Workers Compensation Act 1958

Where the worker's death results from or is materially contributed to by the injury the compensation shall be a sum in accordance with the provisions of the clauses appended to this section.

S. 9(2) amended by Nos 10191 s. 261(a), 67/1992 s. 64(11)(b).

Except as is provided in section eleven of this Act, where the worker's total or partial incapacity for work results from or is materially contributed to by the injury the compensation shall be a weekly payment during the incapacity in accordance with the provisions of the said clauses unless the County Court in its absolute discretion, upon the application of either party in any proceedings before the County Court relating to the compensation, awards a lump sum in redemption of the employer's liability for future weekly payments, and any lump sum so awarded shall be of such amount as appears to the County Court to be just and reasonable having regard to the probable duration of the incapacity and to such other factors as the County Court thinks relevant.

S. 9(3) inserted by No. 9297 s. 6(2).

Notwithstanding anything to the contrary in this section, on 1 July in any relevant year and thereafter until the rates and amounts of compensation payable under this Act are again increased or decreased in accordance with this subsection, a reference in any of the clauses under the heading "The Clauses Referred To" in this section to a rate or amount of compensation payable under this Act shall be deemed to be a reference to^[3]—

in the case of a relevant year mentioned in paragraph (a) or paragraph (b) of subsection (4)—the sum of that rate or amount or (as the case requires) that rate or amount as increased or decreased in accordance with the provisions of this subsection and an amount equal to the prescribed proportion of that rate or amount or that rate or amount as so increased or decreased (as the case requires); and

in the case of a relevant year mentioned in paragraph (c) or paragraph (d) of subsection (4)—the difference between that rate or amount or (as the case requires) that rate or amount as increased or decreased in accordance with the provisions of this subsection and an amount equal to the prescribed proportion of that rate or amount or that rate or amount as so increased or decreased (as the case requires).

S. 9(4) inserted by No. 9297 s. 6(2).

For the purposes of subsection (3)—

any year after the year in which section 6 of the Workers Compensation (Miscellaneous Provisions) Act 1979 comes into operation shall be a relevant year if average weekly earnings for that year are higher than for the year in which section 6 of the Workers Compensation (Miscellaneous Provisions) Act 1979 comes into operation or the last previous relevant year (whichever last occurs);

any year after the first relevant year mentioned in paragraph (a) shall be a relevant year if the average weekly earnings for that year are higher than for the last previous relevant year;

any year after the year in which section 6 of the Workers Compensation (Miscellaneous Provisions) Act 1979 comes into operation shall be a relevant year if the average weekly earnings for that year are lower than for the year in which section 6 of the Workers Compensation (Miscellaneous Provisions) Act 1979 comes into operation or the last previous relevant year (whichever last occurs); and

any year after the first relevant year mentioned in paragraph (c) shall be a relevant year if the average weekly earnings for that year are lower than for the last previous relevant year.

S. 9(5) inserted by No. 9297 s. 6(2).

In this subsection and in subsections (3) and (4)—

S. 9(5) def. of average weekly earnings substituted by Nos 9747 s. 2(a), 67/2013 s. 648(3).

average weekly earnings, in relation to compensation payable in a financial year, means the average weekly total earnings of all male employees in Victoria in original terms published by the Australian Bureau of Statistics as at 15 June in the preceding financial year in respect of the most recent reference period ending on or before 31 December in that preceding financial year;

prescribed proportion—

in relation to the first relevant year (if any) mentioned in paragraph (a) of subsection (4)—means the fraction represented by the formula

where—

A is the average weekly earnings for that year; and

B is the average weekly earnings for the year in which section 6 of the Workers Compensation (Miscellaneous Provisions) Act 1979 comes into operation or the last previous relevant year mentioned in subsection (4) (whichever last occurs);

in relation to any subsequent relevant year mentioned in paragraph (b) of subsection (4)—means the fraction represented by the formula

where—

A is the average weekly earnings for that year; and

B is the average weekly earnings for the last previous relevant year mentioned in subsection (4);

in relation to the first relevant year (if any) mentioned in paragraph (c) of subsection (4)—means the fraction represented by the formula

where—

A is the average weekly earnings for that year; and

B is the average weekly earnings for the year in which section 6 of the Workers Compensation (Miscellaneous Provisions) Act 1979 comes into operation or the last previous relevant year mentioned in subsection (4) (whichever last occurs); and

in relation to any subsequent relevant year mentioned in paragraph (d) of subsection (4)—means the fraction represented by the formula

where—

A is the average weekly earnings for that year; and

B is the average weekly earnings for the last previous relevant year mentioned in subsection (4).

