Workers Compensation

1
Workers Compensation Injury Management Act
1981

• Fundamentals of the Legislation

2
Objectives

• This presentation will provide
• general information on the role of WorkCover WA
• an explanation of relevant sections of the
  legislation
• an opportunity to apply the information learnt
  through case examples

3
Disclaimer

• This presentation is not designed to provide
  specific advice.
• You should not act, or fail to act on the basis
  of anything contained herein.
• In any particular matter, seek appropriate
  professional, including legal, advice.

4
Information Provision

• Section 104 of the Act states
• WorkCover WA may
• from time to time, publish information for the
  guidance of the public on workers compensation
  matters and
• When requested, furnish workers and employers
  with information in respect of ways and means
  available to them to establish or protect their
  rights or perform their obligations under this
  Act.

5
WorkCover WA

• Administers the WA Workers Compensation and
  Injury Management Act 1981 (the Act)
• Ensures compliance with the Act
• Provides a dispute resolution process through the
  Dispute Resolution Directorate (DRD)
• Provides an injury management system

6
WorkCover WA (cont)

• Informs educates about the workers
  compensation system through
• Advisory Services 1300 794 744
• One-on-one interviews interpreter services
• Information seminars
• Training courses
• Publications and website

7
Purposes of the Act

• Make provision for the
• compensation of workers who suffer an injury
• compensation of certain dependants of workers who
  die as a result of an injury and
• management of workers injuries in a manner that
  is directed at enabling injured workers to return
  to work.
• Make provision for specialised retraining
  programs for certain injured workers
• Provide dispute resolution mechanisms for parties
  involved in workers compensation matters
• Promote safety measures(s.3)

8
System Overview

• Philosophy injury management
• Helping an injured worker achieve the best
  possible outcome with respect to their injury
  and, where practical, return to work
• No fault system different from common law
• Serious and wilful misconduct is the only
  exception (s.22)
• Medically based capacity to work/fitness for
  work is based on medical opinion

9
System Overview (cont)

• Supports return to gainful work if possible
• Financial limits to statutory entitlements
  (Schedule 1)
• Paid for by employers insurance policies or
  self-insurance arrangements
• Compensation for unfitness to work through
  weekly payments

10
System Overview (cont)

• Supports return to gainful work if possible
• Payment of reasonable medical and related
  expenses vocational rehabilitation
• Specialised retraining programs (Part IXA)
  special circumstances medical expenses (Schedule
  1, clause 18A)
• Settlement options (Schedule 1, Schedule 2,
  Common law)

11
Accessing the Act

• Available from the State Law Publisher
• [phone] or sales_at_dpc.wa.gov.au
• Accessible on the internet via WorkCover web site
  http//www.workcover.wa.gov.au/

12
Homepage
13
Employers liability to pay compensation

• Employers liable to pay compensation if a worker
  has
• a personal injury by accident arising out of or
  in the course of employment, or while acting
  under the employers instructions (s.5)
• a disabling industrial disease (ss.32-33)
• a disease contracted in the course of their
  employment, where the employment was a
  contributing factor and contributed to a
  significant degree (s.5)
• the recurrence, aggravation, or acceleration of
  any pre - existing disease where the
  employment contributed to a significant degree
  (s.5)

14
Employer not liable to pay

• If the workers injury is
• proven to be a result of an act of serious
  wilful misconduct (s.22)
• during a journey to or from work (s.19(2)(a)(i))
• during lunchtime (depending on facts and
  circumstances)

15
Stress Claims

• A worker cannot claim for an injury if it arises
  as a result of
• dismissal, retrenchment, demotion, discipline,
  transfer or redeployment
• not being promoted, reclassified, transferred or
  granted leave of absence or any other benefit in
  relation to the employment and
• their expectation in relation to above unless
  the claim arises from a matter mentioned in a) or
  b) above and is unreasonable and harsh on the
  part of the employer. (s.5(4))

16
Injury Management Systems

• Each employer required to establish an injury
  management system for their workers (s.155B)
• WorkCover WA has issued the Code of Practice
  (Injury Management) (s.155A)

17
Guidance notes for the Code of Practice (Injury
Management) 2005

• Plain English explanation of an employers
  responsibilities and
• Sample policies and
  useful templates.

