As Return to Work Plan specialists, we are well aware of the statistics where the longer you have off work with a workplace injury, the less likely you are to return to work. This has serious detrimental repercussions for the worker, mentally and physically.
We have an extensive team of preferred medical providers who we choose because of their understanding of the many aspects impacting on a worker in addition to the straight ‘treatment’. We all have a goal of getting the best outcome for the worker and the employer.
This is a message from one of our doctors to his injured patient. It explains how getting back or staying at some sort of work is best for them as the worker.
“To put a worker completely off all work duties is a massive call and has ramifications to both worker and employer. We are not just putting you off work for a few days, we are talking a month minimum and you are aware of the effects long term time off work can have on a worker.
I have included a section of the well known statement of Australian Consensus Statement on the Health Benefits of Work (AFOEM-Consensus) which we base our Return To Work plans on. If I suggested at least 30 days away from the site work environment based on the extent of your injuries and rehabilitation required. Given the injuries this could easily extend further than the one month. Based on their research that then gives you between a 50-70% chance of never returning to full time employment if we keep you off work completely. As doctors we try to do the best for our patients and putting people off work we often think we are helping but research has shown we can invariably make them worse. My role is to maximum your recovery even if this is something you disagree with but from my experience being off work for over one month straight will hinder you in the long run.
Performing the home work duties is more to keep you productive and give you simple tasks to complete rather than just sitting around at home dwelling on your injury. This period of time not only delays physical but also psychological improvements. Idle hands type thing. I appreciate your anxiety symptoms which I have attempted to minimise but do you have zero capacity for any work? I don’t think so as you were coping with a similar type of work quiet well prior to the current issues.
In my experience long term time off work with no work involvement will cause more harm than good. My role is to provide a medical opinion on what I believe is the best and optimal management plan for your recovery both physically and psychologically. I believe this is in your best interest. I would advise against being certified completely unfit as I have seen this have significant long term affects on workers and then when they are cleared to return to site typically the anxiety response is significantly higher than compared to a worker doing some basic work at home as it keeps their mind up to speed with work.
I hope this explains the proposed plan and why this will assist you.”
Following a review by WorkCover WA, the workers’ compensation medical certificates have been revised and come into effect on 1 July 2014. They will now be known as Certificates of Capacity and replace the existing First, Progress and Final medical certificates currently used in WA.
WorkCover WA’s bulletin advises their intent is:
The certificates of capacity support the principle that work helps recovery. In general, work is beneficial to health and important for recovery. The certificates of capacity:
- Assist GPs to focus on what the worker can do to remain in or return to work as soon as possible
- Optimise the communication of information essential to support the worker’s recovery
- Help GPs to articulate the worker’s progress and ongoing needs, assisting insurers to make informed decisions about the worker’s claim for workers’ compensation
Our view is no matter the format of the Certificates, the key elements remain:
- Clear diagnosis
- Best and timely treatment
- Detailed capacity for work
- Understanding by the doctor the availability of alternative or restricted duties if the injured employee has reduced capacity for work
WorkCover WA releases variations in Prescribed Amounts and other Workers’ Compensation payments for 2014/2015
WorkCover WA today announced the new limits payable under the Act.
Key elements of the revised Prescribed Amounts are:
- Maximum payment: $212,980.00 (up from $206,742)
- Medical and hospital expenses: $63,894.00 (up from $62,023)
- Vocational rehabilitation expenses: $14,909.00 (up from $14,472)
- Weekly payments: $2,594.20 (up from $2,448.50)
These increases are effective from 1st July, 2014.
Injured employees who are currently in receipt of the maximum weekly compensation of $2,448.50 may be entitled to an increase. You should seek advice from your insurer before making any changes to the approved weekly compensation rate.
The Recommended Prescribed Amount and other Workers’ Compensation Payments for 2014-2015 are available here from the WorkCover WA website.
In Western Australia, the current Workers’ Compensation and Injury Management Act 1981 (the Act) has been amended a number of times and consequently is difficult to understand and apply. WorkCover WA recently published a discussion paper outlining proposals to re-draft the Act. The discussion paper was designed as the basis for consultation with a range of stakeholders in the WA workers’ compensation system, including insurers, rehabilitation providers, lawyers and industry groups.
