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.