Queensland WORKCOVER QUEENSLAND AMENDMENT BILL 2001 Queensland WORKCOVER QUEENSLAND AMENDMENT BILL 2001 TABLE OF PROVISIONS Section 1 Short title. 2... eee eens 2 Commencement. ......... 0... eee eee eee eee eens 3 Act amended ...... 0... 00. ec cee eens 4 Amendment of s 5 (Workers' compensation scheme).................. 5 Omission of s 6 (Protection of employers in relation to damages)........ 6 Amendment of s 11 (Meaning of "damages")................000.0005 7 Omission of ch 1, pt 4, div 6, sdivs 5-6... 2... eee eee 8 Amendment of s 167 (Maximum entitlement) ..................020-- 9 Amendment of s 201 (Calculation of WRI) .............02. eee eee ee — o Amendment of s 203 (WorkCover to give notice of assessment of permanent impairment)....... 00... cece eee 11 Amendment of s 206 (Certificate injury) ..............0... eee eee ee 12 Amendment of s 207 (Non-certificate injury)..................000008 13 Amendment of s 210 (Additional lump sum compensation for certain workers) kk cence e eee eens 14 Amendment of s 211 (Additional lump sum compensation for gratuitous care) oe eee eee eee 15 Amendment of s 218 (Total dependency) ................2. 000 0c eee 16 Amendment of s 248 (Worker must mitigate loss) ................00.. 17 Amendment of s 250 (Definitions for ch 5) ............ 002. e cece ee ee 18 Amendment of s 253 (General limitation on persons entitled to seek damages) wwe eee eee eee eee 19 Amendment of s 254 (Worker with terminal condition)................ 20 Replacement of ch 5, pt 2, divs 2-6, div 7 hdg ands 273............... 255 Worker who is required to make election to seek damages........ Page 0 0 0 OM 0 0 C0 C 10 1212 1314 WorkCover Queensland Amendment Bill 2001 Division 2—Consequences, to costs, of seeking damages Consequences, to costs, of seeking damages................... Division 3—Claimant who has received notice of assessment Subdivision 1—Application of division 3 Application of div 3.0.0.0... 0... eee eee eee eee Subdivision 2—Claimant mentioned in s 253(1)(a)(i) 259 Application of subdiv 2.0.0.0... 0.0... eee eee eee eee Need for urgent proceedings .....................20.202020202002 Subdivision 3—Claimant mentioned in s 253(1)(a)(ii) 261264 Application of subdiv 3.1.0... 0... eee eee eee eee Claimant with more than 1 injury from an event................ Claimant may ask for injury to be assessed for permanent impairment wk eee eee Need for urgent proceedings .....................20.202020202002 When urgent proceeding must be discontinued. ................ Division 4—Claimant mentioned in s 253(1)(b) 266268 Application of div 4.0.0.0... 0... cee eee eee eee Claimant may seek damages only after being assessed........... Need for urgent proceedings .....................20.202020202002 When urgent proceeding must be discontinued. ................ Division 5—Claimant mentioned in s 253(1)(c) 270 272 273A 273B 273C Application of div5....... 0... eee eee eee eee Access to damages if application for compensation is subject to review or appeal................0...00000.02002 0002222 Need for urgent proceedings .....................20.202020202002 When urgent proceedings must be discontinued ................ Division 6—Claimant mentioned in s 253(1)(d) Application of div 6.0.0.0... 0... Access to damages if claimant has not lodged application for compensation 2.0... eee eee eee eee Need for urgent proceedings .....................20.202020202002 When proceedings must be discontinued. ..................2.. Division 7—Person mentioned in s 253(1)(e) 16 16 181920 2123WorkCover Queensland Amendment Bill 2001 25 28 3033 273D Application of div7....... 00... 273E Claimant may seek damages only in particular cases ............ 273F Need for urgent proceedings ............. 0.0.0.0. eee eee eee 273G When proceedings must be discontinued..................00.. Division 8—Review of worker's decision to accept payment of lump sum compensation for injury—WRI less than 20% 273H Application of div 8.0.0.0... 0... Amendment of s 274 (Decision not to seek damages reviewable in certain CIFCUMStANCES). 06. teen tee tee eee nee Replacement of ch 5, pt3 2.2... eee eee PART 3—MITIGATION OF LOSS AND REHABILITATION 275 Mitigation of loss... 2... eee eee 275A Provision of rehabilitation.......... 0.0... eee 275B Costs of rehabilitation ...... 0.0... eee eee eee Replacement of s 279 (Object of pt 5) ..... 2... cece eee eee eee 279 Object of ptS. 2... eee eee eee 279A Overriding obligations of parties........ 0.0... eee eee Amendment of s 280 (Notice of claim for damages) .................. Insertion of new s 280A .. 0... eee eee 280A Noncompliance with s 280 and urgent proceedings ............. Amendment of s 281 (Claimant to tell WorkCover of change to information in notice of claim) ............0 0 ccc cece eee eens Amendment of s 282 (Response to notice of claim)................... Replacement of s 283 (WorkCover to give information to claimant)... ... 283 Claimant and WorkCover to cooperate ........... 0.0.0.2 ee eee Amendment of s 285 (WorkCover and claimant to attempt to resolve claim) Amendment of s 288 (Non-disclosure of certain material).............. Replacement of s 293 (Compulsory conference) ................00044 293 Compulsory conference......... 0... cece eee ee eee 293A Procedure at conference......... 0... cee eee eee 293B Information to be given by party's lawyer before other type of settlement attempted ...........0.... 0.02 eee eee eee eee ee Omission of ch 5, pt 6, div2......... 0... cee eee eee Amendment of s 302 (Compliance necessary before starting proceeding). . 2427 27 283030313233353638WorkCover Queensland Amendment Bill 2001 37 3941 43454850 Amendment of s 303 (Claimant to have given complying notice of claim or WorkCover to have waived compliance)................ 00000 e eee eee Insertion of new s 305A 2.0... eee eee 305A Other provision for urgent proceedings.....................-- Amendment of s 308 (Alteration of period of limitation)............... Replacement of ss 312-314... 0.0... eee eee eee 312 Contributory negligence................00 00. cece Amendment of s 316 (Damages other than to claimant)................ Replacement of ch 5, pt 10, hdg ... 2... eee eee eee Omission of ch 5, pt 10, divs 1 and 2, and div 3 hdg .................. Replacement of ch 5, pt 11, div 1 and div 2hdg...................0.. Division 1—Costs applying to worker with WRI of 20% or more or dependant 320 Application of div1.............. 0.0 321 Principles about orders as to costs...............0000000 ee eee 322 Costs if written final offer by claimant ....................... 323 Costs if written final offer by WorkCover ..................... 323A Interest after service of written final offer..................... Division 2—Costs applying to worker with WRI less than 20% or no WRI'. Amendment of s 324 (Application of div 2)..................0000008 Amendment of s 325 (Principles about orders as to costs).............. Amendment of s 437 (Reference to tribunals) ................0000005 Amendment of s 454 (Further reference on fresh evidence)............. Replacement of s 456 (Finality of tribunal's decision)................. 455A Tribunal may refer non-medical matters back to WorkCover ...... 456 Finality of tribunal's decision .............. 0.0.00... eee eee Amendment of s 457 (Decisions of tribunal) ..................000005 Amendment of s 489 (Application of pt 2)................. 0.000008 Amendment of s 498 (Who may appeal).................000 00000008 Insertion of news SOIA 2... eee eee eee 501A Application of Uniform Civil Procedure Rules and Industrial Relations (Tribunals) Rules ................0 0.0: e eee eee eee Insertion of new ss 510A and SIOB ... 0.6... eee eee eee 3939404141 4142434444454646 WorkCover Queensland Amendment Bill 2001 510A Costs of appeal to Industrial Court ............0....000000008 510B Recovery of costs... 0.6... cbc eee eee eee eee Insertion of new ch 14....... 06.0 CHAPTER 14—TRANSITIONAL PROVISIONS FOR WORKCOVER QUEENSLAND AMENDMENT ACT 2001 587 Definitions forch 14 1.0... eee eee 588 Injury before I July 2001........... 0... eee eee 589 Reference to medical assessment tribunal.................00.. 590 Formal revival of claim for loss of consortium ................. Amendment of sch 3 (Dictionary)......... 0.00. SCHEDULE ........................ MINOR AMENDMENTS 47474849 A BILL FOR An Act to amend the WorkCover Queensland Act 1996 Clause Clause Clause Clause Clause Clause sl 8 s6 WorkCover Queensland Amendment Bill 2001 The Parliament of Queensland enacts— 1 Short title This Act may be cited as the WorkCover Queensland Amendment Act 2001. 2 Commencement This Act is taken to have commenced on 1 July 2001. 3 Act amended This Act amends the WorkCover Queensland Act 1996. 4 Amendment of s 5 (Workers' compensation scheme) (1) Section 5(4)(c) to (e)— renumber as section 5(4)(d) to (f). (2) Section 5(4)— insert— '(c) provide for the protection of employers' interests in relation to claims for damages for workers' injuries; and'. 5 Omission of s 6 (Protection of employers in relation to damages) Section 6— omit. 6 Amendment of s 11 (Meaning of "damages'') Section 11— insert— & UW nk WN FF OS a 21 Clause Clause Clause Clause s7 9 s10 WorkCover Queensland Amendment Bill 2001 '(3) Also, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages for loss of consortium resulting from injury sustained by a worker.'. 7 Omission of ch 1, pt 4, div 6, sdivs 5-6 Chapter 1, part 4, division 6, subdivisions 5 and 6— omit. 8 Amendment of s 167 (Maximum entitlement) Section 167(1)(a), (b) and (c), '$103 100'— omit, insert— "$150 000'. 9 Amendment of s 201 (Calculation of WRI) Section 201— insert— '(3) However, in relation to an event, the worker's WRI for a psychiatric or psychological injury and the worker's WRI for another injury must not be combined in calculating the WRI for the worker's injury.'. 10 Amendment of s 203 (WorkCover to give notice of assessment of permanent impairment) (1) Section 203(1), '28 days'>— omit, insert— "14 days'. (2) Section 203(3)(b)Gi)— omit, insert— '(ii) the WRI calculated for the injury; and'. (3) Section 203(3)(c)— omit, insert— Wn Dunk WN \o on 212325 sil 10 s12 WorkCover Queensland Amendment Bill 2001 '(c) if the worker's WRI is 50% or more—the worker's entitlement to additional lump sum compensation under section 210;! and (d) if the worker's WRI is 15% or more—the worker's entitlement to additional lump sum compensation (if any) for gratuitous care under section 211.2'. (4) Section 203(4), '259, 260'— omit, insert— '255, 256'. Clause 11 Amendment of s 206 (Certificate injury) (1) Section 206, heading— omit, insert— '206 Worker's decision about lump sum compensation—WRI 20% or more'. (2) Section 206(1)— omit, insert— '(1) This section applies if— (a) the worker has— (i) apsychiatric or psychological injury that results in a WRI of the worker of 20% or more; or (ii) another injury that results in a WRI of the worker of 20% or more; and (b) the worker has an entitlement to lump sum compensation.' . Clause 12 Amendment of s 207 (Non-certificate injury) (1) Section 207, heading — omit, insert— 1 Section 210 (Additional lump sum compensation for certain workers) 2 Section 211 (Additional lump sum compensation for gratuitous care) CoN HD MNBW NK oOoOmArNANI DUN F WN KF CO Nw - oO N N 24 $13 11 s14 WorkCover Queensland Amendment Bill 2001 '207 Worker's decision about lump sum compensation—WRI less than 20% or no WRI'. (2) Section 207(1)— omit, insert— '(1) This section applies if— (a) the worker— (i) has— (A) a psychiatric or psychological injury that results in a WRI of the worker of less than 20%; or (B) another injury that results in a WRI of the worker of less than 20%; and (ii) has an entitlement to lump sum compensation; or (b) the worker has an injury that does not result in any WRI of the worker.'. (3) Section 207(2)(a), '259, 260'— omit, insert— '255, 256'. Clause 13 Amendment of s 210 (Additional lump sum compensation for certain workers) Section 210(2), '$103 100'— omit, insert— "$150 000'. Clause 14 Amendment of s 211 (Additional lump sum compensation for gratuitous care) Section 211(1)(a), '50%' — omit, insert— '15%'. Com ANI DN FW NK NYDN FW NY FO ow 2124 26 s15 12 s18 WorkCover Queensland Amendment Bill 2001 Clause 15 Amendment of s 218 (Total dependency) (1) Section 218(2)(a), '$164 960'— omit, insert— "$250 000'. (2) Section 218(2)(b), '$6 190'— omit, insert— "$9 375'. Clause 16 Amendment of s 248 (Worker must mitigate loss) Section 248— insert— '(3) The worker's duty under this section is in addition to any duty the worker may have under section 275.°'. Clause 17 Amendment of s 250 (Definitions for ch 5) (1) Section 250, definition "damages certificate' — omit. (2) Section 250— insert— ' "written final offer' means written final offer under section 294.'. Clause 18 Amendment of s 253 (General limitation on persons entitled to seek damages) (1) Section 253(1)(a)— omit, insert— '(a) the worker, if the worker— (i) has received a notice of assessment from WorkCover for the injury; or 3 Section 275 (Mitigation of loss) NYDN fF WN NOR oN DN FW 2123 25 Clause s19 13 s19 WorkCover Queensland Amendment Bill 2001 (ii) has not received a notice of assessment for the injury, but— (A) has received a notice of assessment for any injury resulting from the same event (the "assessed injury''); and (B) for the assessed injury, the worker has elected or is taken to have elected to seek damages and, under section 255, can not change the election; or'. (2) Section 253(1)(b) and (d), 'sustained by the worker' — omit. (3) Section 253(1)(d), as amended— renumber as section 253(1)(e). (4) Section 253(1)(c)— omit, insert— '(c) the worker, if— (i) the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 9; and (ii) the application has not been decided in or following the review or appeal; or (d) the worker, if the worker has not lodged any application for compensation for any injury resulting from the event; or'. (5) Section 253— insert— '(2A) If a worker has accepted an offer of lump sum compensation under chapter 3, part 9, division 3+ for an injury, the worker is not entitled, under subsection (1)(a)(ii) or otherwise, to seek damages for any injury resulting from the same event.'. 19 Amendment of s 254 (Worker with terminal condition) (1) Section 254(2)(a) and (b)— 4 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent impairment), division 3 (Notification of assessment of permanent impairment) Co mMOANIDN BWN om ANID fF wWN KF CO Nw - oO NN WwW N NoHOnnwv NAAN NY N \o ow Clause s 20 14 s 20 WorkCover Queensland Amendment Bill 2001 renumber as section 254(2)(b) and (c). (2) Section 254(2)— insert— '(a) section 275(2);>'. 20 Replacement of ch 5, pt 2, divs 2-6, div 7 hdg and s 273 Chapter 5, part 2, divisions 2 to 6, division 7 heading and section 273— omit, insert— '255 Worker who is required to make election to seek damages '(1) This section applies if a worker's notice of assessment states that— (a) the worker's WRI is less than 20%; or (b) the worker has an injury that does not result in any WRI of the worker. '(2) If, in the notice of assessment, the worker is offered a payment of lump sum compensation under chapter 3, part 9, division 3° for the injury, the worker is not entitled to both— (a) payment of lump sum compensation for the injury; and (b) damages for the injury. '(3) If, in the notice of assessment, the worker is required to make an election to seek damages for the injury, the worker can not change the worker's election— (a) if the worker has elected to seek damages for the injury—after notice of the election is given to WorkCover; or (b) if the worker is taken, under section 207(7),' to have elected to seek damages for the injury—after the worker lodges a notice of claim. 5 Section 275 (Mitigation of loss) 6 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent impairment), division 3 (Notification of assessment of permanent impairment) 7 Section 207 (Worker's decision about lump sum compensation—WRI less than 20% or no WRI) WN omnt nn N SCOmA NI WD UFW NK CO NN Ne NbNw Nn & WD s 20 15 s 20 WorkCover Queensland Amendment Bill 2001 'Division 2—Consequences, to costs, of seeking damages '256 Consequences, to costs, of seeking damages "(1) If the claimant is a worker and the claimant's notice of assessment states that the claimant's WRI is 20% or more, part 11, division 1 applies in relation to costs in the claimant's proceeding for damages. '(2) If the claimant is a worker and the claimant's notice of assessment states that— (a) the claimant's WRI is less than 20%; or (b) the claimant has an injury that does not result in any WRI of the claimant; part 11, division 2 applies in relation to costs in the claimant's proceeding for damages. '(3) If the claimant is a dependant, part 11, division 1 applies in relation to costs in the claimant's proceeding for damages. 