Return to Work Act (2014) – Recovery and Return to Work

Prepared by William Duddy

We are pleased to publish, for your general information, this series of papers on the upcoming changes to the workers compensation system. These papers contain an overview of some of the significant features of the Return to Work Act 2014, along with some commentary. These papers contain our opinion on how the new legislation might operate but the information below does not constitute legal advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. If you would like Duddy Shopov to assist you, please contact our office on (08) 8110 5555 for further information and to arrange an appointment.

Recovery and Return to Work

Part 3 (Sections 23 – 29) of the Return to Work Act appear under the heading “Early Intervention, Recovery and Return to Work”.

I will deal with each of the Sections in turn and provide a summary as to the overall intention of these provisions.

Section 23 – Object

Section 23(1) provides that the object of Part 3 of the Act is to “establish a system that seeks to ensure that a worker who suffers a work injury –

(a) achieves the best practicable levels of physical and mental recovery; and

(b) returns the worker’s to pre-injury work, or if that is not reasonably practicable, is any event restored to the workforce and the community in a timely, safe and durable way.

Section 23(2) enshrines the concept of early intervention by specifying that the aim is to intervene and provide services pursuant to Part 3 “as early as is reasonably practicable after a worker suffers a work injury”.

Section 23(2)(b) then sets out the aims as:-

1. To return the worker to work in pre-injury duties.

2. If that is not reasonably practicable, to return the worker, either temporarily or permanently, to other suitable duties with the worker’s pre-injury employer.

3. If 1 and 2 are not practicable, to return the worker, either temporarily or permanently, to work with another employer.

4. If 1, 2 and 3 are not reasonably practicable, to maximise the worker’s independent functioning as a member of the community.

Finally, Section 23(2)(c) contemplates that the aim of the Part is to ensure that the employer, worker or other person involved in a recovery or return to work process cooperates to achieve the objects referred to in subsection 1.

Section 23(3) provides that Part 3 of the Act applies to a worker even if it has not been finally established that the worker’s injury is indeed a work injury.

Recovery/Return to Work Services

Section 24 sets out the sort of services that may be provided pursuant to Part 3, including:-

1. Physical, mental or vocational assessment of a worker.

2. Advisory services to a worker, members of the family of a worker, an employer and others.

3. Assist a worker in retaining, seeking or obtaining employment.

4. Assist in the training or retraining of a worker.

5. Assist in finding or establishing appropriate accommodation.

6. Providing equipment, facilities and services to assist a worker to cope with any injury at home or in the workplace.

7. Provide assistance to a person who may be in a position to help a worker to overcome or cope with an injury.

8. Provide necessary and reasonable costs (including travel, accommodation and childcare) incurred by a worker in order to receive or participate in any services.

9. Provide anything else that may assist in achieving the objects of this part.

Section 42(5) provides that recovery/return to work services will be provided by persons accredited, approved or appointed by the Corporation. It should be noted that the powers and discretions contained in Section 24 of the Act are delegated to self-insured employers pursuant to Section 134 of the Act.

Recovery/Return to Work Plans

The Return to Work Act disposes of the distinction between Rehabilitation Programs and Rehabilitation and Return to Work Plans used in the current Act.

The Return to Work Act provides that where it appears that a worker is or is likely to be incapacitated for work by a work injury for more than four weeks, the Corporation must ensure that a Plan is prepared for the worker.

Even then, a Plan can be prepared even if the period of incapacity may be less than four weeks (Section 25(2)(a)).

A Recovery/Return to Work Plan may be prepared for a worker who is not returning to work in the short or medium term so that the initial focus of the Plan is on restoring the worker to the community.

A Recovery/Return to Work Plan may be prepared for a worker who has no reasonable prospect of returning to work, where the preparation of a Plan would nonetheless assist in restoring the worker to the community.

Section 25(2)(b) provides that a Plan need not be prepared for a worker if it is considered that due to the severity of the injury the focus should be on other forms of support and services.

Section 25(3) contemplates that actions and responsibilities of the worker, the employer and the Compensating Authority will be set out within the Plan, in order to achieve the earliest possible safe return to work, or restoration to the community.

In the event of a dispute in relation to obligations imposed not by a Recovery/Return to Work Plan the obligations continue to bind the worker and the employer subject to the outcome of any process or procedure associated with determining a dispute.

