EA of the Act. An entitlement may arise if:
Section 93E does not apply to the Claimant; and
The Claimant suffered a compensable injury for which a claim for compensation
had been made under section 103 of the Act; and
The Claimant received a weekly payment in the period 10 years prior to
retirement age; and
The Claimant's incapacity arose after retirement age and is due to treatment r
eceived as an inpatient at a hospital; and
The Claimant "is not entitled to weekly payments only because section 93F
applies"; and
The Claimant has ceased to be entitled by operation of another provision such
as the expiry of 130 weeks.
A Claimant will be eligible to receive a maximum of 13 weeks of weekly payments
at the rate of 75%, which automatically expires after 13 weeks. Section 114(5A) of
the Act stipulates that a notice terminating the entitlement is not required.
A decision to accept or reject such a claim must be made in writing within 28 days.
Impairment Benefits - Section 98C/E
The amendments made with respect to section 98C/E of the Act entitle the
Claimant to be paid his or her section 98C/E entitlements without being
precluded from later being awarded non-pecuniary loss damages.
Any section 98C/E compensation entitlement is paid 14 days from the date the
Claimant notifies the self-insurer that he or she accepts the determination of
impairment or total loss and the entitlement to compensation. Payment under
section 98C/E is then deducted from any later award of non-pecuniary loss
damages.
A Claimant who has not yet commenced a serious injury application by 1 June
2006 will also be eligible to receive their entitlement and still pursue non-
pecuniary damages. A Claimant who has already elected to receive his or her
entitlement prior to 1 June 2006 will not be able to access non-pecuniary loss
damages.
Initiated Claims by Self-Insurer
Additionally, from 1 July 2006 if, after the expiry of 18 months post injury,
a self-insurer requests a Claimant to be independently examined in accordance
with section 104B(4) with respect to a claim where liability has been accepted
or determined, the self-insurer is deemed to have initiated a section 98C/E claim
under section 104B(1CA) of the Act.
The Claimant cannot then make a section 98C/E claim in relation to the same
injury but is not precluded from lodging a claim for further injuries arising out
of the same circumstances. The Claimant has 60 days to make this additional
claim after receiving a written statement of rights and the injuries subject of the
additional claim will be independently assessed.
Section 91 Amendments with respect to Particular Impairments
These amendments identify the relevant guides to be used for the following
impairments:
Psychiatric impairment - 'The Guide to the Evaluation of Psychiatric Impairment
for Clinicians.
Occupational Asthma - 'Impairment Assessment in Workers with Occupational
Asthma.
Infectious Occupational Diseases - 'Clinical Guidelines to the Rating of Impairments
arising from Infectious Occupational Diseases'.
Clarification of Entitlement to Medical and Like Expenses
Section 99(13) of the Act now stipulates reasonable medical and like expenses
continue to be payable if there has been:
An award or settlement of pecuniary loss damages under sections 134AB or 135A
of the Act; or
An award or settlement of pecuniary loss damages under section 93 of the Transport
Accident Act 1986; or
An acceptance by the Claimant of a voluntary settlement with respect to weekly
payments.
This section is deemed to have been operational since 20 October 1999.
Counselling Services for Family Members
Counselling services provided to family members pursuant to section 99 now
expressly includes circumstances where "a severe injury for which immediate
in-patient treatment in a hospital is received" and the available allowance has
been increased. This amendment applies to a "severe injury" that occurs on or
after 1 July 2006.
Increase Death Benefits
Entitlements under section 92A have been increased. The increase applies in
respect of the death of a worker that occurs on or after 1 July 2006.
Interest - Weekly Payments
Interest is applied to each outstanding weekly payment and not on the total
amount.
After the outcome certificate certifying a genuine dispute is issued, interest is
payable for a maximum period of up to 12 months from the date of the certificate
whether or not proceedings are commenced.
If proceedings are not commenced within 12 months from the date of the certificate,
interest will not accrue on the outstanding weekly payments after the expiration of
the 12 months. If proceedings are subsequently commenced then the accrual of
interest will resume from that date.
This section applies from 1 July 2006.
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