'Division 3—Claimant who has received notice of assessment 'Subdivision 1—Application of division 3 '257 Application of div 3 'This division applies to a claimant who is a person mentioned in section 253(1)(a). 'Subdivision 2—Claimant mentioned in s 253(1)(a)(i) '258 Application of subdiv 2 'This subdivision applies to a claimant who is a person mentioned in section 253(1)(a)(i). Co OND NASW WV BW NF CO ow 23 s 20 16 s 20 WorkCover Queensland Amendment Bill 2001 '259 Need for urgent proceedings '(1) This section applies in relation to an urgent need for the claimant to start a proceeding for damages. (2) Section 280A® provides a way for the claimant to satisfy section 308(1)(a)(ii).° '(3) Also, the claimant may, under section 305,!° seek leave to start a proceeding for damages for an injury without complying with section 302.!! '(4) However, if the leave mentioned in subsection (3) is given, a proceeding started by leave is stayed until the claimant complies with section 302. 'Subdivision 3—Claimant mentioned in s 253(1)(a)(ii) '260 Application of subdiv 3 'This subdivision applies to a claimant who is a person mentioned in section 253(1)(a)(ii). '261 Claimant with more than 1 injury from an event '(1) The claimant need not have, and WorkCover can not decide to have, the injury assessed under chapter 3, part 9!2 to decide if the injury has resulted in a degree of permanent impairment. '(2) WorkCover can not decide that the claimant's notice of claim does not comply with section 280'3 only because the claimant has not received a notice of assessment for the injury. '(3) However, the claimant may seek damages for the injury only if WorkCover decides that the claimant— 8 Section 280A (Noncompliance with s 280 and urgent proceedings) 9 Section 308 (Alteration of period of limitation) 10 Section 305 (Court to have given leave despite noncompliance) 11 Section 302 (Compliance necessary before starting proceeding) 12 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent impairment) 13 Section 280 (Notice of claim for damages) OO OND NAH WN nas oman a 24 s 20 17 s 20 WorkCover Queensland Amendment Bill 2001 (a) was a worker when the injury was sustained; and (b) has sustained an injury. '(4) WorkCover must make a decision for the purpose of subsection (3) within 3 months after— (a) the claimant gives, or is taken to have given, a complying notice of claim; or (b) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280, with or without conditions; or (c) acourt makes a declaration under section 304.!4 '(5) WorkCover must notify the claimant and the claimant's employer of a decision it makes for the purpose of subsection (3). "(6) If WorkCover decides that the claimant— (a) was not a worker when the injury was sustained; or (b) has not sustained an injury; the notification must include written reasons for the decision. '(7) If WorkCover does not make a decision for the purpose of subsection (3) within the time mentioned in subsection (4), the claimant may have the failure to make a decision reviewed under chapter 9. '(8) A person aggrieved by a decision made by WorkCover for the purpose of subsection (3) may have the decision reviewed under chapter 9. '262 Claimant may ask for injury to be assessed for permanent impairment '(1) Despite section 261, the claimant may ask WorkCover to have the injury assessed under chapter 3, part 9 to decide if the injury has resulted in a degree of permanent impairment. '(2) WorkCover must have the degree of permanent impairment assessed under chapter 3, part 9 and give the claimant a notice of assessment. '(3) Chapter 3, part 9 applies to the assessment, but only for the purpose of assessing the degree of permanent impairment for the purposes of part 11. 14 — Section 304 (Court to have made declaration about noncompliance) OMAN DANN FW N FPO OMAN DA UN FW NK CO NW 2528 30 s 20 18 s 20 WorkCover Queensland Amendment Bill 2001 '(4) To remove any doubt, it is declared that the assessment does not give the claimant an entitlement to lump sum compensation under chapter 3, part 9, division 3!> for the injury. '263 Need for urgent proceedings '(1) This section applies in relation to an urgent need for the claimant to start a proceeding for damages. (2) Section 280A'° provides a way for the claimant to satisfy section 308(1)(a)(ii).!" '(3) Also, the claimant may, under section 305,!8 seek leave to start a proceeding for damages for an injury without complying with section 302.!9 '(4) However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed until— (a) WorkCover decides that the claimant was a worker when the injury was sustained; and (b) WorkCover decides that the claimant has sustained an injury; and (c) any review or appeal under chapter 9 ends; and (d) if the claimant decides to have the injury assessed under chapter 3, part 9—WorkCover gives the claimant a notice of assessment; and (e) the claimant complies with section 302. '264 When urgent proceeding must be discontinued '(1) This section applies to a proceeding mentioned in section 263(4). '(2) The claimant must discontinue the proceeding if it is decided by WorkCover, or on review or appeal under chapter 9, that the claimant— 15 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent impairment), division 3 (Notification of assessment of permanent impairment) 16 Section 280A (Noncompliance with s 280 and urgent proceedings) 17 — Section 308 (Alteration of period of limitation) 18 Section 305 (Court to have given leave despite noncompliance) 19 Section 302 (Compliance necessary before starting proceeding) WNre Co ON AN Ff SCOmDA NAN WD UF WN FO NY WY — 23 25 s 20 19 s 20 WorkCover Queensland Amendment Bill 2001 (a) was not a worker when the injury was sustained; or (b) has not sustained an injury. 'Division 4—Claimant mentioned in s 253(1)(b) '265 Application of div 4 'This division applies to a claimant who is a person mentioned in section 253(1)(b).2° '266 Claimant may seek damages only after being assessed '(1) The claimant may seek damages for the injury only if WorkCover gives the claimant a notice of assessment. '(2) For subsection (1), WorkCover must have the degree of permanent impairment assessed under chapter 3, part 9 and give the claimant a notice of assessment. '(3) Chapter 3, part 9 applies to the assessment. '267 Need for urgent proceedings '(1) This section applies in relation to an urgent need for the claimant to start a proceeding for damages. (2) Section 280A?! provides a way for the claimant to satisfy section 308(1)(a)(ii).22 '(3) Also, the claimant may, under section 305,73 seek leave to start a proceeding for damages for an injury without complying with section 302.74 '(4) However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed until— 20 Section 253 (General limitation on persons entitled to seek damages) 21 Section 280A (Noncompliance with s 280 and urgent proceedings) 22 Section 308 (Alteration of period of limitation) 23 Section 305 (Court to have given leave despite noncompliance) 24 Section 302 (Compliance necessary before starting proceeding) nun ow Ww Nr Oo orn nn 23 s 20 20 s 20 WorkCover Queensland Amendment Bill 2001 (a) WorkCover gives the claimant a notice of assessment; and (b) the claimant— (i) elects to seek damages for the injury; and (ii) complies with section 302. '268 When urgent proceeding must be discontinued '(1) This section applies if a claimant has started a proceeding mentioned in section 267(4). '(2) The claimant must discontinue the proceeding if the claimant elects to accept an offer of payment of lump sum compensation under chapter 3, part 9 for the injury. 'Division 5—Claimant mentioned in s 253(1)(c) '269 Application of div 5 'This division applies to a claimant who is a person mentioned in section 253(1)(c).?5 '270 Access to damages if application for compensation is subject to review or appeal '(1) The claimant may seek damages for the injury only after— (a) any review or appeal under chapter 9 ends; and (b) the application for compensation is decided; and (c) WorkCover gives the claimant a notice of assessment. '(2) For subsection (1)(c), WorkCover must have the degree of permanent impairment assessed under chapter 3, part 9 and give the claimant a notice of assessment. '(3) Chapter 3, part 9 applies to the assessment. 