Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698941490025.pdf (New Zealand)
Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Government Bill As reported from the committee of the whole House 170—3 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Key to symbols used in reprinted bill As reported from the committee of the whole House text inserted text deleted Hon Maryan Street Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Government Bill Contents Title Commencement Principal Act amended Part 1 Amendments to principal Act Cover for work­related mental injury Interpretation Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts) New section 21B inserted 21B Cover for personal injury suffered outside New Zealand (except mental injury caused by certain criminal acts) Personal injury Work­related personal injury Personal injury caused by work­related gradual process, disease, or infection Motor vehicle injury Date on which person is to be regarded as suffering mental injury Date on which person is to be regarded as suffering personal injury caused by work­related gradual process, disease, or infection 170—3 Page 3 3 3 3 4 4 4 5 6 6 6 7 8 8 1 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Steps Corporation takes to action complicated claims for cover Corporation liable to provide vocational rehabilitation Further matters to be considered in deciding whether to provide vocational rehabilitation Conduct of initial occupational assessment Procedure in determining incapacity under section 103 or section 105 Corporation to determine incapacity of claimant who, at time of incapacity, had ceased to be employee, was potential earner, or had purchased weekly compensation under section 223 Disentitlement for wilfully self­inﬂicted personal injuries and suicide Employers to pay levies Private domestic workers to pay levies Self­employed persons to pay levies Persons eligible to purchase weekly compensation Penalties and
 interest due to Corporation in respect of unpaid levies Ancillary powers of Corporation Management of Accounts Regulations relating to rehabilitation New section 324A inserted 324A Annual review of amounts prescribed by regulations made under section 324 Amendment of Schedule 2 by Order in Council Weekly earnings of certain claimants increased Compensation payable to surviving spouses or de facto partners under 1972 and 1982 Acts Part 2 Further amendment to principal Act and regulations, and additional transitional provision Schedule 1 amended Amendment to Injury Prevention, Rehabilitation, and Compensation (Interest Rate for Late Payment of Levies) Regulations 2002 Transitional provision for payment of levies and payment of penalties and interest due for unpaid levies 34A 2 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 1 cl 4 Schedule Amendments to Schedule 1 15 The Parliament of New Zealand enacts as follows: 1 2 (1) (2) Title This Act is the Injury Prevention, Rehabilitation, and Com­ pensation Amendment Act (No 2) 2007.
Commencement Section 4(4) comes into force on a date to be appointed by the Governor­General by Order in Council.

Section 33(1) and the Schedule of this Act, in so far as they relate to the amendments to clause 42(3) of Schedule 1 of the principal Act, come into force on 1 July 2008.
(2A) The following provisions of this Act come into force on 1 Oc­ tober 2008: (a) (b) sections 5(1), 6 to 9, 11, 12, and 14 to 17 section 33(1) and the Schedule, in so far as they relate to the amendments to clause 25 of Schedule 1 of the principal Act.

(3) The rest of this Act comes into force on 1 August 2008.

3 Principal Act amended This Act amends the Injury Prevention, Rehabilitation, and Compensation Act 2001.
Part 1 Amendments to principal Act 4 (1) Interpretation Section 6(1) is amended by inserting the following deﬁnition in its appropriate alphabetical order: “nurse practitioner means a health practitioner who— “(a) is, or is deemed to be, registered with the Nursing Coun­ cil of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 3 Part 1 cl 5 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) 2003 as a practitioner of the profession of nursing whose scope of practice permits the performance of nurse practitioner functions; and “(b) holds a current practising certiﬁcate”.
The deﬁnition of registered health professional in sec­ tion 6(1) is amended by inserting “nurse practitioner,” after “nurse,”.

The deﬁnition of treatment provider in section 6(1) is amended by inserting “nurse practitioner,” after “nurse,”.

The deﬁnition of nurse practitioner in section 6(1) is repealed and the following deﬁnition substituted: “nurse practitioner has the meaning given to it in regulations made under this Act”.
Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts) The heading to section 20 is amended by inserting “or work­ related mental injury” after “criminal acts”.

