Workers Rehabilitation and Compensation Regulations 2001

Workers Rehabilitation and Compensation Regulations 2001

I, the Lieutenant-Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Workers Rehabilitation and Compensation Act 1988 .

W. J. E. COX

Lieutenant-Governor

By His Excellency's Command,

P. A. LENNON

Minister for Infrastructure, Energy and Resources

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Workers Rehabilitation and Compensation Regulations 2001 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

3.   Interpretation

In these regulations –

Act means the Workers Rehabilitation and Compensation Act 1988 ;

BHI means binaural hearing impairment;

deputy registrar means a deputy registrar appointed under section 23A of the Act;

document includes –

(a) a copy of a document; and

(b) an audio tape or soundtrack or compact disc; and

(c) a computer program or software and any other information recorded in or processed by a computer; and

(d) a film, photograph, videotape or cinematographic film;

inspect includes the following, with or without the aid of equipment:

(a) view data or visual images embodied in any device;

(b) listen to sounds embodied in any device;

(c) reproduce sounds, data or visual images embodied in any device;

party means a party to an application or referral;

proof of evidence means a written statement containing the substance of an expert witness's evidence;

property includes real and personal property;

referral means a referral under the Act;

Registrar includes a deputy registrar;

working director means a person who –

(a) is a director of a company; and

(b) performs work for that company under a contract of service.

PART 2 - Practice and procedure

Division 1 - Practice and procedure in Tribunal

4.   Delay

(1)  If the Tribunal considers that the conduct of an application or referral has been unduly delayed, the Tribunal, by giving notice to the parties, may make any of the following orders:

(a) an order fixing the date on which an arbitrated hearing is to occur;

(b) an order fixing a timetable for the completion of any proposed action by the parties and any consequential order in default of the compliance with that timetable;

(c) any other order it considers appropriate.

(2)  In determining whether or not the conduct of an application or referral has been unduly delayed, the Tribunal is to have regard to any time limits fixed by these regulations or the Act.

(3)  Any party may request that the Tribunal make an order under subregulation (1) .

5.   Discontinuance of application or referral

(1)  A party may discontinue any application or referral by giving notice in writing to –

(a) the Tribunal; and

(b) any other party.

(2)  Unless the parties agree otherwise and subject to section 59(2) of the Act, costs are to be paid by the party discontinuing the application or referral.

(3)  Subregulation (2) does not apply to a referral under section 81A of the Act.

6.   Discovery

(1)  A party, by notice served on any other party, may require –

(a) discovery of any document in that party's possession, custody or control that is relevant to the issues in dispute in any application or referral; and

(b) a list of all documents discoverable under paragraph (a) ; and

(c) disclosure of the location of those documents.

(2)  A party is to comply with the notice within 14 days after the date of service of the notice or within any other period agreed to by the parties.

(3)  The Tribunal may order a party who has not complied with subregulation (2) to make discovery under subregulation (1) within any period the Tribunal considers appropriate.

(4)  If further documents that are discoverable under subregulation (1)(a) come into the possession, custody or control of a party who has already made discovery, that party is to make further discovery as soon as practicable.

(5)  Any document in respect of which privilege is claimed under any law is exempt from discovery.

(6)  This regulation does not apply to a referral made under section 81A of the Act.

7.   Inspection of discovered documents

(1)  A party, by notice served on any other party, may request inspection of any discovered document in the possession, custody or control of that other party.

(2)  A party, within 14 days after the date of service of the notice or within any other period agreed to by the parties, is to provide a date, time and place for the inspection of the relevant document.

(3)  The Tribunal may order a party who has not complied with subregulation (2) to provide a date, time and place for the inspection of the relevant documents within any period the Tribunal considers appropriate.

(4)  A notice under this regulation may be made in combination with a notice under regulation 6 .

8.   Inspection of property

(1)  On the application of any party, the Tribunal may make an order for the inspection of any property in the possession, custody or control of a party that is relevant to the issues in dispute in any application or referral or as to which any question may arise.

(2)  The Tribunal may make an order subject to the condition that the party applying for the order pay the reasonable costs and expenses of any party required to make available the property for inspection.

