Workers Rehabilitation and Compensation Regulations 2011


Tasmanian Crest
Workers Rehabilitation and Compensation Regulations 2011

I, the 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 .

4 July 2011

PETER G. UNDERWOOD

Governor

By His Excellency's Command,

D. J. O'BYRNE

Minister for Workplace Relations

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Workers Rehabilitation and Compensation Regulations 2011 .

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 if that timetable is not complied with;
(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 in writing served on any other party, may request –
(a) discovery of any document or property 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 on whom a notice is served under subregulation (1) 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, other than a referral made under section 81A(5) .

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 on whom a notice is served under subregulation (1) is to provide, within 14 days after the date of service of the notice or within any other period agreed to by the parties, 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.   Interrogatories

(1)  A party is not to interrogate any other party except with the leave of the Tribunal.
(2)  The Tribunal may only grant leave to interrogate if, in the opinion of the Tribunal, an interrogatory is likely to –
(a) narrow the issues in dispute; or
(b) shorten the proceedings.
(3)  A party is to answer an interrogatory by affidavit.

11.   Orders against non-parties

(1)  The Tribunal may make any or all of the following orders against a person who is not a party to an application or referral:
(a) an order for inspection of a document that is relevant to the issues in dispute in any application or referral;
(b) an order authorising the observation or recording of, or the taking of a sample of or from, any property;
(c) an order that a person make discovery of any document or property that –
(i) is relevant to the issues in dispute in any application or referral; and
(ii) is or has been in the possession, custody or power of that person;
(d) an order that a person answer on oath any interrogatory that is relevant to the issues in dispute in any application or referral.
(2)  An order under subregulation (1) may be general or limited to a certain class of documents or property.

12.   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.

13.   Witness not required to attend arbitrated hearing

(1)  Subject to regulation 14 , 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.

14.   Witness required to attend arbitrated hearing

(1)  A party served with an affidavit or proof of evidence under regulation 13(1)(a) who has not objected under regulation 13(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

15.   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 .

16.   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.

17.   Assessment of costs

(1)  After receiving a notice of objection under regulation 16 , 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.

18.   Review of assessment

(1)  A party may apply for a review of assessment within 7 days after receiving 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 receiving 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

19.   Prescribed form of information as to right to make claim for compensation

[Regulation 19 Substituted by S.R. 2017, No. 117, Applied:01 Jan 2018] For the purpose of section 33A of the Act, the form set out in Schedule 1 is prescribed.

20.   Industrial deafness

(1)  For the purpose of section 73(3) of the Act, the class of persons is the class consisting of persons who are –
(a) medical practitioners with specialised qualifications and experience in otorhinolaryngology; or
(b) full members, or qualified to be full members, of the Audiological Society of Australia.
(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)

21.   Maximum amounts for burial and cremation and counselling of family members

(1)  For the purpose of section 75(1)(b)(i) of the Act, the prescribed amount is $9,500.
(2)  For the purposes of section 75(1)(b)(ii) of the Act, the prescribed amount is $4,000.

22.   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 Tasmanian State Service Award made by the Tasmanian Industrial Commission.

23.   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) [Regulation 23 Amended by S.R. 2017, No. 117, Applied:01 Jan 2018] the class of persons prescribed to provide that service are accredited medical practitioners who are accredited to assess the degree of a worker's impairment.

24.   Proving certain matters

(1)  For the purpose of section 83 of the Act, a worker is to prove continued incapacity by providing 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.

25.   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 .

26.   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 employed by the employer;
(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.

27.   Declaration of provisions of certain laws to be about damages for work-related injuries

For the purposes of the definition of "a State's legislation about damages for a work-related injury" in section 138AI of the Act, each of the following laws of a State is declared to be, in relation to the State of which it is a law, the State's legislation about damages for a work-related injury:
(a) Workers Compensation Act 1951 of the Australian Capital Territory;
(b) Workers Compensation Act 1987 of New South Wales;
(c) Workplace Injury Management and Workers Compensation Act 1998 of New South Wales;
(d) [Regulation 27 Amended by S.R. 2017, No. 117, Applied:01 Jan 2018] Return to Work Act of the Northern Territory;
(e) Workers' Compensation and Rehabilitation Act 2003 of Queensland;
(f) Workers Rehabilitation and Compensation Act 1986 of South Australia;
(g) Accident Compensation Act 1985 of Victoria;
(h) [Regulation 27 Amended by S.R. 2017, No. 117, Applied:01 Jan 2018] Workplace Injury Rehabilitation and Compensation Act 2013 of Victoria;
(i) Workers’ Compensation and Injury Management Act 1981 of Western Australia.

