Review of the Return to Work Act
Graham Harbord of our firm was invited to speak to the Parliamentary Committee on Occupational Health & Safety on 13 April 2017. That is to say that Johnston Withers is recognised as having substantial experience and expertise in workers compensation. Graham talked about the changes to the Return to Work legislation and in particular the impact on workers whose benefits will be cut off after having received income maintenance for two years.
The main issues are as follows.
The Return to Work Act 2014 (SA) tightens eligibility for compensation for both physical and psychological injuries. Previously, a physical injury was compensable if it arose out of the course of employment: now, the worker must also show that the employment was a “significant” contributor to the injury.Psychological injuries have an even more stringent test. To be compensable, employment must have been “the significant contributing cause”. Workers should expect that their psychiatric history will be examined closely by the compensating authority in defending such claims.
- No ongoing entitlement to weekly payments unless “seriously injured”.
Under the new Act, a worker is only entitled to weekly payments after two years if they are “seriously injured”, which is defined as a 30% impairment of the whole person.This threshold is very high.Even where a worker’s injuries may prevent them from ever seeking full time employment or similar employment again, it is rare that they will be assessed to this level. It is even more difficult to achieve where the injury is psychiatric.Johnston Withers told the Committee that the threshold should be lowered to 20%, with a potential entitlement to ongoing weekly payments in certain circumstances where a worker suffers a significant partial or total incapacity for work for the foreseeable future, even if they do not meet the threshold.
- Medical entitlements restricted to 12 months
Workers are only entitled to medical expenses for 12 months after their entitlement to weekly payments stops. This means that a worker who has managed to return to work, but who requires ongoing treatment, will shoulder the cost of that treatment after that 12 months.Since the stated aim of the Return to Work Act is to encourage workers back to ongoing employment, this restriction seems ill advised. A worker who can continue in full-time employment only if they receive regular physiotherapy for an existing injury, prescribed medication or ongoing counselling, should be encouraged to do so. Where those costs aren’t covered, workers may choose to skip their treatment and become unable to work.
- Impact of the two-year cut off
The Return to Work Act came into force on 1 July 2015. One of its most significant effects was to cease entitlement to weekly payments after two years. For those workers who were already in receipt of weekly payments, that date is 28 June 2017, which is fast approaching. Many of them are unable to work, but will not meet the 30% impairment threshold, meaning that they’ll be obliged to move onto a disability pension. At the same time, eligibility for the disability pension is tightening.The transition provisions have also meant that those workers who were not receiving weekly payments as of 1 July 2015 – perhaps because they were on modified duties – but subsequently became unable to work, in most situations have no entitlement.Johnston Withers is already hearing from injured clients who are fearful that they and their families will lose their house and suffer serious stress following the unfair cut-off date.Workers with long term injuries are therefore facing an uncertain future, with families to support and obligations to meet which will be impossible after the cutoff date. Complex and confusing legislation means that the prospect of challenging claims can seem very daunting.
If you need advice about in Adelaide about a workers compensation matter, please contact Graham Harbord or any other members of our injury claims team on (08) 8231 1110.