25 Section 253 (General limitation on persons entitled to seek damages) WN CoD nnn & W oMmnt ann 22 s 20 21 s 20 WorkCover Queensland Amendment Bill 2001 '271 Need for urgent proceedings '(1) This section applies in relation to an urgent need for the claimant to start a proceeding for damages. (2) Section 280A° provides a way for the claimant to satisfy section 308(1)(a)(ii).2" '(3) Also, the claimant may, under section 305,78 seek leave to start a proceeding for damages for an injury without complying with section 302.79 '(4) However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed until— (a) any review or appeal under chapter 9 ends; and (b) WorkCover gives the claimant a notice of assessment; and (c) the claimant— (i) elects to seek damages for the injury; and (ii) complies with section 302. '272 When urgent proceedings must be discontinued '(1) This section applies if the claimant has started a proceeding mentioned in section 271(4) and— (a) it has been decided by WorkCover, or on review or appeal under chapter 9, that the claimant— (i) was not a worker when the injury was sustained; or (ii) has not sustained an injury; or (b) the claimant elects to accept an offer of payment of lump sum compensation under chapter 3, part 9 for the injury. '(2) The claimant must discontinue the proceeding. 26 Section 280A (Noncompliance with s 280 and urgent proceedings) 27 — Section 308 (Alteration of period of limitation) 28 Section 305 (Court to have given leave despite noncompliance) 29 Section 302 (Compliance necessary before starting proceeding) OO OND NB WN nk WN FF CO s 20 22 s 20 WorkCover Queensland Amendment Bill 2001 Division 6—Claimant mentioned in s 253(1)(d) '273 Application of div 6 'This division applies to a claimant who is a person mentioned in section 253(1)(d).2° '273A Access to damages if claimant has not lodged application for compensation '(1) The claimant may only seek damages for any injury resulting from the event if WorkCover— (a) decides, for every injury resulting from the event, whether the claimant— (i) was a worker when the injury was sustained; and (ii) has sustained an injury; and (b) decides, for the injury for which damages may be sought. that the claimant— (i) was a worker when the injury was sustained; and (ii) has sustained an injury; and (c) gives the claimant a notice of assessment for every injury. '(2) For subsection (1)(c), WorkCover must have the degree of permanent impairment assessed under chapter 3, part 9 and give the claimant a notice of assessment. '(3) Chapter 3, part 9 applies to the assessment, but only for the purpose of assessing the degree of permanent impairment for the purposes of part 11. '(4) To remove any doubt, it is declared that the assessment does not give the claimant an entitlement to lump sum compensation under chapter 3, part 9, division 3+! for the injury. '(5) WorkCover must make a decision or decisions for the purpose of subsection (1)(b) within 3 months after— 30 Section 253 (General limitation on persons entitled to seek damages) 31 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent impairment), division 3 (Notification of assessment of permanent impairment) Ww Oo ON DMN N SCOmANI DN FW YN KF CO NNW WNre NNW Nuns NN on s 20 23 s 20 WorkCover Queensland Amendment Bill 2001 (a) the claimant gives, or is taken to have given, a complying notice of claim; or (b) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280, with or without conditions; or (c) acourt makes a declaration under section 304. '(6) WorkCover must notify the claimant and the claimant's employer of any decision it makes for the purpose of subsection (1)(b). '(7) If, for any injury, WorkCover decides that the claimant— (a) was not a worker when the injury was sustained; or (b) has not sustained an injury; the notification must include written reasons for the decision. '(8) If, for any injury, WorkCover does not make a decision for the purpose of subsection (1)(b) within the time mentioned in subsection (5), the claimant may have the failure to make a decision reviewed under chapter 9. '(9) A person aggrieved by a decision made by WorkCover for the purpose of subsection (1)(b) may have the decision reviewed under chapter 9. '(10) For any assessment mentioned in subsection (1)(c) made by WorkCover with which the person does not agree, section 204°? applies. '273B Need for urgent proceedings '(1) This section applies in relation to an urgent need for the claimant to start a proceeding for damages for any injury resulting from the event. (2) Section 280A provides a way for the claimant to satisfy section 308(1)(a)(ii).34 32 Section 204 (Worker's disagreement with assessment of permanent impairment) 33 Section 280A (Noncompliance with s 280 and urgent proceedings) 34 — Section 308 (Alteration of period of limitation) CON WD UNPW NK Fo OMAN ANFW YN YK CO Nw 24 26 s 20 24 s 20 WorkCover Queensland Amendment Bill 2001 '(3) Also, the claimant may, under section 305,35 seek leave to start a proceeding for damages for an injury without complying with section 302.36 '(4) However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed until— (a) WorkCover decides that the claimant— (i) was a worker when the injury was sustained; and (ii) has sustained an injury; and (b) any review or appeal under chapter 9 ends; and (c) WorkCover gives the claimant a notice of assessment; and (d) the claimant complies with section 302. '273C When proceedings must be discontinued '(1) This section applies to a proceeding mentioned in section 273B(4). '(2) The claimant must discontinue the proceeding if it has been decided by WorkCover, or on review or appeal under chapter 9, that the claimant— (a) was not a worker when the injury was sustained; or (b) has not sustained an injury. 'Division 7—Person mentioned in s 253(1)(e) '273D Application of div 7 'This division applies to a claimant who is a person mentioned in section 253(1)(e). '273E Claimant may seek damages only in particular cases '(1) The claimant may only seek damages for the injury if any of the following apply— 35 Section 305 (Court to have given leave despite noncompliance) 36 Section 302 (Compliance necessary before starting proceeding) oO mN DNF WNK YD UK W WY 21 24 s 20 25 s 20 WorkCover Queensland Amendment Bill 2001 (a) an application has been made for compensation under chapter 3, part 1037 and— (i) WorkCover has paid compensation under chapter 3, part 10 for the worker's death to the claimant as a dependant of a worker; or (ii) the application is or has been the subject of a review or appeal under chapter 9 and the application has not been decided in or following the review or appeal; (b) an application for compensation mentioned in paragraph (a) has not been made and WorkCover decides that— (i) the claimant was a dependant of the worker; and (ii) the deceased was a worker when the event happened; and (iii) the worker sustained an injury in the event; and (iv) the injury caused the worker's death. '(2) WorkCover must make a decision for the purpose of subsection (1)(b) within 3 months after— (a) the claimant gives, or is taken to have given, a complying notice of claim; or (b) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280, with or without conditions; or (c) acourt makes a declaration under section 304. '(3) WorkCover must notify the claimant and the worker's employer of a decision it makes for the purpose of subsection (1)(b). "(4) If WorkCover decides that— (a) the claimant was not a dependant of the worker; or (b) the deceased was not a worker when the event happened; or (c) the worker did not sustain an injury resulting from the event; or (d) the injury did not cause the worker's death; the notification must include written reasons for the decision. 37 Chapter 3 (Compensation), part 10 (Compensation on worker's death) OO OND NPW NK er annN fF WN KF CO Nw ee) N N NN BW NY be WN Naw 29 s 20 26 s 20 WorkCover Queensland Amendment Bill 2001 (5) If WorkCover does not make a decision for the purpose of subsection (1)(b) within the time mentioned in subsection (2), the claimant may have the failure to make a decision reviewed under chapter 9. '(6) A person aggrieved by a decision made by WorkCover for the purpose of subsection (1)(b) may apply to have the decision reviewed under chapter 9. '273F Need for urgent proceedings '(1) This section applies in relation to an urgent need for the claimant to start a proceeding for damages for the injury. (2) Section 280A*8 provides a way for the claimant to satisfy section 308(1)(a)(ii).3° '(3) Also, the claimant may, under section 305,*° seek leave to start a proceeding for damages for the injury without complying with section 302.4! '(4) However, if the leave mentioned in subsection (3) is given, for a claimant mentioned in section 273E(1)(a)(i), the proceeding started by leave is stayed until the claimant complies with section 302. "(5) Also, if the claimant is a claimant mentioned in section 273E(1)(a)(ii) or (b), the proceeding is stayed until— (a) WorkCover decides that— (i) the claimant was a dependant of the worker; and (ii) the deceased was a worker when the event happened; and (iii) the worker sustained an injury from the event; and (iv) the injury caused the worker's death; and (b) any review or appeal under chapter 9 ends; and (c) the claimant complies with section 302. 