Section 20(3)(b) is amended by omitting “(2)(d)” and substi­ tuting “(2)(e)”.
New section 21B inserted The following section is inserted after section 21A: (2) (3) (4) 5 (1) (2) 6 “21B Cover for work­related mental injury “(1) A person has cover for a personal injury that is a work­related mental injury if— “(a) he or she suffers the mental injury inside or outside New Zealand on or after 1 August 2008 1 October 2008; and the mental injury is caused by a single event of a kind described in subsection (2).
“(b) “(2) Subsection (1)(b) applies to an event that— “(a) “(b) “(c) the person experiences, sees, or hears directly in the circumstances described in section 28(1); and is an event that could reasonably be expected to cause mental injury to people generally; and occurs— “(i) in New Zealand; or 4 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 1 cl 7 “(ii) outside New Zealand to a person who is ordinar­ ily resident in New Zealand when the event oc­ curs.
“(3) For the purposes of this section, it is irrelevant whether or not the person is ordinarily resident in New Zealand on the date on which he or she suffers the mental injury.

“(4) Section 36(1) describes how the date referred to in subsec­ “(5) tion (3) is determined.

In subsection (2)(a), a person experiences, sees, or hears an event directly if that person— “(a) is involved in or witnesses the event himself or herself; and is in close physical proximity to the event at the time it occurs.
“(b) “(6) To avoid doubt, a person does not experience, see, or hear an event directly if that person experiences, sees, or hears it through a secondary source, for example, by— “(a) seeing it on television (including closed circuit televi­ sion): seeing pictures of, or reading about, it in news media: hearing it on radio or by telephone: “(b) “(c) “(d) hearing about it from radio, telephone, or another per­ son.
“(7) In this section, event— “(a) means— “(i) “(ii) includes a series of events that— “(i) “(ii) “(b) an event that is sudden; or a direct outcome of a sudden event; and arise from the same cause or circumstance; and together comprise a single incident or occasion; but “(c) does not include a gradual process.” 7 (1) (2) Cover for personal injury suffered outside New Zealand (except mental injury caused by certain criminal acts) The heading to section 22 is amended by inserting “or work­ related mental injury” after “criminal acts”.
Section 22 is amended by adding the following subsection: 5 Part 1 cl 8 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) “(7) A person who suffers personal injury that is work­related mental injury in circumstances described in section 21B has cover under section 21B, but not under this section.” 8 9 Personal injury Section 26(1) is amended by inserting the following paragraph after paragraph (d): “(da) work­related mental injury that is suffered by a person in the circumstances described in section 21B; or”.
Work­related personal injury Section 28 is amended by inserting the following subsection after subsection (4): “(4A) Work­related personal injury includes work­related mental injury that is suffered in the circumstances described in sec­ tion 21B.” 10 (1) Personal injury caused by work­related gradual process, disease, or infection Section 30 is amended by inserting the following subsection after subsection (1): “(1A) Subsection (1)(c) is subject to subsection (2A).” (2) (3) Section 30(2)(b)(ii) is repealed.
Section 30(2) is amended by repealing paragraph (c) and sub­ stituting the following paragraph: “(c) that, if the particular property or characteristic is pre­ sent in both the person’s employment tasks or environ­ ment and non­employment activities or environment, it is more likely that the person’s personal injury was caused as a result of the employment tasks or environ­ ment rather than the non­employment activities or en­ vironment.” (4) Section 30 is amended by inserting the following subsection after subsection (2): “(2A) However, even if it is established that a claimant’s personal injury was caused in the circumstances described in subsection (2), the Corporation may decline the claim if the Corporation 6 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 1 cl 11 establishes that the risk of suffering the personal injury is not signiﬁcantly greater for persons who— “(a) perform the employment task than it is for persons who do not perform it; or are employed in that type of environment than it is for persons who are not.” “(b) (5) Section 30 is amended by repealing subsection (3) and substi­ tuting the following subsection: “(3) Personal injury caused by a work­related gradual process, disease, or infection includes personal injury that is— “(a) “(b) of a type described in Schedule 2; and suffered by a person who is or has been in employ­ ment— “(i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or in an occupation, industry, or process described in that schedule in relation to that type of personal injury.” “(ii) (6) Section 30 is amended by inserting the following subsection after subsection (3): “(3A) To avoid doubt, where a claim is lodged for cover for a work­ related gradual process, disease, or infection, section 57 ap­ plies to require, among other things, the Corporation to inves­ tigate the claim at its own expense.” The amendments made by this section do not apply in respect of claims that have been— (a) (b) lodged before the commencement of this section; or decided before, and resubmitted on or after, the com­ mencement of this section.
(7) (8) Claims referred to in subsection (7) must be determined in accordance with section 30 as it was immediately before the commencement of this section.
11 Motor vehicle injury Section 35 is amended by repealing subsection (1) and substi­ tuting the following subsection: 7 Part 1 cl 12 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) “(1) Motor vehicle injury— “(a) means— “(i) “(ii) a personal injury suffered because of the move­ ment of a motor vehicle; or a personal injury suffered because of a stationary motor vehicle being struck by another motor ve­ hicle or some other means of conveyance; but “(b) does not include a personal injury that is a work­related mental injury.” Date on which person is to be regarded as suffering mental injury Section 36(1) is amended by inserting “or 21B” after “section 21”.
Date on which person is to be regarded as suffering personal injury caused by work­related gradual process, disease, or infection Section 37(1)(a) is amended by inserting “or nurse practi­ tioner” after “medical practitioner”.