18
Injury Management System

• Code of Practice (Injury Management) - employer
  must have a written injury management system
  showing
• steps the employer will take when an injury
  occurs
• details of the person responsible for managing
  injury management (and contact details)
• document must be made available to an employee on
  request

19
Making a Claim Worker

• A worker must
• obtain a first medical certificate (FMC) from a
  medical practitioner of the workers choice
• complete a claim form and give it to the
  employer, together with the FMC (s.57A)

20
Making a Claim Employer

• An employer must
• complete employer section of claim form, tear off
  front cover and give it to the worker
• send claim form FMC to the Insurer within 3
  working days
• if the claim is accepted, institute a return to
  work program if advised by the treating medical
  practitioner (2,000 fine if this isnt done)
  (s.155B), (s.57A)
• this does not apply to exempt employers

21
Making a Claim Insurer

• Has 14 days after receiving claim from employer
  to advise the worker, the employer and the
  Director of the Dispute Resolution Directorate
  (DRD) in writing, that liability for the claim is
  accepted, disputed or undecided (s.57A(3))
• Reasons for decisions must be in plain language
  cite the sections of the Act that they are based
  on. (s.57BA)
• This information does not apply to exempt
  employers

22
Insurers Decisions

• Liability Accepted
• injured worker to receive entitlements
• Liability Disputed
• worker can immediately refer to DRD for
  resolution of dispute
• Claim Pended
• insurer may need further factual and/or medical
  information
• 10 days after pending claim is deemed to be in
  dispute (s.57A(3a))
• worker can then refer to DRD for resolution of
  dispute

23
Insurers Decisions

• If there is no response within 14 days after
  insurer receives claim from employer
• injured worker becomes entitled to weekly
  payments until DRD orders otherwise (insurance
  company liable to 1,000 penalty.)(s.57A(5))

24
A Pended Claim

• Employer may advise the worker of the option to
  use sick leave or annual leave until the
  insurance company decides
• If the claim is accepted, begin paying weekly
  payments and reinstate the sick leave or annual
  leave credits.

25
Entitlements Schedule 1(effective 1 July 2009
30 June 2010)
Exceptional Circumstances medical expenses
250,000
Extra 75 133,535
Retraining 75 of PA 133,535
Extra 50,000
Prescribed Amount 178,047
53,414
11,795

• Reasonable Travel Expenses paid at 40c per km
• Lump sum in certain circumstances

26
Weekly Payments

• Calculating weekly payments for workers employed
  under
• An industrial award
• An enterprise bargaining agreement (EBA)
• An enterprise order or general order
• An industrial agreement
• A certified agreement

27
Calculation of Weekly PaymentsIndustrial Award
Schedule 1 (clause 11)

• First 13 weeks
• Worker is entitled to award or EBA rate of pay
  plus
• any over award or service payments paid on a
  regular basis and
• overtime, bonuses and allowances (averaged over
  the 13 weeks prior to the incapacity).
• Cap 2,026.10 per week (valid until 30 June
  2010)

28
Calculation of Weekly PaymentsIndustrial Award
Schedule 1 (clause 11)

• From week 14 (step down)
• Industrial award or EBA weekly rate of pay plus
• any over award or service payment paid on a
  regular basis
• any allowance paid on a regular basis and related
  to the number and pattern of hours worked
• any other allowance prescribed by the
  regulations.
• Allowances averaged over 13 weeks prior to the
  incapacity. Any other allowances as well as
  overtime and bonuses excluded.
• Cap 2,026.10 per week (valid until 30 June
  2010)

29
Calculation of Weekly PaymentsNon Award Workers

• First 13 weeks
• Average weekly earnings including overtime,
  bonuses, allowances averaged over 12 months prior
  to injury, in the employment the worker was in
  when injured
• Cap 2,026.10 per week (valid until 30 June
  2010)
• From week 14 (step down)
• Entitled to 85 of average weekly earnings
• Cap 2,026.10 per week (valid until 30 June
  2010)

30
Payment of workers wages/salary

• compensation shall be paid by the employer to
  the worker at the employers usual place of
  payment of wages on the employers usual pay
  days Schedule 1, clause 7(5)

31
Return to Work Programs

• An employer must ensure that a return to work
  program is established as soon as practicable
  after
• (a) the workers treating medical practitioner
  advisesin writing that a return to work program
  should be established OR
• (b) the treating medical practitioner signs a
  medical certificate documenting that the worker
  has a total or partial capacity to return to work
  (s.155C (1))
• Penalty for non-compliance 2,000