S. 9(5)

Proviso inserted by No. 9747 s. 2(b).

Provided that in the foregoing paragraphs of this interpretation B means, in respect of the year 1982, the amount published by the Australian Statistician on 15 June 1982 as the average weekly earnings per employed male unit for Australia, seasonally adjusted, for the December quarter of the year 1980 as adjusted to the series of statistics referred to in the average weekly earnings published by him on 15 June 1982 as the New Series (average weekly earnings of all male employés for Australia) by reference to the index numbers appearing therein for determining the relationship of previous statistics to that New Series.

S. 9(5A) inserted by No. 50/1994 s. 113.

If the variation of an amount by operation of this section has the effect of reducing the amount—

the variation is deemed not to have taken effect, except for the purposes of the application of this section; and

when the amount is varied and increased by operation of this section in respect of the next or a subsequent financial year, that variation has effect as an increase only to the extent (if any) to which the amount of the increase exceeds the amount of the reduction in respect of a preceding financial year, or that part of such a reduction that has not been set off against a previous increase.

S. 9(6) inserted by No. 9297 s. 6(2).

Where it is necessary for the purposes of subsections (3) to (5) to calculate an amount that consists of or includes a fraction of a whole number, the amount shall be deemed to have been calculated in accordance with this section if the calculation is made to the nearest whole number.

The Clauses Referred To

1. Amount of compensation

The amount of compensation shall be ascertained as follows—

where death results from or is materially contributed to by the injury—

S. 9 cl. 1(a)(i) substituted by No. 7292 s. 5(1)(a), amended by Nos 8084 s. 2(a)(i), 8271 s. 3(a)(i), 8733 s. 6(a)(i)–(iii), 9297 s. 6(1)(a)(i)(ii), 9372 s. 3, 102/2004 s. 46(1)(a)(2).

if the worker leaves any dependants wholly or mainly dependent upon his earnings the amount of compensation shall be the sum of $138 809 together with the appropriate additional sum specified in Column 2 of the Table to this subparagraph in the case of each child under the age and having the status mentioned in Column 1 of that Table who was wholly or mainly dependent upon the earnings of the worker at the time of the death or would but for the incapacity have been so dependent and who is a claimant in the proceedings for an award of compensation in respect of the death.

The Clauses Referred to—continued

S. 9 cl. 1(a)(ii) amended by Nos 7292 s. 5(1)(b), 8084 s. 2(a)(ii), 8271 s. 3(a)(ii), 8733 s. 6(b)(i), 9297 s. 6(1)(b), 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b), 102/2004 s. 46(1)(a).

if the worker does not leave any such dependants as aforesaid but leaves any dependants in part dependent upon his earnings, the amount of the compensation shall be such sum (not exceeding in any case the amount of $138 809) as in the opinion of the County Court is reasonable and appropriate to the injury to the said dependants;

where the worker, being under the age of twenty-one years at the time of the injury, leaves no dependants but immediately before the injury was contributing towards the maintenance of the home of the members of his family, then such members of his family shall be deemed to be dependants of the worker in part dependent on his earnings and the provisions of the last preceding

The Clauses Referred to—continued

subparagraph shall apply accordingly;

S. 9 cl. 1(a)(iv) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

no amounts paid or payable before the death of the worker as weekly payments in respect of his total or partial incapacity for work resulting from the injury shall be taken into consideration in calculating the amount of compensation payable as aforesaid upon his death but any sum paid before the death of the worker in redemption of the liability for future weekly payments or in respect of an injury for which compensation is payable under section eleven of this Act (except so much thereof as in the opinion of the County Court is referable to compensation for total or partial incapacity before the death) shall be deducted from the amount payable as aforesaid upon the death;

where incapacity for work results from or is materially contributed to by the injury—

S. 9 cl. 1(b)(i) amended by Nos 7292 s. 5(1)(c), 8084 s. 2(b)(i), 8271 s. 3(b)(i), 8733 s. 6(c)(i)–(vi), 9297 s. 6(1)(c)(i)–(v), 102/2004 s. 46(1)(b)–(e).

in the case of total incapacity for work, the compensation shall be a weekly payment during the incapacity of an amount equal to the aggregate of the following sums—

the sum of $442 in respect of the worker; and

The Clauses Referred to—continued

where applicable, the sum of $124 in respect of the wife or husband of the worker or any relative standing in loco parentis to the children under sixteen years of age of the worker if the wife or husband or relative is wholly or mainly dependent on the earnings of the worker at the time of the injury or becomes so dependent during the incapacity or if the worker marries or a relative comes to stand in loco parentis to any such children during the incapacity and the wife or husband of the worker or the relative so standing becomes so dependent during the incapacity; and

where applicable, the sum of $42 in respect of each child under the age of sixteen years who has been born and is wholly or mainly dependent on the earnings of the worker at the time of the injury or is born and becomes wholly or mainly so dependent during the incapacity—

and;

where applicable, the sum of $42 in respect of each child of or over the age of 16 years