Steps Corporation takes to action complicated claims for cover Section 57(1)(a) is amended by inserting “or 21B” after “sec­ tion 21”.
Corporation liable to provide vocational rehabilitation Section 85 is amended by adding the following subsection as subsection (2): 12 13 14 15 “(2) Despite subsection (1)(b)(i), the Corporation is liable to provide vocational rehabilitation to a person who was entitled to weekly compensation and who would, but for clause 52 of Schedule 1 (relationship between weekly compensation and New Zealand superannuation), continue to be entitled to weekly compensation.” 8 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 1 cl 17 16 Further matters to be considered in deciding whether to provide vocational rehabilitation Section 87 is amended by inserting the following subsections after subsection (2): “(2A) Subsection (2) is subject to subsection (2B).
“(2B) Despite subsection (2), the Corporation may, at its discretion, provide vocational rehabilitation for longer than 3 years if the Corporation considers that— “(a) the vocational rehabilitation would be likely to achieve its purpose under the claimant’s individual rehabilita­ tion plan; and the vocational rehabilitation would be likely to be cost­ effective, having regard to the likelihood that costs of entitlements under this Act will be reduced as a result of the provision of vocational rehabilitation; and the vocational rehabilitation would be appropriate in the circumstances.
“(b) “(c) “(2C) However, despite subsections (1)(b) and (2B)(b), if the Corporation is liable to provide vocational rehabilitation to a claimant under section 85(2), it must not take into account as a factor against providing the vocational rehabilitation that costs of entitlements will not be reduced because the claimant is no longer entitled to weekly compensation.
“(2C) However, despite subsections (1)(b) and (2B)(b), the Corpor­ ation must not take into account as a factor against providing vocational rehabilitation that the claimant is, or may become, a person to whom clause 52 of Schedule 1 (relationship between weekly compensation and New Zealand superannuation) ap­ plies.” 17 Conduct of initial occupational assessment Section 91 is amended by inserting the following subsection after subsection (1): “(1A) In considering the suitability of the types of work referred to in subsection (1)(b), the occupational assessor must take into account, among other things, the claimant’s earnings before the claimant’s incapacity.” 9 Part 1 cl 18 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Procedure in determining incapacity under section 103 or section 105 Section 102(2)(a) is amended by inserting “or nurse practi­ tioner” after “medical practitioner”.
Corporation to determine incapacity of claimant who, at time of incapacity, had ceased to be employee, was potential earner, or had purchased weekly compensation under section 223 Section 105 is amended by omitting the heading and substi­ tuting the following heading: “Corporation to determine in­ capacity of certain claimants who, at time of incapacity, had ceased to be in employment, were potential earners, or had purchased weekly compensation under section 223”.
Section 105(1)(a) is amended by inserting “, a self­employed person, or a shareholder­employee, as the case may be” after “employee”.