32
Return to WorkPrograms

• Required if the doctor advises in writing or
  when boxes in item 7 are ticked (up to Unfit)
• Not required if worker returns to position held
  immediately before injury with total capacity to
  work

33
Injury Management

• Key parties injured worker, treating medical
  practitioner and employer
• If return to work is difficult, the parties may
  agree on a referral to an Approved Vocational
  Rehabilitation Provider (AVRP) (chosen by
  injured worker)

34
Responsibilities

Employer IM plan IM program
Worker participate in proper program
AVRP Develop, deliver, Professional program
Doctor Advise employer of need to produce IM
program
35
Using an AVRP

• Guidance Notes explain
• When/ how to use AVRP services
• Specific indicators for referring to an AVRP
• Assistance available from the insurer
• Vocational rehabilitation services (p28)
• AVRPs must keep all parties informed
• Guidance Notes encourage employers to be active
  in achieving return to work outcomes

36
Employer Keep Position Open

• If worker regains capacity for work within 12
  months from time of weekly payment entitlements,
  employer shall provide
• the position held immediately before that day if
  reasonably practicable to provide that position
  or
• a position comparable in status and pay to
  previous position, which the worker is qualified
  and capable of performing
• (s.84AA)

37
Employer Intention to Dismiss

• If an employer intends to dismiss a worker,
  contrary to s.84AA, both the worker and WorkCover
  WA must be given 28 days written notice of that
  intention (s.84AB)
• Penalty for employers non-compliance 2,000
• Nothing in s.84AB limits the obligations of an
  employer or rights of a worker under the Act

38
Case Study 1 Part A

• Read information in Case Study 1 Part A, about
  Jane the 25 year old table/bar attendant
• Answer questions and refer to the relevant
  sections of the legislation

39
Weekly Payments

• Not discontinued or reduced without the consent
  of the worker or an order of an arbitrator,
  unless
• the worker has returned to work, or
• a medical practitioner has certified that the
  worker has total or partial capacity for work, or
  
• the incapacity is no longer the result of the
  injury

40
Weekly Payments

• Not discontinued or reduced if the worker is not
  given 21 days written notice of the intention to
  discontinue or reduce payments - allows time for
  a dispute to be lodged(s.61)
• Alternatively, weekly payments may be suspended
  or reduced on an interim basis for a maximum of
  12 weeks on application to an arbitrator in the
  DRD (s.238)

41
Case Study 1 Part B

• Read information in Case Study 1 Part B, about
  Jane the 25 year old table/bar attendant
• Answer questions and refer to the relevant
  sections of the legislation

42
Discontinuing Weekly Payments

• Settlement reached
• Memoranda of Agreement registered with DRD
• Entitlement exhausted
• Successful discontinuance not disputed by worker
  (s.61)
• Worker reaches age 65 (some exceptions apply)
  (s.56)
• Failing to undergo a medical examination ordered
  by an arbitrator (s.72A(7))

43
Reduction in Payments

• Step down weekly payments after first 13 weeks
• Return to work with partial payment
• Commenced remunerated work (s.59(7))
• Order of an arbitrator in DRD (ss.61-62)
• Interim reduction order of arbitrator for a
  maximum of 12 weeks (s.238)

44
Suspension of Weekly Payments

• Worker in custody (s.72)
• Failure to undergo a medical examination (s. 72A)
• Ordered to participate in a return to work
  program and fails to do so (s.72B)
• Failure to attend or obstructing a Medical
  Assessment Panel (s.145D)

45
Case Study 2 Part A

• Read information in Case Study 2 Part A, about
  Charlie the 36 year old paralegal
• Answer questions and refer to the relevant
  sections of the legislation

46
Language Disability v Impairment

• The notion of impairment replaces that of
  disability and applies to liabilities where the
  cause of action arises from November 14 2005
• Disability remains for liabilities where the
  cause of action arises before November 14 2005
• Impairment becomes central to determining
  certain rights

47
Disability and Impairment

• Impairment is A loss, loss of use or derangement
  of any body part, organ system or organ function
• Disability is An alteration of an individuals
  capacity to meet personal, social or occupational
  demands because of an impairment
• An individual with a medical impairment can have
  no disability for some occupations, yet be very
  disabled for others

48
Whole Person Impairment (WPI)

• WorkCover WA Guides for the Evaluation of
  Permanent Impairment and American Medical
  Association Guides to the Evaluation of Permanent
  Impairment (AMA), 5th and 4th editions are used
  to assess WPI
• Implies a change from a normal or pre-existing
  state
• Does not include a secondary condition

