Overview of the Return to
Work Bill 2014
Contents
• Overview of main features of RTW Bill
• Some technical observations on RTW Bill
• Draft RTW Regulations
• SA Employment Tribunal Bill 2014
Compensability
• Injury other than psychiatric injury – “…out of or in the course of
employment and the employment was a significant contributing
cause of the injury.”
• Psychiatric injury, “…out of or in the course of employment and the
employment was the significant contributing cause of the injury.”
‘A significant contributing cause’
Reservations because interstate case law is mixed:
“It can be said that only infrequently in the case of physical injury
caused by external trauma arising in the course of a worker's
employment will the necessary causal element not be established”.
Ashley J of the Vic Supreme Court in Hegedis v Carlton & United
Breweries [2000] VSC 380 (27 September 2000)
‘A significant contributing cause’
“Nothing in workers compensation law suggests that an objective
standard should be set up when considering the compensability of
injury or that a factor need be the sole or dominant factor causing
injury in order that it qualify as a significant contributing factor even
while not the sole or even dominant contributing factor”.
Nettle J of the Vic Supreme Court in Day v Electronik Fabric Makers
(Vic) Pty Ltd [2004] VSC 24 (16 February 2004)
‘A significant contributing cause’
‘Significant’, according to the Macquarie Dictionary, means “important;
of consequence”. There is no reason why the word should be given
other than its ordinary dictionary meaning. Whether any particular
matter is a contributing factor depends on the circumstances of each
individual case; and different minds might legitimately reach different
conclusions…
Frank Lippett, Barrister-at-Law, More Chambers
Q-COMP Statutory Law Cases Seminar - A Significant Contributing Factor 29 May & 18 July 2006
Duty to provide work
• Duty is very similar to current duty
• New - a worker who has been incapacitated for work can seek, by written
request, employment with the pre-injury employer
• If no response from employer within one month - the worker can apply to
the Tribunal.
• If Tribunal is satisfied that it is reasonably practicable to provide
employment, the Tribunal must order the employer to provide
employment unless it determines otherwise
• Worker can seek costs of representation in seeking an order for
employment
Duty to provide work
• $25K penalty in s.58B removed
• Exceptions are similar but also permits ‘new or other employment
options’
• Issue of cost orders – Tribunal can make cost orders against
employer, but has option to not do so where application fails
• As with s.58B – all hinges on interpretation
Permanent impairment lump sums – noneconomic loss
• 5% threshold – no aggregation of physical and psych – must be all
one or the other
• No entitlement for psychiatric illness or consequential mental harm
• PI Guidelines for new Act yet to be published by WorkCoverSA
• Prescribed sums to be set out in Schedule 1 of the RTW Regulations
2014
• Schedule 8 of RTW Act sets minimum entitlements for ranges of WPI
Permanent impairment lump sums –
economic loss
• New to SA
• 5% threshold – no aggregation of physical and psych – must be all
one or the other
• No entitlement for psych illness, consequential mental harm or noise
induced hearing loss
• Entitlement calculated by age, whole person impairment (WPI) and
monetary amount.
• Schedule 6 and Schedule 7 set out age and prescribed sums
• One sum for multiple injuries arising from the same trauma
Permanent impairment
• Much more important role
• Guidelines to be modified to include method of assessing psych
impairment
• AMA5 psych chapter will not be used
• Other models:
• GEPIC (Vic – modified AMA2) – has some rigour; requires 360° assessment
of worker
• PIRS (NSW, Qld – modified AMA4) – has been criticised for being too easy
to coach
• WorkCover leaning toward GEPIC
Permanent impairment - summary
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Limited to 1 assessment per trauma
But can be made by more than 1 specialist
Physical & psych to be assessed separately
Physical & psych cannot be aggregated for thresholds – must be all
one or all the other
• Tribunal can vary PIA by an IMA but must give written reasons
Seriously injured workers
• WPI 30% or more.
• Can be an interim assessment before a final permanent impairment
determined.