Disentitlement for wilfully self­inﬂicted personal injuries and suicide Section 119 is repealed.

To avoid doubt, any claimant who was, at any time before this section came into force, disentitled under section 119(1) remains disentitled.

Employers to pay levies Section 168(3) is amended by omitting “2 months” and sub­ stituting “30 days”.
Private domestic workers to pay levies Section 168A(3) is amended by omitting “2 months” and sub­ stituting “30 days”.

Self­employed persons to pay levies Section 168B(3) is amended by omitting “2 months” and sub­ stituting “30 days”.

18 19 (1) (2) 20 (1) (2) 21 22 23 10 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 1 cl 25 24 (1) (2) (3) Persons eligible to purchase weekly compensation Section 223(3)(b) is amended by omitting “less than 3 months nor”.
Section 223(3)(c)(i) is amended by omitting “permanent”.

Section 223(3)(c) is amended by repealing subparagraph (ii) and substituting the following subparagraphs: “(ii) the person had an incapacity that commenced on the last full day of the employment referred to in subsection (2)(a) and that resulted from a per­ sonal injury for which he or she had cover; and “(iia) the weekly earnings were to be calculated for a period of incapacity after the ﬁrst 5 weeks of incapacity; and”.
(4) Section 223 is amended by repealing subsection (6) and sub­ stituting the following subsection: “(6) A person who is on parental leave within the meaning of the Parental Leave and Employment Protection Act 1987, or who has had an application for parental leave approved under that Act, is regarded as being still in employment for the purposes of subsection (2) and, for the purposes of subsection (3)(c), the person’s weekly earnings are to be calculated as if the period of incapacity was before the commencement of the person’s parental leave.” 25 (1) (2) (3) Penalties and interest due to Corporation in respect of unpaid levies Section 250(1) is amended by inserting “that is 30 days” after “unpaid on the day”.
Section 250(2) is amended by omitting “2 months” and sub­ stituting “30 days”.

Section 250(4) is amended by— (a) omitting “6 months after the due date” and substituting “210 days after the due date”; and omitting “every 6 months” and substituting “every 180 days”; and omitting “ﬁrst 6­month period” and substituting “210­ day period”.
(b) (c) 11 Part 1 cl 26 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) 26 Ancillary powers of Corporation Section 265 is amended by inserting the following subsection after subsection (1): “(1A) To avoid doubt, the Corporation may provide services under subsection (1)— “(a) that are outside the functions of the Corporation under section 262, provided that the services are consistent with the purposes of the Act: “(b) whether or not the services are provided to a person who would not otherwise have cover under this Act.” 27 Management of Accounts Section 274(3B) is amended by omitting “section 270(2)” and substituting “section 115(2) of the Crown Entities Act 2004”.
28 Regulations relating to rehabilitation Section 324 is amended by repealing subsection (2) and sub­ stituting the following subsection: “(2) The Minister must not make any recommendation under sub­ section (1) without ﬁrst receiving a recommendation from the Corporation and consulting the persons or organisations the Minister considers appropriate, having regard to the subject­ matter of the proposed regulations.” 29 New section 324A inserted The following section is inserted after section 324: “324A Annual review of amounts prescribed by regulations made under section 324 “(1) The Corporation must conduct an annual review of the amounts, prescribed by regulations made under section 324, that the Corporation is liable to pay for the entitlement of rehabilitation.
“(2) The purpose of the review is to assess whether adjustment to any of the amounts is required to take into account changes in costs of rehabilitation.
“(3) The Corporation must, by 1 December each year,— “(a) provide a report on the results of the review to the Min­ ister; and 12 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 1 cl 32 “(b) include in that report any recommendations for change that it may have.” 30 Amendment of Schedule 2 by Order in Council Section 336(1) is amended by repealing paragraph (a) and sub­ stituting the following paragraph: “(a) adding or varying the description of a personal injury, together with the corresponding— “(i) agents, dusts, compounds, substances, radiation, or things (as the case may be) and, if appropriate, the relevant level or extent of exposure to such agents, dusts, compounds, substances, radiation, or things; or “(ii) occupations, industries, or processes; or”.
31 Weekly earnings of certain claimants increased Section 366(1)(b) is amended by inserting “was not receiving weekly compensation calculated under the Accident Compen­ sation Act 1972 or the Accident Compensation Act 1982, and” before “had weekly earnings”.
32 Compensation payable to surviving spouses or de facto partners under 1972 and 1982 Acts Section 384 is amended by inserting the following subsection after subsection (1): “(1A) However, despite subsection (1), the spouse or de facto part­ ner may choose to convert the entitlement to compensation under section 446 of the Accident Insurance Act 1998 to 1 or more aggregated payments and, in those circumstances, clause 67 of Schedule 1 applies as if the entitlement to compensation were an entitlement to weekly compensation under clause 66 of Schedule 1.” 13 Part 2 cl 33 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Part 2 Further amendment to principal Act and regulations, and additional transitional provision Schedule 1 amended Schedule 1 is amended in the manner set out in the Schedule of this Act.
The amendments set out in the Schedule that relate to clauses 33 to 36 and clause 43 of Schedule 1 of the principal Act apply only in respect of claimants whose incapacity commenced on or after the commencement of this section.
The amendments set out in the Schedule that relate to clauses 42(1)(c) and (2), 47(4), 49, and 51 of Schedule 1 of the principal Act apply only in respect of— (a) claimants who are entitled to the relevant weekly com­ pensation on or after the commencement of this section; and (b) weekly compensation payable for a period beginning on or after the commencement of this section.
Amendment to Injury Prevention, Rehabilitation, and Compensation (Interest Rate for Late Payment of Levies) Regulations 2002 This section amends the Injury Prevention, Rehabilitation, and Compensation (Interest Rate for Late Payment of Levies) Regulations 2002.