49
Whole Person Impairment (WPI)

• Assessment does not include consideration of any
  secondary condition, which is defined as
• a condition, whether psychological, psychiatric,
  or sexual, that, although it may result from the
  injury or injuries concerned, arises as a
  secondary, or less direct, consequence of that
  injury or those injuries (s.146)

50
Whole Person Impairment (WPI)

• Examination by approved medical specialist (AMS),
  trained in the use of the WorkCover WA Guides for
  the Evaluation of Permanent Impairment and the
  AMA Guides
• Based on objective findings
• The process must be fully documented in
  accordance with the WorkCover WA Guidance Notes

51
Settlements Statutory

• Schedule 1 - Negotiated between worker and
  insurer or employer
• Worker must have a permanent total or partial
  incapacity and been on weekly payments for 6
  months
• Worker automatically waives rights to common law
• Schedule 2 - As per list of entitlements
• Can be settled at any time
• Can still pursue common law (unless combined with
  a Schedule 1 settlement)

52
Settlements Common Law

• Common Law
• Must prove negligence
• Gateways
• After 14 November 2005/current
• based on percentage of permanent WPI
• Where cause of action pre-14 November 2005
• based on percentage of permanent disability

53
Settlements Statutory

• For Schedule 1 - for permanent partial or total
  incapacity
• Conditions
• Settlements can only occur if worker and employer
  agree
• Director of DRD needs to be satisfied worker
  understands consequences of taking settlement
• No access to common law
• Claim is closed

54
Common law - cause of actionbefore 14/11/2005
Less than 16 disability, no access to Common Law
55
Common Law Cause of Action from 14/11/05

• All other entitlements cease at date of election.
• Damages capped at 353,850
• On date of election weekly payments
• step down (70 for first 3 months,
• 50 for next 3 months,
• cease at 6 months).

56
Specialised Retraining Programs

• How can a worker apply?
• The degree of permanent WPI - at least 10 but
  less than 15 as agreed by the worker and
  employer, or determined by an arbitrator (through
  referral to an AMS panel) where there is
  disagreement (158A)
• The final day for application is the last day of
  the period of two years after the day on which
  the claim for compensation was made - can vary
  where liability was initially contested
  (s.158B(2))

57
Specialised Retraining Programs

• A worker can apply by meeting the following
  retraining criteria
• has participated in a return to work program but
  not been able to return to work
• has a capacity for retraining and retraining is a
  viable option
• formal vocational training or study appears to be
  the only option to enable the worker to return to
  work and
• it is reasonable to expect that retraining will
  give the worker useful qualifications or skills
  necessary to return to work.

58
Specialised Retraining Programs

• If agreement not reached, a worker may refer the
  question to the DRD for determination by an
  arbitrator. Referred to a specialised retraining
  assessment panel
• an occupational physician, who is an approved
  medical specialist
• a person with knowledge and experience in the
  labour market and
• an officer of WorkCover WA experienced in injury
  management.

59
Case Study 2 Part B

• Read information in Case Study 2 Part B, about
  Charlie the 36 year old paralegal
• Answer questions and refer to the relevant
  sections of the legislation

60
Dispute Resolution Directorate

• Part XII applications seeking
• Interim payments of compensation, up to a maximum
  of 12 weeks
• Interim payment of medical expenses up to 5 of
  the maximum amount
• Interim suspension or reduction orders
• Minor claims up to 12 weeks of payments or 5 of
  the maximum amount for medical expenses
• Order for the provision of documents
• Dealt with by an arbitrator without a hearing and
  cannot be appealed

61
Dispute Resolution Directorate

• Part XI applications (all other disputes,
  including)
• Weekly payments of compensation
• Medical, hospital or related expenses
• Suspension or discontinuance of weekly payments
  for failure to undergo medical examination,
  during custody or for failure to participate in a
  return to work program
• Disputes between employers and insurers
• Specialised retraining programs

62
Dispute Resolution Directorate

• Extensions of the prescribed amount for weekly
  payments, medical, hospital or related expenses
• Schedule 2 impairments
• Compensation for dependants following the death
  of a worker
• Process
• Teleconference, arbitrator conciliates an
  agreement if possible, then arbitrates if the
  dispute not resolved
• Final and binding decisions (court enforced)
• Appeals to Commissioner in limited circumstances
• Interim orders may also be made pending
  resolution of a dispute under Part XI

