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.
CLAIMS FOR COMPENSATION
Section 30 of the RTW Act establishes the process by which claims for compensation are made, and is similar to the existing Section 52 of the WR&C Act.
Section 30 details the mandatory (by use of the word “must”) requirement for a claim to be made in the manner and form approved by the Corporation, made within the prescribed period of six months, and must be supported by a Certificate in the designated form.
Section 30(2) provides that if a notice of an injury is required, a claim may not be made in respect of that injury unless notice of the injury has been given as required.
Section 30(3) carries over the provisions from Section 52 of the WR&C Act that the absence of, or a defect in, a Notice of Injury is not a bar to a making of claim if the proper determination of the claim has not been substantially prejudiced or the failure to give notice, or the defect in the Notice, was occasioned by ignorance, mistake or absence from South Australia, or other reasonable cause and the same considerations apply in relation to the failure to make a claim for compensation within the prescribed period of six months.
Of particular note is the provision in Section 30(9), namely that a self-insured employer can dispense with the requirement for a Certificate under Section 30(1)(c) if a claim only relates to Division 2 – medical expenses.
This means that claims for income support, an economic loss lump sum and a non-economic loss lump sum should be supported by a Certificate in the prescribed form. Note that the self-insured employer has power/discretion to dispense with the requirement for a Certificate, but only in circumstance where the claim for compensation is medical expenses. The issue as to whether in fact the requirement for a Certificate should be dispensed is a matter of discretion of the Compensating Authority.
Section 31 of the Act continues the right of the self-insured employer (and as delegated to the self-insured employer pursuant to Section 134 of the Act), to undertake such investigations and enquiries as are necessary in order to achieve an evidenced based decision with respect to the determination of the claim. Section 31(2) includes the power to require a worker to submit to an examination by a recognised health practitioner and Section 31(3) recognises the right to reject the claim in the event that a claimant fails or refuses to furnish information reasonably required pursuant to Section 31(1) or fails to submit to the medical examination as required under Section 31(2).
Section 32(1) provides a discretion to make interim payments to a claimant pending the final determination of a claim. In the event that a claim is not determined within 10 business days, then Section 32(2) provides that the self-insured employer (again this is a delegated power and discretion pursuant to Section 134) must offer to make interim payments and in the event it appears the worker was not entitled to such payments, any interim payments can be recovered as debt.
Section 31(10) provides for the right of a self-insured employer to redetermine a claim, subject to it being an appropriate case and the criteria in Section 31(10)(a) –(e) is met.
It is likely that this provision will be interpreted and applied in the same way as it has been by the Workers Compensation Tribunal as the provisions of Section 31(10) are identical to the current Section 53(7a). “New information” does not mean a new medical opinion (per Arnott’s case).
In my view, because of the requirements and considerations that have to take into account in determining compensability, past medical history is even more important in order to determine compensability issues, and accordingly, the power to request information (including information from the worker) pursuant to Section 31(1) should be used rigorously in relation to both factual matters and medical matters.
EXPEDITION OF DECISIONS
Section 113 of the RTW Act establishes a similar process to the current Section 97 WR&C Act in that where a worker or employer believes there has been undue delay in deciding a claim or other matter affecting the worker or employer, may apply to the Tribunal, for expedited determination of the matter.
The process for the lodgement of a claim and the initial determination of it is substantially similar to the process employed under the WR&C Act. However, note that provisional liability no longer applies and interim payments must be commenced within 10 business days from receipt of the claim.
FURTHER PROCEDURAL REQUIREMENTS
Section 96 of the RTW Act sets out the dispute resolution processes and in particular the role of the SA Employment Tribunal.
Section 95 of the Act details those persons who are able to make application to the Tribunal and Section 97 details what decisions “made by the Compensating Authority are reviewable by the Tribunal pursuant to the Act”.
Again, any application must be lodged within one month of receipt of the notice of the reviewable decision pursuant to Section 100 of the RTW Act albeit that Section 100(2) enables the Tribunal to allow an extension of time if good reason exists and the other party to the dispute will not be unreasonably disadvantaged because of the delay in commencing the dispute proceedings.
Section 104 retains the initial reconsideration process whereby the Compensating Authority/decision maker on receiving an application for review must reconsider its decision “in the light of the matters set out in the application” (Section102(1)(b)) and the process contemplates that a disputed decision in this process can be confirmed or varied. Section 102(5) contemplates that the reconsideration process will be completed within 10 business days after receipt of the copy of an application or for such longer time as allowed by the Registrar on application.
In the event that a disputed decision is confirmed or varied the matter is then referred to the Employment Tribunal. Section 104 of the Act contemplates a Compulsory Conciliation Conference between the parties, with each party disclosing evidentiary material. Section 104(4) provides that surveillance is still treated in a special category and whilst its existence must be disclosed the party need not give the other party access to that material. These are previously established case law authorities such as Rubbins v Harbord on this issue which we think remain relevant.
In the event that a matter does not resolve at the Compulsory Conciliation Conference the matter is then referred for hearing and a determination of the dispute between the parties, then giving rise to an appeal to the Full Bench of the Tribunal and ultimately an appeal to the Full Court of the Supreme Court on the question of law.
Section 121 and Section 122 of the RTW Act sets out the powers and procedures of the Tribunal on a referral for hearing.
In the event that an application for review is made against a notice to reduce or discontinue weekly payments pursuant to Section 48 but where an application for review is made, the operation of the decision is suspended until the matter first comes on before a member of the Tribunal and may be further suspended thereafter but not if the effect of such extension is the continuation of weekly payments after the end of the period of 104 weeks from the date on which the relevant incapacity for work first occurred (except in the case of a seriously injured worker).
The election provisions are mentioned in Section 73(4) and Section 73(5) and (6) and is supported by Regulation 39 – the election must be in writing, furnished to the self-insured employer before the worker commences proceedings at common law or commences redemption negotiations under Part 4 Division 5 of the Act, is subject to advice about the consequences of such an election from a legal practitioner and gazetted costs associated with the provision of such advice. A “seriously injured worker” can redeem liability associated with income support/weekly payments but cannot redeem liability associated with medical services (see Section 54(2)).
The procedure associated with the lodgement of a claim, its initial investigation, determination, lodgement of an application for review and the reconsideration process remains substantially the same as under the WR&C Act.
I expect that the Employment Tribunal process will still emphasise the initial Conciliation Conference but does recognise expanded powers of the Tribunal to influence and monitor the outcome of a dispute, which if not resolved, ultimately ends up in hearing.