Section 25(5) provides that in preparing a Plan:-

1. Consultation must occur with the worker and insofar as is necessary with the employer out of whose employment the injury arose.

2. Assistance may be obtained from the relevant Return to Work Coordinator (if appointed) and any person who might be providing services under the Plan.

3. Insofar as is reasonably practicable, medical records relevant to the worker’s injury should be reviewed or consultations should occur with any health practitioner who is treating the worker for a relevant injury.

4. Consultation may occur with any other person or body as the Corporation thinks fit.

Section 25(6) provides that a Plan must comply with standards and requirements prescribed by Regulations. As at the date of dictating this paper, to my knowledge, no Regulations have yet been promulgated.

Section 25(7) provides that the Compensating Authority must give the worker and the employer a copy of the Plan which may be reviewed from time to time.

Section 25(9) contemplates that the Regulations (yet to be promulgated) may specify when a Plan should be reviewed and may prescribe procedures to be followed when a Plan is being reviewed.

Section 25(10) provides that where a worker who has been incapacitated in consequence of a work injury has not, for a period of six months from the date on which the incapacity for work first occurred, returned to work in pre-injury employment and the worker is not working to his or her full capacity, then new or other employment options for the worker need to be taken into account in order to assist the worker to return to work in suitable employment.

Importantly, a Recovery/Return to Work Plan must not impose any obligation on a seriously injured worker (as defined in Section 21(2) – where the degree of whole person impairment has been assessed to be 30% or more) but a Plan may include processes designed to assist a seriously injured worker to return to work at the request of the worker.

Section 26/Return to Work Coordinators

The Return to Work Act continues to provisions relating to the current “Rehabilitation and Return to Work Coordinators”.

The only significant change appears to be that a Return to Work Coordinator can be appointed by an employer but there is no requirement (unlike the current Act) that the Coordinator be an employee of the employer.

Summary

The Rehabilitation and Return to Work process has been streamlined such that the Return to Work Act contemplates the formulation of a Plan only (even where it has not been finally established that the worker’s injury is a work injury) rather than the system that we have dealt with for the last 28 years involving both Programs and Plans.

For non-seriously injured workers the Plan process is still a useful methodology to manage the Return to Work process. However, the objects of the early intervention, recovery and return to work provisions of the Act also emphasise the restoration of the worker to the community and not just return to work.

Further, the use of Recovery/Return to Work Plans is also important in monitoring a worker’s ongoing entitlement to income maintenance. The Return to Work Act provisions relating to the discontinuance of weekly payments (Section 48(2)) still provide that a worker breaches the obligation of mutuality if a worker refuses or fails to participate or cooperate in the establishment of a Recovery/Return to Work Plan, or refuses or fails to comply with obligations imposed on the worker by or under a Recovery/Return to Work Plan.

I expect that the Regulations will be of similar detail and nature to the current regulations to the Workers Rehabilitation and Compensation Act, 1986 (as amended) – effectively containing a series of standards and requirements.

Whilst the current Act speaks in terms of “establishing” a Plan, the Return to Work Act provisions talk in terminology of “preparing” a Plan. I expect, consistent with current practice, that a Plan will have legal force and effect when it is established by way of approval by the Compensating Authority.

In my view, the amendments in the Return to Work Act relate to the rehabilitation process and in particular, the streamlining of the existing process to a one vehicle methodology (Plan only).

Finally, Section 33 of the Act and in particular Section 33(17), now contain provision that enables a worker to seek preapproval for the provision of services or to incur medical costs – on the basis that the Compensating Authority will agree in advance to be liable for the relevant cost, rather than the worker being required to claim compensation pursuant to Section 33, once the costs have been incurred. Under the current Act, you are of course under no obligation to flag in advance what medical or other costs you will meet, before they are incurred. One means by which this has been overcome is to seek the establishment of a Plan or Program to make provision for anticipated future medical costs.

It is likely now, given the provisions of Section 33(17) Plans will no longer be the vehicle by which anticipated claims for medical expenses, including surgery, will be made because Section 33(17) contemplates that a new and separate application could be made for such future costs in accordance with the Regulations (yet to be promulgated) and Section 33(18).
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Return to Work Act (2014) – Compensability (Part 2, Division 1 – Section 7 – 9 )

Prepared by William Duddy

We are pleased to publish, for your general information, this series of papers on the upcoming changes to the workers compensation system. These papers contain an overview of some of the significant features of the Return to Work Act 2014, along with some commentary. These papers contain our opinion on how the new legislation might operate but the information below does not constitute legal advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. If you would like Duddy Shopov to assist you, please contact our office on (08) 8110 5555 for further information and to arrange an appointment.