The Clauses Referred to—continued

but under the age of 21 years (being a full-time student) who is wholly or mainly dependent on the earnings of the worker at the time of the injury but not exceeding in any case the amount of the average weekly earnings of the worker before the injury or the amount of $651 whichever is the lesser amount;

S. 9 cl. 1(b) Proviso amended by Nos 7292 s. 5(1)(d), 8084 s. 2(b)(i), substituted by No. 8733 s. 6, amended by Nos 9297 s. 6(1)(c)(vi), 102/2004 s. 46(1)(f)(g).

Provided that in the case of a worker who is under the age of 21 years at the time of the injury the amount of the weekly payment while the worker continues to be under that age shall be the sum of $325 in respect of the worker and, where applicable, additional sums as aforesaid in respect of the wife or husband or relative as aforesaid and any children as aforesaid but not exceeding in any case the amount of the average weekly earnings of the worker before the injury or the amount of $562 whichever is the lesser amount;

in the case of partial incapacity for work, the compensation shall be a weekly payment during the incapacity of such amount as bears the same ratio to the amount of the weekly payment which would be payable if the worker were totally incapacitated for work as the worker's loss of

The Clauses Referred to—continued

weekly earnings bears to the amount of the average weekly earnings of the worker before the injury;

In this subparagraph loss of weekly earnings means the difference between the amount of the average weekly earnings of the worker before the injury and the average weekly amount which the worker is earning or is able to earn in some suitable employment or business after the injury;

S. 9 cl. 1(b)(iii) amended by Nos 7292 s. 5(1)(e), 8084 s. 2(b)(ii), 8271 s. 3(b)(ii), 8733 s. 6(e), 9297 s. 6(1)(d), 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b), 102/2004 s. 46(1)(h).

the total liability of an employer in respect of compensation under either or both of the last two preceding subparagraphs (i) and (ii) of this paragraph (b) shall not exceed $154 717 except in the case of a worker whose injury, in the judgment of the County Court, results in—

permanent and total disablement for work; or

permanent and partial disablement for work, and such partial disablement is established by the worker to be of a major degree—

in either of which cases the County Court may in its discretion make such determination with respect to the said total liability of the employer as the County Court thinks proper in the circumstances; but in exercising its discretion to award a lump sum

The Clauses Referred to—continued

in redemption of the employer's liability for future weekly payments the County Court shall not in any case take into account any amount which might have become payable beyond the amount of $36 960, if the worker had continued to receive compensation by weekly payments throughout the incapacity;

S. 9 cl. 1(b)(iv) substituted by No. 10100 s. 4, amended by Nos 10191 s. 261(b)(i), 67/1992 s. 64(11)(c).

an employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work but, if the employer fails to do so, the worker shall be compensated as if his incapacity for work were total, unless—

where an order is made under section 85(3) or where section 102 applies, the Authority;

in any other case, the insurer—

provides, or arranges for, such suitable employment having regard to the worker's incapacity and place of abode;

S. 9 cl. 1(b)(iva) inserted by No. 10100 s. 4, amended by Nos 10191 s. 261(b)(ii) (viii), 67/1992 s. 64(11)(b)(c).

without in any way limiting or derogating from the powers of the County Court conferred by this Act, the question whether suitable employment within the meaning of subparagraph (iv) has been

The Clauses Referred to—continued

provided by an employer, the Authority or the insurer (as the case may be) shall be determined by the County Court;

S. 9 cl. 1(b)(ivb) inserted by No. 10100 s. 4.

where a worker does not accept suitable employment which has been provided or arranged for him in accordance with subparagraph (iv), the worker shall, subject to the provisions of this Act, be entitled to compensation only for partial incapacity;

S. 9 cl. 1(b)(v) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

where a worker has so far recovered from the injury as to be fit for employment but only of a more limited kind or kinds than before the injury and proves to the satisfaction of the County Court that the worker has taken all reasonable steps to obtain and has failed to obtain employment of any such kind and that failure to obtain such employment is a consequence wholly or mainly of the injury (including the physical disfigurement of the worker), then, notwithstanding any other provision of this Act or any earlier order award determination or decision made by the County Court in the worker's case the County Court may order that the incapacity shall continue to be treated as total incapacity for such period and subject to such conditions as the County Court

The Clauses Referred to—continued

imposes and upon the making of any such order compensation in accordance with this Act shall be paid accordingly;

where pursuant to the foregoing provisions of this paragraph a weekly payment becomes payable in respect of a child who is born and becomes dependent on the earnings of the worker during the incapacity that payment shall be required to be made only from the time of the birth.