9.   Limitation of certain documents in evidence

(1)  Any plan, model, film, audio tape, disk, soundtrack or other device in which sounds, data or visual images are embodied is not receivable at the arbitrated hearing unless –

(a) the parties agree, without further proof after having been given an opportunity to inspect it –

(i) before the arbitrated hearing at a time fixed by the Tribunal; or

(ii) if no time is fixed by the Tribunal, within a reasonable period before the arbitrated hearing begins; or

(b) the Tribunal, at or before the arbitrated hearing, otherwise orders.

(2)  A party, without notice to any other party, may apply to the Tribunal for an order for evidence of any plan, model, film, audio tape, disk, soundtrack or device referred to in subregulation (1) to be received at the arbitrated hearing without prior disclosure to any other party.

(3)  An application is to be made before the arbitrated hearing.

(4)  The Tribunal may –

(a) make the order; or

(b) refuse to make the order; or

(c) direct that the application be served on any other party before making an order under paragraph (a) or (b) .

10.   Failure to comply with directions of conciliator

If a party fails to carry out any direction under section 42I of the Act, the Tribunal may make –

(a) an interim order; or

(b) any other order it considers appropriate.

11.   Witness not required to attend arbitrated hearing

(1)  Subject to regulation 12 , a witness is not required to attend an arbitrated hearing if –

(a) the party calling the witness serves an affidavit of the witness or, in the case of an expert witness, a proof of evidence on the other parties not less than 14 days before the date fixed for the hearing; and

(b) within 7 days after the affidavit or proof of evidence is served, another party has not objected to the use of the affidavit or proof of evidence at the hearing.

(2)  An objection under subregulation (1)(b) is to be –

(a) in writing; and

(b) served on the other parties.

(3)  An affidavit or proof of evidence served under subregulation (1) is receivable at the arbitrated hearing if an objection has not been made.

(4)  The Tribunal may order a party whose objection it considers unreasonable to bear the costs associated with the attendance of any witness.

12.   Witness required to attend arbitrated hearing

(1)  A party served with an affidavit or proof of evidence under regulation 11(1)(a) who has not objected under regulation 11(1)(b) , within 7 days after that service, may request the attendance of the maker of the affidavit or proof of evidence at an arbitrated hearing for the purpose of cross-examination.

(2)  A request is to be –

(a) in writing; and

(b) served on the other parties.

(3)  The Tribunal may order a party whose request it considers unreasonable to bear the costs associated with the attendance of any witness.

Division 2 - Costs

13.   Bill of costs

(1)  If costs are not agreed between the parties, the successful party to whom costs have been awarded by an order of the Tribunal may serve a bill of costs on any other unsuccessful party.

(2)  Unless the Tribunal otherwise orders, the fees in a bill of costs are to be at the rate of 85% of the fees set out in Part 1 of Schedule 1 to the Supreme Court Rules 2000.

14.   Objection to bill of costs

(1)  An unsuccessful party is taken to admit each item on a bill of costs unless that party delivers to the Registrar and to the successful party a notice of objection within 14 days after the date of service of the bill of costs.

(2)  A notice of objection is to –

(a) specify the items objected to on the bill of costs; and

(b) specify detailed reasons for each objection; and

(c) include a copy of the bill of costs.

15.   Assessment of costs

(1)  On receipt of a notice of objection under regulation 14 , the Registrar is to –

(a) fix a date, time and place for an assessment of costs; and

(b) notify the parties accordingly.

(2)  At an assessment of costs, the Registrar may allow or disallow costs including costs in respect of the assessment.

(3)  An assessment of costs may proceed in the absence of any party.

(4)  Within 48 hours after making an assessment of costs, the Registrar is to –

(a) issue a certificate of assessment; and

(b) provide a copy of that certificate to the parties.

(5)  If the disallowed costs represent one-sixth or more of the allowed costs specified in the certificate of assessment –

(a) the successful party is not entitled to any costs in respect of the assessment; and

(b) costs in respect of the assessment may be awarded to an unsuccessful party.

16.   Review of assessment

(1)  A party may apply for a review of assessment within 7 days after receipt of the certificate of assessment.