63
Medical Disputes

• Medical Assessment Panels (MAPs) determine
• The nature or extent of an injury
• Whether an injury is permanent or temporary
• A workers capacity for work
• Degree of permanent loss of the use of back, neck
  or pelvis
• (s.145A s.210)

64
Medical Assessment Panels

• Worker may need to attend, answer questions, be
  examined and provide documents to the Panel
• If the worker does not do so or obstructs the
  Panel, their right to compensation may be
  suspended (s.145D)
• Where Panel cannot reach unanimous agreement, the
  question is determined by agreement of at least
  two Panel members

65
Case Study 3

• Read information in Case Study 3, about Bob the
  28 year old blast coater
• Answer questions and refer to the relevant
  sections of the legislation

66
Medical Examinations

• The injured worker chooses his treating medical
  practitioner and other service providers
• Employers
• have a right to request a medical review (not
  treatment) (ss.64-65)
• may apply to suspend weekly payments if a worker
  doesnt attend, or obstructs the examination
• must provide a copy of the medical review report
  to the worker within 14 days of the examination
  (s.70)

67
Medical Examinations

• If a First Medical Certificate (FMC) indicates a
  medical review is required within 14 days, the
  worker cannot be referred for a review by
  employer/insurer before one month has elapsed
  from the date of the FMC(ss.64-65)

68
Medical Examinations

• An injured worker cannot be directed to attend
  medical examinations
• more often than once every two weeks
• by more that three medical practitioners who are
  specialists in the same field of medicine

69
Case Study 4

• Read information in Case Study 4, about Rodney
  the 28 year old electrical engineer
• Answer questions and refer to the relevant
  sections of the legislation

70
Entitlements Affected by Age

• If the injury occurs on or before the worker
  turns 64 weekly payments continue until age 65
  (s.56)
• If the injury occurs after the worker turns 64
  then weekly payments continues for 12 months
  after the date of the injury
• Weekly payments - only entitlement affected by
  age (s.57)
• Some exceptions to cessation of weekly payments
  due to age - see Schedule 5

71
Worker Not Living in WA

• A worker receiving weekly payments not residing
  in WA is entitled to receive weekly payments as
  long as they prove their identity and ongoing
  incapacity (s.69)
• To prove this, the worker must provide the
  employer, or the employers insurer, with a
  declaration by themselves and a treating medical
  practitioner in the form of, or to the effect of
  Form 6, at three monthly intervals (r.10)

72
Wilful and False Representaton

• Where proven a worker has, at the time of seeking
  or entering into employment, wilfully and falsely
  represented themselves as not having previously
  suffered from the injury which they now claim
  compensation for, an arbitrator may, at their
  discretion, refuse to award compensation which
  would otherwise be payable (s.79)

73
Recovery of Payments

• Where compensation or expenses have been paid to
  a worker (or their dependant) and that person was
  not lawfully entitled to that payment (or any
  part of that payment), whoever has made that
  payment (WorkCover WA, the employer or the
  insurer) may apply for an order of an arbitrator
  that the compensation or expenses be refunded
  (s.71)

74
Effect on Leave

• Compensation is payable in respect of any period
  of incapacity notwithstanding that the worker has
  received or is entitled to receive in respect of
  such period any payment, allowance, or benefit
  for annual leave or long service leave and the
  amount of compensation so payable shall be the
  amount which would have been payable to the
  worker had they not received or been entitled to
  receive in respect of such period any such
  payment, allowance or benefit(s.80(1))

75
Effect on Sick Leave

• A worker is not entitled to receive payments for
  sick leave entitlements for any period for which
  they receive weekly payments of compensation
• Where payments are made for sick leave and
  payments for compensation are subsequently made,
  the worker shall reimburse to the employer the
  sick leave payments and the employer shall
  reinstate the workers sick leave entitlements as
  a credit (s.80(2))

76
Effect on Public Holiday Pay

• When a public holiday occurs the worker should
  receive their normal weekly compensation
  payments. The employer is not liable to make any
  additional payment for that day (s.81)

77
Case Study Answers

• Case Study One Part A
• Case Study One Part B
• Case Study Two Part A
• Case Study Two Part B
• Case Study Three
• Case Study Four

78
Further Information

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• TTY (for hearing impaired) 9388 5537
• www.workcover.wa.gov.au
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