2. Determination of questions of dependency

S. 9 cl. 2(1) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

Any question as to who is a dependant shall be settled by the County Court and the amount payable to each dependant shall also be settled by the County Court.

Where there are both total and partial dependants nothing in this Act shall be construed as preventing the compensation being allotted partly to the total and partly to the partial dependants.

In determining whether any child is dependent on the earnings of the worker or the degree to which any child is dependent on the earnings of the worker no regard shall be had to any child endowment payments which have been or may be made in respect of the child under the Commonwealth Act known as the Social Services Act 1947–1957 or any amendment thereof or any Act in substitution therefor, but every such determination shall be made as if no such payment has been or will be made.

The Clauses Referred to—continued

S. 9 cl. 2(4) inserted by No. 7292 s. 5(2).

Notwithstanding anything to the contrary in this Act—

any child of the worker (including a child of the worker born out of wedlock) who is under the age of sixteen years at the time of the death of the worker or other relevant time shall unless the contrary is proved be deemed and taken to be a dependant of the worker (where that fact is relevant) and to be wholly dependent on his earnings at the time of his death or other relevant time; and

the wife of the worker, if a statutory declaration made by her has been delivered to the employer to the effect that she was wholly mainly or in part dependent on the earnings of the worker at the time of the injury which gave rise to his death or at any other relevant time, shall unless the contrary is proved be deemed and taken to be a dependant of the worker (where that fact is relevant) and to be dependent on his earnings at the time of the death or other relevant time to the extent stated in the statutory declaration; and

in determining whether a wife was wholly mainly or in part dependent on the worker at the time of the death of the worker or other relevant time no regard shall be had, to any moneys which the wife had earned or was earning by her own personal exertion or to any savings arising from any such earnings.

The Clauses Referred to—continued

3. Disregard payments from friendly society etc.

In computing or otherwise determining the amount of compensation payable under any of the provisions of this Act no regard shall be had to any sum paid or payable under any contract of assurance or insurance (including a contract made with any friendly or other benefit society or association or any trade union) or out of any relief superannuation or sustentation fund or other fund (whether statutory or otherwise) of the like nature.

4. Average weekly earnings

In this Act any reference to the average weekly earnings of a worker before the injury shall, subject to the following rules, be taken to refer to his average weekly earnings during the period of twelve months preceding the injury if he has been so long employed by the same employer, but, if not, then for any lesser period during which he has been so employed, and in the ascertainment of such average weekly earnings the following rules shall be observed—

in computing average weekly earnings amounts paid for overtime worked by the worker shall be included;

where, by reason of the shortness of time during which the worker has been in the employment of his employer or the terms of the employment, it is impracticable at the time of the injury to compute the average weekly earnings of the worker under that employer, regard may be had to the average weekly amount which during

The Clauses Referred to—continued

the twelve months previous to the injury was being earned by a person in the same grade employed at the same work by the same employer or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district;

where the worker had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer or where the worker's employment has been of a casual nature his average weekly earnings shall be computed as if his earnings under all such contracts or in the employment of his several employers were earnings in the employment of the employer for whom he was working at the time of the injury;

S. 9 cl. 4(d) amended by No. 7292 s. 6(1).

employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the time of the injury uninterrupted by absence from work due to illness or other unavoidable cause, and the worker shall be deemed to have been employed in a new grade of employment whenever his rate of payment has been lawfully increased or decreased;

The Clauses Referred to—continued

where the employer has been accustomed to pay to the worker any sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings;

where the worker delivers to the employer a statement in writing verified by statutory declaration setting out the amount of his earnings during any period such statement shall be prima facie evidence that that amount was the earnings of the worker during that period.

5. Payments, allowances etc. by employer

In fixing the amount of any weekly payment regard shall be had to any payment allowance or benefit the worker may receive from the employer during the period of his incapacity.