(2)  An application is to –

(a) be forwarded to the Tribunal and to the other parties; and

(b) specify any item in respect of which a review is sought; and

(c) state detailed reasons for seeking the review of each item.

(3)  On receipt of an application, the Tribunal is to –

(a) fix a date, time and place for the review; and

(b) notify the parties accordingly.

(4)  In determining the application, the Tribunal may allow or disallow –

(a) any item reviewed; and

(b) costs in respect of the review.

(5)  The Tribunal is to provide written reasons for the allowance or disallowance of any item reviewed.

PART 3 - Miscellaneous

17.   Industrial deafness

(1)  For the purpose of section 73(3) of the Act, medical practitioners with specialised qualifications and experience in otorhinolaryngology are a class of persons.

(2)  The following table is prescribed for the purpose of section 73(4) of the Act:

Relationship of Binaural Hearing Impairment to impairment of the whole person

% BHI	% Whole person impairment
5 or less	0
more than 5	5 + [0.278 (BHI - 5)] (rounded to the nearest whole number).

18.   Prescribed amount for travelling expenses

For the purpose of section 76(1)(b) of the Act, the prescribed amount is the amount set out in the General Conditions of Service Award made by the Tasmanian Industrial Commission.

19.   Prescribed service and prescribed persons

For the purpose of section 77A(3) of the Act –

(a) a prescribed service is the assessment of the degree of a worker's impairment in accordance with section 72 of the Act; and

(b) a class of persons prescribed to provide that service are medical practitioners accredited as medical assessors by the Board.

20.   Proving certain matters

(1)  For the purpose of section 83 of the Act, a worker is to prove the matters referred to in that section –

(a) in respect of address and identity, by a declaration before a person with authority to administer oaths in the place where the declaration is made; and

(b) in respect of continued incapacity, by a declaration or certificate by a medical practitioner.

(2)  For the purpose of section 83 of the Act, the prescribed interval at which a worker is to prove the matters in that section is every 3 months.

21.   Medical examinations

For the purpose of section 85(2) of the Act, a worker to whom section 85(1)(b) applies, from one month after the date on which the first weekly payment of compensation is made, is not required to submit to an examination by a medical practitioner more than once in every 2 weeks.

22.   Money paid to Public Trustee

Money paid to the Public Trustee under section 91(2) of the Act is to be invested, applied or otherwise dealt with by the Public Trustee in accordance with the provisions of the Public Trustee Act 1930 .

23.   Obligation of employers to insure

(1)  The following information is the other information prescribed for the purposes of section 97(6) and (7) of the Act:

(a) the full name and address of the employer;

(b) the Australian Business Number of the employer;

(c) the main business carried on by the employer;

(d) any other business carried on by the employer;

(e) the number of any full-time workers, part-time workers and casual workers;

(f) the names of any working directors and their family members covered by the policy of insurance.

(2)  If an employer is engaged in more than one business at one location, the main business is the business for which the largest proportion of wages is paid.

24.   Prescribed matters for return-to-work plan

For the purpose of section 139(2)(e) of the Act, a return-to-work plan is to include evidence of reasonable attempts to consult with the medical practitioner who is treating the worker.

25.   Prescribed offences

(1)  The offences under the Act specified in Column 2 of Schedule 1 are the offences in respect of which infringement notices may be served under section 148A of the Act.

(2)  The penalties specified in Column 3 of Schedule 1 are the penalties imposed by infringement notices for offences specified in Column 2 of that Schedule.

26.   Infringement notice details

For the purpose of section 148B(1)(b)(v) of the Act, an infringement notice is to specify the date on which the notice was served.

27.   Workers Rehabilitation and Compensation Regulations 1988 rescinded

The Workers Rehabilitation and Compensation Regulations 1988 are rescinded.

SCHEDULE 1 - Infringement Notice Offences

Regulation 25

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 25 July 2001

These regulations are administered in the Department of Infrastructure, Energy and Resources.

EXPLANATORY NOTE

(This note is not part of the regulation)

(a) prescribe procedures relating to the practices and procedures in the Workers Rehabilitation and Compensation Tribunal; and

(b) prescribe certain miscellaneous provisions; and

(c) rescind the Workers Rehabilitation and Compensation Regulations 1988 .