38 Section 280A (Noncompliance with s 280 and urgent proceedings) 39 — Section 308 (Alteration of period of limitation) 40 Section 305 (Court to have given leave despite noncompliance) 41 — Section 302 (Compliance necessary before starting proceeding) Dunk WN ~ ow Com ANID FWNY FO NY WY - OC 2325 s21 27 s 22 WorkCover Queensland Amendment Bill 2001 '273G When proceedings must be discontinued '(1) This section applies to a proceeding mentioned in section 273F(5). '(2) The claimant must discontinue the proceeding if it is decided by WorkCover, or on review or appeal under chapter 9, that— (a) the claimant was not a dependant of the worker; or (b) the deceased was not a worker when the event happened; or (c) the worker did not sustain an injury from the event; or (d) the injury did not cause the worker's death. 'Division 8—Review of worker's decision to accept payment of lump sum compensation for injury—WRI less than 20% '273H Application of div 8 'This division applies if— (a) a worker has elected, under section 207, to accept payment of lump sum compensation for an injury; and (b) the worker has been assessed under chapter 3, part 9 as having sustained a degree of permanent impairment that results ina WRI of the worker of less than 20%.'. Clause 21 Amendment of s 274 (Decision not to seek damages reviewable in certain circumstances) Section 274(7)(d), 'certificate injury' — omit, insert— "WRI of the worker of 20% or more'. Clause 22 Replacement of ch 5, pt 3 Chapter 5, part 3— omit, insert— 42 Section 207 (Non-certificate injury) oN DMN BW NY NAD FW NY ow 2124 s 22 28 s 22 WorkCover Queensland Amendment Bill 2001 'PART 3—MITIGATION OF LOSS AND REHABILITATION '275 Mitigation of loss '(1) The common law duty of mitigation of loss applies to all workers in relation to claims or proceedings for damages. '(2) The worker must satisfactorily participate in rehabilitation. '(3) The worker's duty mentioned in this section is in addition to any duty the worker may have under section 248. '275A Provision of rehabilitation '(1J) WorkCover may make rehabilitation available to a worker on WorkCover's own initiative or if the worker asks. '(2) If WorkCover makes rehabilitation available to a worker before admitting or denying liability for damages, WorkCover must not be taken, only for that reason, to have admitted liability. "(3) If (a) liability has been admitted for damages; or (b) WorkCover has agreed to fund rehabilitation without making an admission of liability; WorkCover must, if the worker asks, ensure that reasonable and appropriate rehabilitation is made available to the worker. '(4) The worker may, if not satisfied that the rehabilitation is reasonable and appropriate apply to WorkCover to appoint a mediator to help resolve the questions between the worker and WorkCover. '(5) An application for appointment of a mediator under subsection (4) must— (a) be made in writing; and (b) give details of any attempts made by the applicant to resolve the matter in dispute. 43 Section 248 (Worker must mitigate loss) N CoN DD NF W COND Nn PWN KO N ow NNW WN Nw ns N lon) NN aon s 22 29 s 22 WorkCover Queensland Amendment Bill 2001 '(6) The fees and expenses of the mediator are to be paid as agreed between the parties or, in the absence of agreement, by the parties in equal proportions. '(7) WorkCover must make rehabilitation available to the worker, and the worker must satisfactorily participate in the rehabilitation, in sufficient time to enable WorkCover and the worker to comply with parts 5, 6 and 7.4 '275B Costs of rehabilitation "(1) If WorkCover intends to ask a court to take the cost of rehabilitation into account in the assessment of damages payable to a worker, WorkCover must, before providing the rehabilitation, give the worker a written statement estimating the cost of the rehabilitation. '(2) WorkCover must bear, or reimburse, the cost of providing the rehabilitation, unless WorkCover's liability for the cost is reduced— (a) by agreement with the worker; or (b) by order of the court. '(3) The cost to WorkCover of providing the rehabilitation is to be taken into account in the assessment of damages on the claim if, and only if, WorkCover gave the statement mentioned in subsection (1). '(4) The following applies if the cost of rehabilitation is to be taken into account in the assessment of damages— (a) the damages are first assessed, without reduction for contributory negligence, on the assumption that the worker has incurred the cost of the rehabilitation; (b) then, any reduction of the damages assessed, on account of contributory negligence, is made; (c) then, the total cost of rehabilitation is set-off against the amount assessed under paragraph (b). Example— Suppose that responsibility for an injury is apportioned equally between the worker and WorkCover. Damages (exclusive of the cost of rehabilitation) before apportionment are fixed at $100 000. WorkCover has spent $5 000 on rehabilitation. In this case, the worker's damages will be assessed under paragraph (a) at $105 000 (that is, as if the 44 Parts 5 (Pre-court procedures), 6 (Settlement of claims) and 7 (Start of court proceedings) Dunk WnNne ~ ow N SCO OND NN FPF WN KF CO NNW WNre NN ns NWN NO N oo WwWwhy NRO!) Clause Clause s23 30 s 24 WorkCover Queensland Amendment Bill 2001 worker had incurred the $5 000 rehabilitation expense) and reduced to $52 500 under paragraph (b), and the $5 000 spent by WorkCover on rehabilitation will be set off against this amount, resulting in a final award of $47 500. '(5) If WorkCover is induced by a worker's fraud to provide rehabilitation to the worker, WorkCover may recover the cost of providing the rehabilitation, as a debt, from the worker.'. 23 Replacement of s 279 (Object of pt 5) Section 279— omit, insert— '279 Object of pt 5 'The object of this part is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense. '279A Overriding obligations of parties '(1) In accordance with the object of this part, this part is to be applied by the parties to avoid undue delay, expense and technicality and to facilitate the object. '(2) A party impliedly undertakes to other parties to proceed in an expeditious way. '(3) A court may impose appropriate sanctions if a party does not comply with a provision of this part.*°'. 24 Amendment of s 280 (Notice of claim for damages) (1) Section 280(2)— omit, insert— '(2) The claimant must— (a) if the worker's employer is not a self-insurer— (i) give the notice of claim in the approved form to WorkCover at WorkCover's registered office; and 45 — See section 291 (Court's power to enforce compliance with chapter). Dunk WNe nN Ne SCO ON ANH W N 2325 27 Clause s25 31 s 25 WorkCover Queensland Amendment Bill 2001 (ii) give a copy of the notice of claim to the worker's employer; or (b) if the worker's employer is a self-insurer—give the notice of claim in the approved form to the self-insurer at the self-insurer's registered office.'. (2) Section 280(5)— omit, insert— '(5) Any statement made by the claimant in the notice that is in the claimant's personal knowledge must be verified by statutory declaration.'. 25 Insertion of new s 280A After section 280— insert— '280A Noncompliance with s 280 and urgent proceedings '(1) The purpose of this section is to enable a claimant to avoid the need to bring an application under section 305. '(2) Without limiting section 304 or 305,' if the claimant alleges an urgent need?' to start a proceeding for damages despite noncompliance with section 280, the claimant must, in the claimant's notice of claim— (a) state the reasons for the urgency and the need to start the proceeding; and (b) ask WorkCover to waive compliance with the requirements of section 280. '(3) The claimant's lawyer may sign the notice of claim on the claimant's behalf if it is not reasonably practicable for the claimant to do so. '(4) The claimant's notice of claim may be given by fax in the way provided for under a regulation. '(5) WorkCover must, before the end of 3 business days after receiving the notice of claim, advise the claimant that WorkCover agrees or does not agree that there is an urgent need to start a proceeding for damages. 