S. 9 cl. 5A inserted by No. 10100 s. 5.

5A. Commencement of weekly payments

Subject to subclause (2), an employer shall commence making weekly payments as soon as is practicable after the commencement of the incapacity in respect of which they are payable, and in any case not more than 21 days after the worker has provided to the employer—

S. 9 cl. 5A(1)(a) amended by No. 23/1994 s. 118(Sch. 1 item 59.3(a)).

a certificate from a registered medical practitioner, certifying that the worker has an incapacity for work and specifying the nature of the injury which is the cause of that incapacity; and

The Clauses Referred to—continued

S. 9 cl. 5A(1)(b) substituted by No. 41/2006 s. 32(1).

a claim in writing for compensation in respect of that incapacity together with the following particulars of the claim—

the name, residential address and date of birth of the worker;

the nature and alleged cause of the injury in respect of which the claim is made and the place where and the date on which that injury happened;

the date of the commencement of the incapacity for work which resulted from or was materially contributed to by that injury where this date is different from the date of the injury;

the name and residential address of all persons who in relation to the worker are a wife, husband, relative or child who is wholly or mainly dependent on the earnings of the worker within the meaning of clause 1(b)(i) and the nature of the relationship to the worker of each person so named and the date of birth of each child so named.

S. 9 cl. 5A(1A) inserted by No. 10191 s. 261(b)(iii).

It shall not be necessary for a worker to provide both the documents referred to in subclause (1) at the same time and where the worker provides the documents at different times the period of 21 days shall commence on the day after the day on which the remaining document was provided.

The Clauses Referred to—continued

S. 9 cl. 5A(2) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

Any employer who disputes his liability, or the extent of his liability, to make weekly payments under this Act to a worker may within the period of 21 days referred to in subclause (1) apply to the County Court for an order that he is not required to commence making weekly payments.

Where an employer makes an application under subclause (2) in relation to a worker, the provisions of subclause (1) shall be suspended in relation to that worker pending the determination of the application.

S. 9 cl. 5A(4) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

Upon the hearing of an application made under subclause (2), the County Court may—

adjourn the application upon such terms as it thinks fit;

if it considers that there is a genuine dispute as to whether the employer is liable to make weekly payments—uphold the application;

S. 9 cl. 5A(4)(c) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

if it considers that there is a genuine dispute as to the extent of the employer's liability to make weekly payments—

uphold the application in relation to so much of the weekly payments as is in dispute; and

order that subclause (6) shall apply to the balance of the weekly payments with such modifications as the County Court considers are necessary; or

The Clauses Referred to—continued

if it considers there is no genuine dispute as to the liability, or the extent of the liability, of the employer to make weekly payments—dismiss the application.

In this clause genuine dispute does not include a dispute as to a worker's capacity for employment.

Where an application made under subclause (2) is dismissed, the employer shall—

commence making weekly payments to the worker; and

S. 9 cl. 5A(6)(b) amended by Nos 10191 s. 261(b)(iv) (viii), 67/1992 s. 64(11)(b).

pay to the worker an amount equal to—

the total of all outstanding weekly payments; and

S. 9 cl. 5A(6)(b)(ii) amended by No. 41/2006 s. 32(2).

interest at a rate determined by the County Court for the purposes of this subclause not exceeding the rate fixed for the time being under section 2 of the Penalty Interest Rates Act 1983 upon each outstanding weekly payment, from the time when that payment would have been payable until the money is paid.

In subclause (6) outstanding weekly payment means a weekly payment which the employer, if an application under subclause (2) had not been made, would have been required to pay to the worker within the period commencing on the day of the

The Clauses Referred to—continued

commencement of the incapacity and concluding immediately before the day on which the application is dismissed.

For the purposes of this Act a payment made under paragraph (b) of subclause (6) shall be deemed to be compensation payable under this Act.

S. 9 cl. 5A(9) amended by Nos 10191 s. 261(b)(viii) (ix), 67/1992 s. 64(11)(b).

Where—

an application made under subclause (2) is dismissed; and

the County Court is of the opinion that the applicant made the application without reasonable grounds for doing so, and knowing that he had no reasonable grounds for doing so—

the County Court may impose a penalty of an amount not exceeding 10 penalty units on the applicant.

S. 9 cl. 5A(10) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

Where—

S. 9 cl. 5A(10)(a) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

an application made under subclause (2) is heard by a person authorized to hear the application and is not heard by the County Court;

the application is dismissed; and

the person hearing the application is of the opinion that the applicant may have made the application without reasonable grounds for doing so, and

The Clauses Referred to—continued

knowing that he had no reasonable grounds for doing so—

the person hearing the application shall refer the matter to the County Court for determination under subclause (9).