Regulation 3(a) is amended by inserting “that is 30 days after the date” after “from the date”.
33 (1) (2) (3) 34 (1) (2) 34A Transitional provision for payment of levies and payment of penalties and interest due for unpaid levies The amendments in sections 21 to 23, 25, and 34 of this Act apply only in respect of an invoice or other appropriate document that is given to a person by the Corporation or an agent of the Corporation on or after 1 August 2008 in respect of any levy payable under the principal Act.
14 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Schedule Amendments to Schedule 1 Schedule s 33 Clause 25 Insert after subclause (1): “(1A) In considering the suitability of the types of work referred to in subclause (1)(c), the occupational assessor must take into account, among other things, the claimant’s earnings before the claimant’s incapacity.” Heading above clause 33 Omit “in permanent employment” and substitute “claimant”.
Clause 33 Repeal and substitute: “33 Weekly earnings if earner had earnings as employee immediately before incapacity commenced: application of clause 34 “(1) Clause 34 applies to a claimant who— “(a) was an earner immediately before his or her incapacity commenced; and “(2) “(b) had earnings as an employee at that time.
If the claimant had employment with more than 1 employer at that time, the weekly earnings of the claimant, in respect of each employer he or she had at that time, are as calculated separately under clause 34 and aggregated under clause 41.” Clause 34 Heading to clause 34: omit “in permanent employment”.

Subclause (1): item a: omit “(from that permanent employment)” and substitute “(from the claimant’s employment immediately before the claimant’s incapacity commenced)”.
Subclause (2): item a: omit “(from employment with that employer)” and substitute “(from the claimant’s employment immediately before the claimant’s incapacity commenced)”.

Clause 35 Repeal.

15 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Schedule Clause 36 Repeal.

Clause 38 Subclause (5): omit “clauses 33 to 36” and substitute “clauses 33 and 34”.
Add: “(7) To avoid doubt, if a claim for weekly compensation is made in respect of a period of incapacity that commenced before 1 July 2005, this clause— “(a) applies only to the calculation of weekly earnings for the purposes of weekly compensation that is payable for a period commencing on or after 1 July 2005; and “(b) does not authorise an increase to the rate of weekly compensation that is payable for a period before 1 July 2005.” Clause 39 Subclause (1)(a): omit “or clause 36, whichever is applicable”.
Subclause (4): omit “clauses 33 to 36” and substitute “clauses 33 and 34”.

