Workplace Health and Safety and Other Legislation Amendment Act 2008

These are the key amendments to the Workers' Compensation and Rehabilitation Act 2003 (the Act) and the Workers' Compensation and Rehabilitation Regulation2003 (the Regulation) which come into effect from 28 October 2008. For more information about the amendments refer to the Workplace Health and Safety and Other Legislation Amendment Act 2008 (the Amendment Act).

Section 128D and Section 128E

The Amendment Act inserts sections 128D and 128E into the Act. Section 128D introduces a new benefit for dependants of a worker who has a latent onset injury that is a terminal condition. The entitlements apply to all dependants collectively, with benefits consisting of:

• 15% of the maximum death benefit
• 2% of the maximum death benefit for reasonable funeral expenses.

The insurer may make the payment to the worker, or to the worker’s dependants at the same time as the insurer pays the worker lump sum compensation for the latent onset injury under section 128B. The worker’s dependants are not entitled to further compensation under Chapter 3 Part 11 after the death of the worker.

Section 128E provides that if the worker dies because of the latent onset injury, and the insurer paid the worker compensation under section 128B but did not pay the compensation under section 128D to which the worker’s dependants were entitled, the compensation under section 128D is payable to the worker’s legal personal representative or the worker’s dependants if there is no legal personal representative.

Section 194

Section 194 of the Act has been amended to specify that Chapter 3 Part 11 (Compensation on worker’s death) does not apply if the worker received a payment of lump sum compensation or damages for the latent onset injury under this Act, another Act or a law of another State or the Commonwealth.

Section 657 and Section 658

Section 657 provides that the amendments apply to a latent onset injury that is a terminal condition where the worker’s application for compensation was lodged on or after 28 October 2008.

However, section 658 provides that if the worker lodged the application for compensation before 28 October 2008, received a payment of lump sum compensation under section 128B, and died because of the latent onset injury on or after 28 October 2008, the amendments apply as if the application were lodged on or after 28 October 2008.

Section 85 (the Regulation)

Section 85 of the Regulation has been amended for a claim for compensation for the dependants of a worker who has a latent onset injury that is a terminal condition. The amendment specifies that the claim must be supported by proof of the relationship to the worker of the persons claiming to be the worker’s dependants.