1 July 2024 marked the adoption of the new Workers’ Compensation and Injury Management Act (WA) 2023, bringing with it an emphasis on workers and getting them back to work. This comes at a time when the local government sector faces a number of challenges in managing workers’ compensation from an aging workforce, more complex claims, to a heightened awareness of psychological injuries.
Modernised and rewritten in plain English, the Act offers clarity and certainty for members within the workers compensation system while keeping the essential aspects of the scheme intact.
Workers are the clear focus of this legislation, taking a sympathetic approach and aiming to provide claimants with as much certainty and support as possible. The previous Act also had this focus, but the new one strengthens and enhances this philosophy.
It’s an important consideration for local governments and should influence their approach to handling claims and supporting workers.
From February to July LGIS delivered workshops across the State to educate members on the significant legislative changes. We partnered with the regulator, WorkCover WA, and legal partners Mills Oakley and Moray and Agnew to provide members with information tailored to the sectors concerns. Over 250 local government workers attended these in-person and webinar sessions.
Members, as the employer and licensed self-insurer, have a critical role throughout the claims process. It’s important that staff and decision makers involved in workers’ compensation claims understand the part they play in achieving a good outcome.
Whether it be maintaining contact with a worker while they’re on leave or providing reasonable meaningful accommodations and supporting graduated return to work. An employer’s behaviours and attitudes can be an instrumental factor in whether all parties have a positive or negative workers’ compensation experience.
LGIS continued with our new workers’ compensation act roadshow, this time educating the northern metro members on the significant legislative changes. Together with WorkCover WA and legal partners Moray & Agnew, we delivered another tailored information session on the new Workers Compensation and Injury Management Act (2023) WA.
Reporting incidents to WorkSafe, and WorkSafe notices – what are they and what should you do if you receive one? One of WorkSafe’s primary objectives is ensuring compliance with the Work Health and Safety Act 2020 (WA) (WHS Act) by carrying out investigations and, where appropriate, taking enforcement action.
Both MOUs and formal contracts are common instruments within the local government sector in Western Australia. However, it is important that members are familiar with significant and often subtle differences between MOUs and contracts as the risks associated with getting it wrong can be costly.
One of the most significant changes is the prescribed timeframes to make a liability decision on a claim, so it’s crucial that evidence is gathered quickly. In practice this means that as soon as a member receives a claim it needs to be sent to LGIS.
On average state government departments send claims forms to RiskCover WA within two hours of receipt. LGIS encourages all our members to match or better the state government benchmark.
There are two forms that need to be sent to LGIS the day they are received:
1. Signed workers’ compensation claim form
2. Workers’ compensation first medical certificate of capacity
Time is off the essence. We now have only 14 days to make a liability decision. It is important to note that this time limit begins from the day that you, the member, receives the claim and not LGIS.
Once the claim has been received, LGIS must decide either to accept, defer or not accept the claim. The claims management timeline outlines the responsibilities of members and LGIS working together in managing a claim.
There are three possible liability decisions:
• Accepted
The claim will be assessed, and a letter will be sent to all parties, including the local government and worker, advising of our decision. The outcome of a claim depends on if the workplace has greatly contributed to the injury. To determine this, we’ll review the factual information including medical and incident reports.
• Not accepted
The claim is assessed and where it is determined, after factual investigation, that the workplace has not greatly contributed to the injury, not accepted. A letter is sent to all parties advising of our decision. An independent party investigates the factual information and provides their findings.
• Deferred
Within 14 days, LGIS must issue a liability decision notice or a deferred decision notice. Failure to do so means the claim is automatically accepted. In the case of an incapacity claim, LGIS must accept liability and pay workers’ compensation.
If more time is needed to make a decision, a deferred decision notice is required. A decision must be communicated by the ‘deemed liability acceptance day’ (time frame set by regulations). If not, liability is deemed accepted.
An important factor to note, in the new decision process is that provisional payments apply at day 28 if no decision is made.
If a decision has still not been made by 120 days, the claim is automatically accepted.
Annual, long service and sick leave now accrue while an individual is on workers’ compensation leave, aligning WA with most other states. Members will need to make sure that their payroll processes are updated to reflect this.
Refer to page 14 where Donata Ostrowska from WALGA’s Employee Relations team explores this change in more detail.
The definition of a worker has been broadened and members should make sure they are aware of the new inclusions. It now includes workers on commission, piece workers, contractors and subcontractors, workers receiving ‘payment in kind’ as well as the previously included full-time part-time, and casual workers.
Importantly for local government this new definition does not include volunteers (e.g.: elected members) or volunteer bushfire fighters.
The Workers’ Compensation and Injury Management Act (WA) 2023 and the Worker Health and Safety Act (WA) 2020 are separate pieces of legislation with different definitions of a worker.
Return to work is the desired outcome for a workers’ compensation claim. However, in some cases, the worker may be left with a permanent impairment or incapacity for work which entitles them to a lump sum payment to finalise the claim.
From 1 July there are two types of settlement – statutory or permanent impairment. The type of settlement and rules that apply depends on whether the settlement relates to a statutory compensation claim or a common law action.
A permanent impairment settlement is generally assessed six months post-surgery or when a worker has reached their maximum medical improvement (MMI). To determine the percentage of the worker’s permanent impairment, this is assessed by an Approved Permanent Impairment Assessor (APIA). The percentage provided by the APIA will determine the workers entitlement as set out by the regulator.
A statutory settlement quantifies the liability of an employer to a lump sum value and discharges that liability. The lump sum payment is made with consideration of income compensation payments, and medical and health expenses. Registration of an agreement with WorkCover WA is the only way to achieve a settlement.