46 Section 304 (Court to have made declaration about noncompliance) or 305 (Court to have given leave despite noncompliance) 47 — See sections 259, 263, 267, 271, 273B and 273F. COA NY WD UNPW NK CDAD NP WN KF CO N ow NN Ne NN Bw NN nun NwWn oon Clause Clause s 26 32 s27 WorkCover Queensland Amendment Bill 2001 '(6) If WorkCover agrees that there is an urgent need to start a proceeding for damages, WorkCover may, in the advice to the claimant under subsection (5), impose the conditions WorkCover considers necessary or appropriate to satisfy WorkCover to waive compliance under section 282(2)(b). '(7) The claimant must comply with the conditions within a reasonable time that is agreed between WorkCover and the claimant. '(8) The claimant's agreement to comply with the conditions is taken to satisfy section 308(1)(a)(ii).*8'. 26 Amendment of s 281 (Claimant to tell WorkCover of change to information in notice of claim) (1) Section 281(1), after 'any'— insert— 'significant'. (2) Section 281(2), 'of change' — omit. 27 Amendment of s 282 (Response to notice of claim) (1) Section 282(2) and (3), '30 days' — omit, insert— "14 days'. (2) Section 282(2)(b) and (c)— renumber as section 282(2)(c) and (d). (3) Section 282(2)(a)— omit, insert— '(a) stating whether WorkCover is satisfied that the notice of claim is a complying notice of claim; and (b) if there is an urgent need to start a proceeding—stating that WorkCover is only willing to waive compliance with the 48 Section 308 (Alteration of period of limitation) COD ND NHPWNK Hn un fF WN FO ~ 212326 28 Clause s 28 33 s 28 WorkCover Queensland Amendment Bill 2001 requirements if the claimant agrees to satisfy conditions imposed by WorkCover under section 280A; and'. (4) Section 282(2)— insert— '(e) stating whether WorkCover is prepared, without admitting liability on the claim, to meet the cost of the claimant's reasonable and appropriate rehabilitation.' . (5) Section 282(4)— renumber as section 282(5). (6) Section 282— insert— '(4) If WorkCover does not give the written notice mentioned in subsection (2) within 14 days after receiving the notice of claim, the notice of claim is taken to be a complying notice of claim.'. (7) Section 282(5), as renumbered, '30 days'— omit, insert— "7 days'. 28 Replacement of s 283 (WorkCover to give information to claimant) Section 283— omit, insert— '283 Claimant and WorkCover to cooperate '(J) A claimant and WorkCover must cooperate in relation to a claim, in particular by— (a) giving each other copies of relevant documents about— (i) the circumstances of the event resulting in the injury; or (ii) the worker's injury; or (iii) the worker's prospects of rehabilitation; and (b) giving information reasonably requested by the other party about— (i) the circumstances of the event resulting in the injury; and Oo mANIDN FW NK NYDN PWN KF CO ow 2124 2628 30 s 28 34 s 28 WorkCover Queensland Amendment Bill 2001 (ii) the nature of the injury and of any impairment or financial loss resulting from the injury; and (iii) if applicable—the medical treatment and rehabilitation the worker has sought from, or been provided with, by the worker's employer or WorkCover; and (iv) the worker's medical history, as far as it is relevant to the claim; and (v) any applications for compensation made by the claimant or worker for any injury resulting from the same event. '(2) Subsection (1)(a) applies to relevant documents that— (a) are in the possession of the claimant or WorkCover; or (b) are reasonably required by WorkCover from the worker's employer under section 284. (3) WorkCover must— (a) give the claimant copies of the relevant documents— (i) within 30 days after the claimant gives WorkCover a notice of claim; or (ii) if the relevant documents come into WorkCover's possession later—within 30 days after they come into WorkCover's possession; and (b) respond to a request from the claimant under subsection (1)(b) within 30 days after receiving it. '(4) The claimant must respond to a request from WorkCover under subsection (1)(b) within 30 days after receiving it. '(5) This section is subject to section 288.49 '(6) In this section— "relevant documents" means reports and other documentary material, including written statements made by the claimant, the worker's employer, or by witnesses.'. 49 Section 288 (Non-disclosure of certain material) COD ND NWSW NK N SCOmDAAND NUN FB WN KF CO NN Ne NN BW NY N n WN Nwun oan Clause Clause s 29 35 s 30 WorkCover Queensland Amendment Bill 2001 29 Amendment of s 285 (WorkCover and claimant to attempt to resolve claim) (1) Section 285(4)(a)— omit, insert— '(a) state whether liability in connection with the event to which the claim relates is admitted or denied and— (i) if liability is admitted— (A) state whether contributory liability is claimed from the worker or another party; and (B) state the extent, expressed as a percentage, to which liability is admitted; and (ii) if liability is denied, completely or partly—give particulars of the basis on which liability is denied; and'. (2) Section 285(5) to (7)— renumber as section 285(6) to (8). (3) Section 285— insert— '(5) WorkCover must also, within 7 days after giving the claimant the written notice, give a copy of the notice to the worker's employer.'. (4) Section 285— insert— '(9) In calculating the period of 6 months mentioned in subsection (2), any period during which a decision of WorkCover relevant to the claim is subject to a review or appeal is not counted. "(10) In this section— "decision", for subsection (9), includes failure to make a decision. "review or appeal" means a review or appeal under chapter 9 that has been started.'. 30 Amendment of s 288 (Non-disclosure of certain material) Section 288(2), from ', but'— omit. oMmrnN DUN FF WNe oMmrnNI DN FP WN KO NY WY - OC NNN BRWN NY N n WN NN on 30 Clause s31 36 s31 WorkCover Queensland Amendment Bill 2001 31 Replacement of s 293 (Compulsory conference) Section 293— omit, insert— '293 Compulsory conference '(1) Before the claimant starts a proceeding for damages, there must be a conference of the parties (the "compulsory conference''). '(2) Either party may call the compulsory conference. '(3) The compulsory conference must be held within 3 months after WorkCover gives the claimant a written notice under section 285.°° '(4) However, if the parties agree, the conference may be held at a later date. "(5) WorkCover must advise the worker's employer of the time and place of the compulsory conference. '(6) On application by a party, the court— (a) may— (i) fix the time and place for the compulsory conference; or (ii) dispense with the compulsory conference for good reason; and (b) may make any other orders the court considers appropriate. '(7) In considering whether to dispense with the compulsory conference, the court must take into account the extent of compliance by the parties with their respective obligations in relation to the claim. '(8) The claimant in person and a person authorised to settle on WorkCover's behalf must attend the conference and actively participate in an attempt to settle the claim, unless the claimant or person has a reasonable excuse. '(9) If it would be unreasonable for all parties to attend at the same place, for example, because of distance or illness, the conference may be conducted by telephone conferencing, video conferencing or another form of communication that allows reasonably contemporaneous and continuous communication between the parties. 