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 – non-economic 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

• 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

• 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

• 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