Subclause (5): omit “clauses 33 to 36” and substitute “clauses 33 and 34”.
Add: “(7) To avoid doubt, if a claim for weekly compensation is made in respect of a period of incapacity that commenced before 1 July 2005, this clause— “(a) applies only to the calculation of weekly earnings for the purposes of weekly compensation that is payable for a period commencing on or after 1 July 2005; and “(b) does not authorise an increase to the rate of weekly compensation that is payable for a period before 1 July 2005.” Clause 41 Subclause (1): omit “clauses 33 to 36” in each place where it appears and substitute in each case “clauses 33 and 34”.
16 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Schedule Clause 41—continued Subclause (3): omit “clauses 33 to 36” in each place where it appears and substitute in each case “clauses 33 and 34”.

Subclause (5): omit “or clause 36”.

Subclause (6): omit “or clause 36” in each place where it appears.

Clause 42 Subclause (1)(b): omit “36,”.

Subclause (1)(c): omit “5 weeks” and substitute “1 week”.

Subclause (2): omit “5­week period” and substitute “ﬁrst week of incapacity”.
Subclause (3)(a)(i): repeal and substitute: “(i) the minimum weekly wage under the Minimum Wage Act 1983 for a person aged 18 years or older to whom section 4(1)(c) of that Act does not apply; or” Subclause (3)(b): omit “over 18 years of age” and substitute “18 years of age or over”.
Subclause (3)(b)(i): repeal and substitute: “(i) the minimum weekly wage under the Minimum Wage Act 1983 for a person aged 18 years or older to whom section 4(1)(c) of that Act does not apply; or” Clause 43 Repeal and substitute: “43 Weekly earnings if employment ended before commencement of incapacity “(1) Subclause (2) applies to a claimant who, before his or her incapacity commenced, has ceased to be in employment.
“(2) The claimant is deemed to continue to be in employment and have earnings from that employment for the purposes of this schedule for the longer of— “(a) 28 days from the date he or she ceased to be in employ­ ment, if he or she— “(i) had been in employment within 28 days before his or her incapacity commenced; and 17 Schedule Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Clause 43—continued “(ii) would have been an employee within the period speciﬁed in subclause (3) after the date on which his or her incapacity commenced, but for the incapacity; or the period for which payments that the claimant is en­ titled to receive on ceasing employment and on which earner levy is payable constitute earnings under sub­ clause (4).
“(b) “(3) For the purposes of subclause (2)(a)(ii), the period is,— “(a) unless paragraph (b) applies, 3 months if the claimant had entered into an employment agreement, or had ar­ ranged to enter into an employment agreement, before the incapacity commenced; or “(b) 12 months if— “(i) “(ii) the claimant was employed in seasonal em­ ployment with the same employer as he or she had been employed in the 2 seasons before the claimant’s incapacity commenced; and the employer conﬁrms that the claimant could reasonably have expected to be re­employed in the season after the claimant’s incapacity com­ menced.
“(4) A claimant, who is deemed by subclause (2)(b) to continue to be in employment, is also deemed to be deriving earnings at the same rate as he or she derived earnings while in employment immediately before he or she ceased to be an employee, a self­ employed person, or a shareholder­employee, as the case may be.

“(5) For the purposes of calculating the claimant’s weekly earnings, the date his or her incapacity commenced is deemed to be the last date on which the claimant was in employment.
“(6) Unless the personal injury is a motor vehicle injury, a work­ related personal injury, or a treatment injury, payments under this clause come from the Earners’ Account.
In this clause— “employee includes an employee who is on unpaid leave that is not unpaid parental leave “(7) 18 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Schedule Clause 43—continued “employment means employment as— “(a) “(b) “(c) an employee; or a self­employed person; or a shareholder­employee.” Clause 45(3) Omit “clause 38 or clause 39” and substitute “clauses 38 to 40”.
Clause 47 Insert after subclause (1): “(1A) For the purposes of subclause (1)(d), full­time study or training— “(a) includes any full­time course or training leading to an educational or vocational qualiﬁcation approved by the New Zealand Qualiﬁcations Authority that would be likely to enhance the employment prospects, either gen­ erally or in respect of any particular profession or occu­ pation, of a person who has attained that qualiﬁcation; but “(b) does not include full­time study or training in living or social skills.” Subclause 4: omit “claimant is deemed to have the amount of min­ imum weekly earnings determined under clause 42(3)” and substitute “claimant’s weekly earnings are deemed to be the amount of weekly earnings determined under clause 42(3) multiplied by 125%”.
Clause 49 Subclause (1): repeal.