28.   Prescribed offences and penalties

(1)  For the purpose of section 148A of the Act, an offence against a provision of the Act specified in Column 1 of Schedule 2 is a prescribed offence.
(2)  The penalty specified in Column 3 of Schedule 2 opposite an offence specified in Column 1 of the Schedule is the prescribed penalty for the offence.

29.   Legislation rescinded

The legislation specified in Schedule 3 is rescinded.
SCHEDULE 1 - Form for Purpose of Section 33A of Act

Regulation 19

[Schedule 1 Amended by S.R. 2017, No. 117, Applied:01 Jan 2018]
 

FORM FOR INFORMATION AS TO RIGHT TO MAKE WORKER'S COMPENSATION CLAIM

 

Form for information under section 33A of the Workers Rehabilitation and Compensation Act 1988

1. 

On [insert date on which notice of injury was given by worker*] you notified the employer named below ("your employer") that you had suffered an injury that you believe was caused by your employment with your employer.

2. 

In accordance with section 33A of the Workers Rehabilitation and Compensation Act 1988 , I advise, on behalf of your employer, that you have the right under that Act to make a claim for compensation for the injury.

3. 

If you wish to make a claim for compensation, you should do so as soon as practicable.

4. 

Generally, you may only make the claim within 6 months after the date on which the injury occurred. However, if the injury consists of a loss of hearing due to exposure to industrial noise, you may only make the claim while you are still employed by your employer or within 6 months after you stop being employed by your employer.

5. 

A claim for compensation must be made on the approved form. You may ask your employer for a copy of the approved form.

6. 

You must attach to a claim for compensation a workers compensation medical certificate that has been issued by a medical practitioner.

7. 

You must tell your employer the name of the medical practitioner who is to have primary responsibility for treating your injury. The practitioner is to provide medical certificates, coordinate your medical treatment for the injury and, if necessary, assist in your rehabilitation and return to work.

8. 

If you wish to talk with your employer about any matter related to this notice, you may speak to [insert name of person nominated by employer*] who may be contacted on [insert contact telephone number*].

9. 

If you need assistance in relation to the injury or a claim for compensation, you may telephone the WorkSafe Tasmania Helpline on 1300 366 322 or, for callers outside Tasmania, 03 6166 4600.

 

Signed by ………………………….

 

[Signature*]

 

on behalf of the following employer:

 

………………….……….

 

[Name of employer*]

 

Note: Items marked with an asterisk are to be completed by a person authorised by the employer to give this notice to the injured worker.

SCHEDULE 2 - Infringement Notice Offences

Regulation 28

[Schedule 2 Amended by S.R. 2017, No. 117, Applied:01 Jan 2018]

Column 1

Column 2

Column 3

Section

Offences

Penalty units

 

General description of offence

Natural person

Body corporate

33A

Failure to inform worker, within 14 days, of right to claim

2

5

39(1)

Failure to give, within 28 days, notice to worker of status of claim

2

5

77AA

Failure to pay claim for expenses, or refer claim to Tribunal, within 28 days

2

5

81(2)

Failure to commence weekly payments as required

2

5

81B(2)

Failure to pay weekly payments as required

2

5

86(5)

Failure to terminate or reduce weekly payments as required

2

5

90B(3)

Failure to serve, within 7 days, copy of medical report as required

2

5

97(4)

Failure to maintain policy of insurance as required

2

5

97(6A)

Failure to provide list of duties as required

2

5

97(8)

Failure to provide statement and information as required

2

5

114(2)

Failure to furnish return as required

2

5

128(6)

Failure to pay Nominal Insurer as required

2

5

143A(1)

Failure to notify insurer of workplace injury as required

2

5

143D(1)

Failure to appoint return-to-work co-ordinator

2

5

143L(3)

Failure to notify worker and insurer of reason why previous employment not available to worker

2

5

143M(4)

Failure to provide reasons in writing for not giving worker certain duties

2

5

147(7)

Failure to pay contribution as required

2

5

151(7)(a)

Obstruction, etc.

2

5

151(7)(b)

Failure to comply with request or answer questions

2

5

151(7)(c)

Giving of false or misleading answers

2

5

151(7)(d)

Concealment of person or attempt to conceal person

2

5

SCHEDULE 3 - Legislation rescinded

Regulation 29

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

Notified in the Gazette on 13 July 2011

These regulations are administered in the Department of Justice.