50. Section 285 (WorkCover and claimant to attempt to resolve claim) om NY AN FW NY ONIN DN FF WN KO \o NNWy NRO NNNN DnbwW WWNNN rPOoOoaNn s31 37 s31 WorkCover Queensland Amendment Bill 2001 '293A Procedure at conference '(1) The compulsory conference may be held with a mediator if both parties agree. '(2) An agreement that the compulsory conference is to be held with a mediator must specify how the costs of the mediation are to be borne. '(3) The mediator must be a person independent of the parties— (a) agreed to by the parties; or (b) nominated by the registrar of the court on application under subsection (4). '(4) If the parties are unable to agree on the appointment of a mediator within 30 days after the date for the compulsory conference is fixed, either party may apply to the registrar of the court for the nomination of a mediator. '(5) At least 7 days before the compulsory conference is to be held, each party must give the other party— (a) copies of all documents not yet given to the other party that are relevant and required to be given for the claim; and (b) a statement verifying that all relevant documents in the possession of the party or the party's lawyer have been given as required; and (c) details of the party's legal representation; and (d) if the party has legal representation—a certificate (a "certificate of readiness'') signed by the party's lawyer to the effect that the party is ready for the conference. '(6) A certificate of readiness must state that— (a) the party is completely ready for the conference; and (b) all investigative material required for the conference has been obtained, including witness statements from persons, other than expert witnesses; and (c) medical or other expert reports have been obtained from all persons the party proposes to rely on as expert witnesses at the conference; and (d) the party has complied fully with the party's obligations to give the other party material that is relevant and required to be given for the claim; and COomDANI HD NH WN SOD AND NFP WNK CO NY WY — NNN BRWN NY N n WN Nwunwn own Www NRO Wo WwW Lo On & VW s 32 38 s 32 WorkCover Queensland Amendment Bill 2001 (e) the party's lawyer has given the party a statement (a "financial statement") containing the information required under subsection (7). '(7) A financial statement must state— (a) details of the legal costs payable by the party to the party's lawyer up to the completion of the conference; and (b) anestimate of the party's likely legal costs and net damages if the claim proceeds to trial and is decided by the court; and (c) an estimate of the party's likely legal costs and net damages if the claim is settled without proceeding to trial; and (d) the consequences to the party, in terms of costs, in each of the following cases if the claim proceeds to trial and is decided by the court— (i) the amount of the damages awarded by the court is equal to, or more than, the claimant's written final offer; (ii) the amount of the damages awarded by the court is less than the claimant's written final offer but equal to, or more than, WorkCover's written final offer; (iii) the amount of the damages awarded by the court is equal to, or less than, WorkCover's written final offer. '(8) WorkCover must give a copy of the certificates of readiness and WorkCover's costs statement to the worker's employer at least 7 days before the compulsory conference. '293B Information to be given by party's lawyer before other type of settlement attempted 'Before settlement of a claim is attempted in a way other than by a compulsory conference, each party's lawyer must give the party a statement (also a "financial statement") containing the information mentioned in section 293A(7).'. Clause 32 Omission of ch 5, pt 6, div 2 Chapter 5, part 6, division 2— omit. COON DUN FF WNeK CAAID NKR WNFK CO N ow NNW WN re 25 2729 31 s 33 39 s 36 WorkCover Queensland Amendment Bill 2001 Clause 33 Amendment of s 302 (Compliance necessary before starting proceeding) Section 302(a)— omit, insert— '(a) the relevant division under part 2,>! to the extent the division imposes a requirement on the person; and'. Clause 34 Amendment of s 303 (Claimant to have given complying notice of claim or WorkCover to have waived compliance) (1) Section 303(a)(i) and (ii) — omit, insert— '@) the claimant has given, or is taken to have given, a complying notice of claim; or (ii) WorkCover has waived the claimant's noncompliance with the requirements of section 280 with or without conditions; > or'. (2) Section 303(b)— omit. Clause 35 Insertion of new s 305A Chapter 5, part 7, division 1, after section 305— insert— '305A Other provision for urgent proceedings 'Part 2, divisions 3 to 7 provide for the urgent starting of proceedings by persons mentioned in section 253(1), and for the staying and discontinuance of those proceedings.'. Clause 36 Amendment of s 308 (Alteration of period of limitation) Section 308(1)(a)(i) and (ii)— omit, insert— 51 Part 2 (Entitlement conditions) Dn FW Ne oN NAD NSFW NF CO 21 2326 s 37 40 s 37 WorkCover Queensland Amendment Bill 2001 '(i)_ the claimant gives, or is taken to have given, a complying notice of claim; or (ii) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280 with or without conditions; or'. Clause 37 Replacement of ss 312-314 Sections 312 to 314— omit, insert— '312 Contributory negligence '(J A court may make a finding of contributory negligence if the worker relevantly— (a) failed to comply, so far as was practicable, with instructions given by the worker's employer for the health and safety of the worker or other persons; or (b) failed at the material time to use, so far as was practicable, protective clothing and equipment provided, or provided for, by the worker's employer, in a way in which the worker had been properly instructed to use them; or (c) failed at the material time to use, so far as was practicable, anything provided that was designed to reduce the worker's exposure to risk of injury; or (d) inappropriately interfered with or misused something provided that was designed to reduce the worker's exposure to risk of injury; or (e) was adversely affected by the intentional consumption of a substance that induces impairment; or (f) failed, without reasonable excuse, to attend safety training organised by the worker's employer that was conducted during normal working hours at which the information given would probably have enabled the worker to avoid, or minimise the effects of, the event resulting in the worker's injury. '(2) Subsection (1) does not limit the discretion of a court to make a finding of contributory negligence in any other circumstances.'. NRW Ne onan ad N SCO AND FPWN KO N — NNN BRWN NN nun WWNNN rPOoOoaNn Wo WD Wn Clause Clause Clause Clause s 38 41 s41 WorkCover Queensland Amendment Bill 2001 38 Amendment of s 316 (Damages other than to claimant) (1) Section 316, 'under this Act' — omit. (2)Section 316, from ', including' — omit. 39 Replacement of ch 5, pt 10, hdg Chapter 5, part 10, heading— omit, insert— 'PART 10—EXEMPLARY DAMAGES'. 40 Omission of ch 5, pt 10, divs 1 and 2, and div 3 hdg Chapter 5, part 10, divisions 1 and 2, and division 3 heading— omit. 41 Replacement of ch 5, pt 11, div 1 and div 2 hdg Chapter 5, part 11, division 1 and division 2 heading— omit, insert— 'Division 1—Costs applying to worker with WRI of 20% or more or dependant '320 Application of div 1 'This division applies only if the claimant is— (a) a worker, if the worker's WRI is 20% or more; or (b) a dependant. '321 Principles about orders as to costs 'If a court has assessed damages in the claimant's proceeding for damages, it must apply the principles set out in sections 322 to 323A. nk WN oO Wwnnan AD NO fF W 21 24 s41 42 s41 WorkCover Queensland Amendment Bill 2001 '322 Costs if written final offer by claimant '(1) This section applies if— (a) the claimant makes a written final offer that is not accepted by WorkCover; and (b) the claimant obtains a judgment no less favourable to the claimant than the written final offer; and (c) the court is satisfied that the claimant was at all material times willing and able to carry out what was proposed in the written final offer. '(2) The court must order WorkCover to pay the claimants's costs, calculated on the indemnity basis, unless WorkCover shows another order for costs is appropriate in the circumstances. '323 Costs if written final offer by WorkCover '(1) This section applies if— (a) WorkCover makes a written final offer that is not accepted by the claimant; and (b) the claimant obtains a judgment that is not more favourable to the claimant than the written final offer; and (c) the court is satisfied that WorkCover was at all material times willing and able to carry out what was proposed in the written final offer. '(2) Unless a party shows another order for costs is appropriate in the circumstances, the court must— (a) order WorkCover to pay the claimant's costs, calculated on the standard basis, up to and including the day of service of the written final offer; and (b) order the claimant to pay WorkCover's costs, calculated on the standard basis, after the day of service of the written final offer. '323A Interest after service of written final offer '(1) This section applies if the court gives judgment for the claimant for the recovery of a debt or damages and— COmAANI DAN FW N NRO on AN fF WwW 23 2528 31 Clause Clause s42 43 s 43 WorkCover Queensland Amendment Bill 2001 (a) (b) the judgment includes interest or damages in the nature of interest; or under an Act, the court awards the claimant interest or damages in the nature of interest. '(2) For giving judgment for costs under section 322 or 323, the court must disregard the interest or damages in the nature of interest relating to the period after the day the written final offer is given. 