Approval of agreement—Schedule 3, clause 3(1)
8K Approval of agreement—Schedule 3, clause 3(1)
After receiving an application for approval of a pre-injury average weekly earnings agreement in accordance with clause 8J, the insurer is to determine whether to approve, or refuse to approve, the agreement.
The insurer is to determine the application within 7 days after receiving the application (except as provided by subclause (3)).
If the insurer has a reasonable excuse for not commencing provisional weekly payments of compensation, the insurer is to determine the application within 7 days after the earlier of the following—
the insurer ceases to have a reasonable excuse for not commencing those weekly payments,
the insurer accepts liability for weekly payments of compensation in respect of the injury.
The insurer is to approve a pre-injury average weekly earnings agreement if satisfied that the agreed amount reasonably reflects the worker’s pre-injury earnings (excluding any earnings before or after the period of 52 weeks ending immediately before the date of the injury) and that the agreement is otherwise fair and reasonable.
The insurer must not approve a pre-injury average weekly earnings agreement relating to a worker who is a person under legal incapacity.
The insurer may decide to make weekly payments of compensation on the basis of the agreed amount of pre-injury average weekly earnings until the application for approval of the agreement is determined (an interim payment decision).
For the avoidance of doubt, an interim payment decision is, for the purposes of clause 3 of Schedule 3 to the 1987 Act, a decision that is authorised to be made before the agreement can take effect.
The insurer is not to approve a pre-injury average weekly earnings agreement if, before the application for approval of the agreement was made, the insurer made a decision about the amount of the worker’s pre-injury average weekly earnings.
The insurer is not to make a decision about the amount of the worker’s pre-injury average weekly earnings before the application for approval of the pre-injury average weekly earnings agreement is determined.
As soon as practicable after an application is determined, the insurer must notify the worker and the employer of the determination.
In this clause—
person under legal incapacity includes the following persons—
a child under the age of 18 years,
an involuntary patient or forensic patient within the meaning of the Mental Health Act 2007,
a person under guardianship within the meaning of the Guardianship Act 1987,
a protected person within the meaning of the NSW Trustee and Guardian Act 2009,
an incommunicate person, being a person with a physical or mental disability that prevents the person from receiving communications, or expressing their will, in relation to their property or affairs.
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