As an employer advocate, Aurenda made a submission and our perspective on the Review focussed on changes that will particularly impact on the ability of employers to effectively manage their injured employees and the negative impact on claims costs, future premiums and the effective operation of their business.
The scope of the Review is wide and varied, with more than 160 recommendations to ‘improve’ the WA workers’ compensation system.
Some salient points we focussed on are:
- The Act will not be amended, rather re written with a focus on “plain speech”. We fully support this recommendation.
- Currently, an injured employee who is in receipt of weekly compensation and commences maternity leave continues to receive their full weekly compensation payments. We propose that weekly compensation should be suspended for the period of the applicable maternity leave period. This is an aspect of the current legislation that clearly contradicts the intent of the legislation, since the injured employee is not able to participate in the return to work process and therefore should not be entitled to compensation during that period. This was not contained within the recommendations – we have asked that this be addressed.
- Failure to attend or participate in medical reviews arranged under s64 and s65 still requires focus. The Review proposes a consolidation of the sections but does not address any consequence for the non-attendance or participation in the medical reviews. These medical reviews are crucial to an employer in progressing their injury management obligations as well as the general management of the employee’s injury. We recommended an immediate suspension of weekly compensation where there is failure to attend or participate in a medical review that is scheduled under these sections of the Act.
- The proposal to remove s92(f) as a mechanism to settle and resolve claims is not an option we support. It is crucial to allow both the employee and employer an opportunity to resolve the dispute over entitlement. This provides closure and certainty for the injured employee. It also allows the insurer to close the claim which provides certainty to the employer of impact on their insurance policy.
- Removal of the common law election period under s93M is proposed. This is not supported as the election provides an understanding of the injured employees’ intentions in respect of their future entitlements (a statutory claim or a common law claim) and this invariably motivates their compliance and return to work motivation. The added benefit of an election is knowing the likely cost exposure of the claim which assists employers with premium negotiations.
- It is proposed the twelve month time limit of notice of injury be removed (s178). We have not supported that change as the notification allows an employer to manage the injured employee in the workplace to ensure no further injury or aggravation, it also ensures that any changes to the system of work can occur or document the circumstances in the event a claim is made in the future and documentation is required by the insurer. Furthermore, if an employee believes they have a workplace injury why would they not want to report it to their employer within a reasonable timeframe and 12 months is not an onerous timeframe.
- The proposal to allow people other than doctors to issue medical certificates is not a concept we support. The doctors (treating or second opinion) are key to providing an objective and evidence-based approach to determining an injured employee’s need for treatment and/or incapacity to work. Allowing other allied health providers the authority would diminish the integrity of the system as well as possibly expose the system to rort.
- The recommendation to allow payment of small claims on a Without Admission of Liability basis to a cap of $750 is a good initiative but clarity will be required on the type of injuries and that it relates to medical expenses claims only.
- Clarification and simplifying the rate of pay calculation is a welcome initiative. It is likely, however, that will mean there will be no step down rate after 13 weeks incapacity and the step down provides an incentive to motivate a return to work. We recommended an across the board reduction of 15% after 13 weeks incapacity. This is consistent with the approach taken in other jurisdictions.
- It is proposed an injured employee can receive their permanent impairment lump sum entitlement and leave their claim open to receive the balance of their entitlements. This will increase the costs to the system and contribute to the longevity of claims. We have opposed this recommendation.
- Under s69 a Form 6 is required to be submitted if an injured employee is out of the State more than three months. The Review recommends weekly compensation to be suspended until the required form is submitted. We supported this amendment but further clarity on the frequency of the submission of the form is required as well as whether weekly compensation is backdated once there is compliance with the necessary forms evidencing an ongoing incapacity.
- The proposed revisions of s84AA is pleasing as it addresses some of the ambiguity for an employer when they are terminating employment contracts which, invariably, are not related to the injury or claim process.
The process of ‘reviewing the Review’, amending recommendations, seeking further feedback from stakeholders and drafting a completely new version of the Workers’ Compensation Act will take a great deal of time and commitment from WorkCover and the Government. We are pleased to represent employers’ interests in this significant project.
