As we posted earlier, the SA Government is planning to overhaul of its “buggered” WorkCover SA scheme, which is set to come into effect from 1 July 2015. Whilst we have not seen the full (and fine) details of the reforms, we know already that just about every SA injured worker will be adversely affected by the changes. Here is an overview of the main proposed changes.
WorkCover SA proposed changes – first gloomy look
WorkCover SA: overview of the main proposed changes
The new workCover SA scheme, known as “Rehabilitation and Compensation Scheme”will be called the “Return to Work Scheme”.
Definition of injury/illness
As it stands, a physical injury must arise out of or in the course of employment (work). For a secondary injury or illness, employment must be a contributing factor. For a psychiatric injury, employment must be a substantial cause.
The proposed changes is that to be eligible for workcover in SA, the employment must be a significant contributing cause of the physical injury or the significant contributing cause of the psychiatric injury.
(Currently SA injured workers are paid 100% of their income (weekly pay) up to 13weeks (0-13 weeks).)
Under the new WorkCover SA scheme, injured workers will be paid 100% of their income up to 52 weeks (0-52 weeks).
(Currently SA injured workers are paid 90% of their income from 14-26 weeks).
Under the new scheme injured workers workers will be paid 80% of their income between 53 and 104 weeks.
Under the new scheme, weekly payments will cease at 104 weeks, unless the worker is SERIOUSLY injured, that is have a whopping 30% Whole Person Impairment (WPI).
Under the new scheme, if the worker is (deemed) seriously injured, weekly payments will continue at 80% until retirement age.
(Currently, from 27 weeks injured workers receive 80% of their income and have to undergo a work capacity review at 130 weeks).
Lump Sums for permanent impairment
Under the new scheme injured workers will continue to be eligible for a lump sum if they have a WPI of 5% (or more), however under the new scheme injured workers will only be allowed 1 (one) permanent impairment assessment per claim.
The new workcover SA scheme will make statutory economic loss payments available to injured workers with a whole person impairment (WPI) loss of between 5% and 29% (example: maximum $350,000 at 25 years old and 29% WPI and $70,000 at 60 years old and 29% WPI).
Lump Sum Payment for Non-Economic Loss ( pain and suffering) and Economic Loss:
A redemption is a lump sum payment on the basis that the injured worker forgoes his/her ongoing entitlement to weekly payments and medical expenses.
The new scheme will remove the current limitations, allowing redemption payments when both parties agree.
Common Law Claims
Under the new WorkCover SA scheme, thankfully, injured workers will once again be able to sue their (negligent) employers (access to common law), however strict criteria will have to be met:
- A seriously injured worker will have to choose between suing their employer or agreeing to a redemption (or staying on the Workcover scheme)
- The injured worker will need to have a (whopping) WPI of 30% or more
- If the worker suffered a psychiatric injury, the injury must be primarily caused by the negligence of the employer (so only primary psych injury will count, not secondary psych injuries).
- A worker who is a working director will not be able to access common law
Under the new scheme, Rehabilitation programs will be combined with Return to Work plans, and will need tt be put in place at 4 weeks (instead of the current 13 weeks).
Return to Work obligations
WorkCover SA new scheme will focus on return to work. Injured workers will be obligated to return to suitable employment if they have the capacity to do so.
Employers will have an obligation to support their injured workers including participation in rehab/return to work plans.
Injured workers will be able to request WorkCover SA to investigate an employer if the injured worker believes the employer has suitable employment available. The injured worker will also be able to apply to take this matter to the Tribunal if needed.
Seriously injured workers (those with 30% WPI or more) will not have return to work obligations, unless they choose to.
Under the new scheme, workers compensation matters will be managed by the new South Australian Employment Tribunal, insead of the current Workers Compensation Tribunal.
Weekly payments can continue during relevant disputes, while currently they reduce or cease at the expiry of the notice period.
The role of the WorkCover Ombudsman will no longer exist under the new workcover SA scheme.
[Article based on TGB’s article titled ‘A First Look At What Could Be South Australia’s New Workers Compensation Scheme‘ ]
MP Stephanie Key speaks out against Labor’s bill for SA WorkCover changes
Thu 25 Sep 2014 | ABC
Labor backbencher Stephanie Key has spoken out in the South Australian Parliament against her own party’s legislation to change the workers’ compensation scheme WorkCover.
The bill would end payments after two years for people deemed not to be seriously injured, which Ms Key argued would be harsh on some injured workers.
“I believe these tougher provisions will make it more difficult to access workers’ compensation, resulting in more disputes and lower return to work rates through delays and refusals [of benefits],” she told the House of Assembly.
“[The bill] is designed to reduce employer premiums at the expense of injured workers and their entitlements, rather than [make] genuine improvements in the scheme.”
Industrial Relations Minister John Rau said changes were needed to reign in costs and help reduce the insurance premiums employers faced.
He told State Parliament the latest reforms were expected to save taxpayers about $180 million annually.
“Something like 94-96 per cent of people entering the scheme will be better off,” he argued.
Ms Key said, despite being a vocal critic of the changes, she would vote in favour of the legislation.
Mr Rau said he respected the range of party views on changing WorkCover.
“I know there are a number of people in the ALP who have strong views about this, I respect their opinions,” he said.
“I just hope that over the course of the committee stage of the bill they’ll have a chance to ask questions about those matters that concern them and I can allay their fears.
“The workers’ compensation scheme is not a magic pudding, you can’t just pull out as much as you like and not have to pay for it. The scheme has to be tailored to what can be afforded.”
Lawyers critical of injury threshold
If someone suffers more than one type of injury, you can’t add them together to come up with the 30 per cent or greater impairment, even though in reality they may be impaired at 30 per cent or greater, so you can see the intrinsic unfairness of the bill in that regard.
Morry Bailes, Law Society
Law Society president Morry Bailes said the proposed definition of a seriously injured worker was unfair.
He said the [assessed injury] threshold for a worker to sue their employer under common law also was set being too high under the legislation.
“The threshold is 30 per cent so the question is in reality how many people are going to be able to access it,” he said.
“Previously you could aggregate injuries, here you can’t.
“If someone suffers more than one type of injury, you can’t add them together to come up with the 30 per cent or greater impairment, even though in reality they may be impaired at 30 per cent or greater, so you can see the intrinsic unfairness of the bill in that regard.”
Mr Rau said the Government had sought to achieve balanced work injury legislation.
“If the Law Society want to change that threshold and they’re happy to explain to the employers of South Australia why they should have a more expensive scheme that’s a matter for them, I guess,” he said.
Opposition Leader Steven Marshall pledged Liberal support for the rapid passage of the WorkCover changes.
“My clear message to the Government with WorkCover reform is get on with it,” he said.
As Trinny commented, with thanks:
My concern is for the new workCover system in South Australia. It’s no longer Work Cover. Titled completely different along the lines of “return to work”. This is not a clichque title. Injured workers must make 30% on one injury before they continue insurance payments for more than 2 years. The normal initial six weeks payments continue if a claim is denied ( as usual ) the worker will pay back the monies WITH INTEREST! Nothing has been disclosed by the government. Only what is revealed by the South Australian law society. Their comments are scathing. South Australians have been kept in the dark about their entitlements. But I have had some legal advice that even solicitor fees, medications, rehabilitation and much more will be sacrificed….
Read a copy of the law society report>>
(Sourced by Trinny)