Workers Compensation Regulation 2016

This Regulation is the Workers Compensation Regulation 2016.

This Regulation commences on 1 September 2016 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Workers Compensation Regulation 2010, which is repealed on 1 September 2016 by section 10(2) of the Subordinate Legislation Act 1989.

In this Regulation—

approved form means a form approved by the Authority.

approved provider of workplace rehabilitation services means a provider that holds a certificate of approval.

category 1 employer means—

an employer insured under a policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose basic tariff premium (within the meaning of those guidelines) for that policy would exceed $50,000, if the period of insurance to which the premium relates were 12 months, or

an employer insured under more than one policy of insurance to which the Workers Compensation Market Practice and Premiums Guidelines apply and whose combined basic tariff premiums (within the meaning of those guidelines) for those policies would exceed $50,000, if the period of insurance to which each premium relates were 12 months, or

an employer who is self-insured, or

an employer who is insured with a specialised insurer and who employs more than 20 workers.

category 2 employer means an employer who is not a category 1 employer.

certificate of approval means a certificate of approval as a provider of workplace rehabilitation services granted by the Authority under clause 23.

relevant conduct, for Part 8A—see clause 42C.

return-to-work guidelines means the guidelines, relating to return-to-work programs, determined by the Authority under section 52(2)(a) of the 1998 Act.

return-to-work program means a return-to-work program established under section 52 of the 1998 Act with respect to policies and procedures (consistent with the injury management program of the employer’s insurer) for the rehabilitation (and, if necessary, vocational re-education) of any injured workers of the employer.

the 1987 Act means the Workers Compensation Act 1987.

the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998.

Note.

The 1987 Act, the 1998 Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

Notes included in this Regulation (other than notes in Schedule 6) do not form part of this Regulation.

A prescribed death is a relevant event.

In this clause—

prescribed death, for a worker, means the death of a person in the worker’s care if—

the person dies as the result of a traumatic incident, and

there is a real and direct connection between the person’s death and the worker’s employment, and

the person was under the immediate and primary care of the worker, at or near the worker’s workplace, when the traumatic incident occurred, and

the relationship between the person and the worker was pre-existing, ongoing and close at the time of the person’s death, and

the relationship was a requirement of the worker’s employment.

An incident is prescribed as a traumatic incident if the incident results in the death of a person as a result of an act that—

is grossly negligent or reckless, and

is not an act specified under the 1987 Act, section 8J(a) or (b).

Each kind of employment set out in Column 2 of Schedule 1 is prescribed as employment to which section 19(1) of the 1987 Act applies.

A disease set out in Column 1 of Schedule 1 is prescribed as a disease that is related to the employment or, as the case may require, each kind of employment, set out in Column 2 of that Schedule opposite the description of that disease.

For the purposes of section 19(2) of the 1987 Act, any one of the results set out in Column 3 of Part 1 of Schedule 2, if obtained by means of the medical test the requirements of which are set out opposite that result in Column 2 of that Part, is a result prescribed in respect of the disease, the name of which appears opposite that result in Column 1 of that Part.

The following bodies and agencies are prescribed for the purposes of section 19A of the 1987 Act—

the NSW Rural Fire Service,

Fire and Rescue NSW,

the Office of Environment and Heritage,

the Forestry Corporation,

Sydney Trains.

For the purposes of section 19B(2) of the 1987 Act, a result set out in Column 3 of Part 2 of Schedule 2 in relation to COVID-19, if obtained by means of a medical test the requirements of which are set out opposite that result in Column 2 of that Part in relation to the disease, is a result prescribed in respect of the disease.

For the purposes of section 19B(3) of the 1987 Act, the clinical criteria prescribed for the purpose of making a classification of COVID-19 are the obtaining of a result prescribed under section 19B(2) of the 1987 Act in respect of the disease by means of a medical test that complies with the requirements prescribed under that subsection in relation to the disease.

A reference in Part 2 of Schedule 2 to the Australian Register of Therapeutic Goods is a reference to the register of that name maintained under the Therapeutic Goods Act 1989 of the Commonwealth.

For the 1987 Act, section 19B(5), the relevant date is the date that marks the end of the expected duration of the worker’s incapacity for work as a result of COVID-19 that is specified in the certificate of capacity.

For the 1987 Act, section 19B(5A), a worker is incapable of work if the worker has a total incapacity for work and no current work capacity.

Subclauses (4) and (5) apply—

to a worker the subject of a presumption under section 19B(1) of the 1987 Act (a relevant worker), and

for the purposes of Division 2 of Part 3 of the 1987 Act.

To avoid doubt, section 33 of the 1987 Act applies to a relevant worker with a total or partial incapacity for work resulting from the worker’s COVID-19 infection.

A relevant worker to whom section 33 of the 1987 Act does not otherwise apply is taken to be partially incapacitated for work and to have current work capacity as a result of COVID-19 during the worker’s isolation period if the worker’s actual gross weekly earnings from paid employment during that period are—

less than the gross weekly amount that the worker had the capacity to earn in the worker’s pre-injury employment immediately before the injury, or

nil.

For the purposes of applying Division 2 of Part 3 of the 1987 Act to a relevant worker, the current weekly earnings of the worker in relation to a week are the worker’s actual gross earnings in respect of that week, and clause 8 of Schedule 3 to the 1987 Act in its application to the worker is taken to be modified accordingly.

In this clause—

isolation period in relation to a worker means the period for which the worker is required by a medical practitioner to isolate following the worker’s diagnosis of COVID-19.

For the purposes of the definition of prescribed employment in section 19B(9) of the 1987 Act, employment in any of the following is prescribed—

cafes,

supermarkets,

funeral homes,

child care facilities.

This Part applies only to injuries received before 21 October 2019.