Partner, Mills Oakley
Mark practises exclusively in insurance litigation and has special expertise in workers’ compensation, attending conferences and hearings at WorkCover WA representing employers and insurers on a regular basis for over twenty years. As a long term service provider to LGIS, Mark has extensive experience in advising local governments in Western Australia on the handling of claims.
Put simply, it is a complete re-write of the current act with all sections re-ordered and re-worded, and better organised within the act.
Whilst the changes to the scheme are numerous, here are the ‘top 5’ changes that local governments and employers in general should be mindful of.
At its core, LGIS is all about local governments working together to achieve best outcomes for their organisations, people
and community. LGSAG is one such initiative where we have collaborated with member representatives to ensure they can create a safe and healthy work environment for their workforce when it comes into effect sometime next year.
The Workers’ Compensation & Injury Management Bill 2023, currently before Parliament in Western Australia, will enact major changes to WA’s workers’ compensation scheme
when it comes into effect sometime next year.
The importance of employers following internal policies and procedures and keeping accurate records can’t be emphasised enough when effectively managing a worker’s compensation claim. Our first case explores the need to follow one’s own internal polices in the context of a worker’s compensation work related stress claim.
The target commencement date for the new Workers’ Compensation & Injury Management Act 2023 is 1 July 2024.
Procedurally, there will be major changes to the liability decision making process once a claim is made such that greater emphasis will need to be placed on gathering evidence quickly.
An insurer or self-insurer will have to give a worker a liability decision notice or a deferred decision notice within 14 days, failing which they are deemed to have accepted the claim. In the case of an incapacity claim, the insurer or self-insurer will be taken to have accepted that the employer is liable to pay income compensation (the new term for ‘weekly payments’).
If a deferred decision notice is given indicating more time is needed to make a decision, a decision must be notified to the worker by the ‘deemed liability acceptance day’ (time frame to be prescribed in regulations), otherwise liability is deemed to be accepted.
If an insurer or self-insurer gives a worker a deferred decision notice, the insurer or self-insurer must begin making ‘provisional payments’ to the worker if a decision on liability is not made by the day prescribed by regulations to be the ‘provisional payments day’ (which is expected to be 28 days from receipt of the claim).
The industrial exclusions for workplace psychiatric injuries will be expanded so as to include situations where the condition results wholly or predominantly from ‘administrative action’ which will include performance appraisal, suspension action, disciplinary action and anything done in connection with such.
Employers should be aware of the critical importance of documenting and keeping records of performance appraisals of a worker, including informal performance counselling, given the potential need to rely upon such evidence in defence of stress claims.
The ‘medical and health expenses’ compensation cap will be increased to 60% of the general maximum amount pursuant to a 2021 election commitment of the government.
This means the current ‘medical and hospital’ prescribed amount is doubled to approximately $150,000 per claim and such limit becomes exclusive of travel expenses.
In cases where the prescribed amount is exhausted, an application can be made for an extension of such benefits. The current maximum extension amount of $50,000 is increased to an additional 40% of the prescribed limit (approximately $101,000).
Beware that these increased entitlements will apply to existing claims under the current scheme unless the prescribed amount for medical and hospital expenses is exhausted prior to the commencement day of the new act, or such liability was otherwise extinguished (e.g. by settlement).
The new act will prohibit the disclosure of information about a worker’s claim for compensation (or claim history) to another person for the purpose of pre-employment screening and imposes a fine for this of $10,000. The act will also provide that
a worker cannot be required to disclose information about a compensation claim for the purpose of selection for employment. The purpose of this is to minimise discriminatory practices where a person’s claims history is taken into account when considering their suitability for employment.
New duties are introduced by the amended act that place an obligation on an injured worker to:
In the event of a worker’s failure to comply with a duty, an insurer or employer can apply to an arbitrator for an order. Failure to comply with a duty without a reasonable excuse may result in the suspension of income compensation and continued refusal can result in cessation of the entitlement to income compensation.
Unlike the current legislation, the new Act will expressly recognise return to work case conferences – meetings that
are aimed at supporting a worker’s recovery and exploring opportunities for a return to work. The case conference can
be arranged by an employer, insurer, approved workplace rehabilitation provider or a treating medical practitioner. Hopefully this amendment will improve the effectiveness of vocational rehabilitation under the scheme with better levels of cooperation and enforceability, and better outcomes in general.
There are many other notable changes in the bill, the effect
of some of which will become clearer once draft Workers’ Compensation and Injury Management regulations are released. The regulations will contain critical details that all stakeholders are urged to take an interest in and make submissions to WorkCover about should any concerns arise.
Welcome to our last edition of Risk Matters for 2023. We always enjoy an opportunity to catch up with members, and in the last quarter of 2023 there’s been plenty.
It’s summer! That time of the year when everyone is ready to celebrate and go on holidays. Tourists all across the country and within Western Australia flock to popular spots to relax and enjoy our beautiful state.
A woman in her 50s lost her balance and fell while stepping up over a concrete mound within a popular caravan park. She fractured her ankle and held one of our regional members liable for the injury and loss suffered, alleged to have been $190k.
LGIS is the unifying name for the dedicated suite of risk financing and management services for WA local governments, established by the WA Local Government Association in conjunction with JLT Public Sector (part of the Marsh group of companies). LGIS is managed by JLT Public Sector (ABN 69 009 098 864 AFS Licence 226827).
Risk Matters, via this website, is designed to keep members, their staff and elected members informed on topical risk management and insurance issues and LGIS programs and services.