S. 9 cl. 5A(11) amended by No. 10191 s. 261(b)(ix).

An employer who—

fails to commence to make weekly payments pursuant to this clause; or

where the operation of subclause (1) is suspended by the making of an application under subclause (2) and the application is dismissed or an order is made under paragraph (c) of subclause (4), fails to commence to make weekly payments or to pay any other amount payable under subclause (6) or under that order—

shall be guilty of an offence against this Act and liable to a penalty not exceeding 10 penalty units.

S. 9 cl. 5A(12) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

The fact that an application under subclause (2) has been upheld or dismissed shall not be taken into account by the County Court in any proceedings other than proceedings under this clause or under clause 6A.

6. Review of weekly payment

S. 9 cl. 6(1) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

Any weekly payment may be reviewed at the request either of the employer or of the worker, and on such review may be ended, diminished, or increased subject to the provisions of this Act, and the amount of payment shall be settled by the County Court.

The Clauses Referred to—continued

Where the review takes place more than three months after the injury the amount of the weekly payment may be increased to such an amount as would have been awarded if the average weekly earnings of the worker before the injury had been the same as the average weekly earnings which he would probably have been earning at the date of the review if he had remained uninjured.

S. 9 cl. 6A inserted by No. 10100 s. 6(1).

6A. Return to work

Where a worker who is receiving weekly payments for total or partial incapacity returns to work the following provisions apply—

where the worker returns to work other than with the employer by whom compensation is payable, the worker shall forthwith notify that employer of the fact that he has returned to work;

a worker who fails to comply with paragraph (a) shall be guilty of an offence against this Act; and

whether or not the worker returns to work with the employer by whom compensation is payable, that employer is entitled to end or diminish the making of weekly payments from the day on which the worker returns to work.

The Clauses Referred to—continued

S. 9 cl. 6A(2) amended by No. 83/1987 s. 109(2)(a).

Subject to subclause (4), where a worker to whom subclause (1) applies—

within three months after he returns to work ceases to work by reason of incapacity for work resulting from, or materially contributed to by, the original injury; and

S. 9 cl. 6A(2)(b) amended by No. 23/1994 s. 118(Sch. 1 item 59.3(b)).

provides to the employer by whom compensation was payable—

a certificate from a registered medical practitioner, certifying that the worker has an incapacity for work and specifying the nature of the injury which is the cause of that incapacity; and

an application by the worker for the resumption of weekly payments—

the employer by whom compensation was payable shall as soon as is practicable, and in any case not more than 21 days after he has received the certificate and application, recommence making weekly payments for total or partial incapacity (as the case may be) for the period commencing on the day on which the worker again ceased to work.

S. 9 cl. 6A(2A) inserted by No. 10191 s. 261(b)(v).

It shall not be necessary for a worker to whom subclause (1) applies to provide both the documents referred to in subclause (2)(b) at the same time and where the worker provides the documents at different times the period of 21 days shall commence on the day after the day on which the remaining document was received by the employer.

The Clauses Referred to—continued

Where—

S. 9 cl. 6A(3)(a) amended by No. 23/1994 s. 118(Sch. 1 item 59.3(b)).

under subclause (2) a worker provides a certificate from a registered medical practitioner to the employer by whom compensation was payable; and

during the period after the worker returned to work he worked for an employer other than the employer by whom compensation was payable—

the worker shall provide a copy of the certificate and application to the employer with whom the worker returned to work.

S. 9 cl. 6A(4) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

An employer who—

receives an application by a worker made under subclause (2); and

asserts that the incapacity for work does not result from and is not materially contributed to by the original injury—

may within the period of 21 days referred to in subclause (2) apply to the County Court for an order that he is not required to recommence making weekly payments.

Where an employer makes an application under subclause (4) in relation to a worker, the provisions of subclause (2) shall be suspended in relation to that worker pending the determination of that application.

S. 9 cl. 6A(6) inserted by No. 10191 s. 261(b)(viii), amended by No. 67/1992 s. 64(11)(b).

Upon the hearing of an application made under subclause (4) the County Court may—

adjourn the application upon such terms as it thinks fit;

The Clauses Referred to—continued

if it considers that there is a genuine dispute as to whether the incapacity for work resulted from or was materially contributed to by the original injury—order that the suspension of the worker's right to weekly payments shall continue in respect of so much of the weekly payments as is the subject of the genuine dispute and upon the making of such an order the suspension of the worker's right to weekly payments shall continue accordingly; or

if it considers there is no genuine dispute as to whether the incapacity for work resulted from or was materially contributed to by the original injury—dismiss the application.