• Threshold WPI cannot combine physical and psych – must be all one or all
the other
• Seriously injured only category to have access to common law - but only for
future economic loss
• Must make a written election of common law or redemption
• Ongoing income maintenance at 80% and no return-to-work obligation
• No medical redemption
Thresholds & WPI generally
• Can only be one assessment per trauma
• Assessment can be by more than one expert
• Can be interim decisions for seriously injured status prior to WPI
assessment
• More will be known when Guidelines are published
• Method of assessing psych impairment under consideration –
different tools are used elsewhere
Medical expenses
• In “prescribed classes” the worker can apply for pre-approval (eg major surgery
etc)
• Medical services end 12 months after the end of IM (except seriously injured)
• Does not apply to any therapeutic appliance required to maintain the worker’s capacity
• Does not apply where it has been accepted before the end of services that it is reasonable
and appropriate for surgery to be undertaken at a later time
• Does not apply to prescribed classes of injury where ongoing services approved prior to the
end of the 3 years.
Weekly payments
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100% for the first 52 weeks
80% to 104 weeks
Cease at 104 weeks from the date of injury
Subject to Federal minimum wage
After the 104 weeks, can receive income support following approved
surgery for a period of 13 weeks post-surgery.
• Will cease at retirement age as determined by Commonwealth law
• Can be adjusted and reviewed but no automatic economic adjustments
for other than seriously injured
• Discontinuance provisions much the same
Redemption
• Much the same as current provisions but -
• Current s.42(2)(e) limitations will not apply
• No requirement to apply to Tribunal
• Can be redemption of medical expenses
• Seriously injured cannot have both redemption and common law –
have to elect
Recovery/return to work plans
• Where a worker is or is likely to be incapacitated for more than 4
weeks, a RRTW plan must be prepared.
• Where worker incapacitated for 6 months, has not RTW in same or
equivalent work and not working to full capacity, new or other
employment options for the worker need to be taken into account
• This action can affect the obligation of the pre-injury employer to
provide work
• Employers must appoint RTW coordinators
• Regulations may exempt some employers from this requirement
Common law
• Only applies to seriously injured workers (30% WPI)
• Restricted to damages for future economic loss
• Could be reduced on account of contributory negligence
• If non-seriously injured workers recover damages from another
person in relation to a work injury, they cease to be entitled to
compensation under the Act.
• Any compensation already received is to be deducted from the
damages and repaid to the compensating authority.
Dispute resolution
• SA Employment Tribunal to be established under own Act
• Reconsideration following notice of dispute remains
• Tribunal “must reach the correct or preferable decision but in doing
so must have regard to and give appropriate weight to the decision of
the original decision-maker”
• Before rehearing, there must be a compulsory conference
• If not settled at conference, the presiding member “must give to the
parties an assessment of the merits of the parties’ case” and “must
seek to recommend ways to resolve any matter in dispute.”
Expedited determinations
• Power to apply remains
• Cannot be made until at least 10 business days after the matter was
placed before the decision-maker for reconsideration
Independent medical advice
• Independent Medical Advisers (IMA) to be appointed – replaces
medical panels
• Appointments by Minister on recommendations of selection
Committee
• Medical questions can be referred to IMA by the Tribunal on its own
initiative or on application by any party to a dispute
• Assessment of the IMA regarding permanent impairment including
the nature and extent of any hearing loss is to be conclusive in
relation to proceedings before the Tribunal, unless the Tribunal
determines otherwise
Service standards – Schedule 5
• Replaces non-existent Code of Claimants Rights
• Will be a condition of self insurance
• SIs will be doing it already but –
• Review policies, procedures and complaint systems for alignment
• Ensure workforce is aware of standards
• Note State Ombudsman will have jurisdiction
Transitional provisions
• Weekly payments
• Current IM claims have 2 years from date of effect
• Current step-downs carry over; eg at date of effect:
• If worker is on 100%, then 100% for 1 year, 80% to 2 years
• If worker is on 90%, then 90% for 1 year, 80% to 2 years
• If worker is on 80%, then 80% to 2 years
• S.36 notices & RRTW Plans remain in effect
• Common law not retrospective
• Incomplete redemption negotiations under old Act continue
Employment Tribunal Bill 2014
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Re-creates the WCT bench – incl magistrates
Re-creates conciliation
Minister insists it will be an inquisitorial rather than judicial approach
Bill’s operation slightly modified by RTW Bill
No detail until Rules are published
Questions