Subclause (2): repeal.

Subclause (3): repeal and substitute: “(3) In clause 51(2), earnings does not include any payment made on the termination of employment in respect of leave entitle­ ments.” Subclause (4): omit “51(1) and (2)” and substitute “51(2)”.

19 Schedule Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Clause 51 Subclause (1): repeal.
Subclause (2): omit “The Corporation must also reduce the amount of weekly compensation paid” and substitute “In calculating weekly compensation under this Part, the Corporation must reduce the amount of weekly compensation paid to a claimant”.

Subclause (3): repeal.
Clause 55 Add: “(6) Subclauses (2), (4), and (5) apply subject to clauses 55A to 55D.” New clauses 55A to 55D Insert after clause 55: “55A Certain persons may elect to receive either lump sum compensation or independence allowance: assessment, notiﬁcation, and election “(1) The Corporation must, to enable a person to make an election under subclause (4), determine whether the person meets the criteria for entitlement to both lump sum compensation (under clauses 57 to 60) and an independence allowance (under clauses 58 to 60 of Schedule 1 of the Accident Insur­ ance Act 1998).
“(2) However, a determination under subclause (1) is required only if the person— “(a) “(b) “(c) suffered a personal injury caused by a work­related gradual process, disease, or infection in the circum­ stances described in section 30(2); and last performed the task or was employed in the environ­ ment in those circumstances before 1 April 2002; and suffered the personal injury on or after the date on which section 33 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2007 came into force.
“(3) The Corporation must, after complying with subclause (1),— 20 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Schedule New clauses 55A to 55D—continued “(a) make a decision (which, to avoid doubt, is to be treated as a single decision) as to whether the person has, for the purposes of an election under subclause (4), an en­ titlement to both lump sum compensation and an inde­ pendence allowance; and “(b) notify the person of its decision, in accordance with sec­ tion 64, and include with that notiﬁcation information about— “(i) the Corporation’s assessment of the person’s de­ gree of whole­person impairment; and the amounts of lump sum compensation and in­ dependence allowance that the person would, if he or she elected to receive that compensation or allowance, be entitled to receive; and “(ii) “(iii) the Corporation’s estimate of the period for which the person would need to receive an inde­ pendence allowance for that allowance to equal the value of the lump sum compensation that would be payable to the person, calculated using appropriate actuarial methodology; and inform the person— “(i) that he or she is entitled to elect which of the entitlements he or she wishes to receive; and “(ii) of the matters speciﬁed in subclause (4).
“(c) “(4) A person who is assessed as having an entitlement to either lump sum compensation or an independence allowance— “(a) may, within 60 days of being given notiﬁcation in ac­ cordance with section 64, elect which entitlement he or she wishes to receive; or is, if no election is made within 60 days, deemed to have elected to receive an independence allowance.

“(b) “(5) An election under subclause (4)(a) must be made in writing to the Corporation.
“(6) Section 37 applies for the purposes of subclause (2)(c).