Where an application made under subclause (3) is dismissed, the employer shall—

recommence making weekly payments to the worker for total or partial incapacity (as the case may be); and

S. 9 cl. 6A(7)(b) amended by Nos 10191 s. 261(b)(vi) (viii), 67/1992 s. 64(11)(b).

pay to the worker an amount equal to—

the total of all outstanding weekly payments; and

S. 9 cl. 6A(7)(b)(ii) amended by No. 41/2006 s. 32(2).

interest at a rate determined by the County Court for the purposes of this subclause not exceeding the rate fixed for the time being under section 2 of the Penalty Interest Rates Act 1983 upon each outstanding weekly payment,

The Clauses Referred to—continued

calculated from the time when that payment would have been payable until the money is paid.

In subclause (7) outstanding weekly payment means a weekly payment which the employer, if an application under subclause (3) had not been made, would have been required to pay to the worker within the period commencing on the day when the worker again ceased to work and concluding immediately before the day on which the application is dismissed.

For the purposes of this Act a payment made under paragraph (b) of subclause (7) shall be deemed to be compensation payable under this Act.

S. 9 cl. 6A(10) amended by Nos 10191 s. 261(b)(viii) (ix), 67/1992 s. 64(11)(b).

Where—

an application made under subclause (3) is dismissed; and

S. 9 cl. 6A (10)(b) amended by No. 67/1992 s. 64(11)(b).

the County Court is of the opinion that the applicant made the application without reasonable grounds for doing so, and knowing that he had no reasonable grounds for doing so—

the County Court may impose a penalty of an amount not exceeding 10 penalty units on the applicant.

The Clauses Referred to—continued

S. 9 cl. 6A(11) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b) (as amended by No. 50/1993 s. 111(2)(d)(i)).

Where—

an application made under subclause (3) is heard by a person authorized to hear the application and is not heard by the County Court;

the application is dismissed; and

the person hearing the application is of the opinion that the applicant may have made the application without reasonable grounds for doing so, and knowing that he had no reasonable grounds for doing so—

the persons hearing the application shall refer the matter to the County Court for determination under subclause (10).

S. 9 cl. 6A(12) amended by No. 10191 s. 261(b)(ix).

An employer who—

fails to recommence to make weekly payments for total or partial incapacity (as the case may be) pursuant to this clause; or

where the operation of subclause (2) is suspended by the making of an application under subclause (3) and the application is dismissed, fails to recommence to make weekly payments for total or partial incapacity (as the case may be) or to pay an amount payable under paragraph (b) of subclause (7)—

shall be guilty of an offence against this Act and liable to a penalty not exceeding 10 penalty units.

The Clauses Referred to—continued

S. 9 cl. 6A(13) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

The fact that an application made under subclause (3) has been upheld or dismissed shall not be taken into account by the County Court in any proceedings other than proceedings under this clause.

S. 9 cl. 6B inserted by No. 10100 s. 7.

6B. Late payment

S. 9 cl. 6B(1) amended by No. 50/1994 s. 114(1).

Where—

an employer fails to make any weekly payment on or before the day on which he is required to do so; and

the obligation of the employer to make that weekly payment has not at any time been suspended under clause 5A or 6A—

the employer shall pay to the worker in respect of each weekly payment so unpaid in addition to any other payment the employer is required to make under this Act interest at the rate fixed for the time being under section 2 of the Penalty Interest Rates Act 1983 on each unpaid weekly payment for the period during which it is unpaid.

For the purposes of this Act an amount payable under subclause (1) shall be deemed to be compensation payable under this Act.

S. 9 cl. 6C inserted by No. 48/1986 s. 33(1), amended by No. 50/1994 s. 114(2)(a).

6C. Order for weekly payments

If an employer fails to commence or recommence making weekly payments to a worker under clause 5A or clause 6A and has not within the period specified in those clauses made an application to the County Court for an order that he or she is not

The Clauses Referred to—continued

required to commence or recommence making weekly payments, the worker may apply to the County Court for an order that the making of weekly payments be commenced or recommenced.

7. Cessation etc. of weekly payments

S. 9 cl. 7(1) amended by Nos 10191 s. 261(b)(viii), 67/1992 s. 64(11)(b).

An employer shall not otherwise than in pursuance of an order of the County Court end or diminish a weekly payment except where—

S. 9 cl. 7(1)(aa) inserted by No. 9136 s. 2(1)(c), amended by Nos 10191 s. 261(b)(vii) (viii), 67/1992 s. 64(11)(b).

the compensation that has been paid by the employer under this Act (including weekly payments) in respect of the particular injury of the worker to which the weekly payments relate—

was not paid pursuant to an award of the County Court; and

was not paid in respect of any liability for which the employer is entitled to be indemnified under the terms of the policy of accident insurance or indemnity held by the employer in accordance with section 72(1)(a) as in force before the appointed day or that policy as extended;