Footnote: Chris White, WorkCover CEO, stated that WorkCover received more than 70 submissions to the Review and that they are impressed with the constructive feedback that has been provided.
On April 8, WorkCover released the new Gazette, please see attached Media Statement.
The recommended premium rates were published today in a Special Government Gazette and will come into effect from 4pm on 30 June 2014.
It is an average 6.7% decrease in rates.
This is good news for our clients but (and there is always a but) insurers will only be willing to pass these reductions on where the clients claims’ history support a reduction in costs or frequency or both, or an improved commitment to OSH.
It will also mean brokers will want to deliver better terms which in turn will put insurer under pressure.
Note also that some of the reasons that supported the rate reduction was Western Australia’s increasing wages growth (which obviously dilutes the cost of the system and therefore make the performance across the whole State look better). That puts a different slant on the naysayers saying the WA economy is slowing.
For any further information, contact Aurenda.
An interesting article was published in Australian newspapers last week. It was the story of a truck driver who works for a mining company in WA. It is a story about rights: the rights of the injured worker and the rights of the employer. Reading the article is seems that there is much confusion out there about the WA Workers’ Compensation legislation. And as the articles title goes to show, for the person who has never had to deal with it, it can be a quagmire of lawyers, committees, departments, insurers and doctors.
The position we take at Aurenda is that the employer is a mining company. Their core business is mining. They have full intentions of keeping their employees and contractors safe and uninjured. Nobody wants the people who are doing work for them, to be hurt in anyway.
Some mining companies choose to keep their injury management entirely in-house with no reference to external specialists to assist them . As injury management specialists we believe this is toying with danger. As much as they have a human resources department to oversee it, the reality is that these are human resource specialists with a mining focus not injury management specialists.
We can see from this article that the people coordinating the injury management are attempting to do their best with good intentions. The reality is that they just don’t have the experience of a company like ours, where what we do is Workers’ Compensation and Injury Management day in, day out. We have seen just about every possible permeation of workplace injury and a library of case studies to guide us in times when the case is unusual.
A company we work with recently sent us some feedback for one of our injury management managers:
- Timely communication – quick to notify of any issues (e.g. attendance, non-compliance, performance problems)
- Quick return of requested documentation (e.g. within a few hours of request)
- Effective management – takes on board our suggestions, open to feedback and eager and willing to cooperate with Injury Management strategies
- Solutions-focused approach – rather than taking an obstructive approach re: what can’t be done or why that’s hard, he works with us to find a solution and how he can help
If all these points had been applied to the case highlighted in the newspaper, perhaps the conflict may not have arisen.
WHS Harmonisation laws were originally designed to commence 1st January 2013. All the states have passed the legislation except for Victoria and Western Australia. Victoria has decided against joining. Western Australia’s position is outlined by the WorkSafe Commissioner
Statement from the WorkSafe Western Australia Commissioner
The Western Australian Government remains committed to the principle of harmonisation and continues to take steps to progress the implementation of the model work health and safety laws. The harmonisation process has included the development of the model Act, WHS Regulations and Codes of practice. WA is continuing to participate in that process. While it is not intending to adopt the whole of the model WHS Bill, WA will likely adopt the vast majority of the proposed model laws.
In relation to the model WHS Regulations a WA specific public consultation was completed during late 2012 with a WA specific Regulation Impact Statement (‘RIS’) being prepared by Marsden Jacob Associates and provided to WorkSafe on 31 December 2012. That RIS has been provided to the Government for its consideration as part of the process of proceeding toward the adoption of the model laws.
The timing of the adoption of the model laws is dependent on the availability of the complete package of harmonised laws including the model mining WHS regulations (core and non-core) being available so that any implementation of the WHS laws can be for all industry sectors in WA simultaneously.
Below are some answers to the questions that have been commonly asked in relation to the effect of harmonisation for workers and workplaces in WA. However, if you have other questions please contact WorkSafe WA on 1300 307 877 or by email (email@example.com) and we will organise an answer for you.
NB: New WHS Legislation has not been tabled in the WA parliament as yet. Stay tuned.