“(7) Section 64 applies to a notiﬁcation by the Corporation under this clause as if the notiﬁcation were a notice of a decision on a claim.
21 Schedule Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) New clauses 55A to 55D—continued “(1) “55B Certain persons may elect to receive either lump sum compensation or independence allowance: persons not entitled to make election under clause 55A If the result of the Corporation’s determination under clause 55A(1) is that the person does not meet the criteria for entitle­ ment to both lump sum compensation and an independence allowance, the following provisions apply: “(a) if the person meets the criteria for entitlement to lump sum compensation but not an independence allowance, the person may not exercise the right of election under clause 55A(4) but is entitled to receive lump sum com­ pensation: if the person meets the criteria for entitlement to an in­ dependence allowance but not lump sum compensation, the person may not exercise the right of election under clause 55A(4) but is entitled to receive an independ­ ence allowance: if the person does not meet the criteria for entitlement to lump sum compensation or an independence allowance, the person may not exercise the right of election under clause 55A(4) and the Corporation must decline the person’s claims to those entitlements.
“(2) However, the Corporation must again comply with clause 55A(1) in relation to a person if— “(a) the person has been reassessed under clause 61 of Schedule 1 of the Accident Insurance Act 1998, and the reassessment indicates that the person’s degree of whole­person impairment has changed; or a review of the Corporation’s decision (under section 134), or an appeal (under section 149), has resulted in a change to the assessment of the person’s degree of whole­person impairment.
“55C Certain persons may elect to receive either lump sum compensation or independence allowance: reassessment, notiﬁcation, and further election “(1) A person may make a further election if— 22 “(b) “(c) “(b) Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Schedule New clauses 55A to 55D—continued “(a) “(b) the person has elected, or is deemed to have elected, to receive (or continue to receive) an independence allow­ ance; and either of the situations in subclause (2) apply.
“(2) The situations are that— “(a) “(b) the person has been reassessed under clause 61 of Schedule 1 of the Accident Insurance Act 1998, and the reassessment indicates that the person’s degree of whole­person impairment has changed: a review of the Corporation’s decision (under section 134), or an appeal (under section 149), has resulted in a change to the assessment of the person’s degree of whole­person impairment.
“(3) If either of the situations in subclause (2) apply, the Corpor­ ation must— “(a) provide the person with the information speciﬁed in clause 55A(3)(b), updated to take account of the change in circumstances; and inform the person— “(i) that he or she is entitled to make a further elec­ tion, in light of the reassessment, as to which of the entitlements he or she wishes to receive; and “(b) “(ii) of the matters speciﬁed in subclause (4).
“(4) A person to whom either of the situations in subclause (2) applies— “(a) may, within 60 days of being given the information spe­ ciﬁed in subclause (3), make a further election as to which entitlement he or she wishes to receive; or is, if no election is made within 60 days, deemed to have elected to continue to receive an independence allow­ ance.

“(b) “(5) An election under subclause (4)(a) must be made in writing to the Corporation.
23 Schedule Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) New clauses 55A to 55D—continued “55D Certain persons may elect to receive either lump sum “(2) compensation or independence allowance: general “(1) The information referred to in clause 55C(3)(a) must, in re­ lation to the amount of lump sum compensation payable, take into account any amount of independence allowance paid to the person following his or her initial election, or deemed elec­ tion, as the case may be, under clause 55A(4) or 55C(4).
If a claimant makes a further election, in accordance with clause 55C(4)(a), in which he or she elects to receive lump sum compensation, the amount of lump sum compensation payable must be reduced by any amount of independence al­ lowance paid to the person— “(a) following his or her initial election, or deemed election, as the case may be, under clause 55A(4) or 55C(4): in accordance with clause 55B(1)(b).
“(b) “(3) A person is not entitled to receive both a lump sum payment and an independence allowance in respect of the same personal injury.

“(4) However, subclause (3) does not apply to a person who has received— “(a) “(b) both entitlements (at different times) as a result of a further election made in accordance with clause 55C: an independence allowance before any right to election arose.
“(5) Part 4 of Schedule 1 of the Accident Insurance Act 1998 ap­ plies for the purposes of deciding whether a person has an en­ titlement to an independence allowance for the purposes of clauses 55A and 55C.” Clause 66(5)(c) Omit “were” and substitute “is”.
24 Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 2) Legislative history Introduction (Bill 170–1) First reading and referral to Transport and Industrial Relations Committee Reported from Transport and Industrial Relations Committee (Bill 170–2) Second reading Committee of the whole House Committee of the whole House completed 22 November 2007 11 December 2007 27 May 2008 17 June 2008 24 June 2008 25 June 2008 12 Published under the authority of the House of Representatives—2008 Wellington, New Zealand: 25