S. 9 cl. 7(1)(a) substituted by No. 10100 s. 6(2).

he is entitled to do so under clause 6A;

the weekly earnings of a worker in receipt of a weekly payment in respect of partial incapacity have actually been increased; or

The Clauses Referred to—continued

S. 9 cl. 7(1)(c) amended by Nos 7292 s. 6(2)(a)(b), 8733 s. 6(f)(g), 10191 s. 261(b)(viii), 83/1987 s. 109(2)(b), 67/1992 s. 64(11)(b), 23/1994 s. 118(Sch. 1 item 59.3

–(e)), 50/1994 s. 114(2)(b)(c).

the registered medical practitioner who has examined the worker pursuant to subsection (2) of section 27 has certified that the worker has (specifying which) wholly recovered or substantially recovered from the effects of the injury or that the incapacity is no longer due wholly or substantially to the injury and a copy of the certificate (which shall set out the grounds of the opinion of the registered medical practitioner) together with notice of the intention of the employer at the expiration of 28 clear days from the date of the service of the notice to end the weekly payment or to diminish it by such amount (being not more than 50 per centum thereof) as is stated in the notice has within 28 days after the examination been served by the employer upon the worker personally or in such manner as may be ordered by the County Court:

Provided that—

in the last mentioned case—if before the expiration of the said 28 clear days the worker sends to the employer the report of a registered medical practitioner (which report shall set out the grounds of his opinion) disagreeing with the certificate so served by the employer, the weekly payment shall not be ended or diminished except in accordance with such report or, if and so far as the employer so

The Clauses Referred to—continued

disputes such report, except in accordance with the certificate given by the medical referee pursuant to subsection (5) of section twenty-seven of this Act;

where an application has been made pursuant to subsection (4) of section twenty-seven of this Act to refer the dispute to a medical referee, it shall be lawful for the employer pending the settlement of the dispute to pay into the custody of the County Court—

where the notice was a notice to end the weekly payment—the whole of each weekly payment becoming payable in the meantime;

where the notice was a notice to diminish the weekly payment—so much of each weekly payment so payable as is in dispute—

and the sums so paid into the custody of the County Court shall on the settlement of the dispute be paid to the employer or to the worker according to the effect of the certificate of the medical referee or, if the effect of that certificate is disputed, as is determined by the County Court; and

The Clauses Referred to—continued

nothing in this clause shall be construed as authorizing an employer to end or diminish a weekly payment in any case in which, or to an extent to which, apart from this paragraph he would not be entitled to do so;

every notice of intention given by an employer pursuant to this paragraph shall inform the worker in the manner and form prescribed by rules under the County Court Act 1958 that if the worker fails to send to the employer the report of the registered medical practitioner as aforesaid within 28 clear days the employer will, subject to this clause, be entitled to end or diminish the weekly payment;

if any dispute arises between a worker and an employer in relation to or in connexion with the operation of the foregoing provisions of this subclause the dispute shall, upon the application of the employer or of the worker, be heard and determined by the County Court.

S. 9 cl. 7(1A) inserted by No. 7292 s. 6(2)(c).

The ending or diminishing of a weekly payment by an employer shall not, where the worker remains partially incapacitated for work, be regarded as having been made in accordance with the provisions of this clause unless the employer without further award continues to pay to the worker such weekly payments for partial incapacity as are

The Clauses Referred to—continued

payable pursuant to subparagraph (ii) of paragraph (b) of clause one in the circumstances of the case.

S. 9 cl. 7(2) amended by No. 7292 s. 6(2)(d).

If any weekly payment is ended or diminished otherwise than in accordance with the foregoing provisions of this clause the employer shall be guilty of an offence against this Act.

S. 9 cl. 7(3) substituted by No. 10100 s. 8, amended by No. 10191 s. 261(b)(ix).

An employer who fails to make a weekly payment payable under this Act before the expiry of 7 days after the end of the week in respect of which it is payable shall be guilty of an offence against this Act and liable to a penalty not exceeding 10 penalty units.

S. 9 cl. 7(4) inserted by No. 10100 s. 8.

A weekly payment may be made by post by properly addressing, prepaying and posting to the worker a letter containing a cheque for the amount of the weekly payment and for all the purposes of this Act payment shall be deemed to have been made when the letter was posted.

S. 9 cl. 8 repealed by No. 41/2006 s. 32(3).

* * * * *

——

No. 5601 s. 10.

S. 10 amended by Nos 10191 s. 270(14)(a), 67/1992 s. 64(11)(b).