The second edition of Personal Injury Compensation in Victoria provides a thorough analysis and discussion of the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013, reflecting important legislative changes and authorities over the preceding years, including in depth discussions of all relevant case law and 2016 cases.
Below is an introductory excerpt.
The Workplace Injury Rehabilitation and Compensation Act 2013
The desire to streamline and simplify the provisions of the ACA (as well as to consolidate it with the Accident Compensation (WorkCover Insurance) Act 1993) has been the driving force behind the passage of the Workplace Injury Rehabilitation and Compensation Bill 2013.
In the Second Reading Speech (Legislative Council, Hansard, 17 October 2013, at p 3231) Hon G K Rich-Phillips, Assistant Treasurer, summarised some of the key improvements as:
- A more logical structure and sequence
- The style and language of some outdated provisions in the legislation have been modernised, and various provisions have been restructured to make them easier to read and understand
- Flow chart diagrams in the Bill provide a visual snapshot to aid understanding of various processes that are described in the Bill, and
- The removal of various redundant or superfluous provisions.
The Workplace Injury Rehabilitation and Compensation Act 2013 (‘‘WIRCA’’) was given Royal Assent on 12 November 2013. The majority of its provisions have come into effect on 1 July 2014.
The WIRCA applies to the entitlement of a worker to compensation in respect of an injury arising out of, or in the course of, or due to the nature of employment on or after 1 July 2014 and for gradual process injuries over a period of time commencing prior to 1 July 2014 and continuing to 1 July 2014 inclusive or thereafter (s 5(1)). As such, only work injuries suffered solely prior to 1 July 2014 fall under the operation of the ACA. However, a number of provisions of the ACA have been repealed and re- enacted by the WIRCA. Section 622 contains a table of such provisions (re-enacted with or without modifications), although it is not an exhaustive list (s 622(3)). Section 623 repeals the Accident Compensation (WorkCover Insurance) Act 1993 while Pt 14 specifies consequential amendments to and repeals of various provisions of the ACA.
A comprehensive comparison table of the ACA and WIRCA provisions can be found at www.worksafe.vic.gov.au.
Section 13 of the WIRCA clarifies that the flow charts themselves do not form part of the Act and are intended solely as guides to the operation of various provisions.
The primary objects of the ACA and WIRCA are as follows (ss 3 and 10 respectively):
- To reduce the incidence of workplace accidents
- To provide effective occupational rehabilitation of injured workers and their early return to work
- To increase the provision of suitable employment to workers who are injured to enable their early return to work, and
- To contain the workers compensation
There has been a subtle shift in the description of the type of compensation which is to be provided to injured workers, from ‘‘adequate and just’’ in the ACA to ‘‘appropriate’’ in the WIRCA. This change in wording does not represent Parliamentary intention to introduce a different approach to the payment of compensation to workers under the WIRCA, but rather links the objective of the VWA in s 492(c) with the object of the Act in s 10(d).
Both Acts maintain the ‘‘no fault’’ scheme in respect to injured workers as well as limited common law damages rights.
The objectives of the VWA in accordance with s 19 of the ACA and s 492 of the WIRCA include:
- Managing the accident compensation scheme in an effective, efficient and economical manner
- Ensuring that appropriate compensation is paid to injured workers in the most socially and economically appropriate manner and as expeditiously as possible, and
- Administering the ACA, the WIRCA and related
The functions of the VWA closely mirror the above mentioned objectives with the emphasis on:
- Processing and assessing claims for compensation (including the defence of certain claims and payment of compensation to those entitled as determined by the VWA or following a judicial determination)
- Promoting the prevention of occupational injuries and rehabilitation
- Deterring and detecting fraudulent claims, and
- Determining, collecting and recovering premiums payable for WorkCover insurance as well as advising the Minister on matters pertaining to the scheme (s 20 of the ACA and s 493 of the WIRCA).
An injured worker has the option of bringing a claim for the following statutory benefits pursuant to the ACA (subject to certain eligibility exclusions) and the WIRCA in respect to the injuries suffered.
- Medical Expenses (Div 2B of Pt 4 of the ACA and Div 7 of Pt 5 of the WIRCA) — for services such as medical treatment, hospital and nursing services, ambulance services, personal and household services, occupational rehabilitation services, road accident rescue services, costs of burial and cremation and in certain circumstances counselling services provided to family members,
- Weekly Payments (Div 2 of Pt 4 of the ACA and Divs 2 and 3 of Pt 5 of the WIRCA) — usually up to a period of 104 or 130 weeks under the ACA (depending on the date of the claim made), or up to a period of 130 weeks under the WIRCA from the date of the incapacity resulting from or materially contributed to by the claimed injury, unless the injured worker can establish total indefinite incapacity for all work, and not past the retirement age (subject to certain exceptions).
- Dependency Claims (Div 2 or Pt 4 of the ACA and Div 8 of Pt 5 of the WIRCA) — Dependants are entitled to a lump sum with the amount varying subject to the level of dependency. In addition, weekly payments are available to surviving dependent partners and
- Impairment Benefits (Div 2A of Pt 4 of the ACA and Divs 4 and 5 of Pt 5 of the WIRCA) — lump sum no fault payments determined on the basis of the degree of permanent impairment or industrial
- Common Law Damages (Divs 8A, 9, 9A and 9B of Pt 4 and Divs 2 and 3 of Pt 7 of the WIRCA) — subject to first satisfying the VWA or the court that the injured person has suffered a ‘‘serious injury’’ and then proving the negligence of the wrongdoer
For a more in-depth look at these legislative changes, as well as analysis of relevant case law and recent cases, order your copy of Personal Injury Compensation in Victoria, 2nd edition today.