Introduction

The Return to Work Act contains new provisions governing the question of compensability for an injury.

The extent of work contribution is now also important in determining if an injury is compensable.

The Return to Work Act provisions relating to “compensability” introduced new concepts including:-

• The question of whether employment was a significant contributing cause in the case of an injury, other than a psychiatric injury.

• The question of the significant contributing cause of an injury, in the case of a psychiatric injury.

• Where an injury comprises an aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury (described as a “prescribed event”).

Background

In the course of parliamentary debate in the House of Assembly, Attorney General John Rau made the following comments:-

“At a conceptual level, there are a number of critical points in the Scheme. The first critical point is the gateway provision, which is the provision that gives a person the right to participate in the Scheme beyond that point. Compared with all other schemes in Australia, the current gateway provision for the South Australian Scheme is wide open; not only it is wide open but it has been policed by somebody who was asleep in their combi van. They have not been looking at the gate. Even if they were, the gate is so far wide open they could not do much about it. The reason for that is that the present rules basically say this: you can have a problem which is one to which your age, lifestyle, recreational activities or whatever has been the overwhelming contributor. Then you go to work, and at work something happens which in and of itself is not a significant thing but it is the tipping point event, no matter how trivial. … The prevailing view around Australia is that the test should be something that happens at work is a significant issue. It does not mean the only issue, it does not necessarily even mean the main issue, but it has to be significant. It cannot be insignificant, it cannot be almost happenstantial; it has to be something of significance. Yes, that is a change, but is meant to mean that we can wake up the people in the combi van, get them policing the border and at least asking some questions in scrutinising whether some people entering the Scheme are really people for whom the Scheme was designed.”

Injury

Any discussion relating to the question of compensability is underpinned by the inherent requirement that the worker suffer an injury.

“Injury” is defined in Section 3. The only change in the definition contained in the Workers Rehabilitation and Compensation Act, 1986 (1986 Act) is that new definition specifically refers to an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury, rather than the bold reference to a “secondary injury” in the 1986 Act definition.

Evidentiary Provision – Burden of Proof

Section (9)(1) of the Return to Work Act still requires that it be established on the balance of probabilities that an injury arises from employment, otherwise an injury is not compensable. (Currently Section 31 of the 1986 Act ).

Deeming Provisions

The Return to Work Act continues the evidentiary aid for injuries of certain specified types as detailed in Schedule 2 of the Act. The only change in the New Schedule from the current Schedule 2 in the 1986 Act is the addition of “mesothelioma”, deemed to arise from employment where the employment had involved any work involving exposure to inhalation of asbestos fibres. This addition is made notwithstanding that asbestosis is also an injury nominated in the Schedule, where work has involved exposure to inhalation of asbestos fibres.

Journey Injuries

The Return to Work Act in Section 7(8) maintains the current provisions (Section 30(5) of the 1986 Act) relating to the compensability of injury suffered in the course of a journey, namely that an injury suffered in the course of a journey is only compensable if the journey is undertaken in the course of carrying out duties of employment, or if the journey is between home and work, and there is a real and substantial connection between the employment and the journey.

Heart Claims

Section 7(11) maintains the current presumption in Section 31(5) of the 1986 Act that where an injury consists of an aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease, and that injury arises in the course of employment, that it be presumed in the absence of proof to the contrary that employment contributed to the injury.

Social and Sporting Injuries

Section 7(7) of the Return to Work Act maintains the current position in Section 30(4) of the 1986 Act that an injury does not arise from employment if it arises out of or in the course of the worker’s involvement in a social or sporting activity, unless the activity forms part of the worker’s employment or is undertaken at the direction or request of the employer.

Deemed Employment

The Return to Work Act in Section 7(5) continues the current deeming provision in Section 30(3) of the 1986 Act, namely that employment includes:-

• Attendance at a place of employment on a working day, but before the day’s work begins, in order to prepare, or be ready, for work.

• Attendance at a place of employment during an authorised break.