'Division 2—Costs applying to worker with WRI less than 20% or no WRI. 42 Amendment of s 324 (Application of div 2) Section 324, 'non-certificate injury' — omit, insert— "WRI of less than 20% or no WRI'. 43 Amendment of s 325 (Principles about orders as to costs) (1) Section 325(2)(a), 'final offer' — omit, insert— 'written final offer'. (2) Section 325(2)(b), 'the WorkCover's final offer' — omit, insert— "WorkCover's written final offer'. (3) Section 325(2)(a) and (b), 'party and party costs' — omit, insert— 'costs on the standard basis'. (4) Section 325(3), 'WorkCover's final offer' — omit, insert— "WorkCover's written final offer'. NYDN FW NK ow Ww NF CO Co mnNn DWN 212325 s44 44 s 46 WorkCover Queensland Amendment Bill 2001 Clause 44 Amendment of s 437 (Reference to tribunals) (1) Section 437, after 'the appropriate tribunal'— omit, insert— 'for decision on the medical matters involved'. (2) Section 437(c), 'section 265(3)(b)'— omit, insert— 'section 261(3)(b), 273A(1)(b)@i) or 273E(1)(b)(iii)'. (3) Section 437(ea) and (g)— omit. Clause 45 Amendment of s 454 (Further reference on fresh evidence) (1) Section 454(1)— omit, insert— '(1) This section applies to any reference to a tribunal under any paragraph of section 437 relating to a worker's injury.'. (2) Section 454(8), 'non-certificate injury' — omit, insert— "WRI of the worker of less than 20%'. Clause 46 Replacement of s 456 (Finality of tribunal's decision) Section 456— omit, insert— '455A Tribunal may refer non-medical matters back to WorkCover '(1) If the tribunal considers that the terms of a reference to it involve— (a) both medical and non-medical matters; or (b) entirely non-medical matters; the tribunal may refer the non-medical matters back to WorkCover for a decision. '(2) To remove doubt, it is declared that if the tribunal decides a medical matter mentioned in subsection (1)(a), section 456 applies to that decision. oOo mMmnN DN FB WN NYDN FW NY KF CO 212326 28 Clause Clause s47 45 s 48 WorkCover Queensland Amendment Bill 2001 '(3) Section 455 applies to a reference back to WorkCover under subsection (1). '456 Finality of tribunal's decision '(J Either of the following decisions of the tribunal is final and can not be questioned in a proceeding before a tribunal or a court, except under section 454— (a) a decision on a medical matter referred to the tribunal under section 437; (b) a decision under section 455A(1). '(2) Subsection (1) has no effect on the Judicial Review Act 1991.. 47 Amendment of s 457 (Decisions of tribunal) Section 457(1), 'an application for compensation' — omit, insert— 'any matter'. 48 Amendment of s 489 (Application of pt 2) (1) Section 489(1)(a)(xiii)— omit, insert— '(xiii)under section 261(3)(a) or (b), 273A(1)(b)(i) or (ii), or 273E(1)(b)(i), (ii), (iti) or (iv);'. (2) Section 489(1)(b)(vii)— omit, insert— '(vii)under section 261(3)(a) or (b), 273A(1)(b)G) or (ii), or 273E(1)(b)(i), (ii), (iti) or (iv); or'. (3) Section 489(1)(c)— omit, insert— '(c) a failure by WorkCover or a self-insurer to make a decision— (i) onan application for compensation within the time stated in section 161; or Ne C0 ON ANH W WN eomnrninann 21 23 2528 Clause Clause Clause s49 46 s51 WorkCover Queensland Amendment Bill 2001 (ii) for the purpose of section 261(3)(a) or (b) within the time stated in section 261(4); or (iii) for the purpose of section 273A(1)(b)G) or (ii) within the time stated in section 273A(5); or (iv) for the purpose of section 273E(1)(b)(i), (i), (iii) or (iv) within the time stated in section 273E(2).'. 49 Amendment of s 498 (Who may appeal) Section 498— insert— '(2) If the appellant is an employer, the claimant or worker may, if they wish, be a party to the appeal.'. 50 Insertion of new s 501A After section 501— insert— '501A Application of Uniform Civil Procedure Rules and Industrial Relations (Tribunals) Rules '(1) The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2000, tules 96 to 98 apply to an appeal under this division with necessary changes. '(2) However, if there is an inconsistency between a provision of the rules mentioned in subsection (1) and a provision of this division, the provision of this division prevails to the extent of the inconsistency.'. 51 Insertion of new ss 510A and 510B After section 510— insert— '510A Costs of appeal to Industrial Court "(1) On an appeal, the Industrial Court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause. Dn fwW Ne nN N COMIN AUN FW WN 222527 29 Clause s52 47 s52 WorkCover Queensland Amendment Bill 2001 '(2) Costs of the order are to be in accordance with the Industrial Relations (Tribunals) Rules 2000, rule 66. '510B Recovery of costs '(1) If the industrial court makes an order for costs, the amount ordered to be paid is a debt payable to the party in whose favour the order is made. '(2) The order may be filed in the registry of a court having jurisdiction for the recovery of a debt of an equal amount. '(3) On being filed, the order— (a) is taken to be an order properly made by the court; and (b) may be enforced as an order made by the court.'. 52 Insertion of new ch 14 After chapter 13— insert— 'CHAPTER 14—TRANSITIONAL PROVISIONS FOR WORKCOVER QUEENSLAND AMENDMENT ACT '587 Definitions for ch 14 'In this chapter— "amended Act' means this Act as amended by the amending Act. "amending Act" means the WorkCover Queensland Amendment Act 2001. '588 Injury before 1 July 2001 'The provisions of this Act, as in force immediately before 1 July 2001, continue to apply in relation to an injury resulting to a worker from an event happening before 1 July 2001 as if the amending Act had not been enacted. NOR oO ND NH W Dunk WN ~ 2325 Clause s53 48 s 53 WorkCover Queensland Amendment Bill 2001 '589 Reference to medical assessment tribunal '(1) Despite section 2 of the amending Act, the amendments of this Act made by sections 44(1), 45(1), 46 and 47 of the amending Act do not apply to a decision of the tribunal made before the royal assent was given to the amending Act. '(2) A reference of a matter— (a) that relates to an injury arising after 1 July 2001; and (b) made to the tribunal under section 437 before the day of royal assent of the amending Act; and (c) pending before the tribunal immediately before the day of royal assent; from the day of royal assent is taken to have been referred to the tribunal under the amended Act. '590 Formal revival of claim for loss of consortium 'To the extent that the amended Act excluded an entitlement to seek damages for loss of consortium, on the commencement of this section that entitlement is revived in relation to an injury arising after 30 June 2001.'. 53 Amendment of sch 3 (Dictionary) (1) Schedule 3, definitions "certificate injury", "complying notice of claim", "damages certificate" and "non-certificate injury"— omit. (2) Schedule 3— insert— ' "complying notice of claim" means a notice of claim that complies with section 280. "written final offer", for chapter 5, see section 250.'. COomA NY WD NBWN WN oO NAYDAN 2123 25 WorkCover Queensland Amendment Bill 2001 SCHEDULE MINOR AMENDMENTS section 3 Section 24(1)(a), 'the Education (Student Work Experience) Act 1978 or' — omit. Section 24(4), definition "State student", 'a student to which the Education (Student Work Experience) Act 1978, section 10 applies or'— omit. Section 66(1)(b), 'section 500(3)'— omit, insert— 'section 500(4)'. Section 509(2), 'Industrial Court rules'— omit, insert— 'Industrial Relations (Tribunals) Rules 2000' . © State of Queensland 2001 nas Conn NA Wn f