SISA Update October 2014Robin Shaw

Manager

Return to Work Bill 2014

• Main changes made to Bill since first release:• Common law threshold raised from 10% to 30%

• SACAT replaced by SA Employment Tribunal

• Removal of time limits from clause 18

• Economic loss lump sums

• Redemption for workers not seriously injured

• ET to give written reasons when varying PI assessments

• SIs subject to State Ombudsman (service standards)

• Power to deem earnings deleted

• IMAB deleted – IMAs to be selected by selection c’ttee

• ‘Designated persons’ to complete certificates

Return to Work Bill 2014

• LC 2nd reading debate resumed 14/10/14

• Would pass as is if Govt & Opposition agreed

• But - Oppos’n to move amendments re SACAT

• Commencement 1/7/15

• Reservations about:

• Causation

• Role of Tribunal re PI

• But not enough to seek amendment

‘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

Permanent impairment under new Act

• 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

Guide for the Evaluation of Psychiatric Impairment for Clinicians - GEPIC

• For an early look at GEPIC:

http://www.gazette.vic.gov.au/gazette/Gazettes2006/GG2006G030.pdf#page=42

• Assesses 6 mental functions:

• Intelligence • Thinking

• Perception • Judgement

• Mood • Behaviour

GEPIC

• Classes impairment in a range of 1-5 & allocates % impairment range to each class

• Each class defines range of impairment

• Median score of 6 functions then calculated

• Would need modification if adopted in SA

Low range Mid range High range

Class1 0-1% 2-3% 4-5%

Class 2 10-12% 14-16% 18-20%

Class 3 25-30% 35-40% 45-50%

Class 4 55-60% 65-70% 70-75%

Class 5 75-80% 85-90% 95-100%

Permanent impairment under new Act

• 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

• Power to determine when assessment to be done had been removed when Bill was tabled

• Tribunal can vary PIA by an IMA but must give written reasons

Permanent impairment under new Act

• WorkCover currently considering risks & challenges:

• Quality assurance & timing of assessments

• What to do with assessments submitted by worker?

• Ensuring all relevant information goes with referral

• Psych assessments

• who and how?

• when – how to determine stability?

• SISA will be consulted

Other major new concepts

• Common law (well, sort of new…)

• Seriously injured

• PI lump sums for economic loss

• Service standards (Schedule 5)

• Minimum wage safety net

• IMAs

• Interim benefits – mandatory at 10 days but recoverable

Employer obligations – clause 18

• $25K penalty in s.58B removed

• Basic obligation (scl.1) essentially same as 58B(1)

• Exceptions (scl.2) similar but also permits ‘new or other employment options’

• New – worker ability to apply for employment & refusal appealable to Tribunal

• Issue with wording of cost orders – scl.18(6)

• As with 58B – all hinges on interpretation

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 (as I read them!)

• 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

Medical certificates

• Consultation re improving the WMC

• Interstate capacity certificates are complex

• SISA comments:

• Should not become mini-RTW Plans

• Certificates alone will not change Dr behaviour

• Core problem – GPs time-poor, disengaged, hostile or simply in short supply

• There must be a system of accreditation of Drs to sign for incapacity

• But accreditation a problem in regions

Things to think about

• Don’t just focus on the new Act starting

• What should you do before then?

• What decisions should be made under the current Act before it ceases?

• Remember any claim on IM at commencement will get a further 2 years unless they can be resolved

• Should that be done under old or new Act?

• Example - s.35B decisions?

Other points of interest

• RTW Bill amends WorkCover Corporation Act:

• WorkCover to be Return to Work Corporation of SA trading as ReturnToWorkSA

• Extends coverage by Public Corporations Act 1993

• Takes power to agree redemption out of agent contracts – because of conflict?

• Takes OH&S out of the primary objects

• Inserts early intervention and provider regulation into primary objects

Guide is now available

• Free to members

• $250 non-members

• Comparison of WRCA to Bill

• Comparison of Bill to WRCA

• Comparison of definitions

• Transitional provisions

• Navigation tool only

• Not interpretive

• Not legal advice

Return to Work Bill 2014

• After assent, SIs have the following tasks:

• Review & update policies & procedures

• Changes to IT systems – business rules etc

• Changes to EDI (in consultation with Corporation)

• Standard letters (SISA to assist with this)

• Staff training

• Workforce education

• Revised info resources, forms, documentation

• Will Bill affect EBA, Awards etc?

Return to Work Bill 2014

• Next steps:

• Passage through LC

• Assent (likely to be quick)

• Regulations

• Designated forms etc

• Re-branding WorkCoverSA

• Infomercial campaign by ReturnToWorkSA

• Connections with Lifetime Support Scheme

Role of SISA

• Upgrade & revise Guide to RTW Bill 2014

• Standard letters - once-off service to members; no ongoing maintenance

• Monitoring operation, collating issues

• If necessary, seek amendments if major issues emerge

• Review & advise on regulations

• Monitor Gazette for designations, guidelines & other publications

Employment Tribunal Bill 2014

• Going through Parliament in tandem with RTW Bill

• Re-creates the WCT bench – incl magistrates

• Re-creates conciliation

• Minister insists it will be an inquisitorial rather than judicial approach

• We’ll see about that…

• Bill’s operation slightly modified by RTW Bill

WorkCover results 2013-14

2009-10 2010-11 2011-12 2012-13 2013-14

Unfunded liability ($m) (982) (952) (1389) (1,366) (1,132)

Scheme funding ratio (%) 61.5 64.8 59.2 63.7 71.0

Overall Profit/(loss) ($m) 77 30 (437) 23 235

Savings on claims liability ($m) 118 47 58 (93) 298

Change in economic factors ($m) (105) (16) (361) 112 (78)

Investment income/(losses) ($m) 140 142 96 253 290