• Attendance at a place of employment after work has ended for the day, whilst the worker is preparing to leave or is in the process of leaving the place of employment.

• Attendance at an educational institution pursuant to the terms of an apprenticeship or other legal obligation or at the employer’s request or with the employer’s approval.

• Attendance at a place to receive a medical service, to obtain a report or Certificate, to receive recovery/return to work services, or for the purposes of a recovery/Return to Work Plan, or to apply for, or receive, compensation for a compensable injury.

In this latter case, Section 7(6) specifies that any injury attributable to surgery or other treatment or service performed with due care and skill by a medical practitioner is to be taken to constitute part of the original work injury.

Misconduct

The present provisions in Section 30B of the 1986 Act are retained in Section 8 of the Return to Work Act.

Significant Contributing Cause

Under the 1986 Act, the only provision that really detailed specific reference to the extent of cause was in relation to psychiatric injuries and, in particular, Section 30A(a) where employment had to be a substantial cause of an injury.

The new provisions relating to compensability now import the concept of contribution/cause to both physical and psychiatric injuries.

Interstate cases indicate that the question of contribution/cause is a question/matter to be determined in every particular case, depending upon the facts and circumstances of each case.

In Day v Electronik Fabric Makers (Vic) Pty Ltd [2004] VSC at 24, Mr Justice Nettle said:-

“Nothing in workers compensation law suggests that an objective standard (my emphasis) 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.”

The ordinary dictionary definition of the expression “significant” is “important, of consequence”(Macquarie Dictionary).

The Victorian legislation uses a similar concept being “significant contributing factor”, and includes a schedule that details what must be taken into account in deciding whether employment was a significant contributing factor under the Workplace Injury Rehabilitation and Compensation Act 2013 (Victoria).

Those factors are:-

• The duration of the worker’s current employment.

• The nature of the work performed.

• The particular tasks of the employment.

• The probable development of the injury occurring at that employment had not taken place.

• The existence of any hereditary risks.

• The lifestyle of the worker.

• The activities of the worker outside the workplace.

Whilst not in the Return to Work Act, these are factors that will nonetheless be relevant to causation.

However, there is also Victorian Supreme Court Authority (see Hegedis v Carlton and United Breweries [2000] VSC 380), where Mr Justice Ashley said:-

“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.” (Our emphasis.)

However, the way that the provisions have been worded means it is critical that the precise nature of the injury being claimed, and the worker’s medical history, are paramount in determining whether employment was a significant contributing cause in the case of a physical injury, and whether employment was the significant contributing cause in the case of a psychiatric injury.

Therefore, in assessing compensability, you need to consider not only:-

1. How an injury was sustained.

2. Where an injury was sustained.

3. Why an injury was sustained.

4. The type of injury sustained.

But also:-

5. The extent to which employment contributed to an injury which necessarily will involve consideration of the worker’s pre-injury medical status.

Primary Injuries

Compensability assessed in accordance with Section 7(2).

Secondary Injuries – Aggravation, Acceleration, Exacerbation, Deterioration

Section 7(3) applies. Employment must be a significant contributing cause of a prior injury in the case of a physical injury and the significant contributing cause in the event of a psychiatric injury and then the injury is only compensable to the extent of and for the duration of the aggravation.

The WorkCover Ombudsman has expressed a view (in September 2014) this will preclude many aggravation claims but I am not so confident this provision will be interpreted to preclude compensability in the way contended by the WorkCover Ombudsman.

Conclusion

In my view, the recalibration of the threshold/gateway requirements to establishing compensability still involves an assessment of the injury being claimed, any relevant past medical history relating to such injury/condition and that will have to be determined on a case by case basis. My feeling at this time is that whilst the threshold/gateway requirements have been “tightened”, I do not believe that they will pose an insurmountable hurdle in establishing compensability in the majority of claims.

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Changes to workplace safety legislation

The Commonwealth, State and Territory governments have recently harmonised their workplace health and safety, so that the law is similar in all jurisdictions. In South Australia, the new Work Health and Safety Act 2012 replaces the Occupational Health Safety and Welfare Act 1986.  


The information on this site is not legal advice. If you require legal advice, you should speak to a solicitor. If you would like Duddy Shopov to assist you, please contact our office on (08) 8110 5555 for further information and to arrange an appointment.

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