A claimant may have a single settlement that is either a statutory or permanent impairment, or they could have both. However, the paperwork for each type is separate.
It’s imperative that the paperwork, for either the settlement agreement or permanent impairment notice, is filled out correctly and lodged with WorkCover WA. It’s vital that all documents are dated and completed with the same date. Differing dates on settlement documents will lead to the regulator rejecting the submission and new settlement documents will have to be completed and re-submitted to WorkCover WA for approval.
Where the injury or illness has resulted in a permanent whole person impairment of at least 15%, the worker may be eligible to pursue a common law claim through the court system.
Reasonable and just administrative actions, both informal and formal, to improve worker performance are now considered under the new Act. In practice this means that if a worker, engaged in administrative action, makes a psychiatric injury claim then the action may be used to demonstrate that the injury is not primarily work related. This is encouraging for members and supports the use of reasonable and just action to address worker performance issues. It is vital that any actions are well recorded and documented to support not accepting the workers compensation claim.
A key focus of WorkCover WA with the introduction of the new Act is injury management and getting workers back to work after an injury. This existed in the old Act but it has been enhanced in the new Act.
Many of the changes to the Act have been made with this in mind. For instance, the changes to the liability decision timeframe aim to give the worker certainty, and importantly encourage proactive management of the injury as soon as possible to optimise recovery and return to work.
Fortunately, the sector, through LGIS, is well positioned to meet the new legislative requirements.
The past two years in particular have seen LGIS change the way we deliver injury management services. Our approach adopts contemporary practices and aligns with the new Act.
We have a comprehensive approach focusing on providing holistic care with the goal of facilitating a successful return-to-work process. This system recognises that injuries can also impact a worker’s mental and emotional health and emphasises the importance of addressing all aspects of an individual’s wellbeing.
LGIS members must have a documented injury management system in place. In practice this is a written procedure that describes the steps that should be taken if a worker is injured in the workplace. Employers should also develop a return-to- work (RTW) program for injured workers in consultation with the workers’ medical practitioner and/or LGIS. A RTW plan includes medical restrictions and recommendations made in line with the duties and tasks available in the workplace.
When LGIS receives a claim our injury management team takes a triage approach, identifying the best way to treat the injury. This is done for both physical and psychological injuries. In general, we take a conservative approach, avoiding invasive surgery where possible.
Early notification of a claim by members is vital to the triaging process. The earlier LGIS knows about an injury, the earlier we can apply appropriate treatments improving return to work outcomes.
Employers play a crucial part in the injury management and return-to-work process from maintaining contact with the injured worker to working with specialists to support the workers return.
The National Return to Work Survey from Comcare highlighted the influence that employers can have on good return to work. The research found that 93% of workers took up the opportunity of modified duties to get them back as soon as possible, and a further 64% agreed their employer did what they could to support them.
It’s vital that workers are supported in returning to work as soon as possible. Research shows that the longer a worker is away, the less likely they are to return.
People managers should be equipped with the tools and knowledge to understand their role and the influence they have on the process.
Mental health is a significant factor in how quickly and well an individual returns from injury. People managers can create a supportive and welcoming environment that fosters positive mental health behaviours.
Where people managers actively engage, identifying meaningful work and reasonable accommodations, the RTW process is more likely to succeed.
Practical actions to support the return of an injured worker include:
At some point in the recovery process, it’s time to look at how the injured worker can return to the workplace. Providing meaningful modified or alternate duties is key to successful graduated re-entry to the workplace and facilitating recovery. Of course, it all depends on the workers injury, but members can work with their LGIS injury management consultant and panel providers to determine appropriate accommodation.
Unfortunately, it’s far too common for members to indicate that they have no alternate or can’t modify duties. This is a lost opportunity for both the employer and injured worker.
The sooner an injured worker is able to reengage with the workplace in a positive and meaningful way, the more likely they are to have good outcomes in the workers’ compensation process. Importantly this means good outcomes for both the worker and employer.
Practically speaking it can be tricky to work out what exactly an injured worker may or may not be able to do – this is where our job dictionary resource is invaluable. Each job dictionary includes a breakdown of the role outlining the physical demands (such as lifting, pushing, pulling, and walking), the postural demands and the frequency of these demands.
Psychological risk is also identified using an assessment tool outlining cognitive demands, emotional demands, and the organisational demands. The job dictionary report will highlight the exposure to physical and psychological risks inherent to the job role.
For example, if a library officer has injured their shoulder the job dictionary will assist in identifying tasks that may impact the injury. This would include:
The job dictionary can help identify possible modifications and/ or alternate tasks which can be made to facilitate the return-to- work process for employees recovering from injuries or illnesses. It also provides a starting point to work out how to gradually increase the employee’s workload and responsibilities based on their capabilities and medical restrictions.
Importantly a job dictionary means that everyone understands the demands of the role. It outlines relevant information for the GP, healthcare professionals, rehabilitation providers, and local government WHS / IM / supervisors to ensure a coordinated and effective return to work process.
Welcome to the Winter edition of 2024! As we wrap up the financial year, we’d like to take this opportunity to thank you for your continued support. We’re pleased to share that we’ve had a complete renewal with an outstanding 100% retention of our membership.
1 July 2024 marked the adoption of the new Workers’ Compensation and Injury Management Act (WA) 2023, bringing with it an emphasis on workers and getting them back to work.
Over the past few months LGIS has adopted the triaging approach to injury management and it’s already paying dividends – delivering improved outcomes for the injured worker and saving money for the Scheme and members.
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.
