Workers Rehabilitation and Compensation Changes in SA

Tuesday 11 November 2014 @ 1.22 p.m. | Industrial Law

The Return to Work Act 2014 (No. 16 of 2014) was recently assented (6 November 2014) in South Australia, repealing the the Workers Rehabilitation and Compensation Act 1986 and enacting a new scheme to support workers and employers where there is a work injury—the Return to Work Scheme—and to repeal the existing scheme established by the repealed Act.

Background to Amendments

The object of the Act is to establish a scheme for the support of workers who suffer injuries at work. The primary objective of the scheme is to be the provision of early intervention in respect of claims so as to ensure that action is taken to support workers in relation to health, recovery and return to work. Other objectives that apply include objectives in relation to:

  • the services and support given to workers who suffer injuries at work;
  • limitations on costs to employers;
  • providing a reasonable balance between the interests of workers and the interests of employers; and
  • reducing disputation when workers are injured at work.

New Focus of a New Scheme

According to the second reading speech, the focus of the new scheme is on returning injured workers to the workplace as soon as possible and stems from:

"Published in August 2013, the 2012-13 National Return to Work Survey reported that South Australia's return-to-work result of 82 per cent is the highest it has been since 2008-09. Despite this relative improvement, South Australia's return-to-work rate remains well below that of all other states and has been consistently below the national average for many years."

Also according to the second reading speech:

"Early intervention and improving injury management approaches will be at the heart of the new Return to Work Scheme to provide improved health and life outcomes for workers. The emphasis of the new Scheme is on capacity and not incapacity, and medical certificates will need to explain what injured workers can or will be able to do rather than what they cannot."

Seriously injured workers will be supported with income maintenance payments until retirement age and lifetime care and support. Non-seriously injured workers will receive income maintenance support for up to two years and medical expenses paid for a further year after their income support ceases. People who are seriously injured will be able to pursue common law damages where their employer's negligence caused or contributed to the injury in addition to rights of action against third parties. People with a physical injury, excluding hearing loss, which results in a whole person impairment of between 5 and 29% inclusive, will receive additional compensation by way of a lump sum payment for economic loss. Significant improvements in dispute resolution are also included and required.

Key Features of the Legislation

Injuries Covered

A physical injury must arise out of or in the course of employment and the employment must be a significant contributing cause of the injury for the claim to be accepted. For a claim for psychiatric injury to be accepted, employment must be the significant contributing cause and it cannot arise from any one or more of the exclusionary factors listed in the legislation.

Legislative rights and obligations

Legislative obligations are placed on workers, employers and the Corporation.

Workers have a right to:

  • early intervention;
  • active case management;
  • expect their employer to participate and co-operate in assisting in their return to work;
  • reasonably request the Corporation to review services or investigate non-compliance of their employer regarding their retention, employment or re-employment; and
  • apply to the Tribunal for the employer to provide work.

Workers are obliged to:

  • give notice of a work injury occurring;
  • participate in all activities supporting recovery and return to work (exclusion for seriously injured workers);
  • provide medical certificates;
  • return to suitable employment (exclusion for seriously injured workers); and
  • take reasonable steps to mitigate any loss.

Employers have a right to support in claims management and the right to request a medical examination of the worker. Employers are further obliged to:

  • support their workers' participation in recovery and return to work activities;
  • mitigate loss;
  • provide suitable employment;
  • pay an appropriate wage for any alternative or modified duties or return to suitable employment;
  • give 28 days' notice before termination of employment;
  • register with the Corporation;
  • pay a premium; and
  • provide information as requested, keep accounts, maintain confidentiality.

An employer must also appoint (and retain) a return to work co-ordinator to assist injured workers to remain at or return to work as soon as possible and to assist in the preparation and implementation of recovery/return to work plans.

Seriously Injured Workers

One of the key features of the new scheme is the distinction between seriously injured workers and non-seriously injured workers. Workers assessed with a whole person impairment of 30% or more will be treated as seriously injured. The scheme will provide income support for such workers until retirement age and lifetime care, support and medical services.

Recovery and Return to Work Plans

Injured workers who are likely to be incapacitated for work for more than 4 weeks will have a recovery/return to work plan, which combines the objectives and functions of the rehabilitation programmes and rehabilitation and return to work plans under the existing Act.

Medical Services

Workers will be entitled to be compensated for costs of medical services that are reasonable, necessary and reasonably incurred. This entitlement ceases 12 months after income support ends (except for seriously injured workers who will receive lifetime care and support). Medical certificates will certify workers' capacity and will be required to support any periods when income support is payable.

Dispute Resolution

The South Australian Employment Tribunal will be solely responsible for resolving disputes that arise under the new scheme.

To read more about community reaction to the Bill's Introduction and Passing, see our previous article.

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Return to Work Act 2014 (No. 16 of 2014) (South Australia) as reprinted with secondary materials on TimeBase LawOne

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