Wednesday, February 11, 2004

WA Labor's new workers compensation laws

By Chris Latham

On January 29, John Kobelke, minister for Consumer and Employment Protection, released Restoring Fairness, Balance and Certainty: Workers' Compensation Reforms. The document's introduction states that it is the final stage of checking before the legislation is submitted to parliament.

The state Labor government has argued that the amendments will provide workers with improved access to benefits, injury management and greater legal protection. However, the legislation has made limited advances in protecting workers' rights.

The cap on weekly benefit payments will be increased to two-times average weekly earnings, from one-and-half. This payment will be reduced by 15% after eight weeks; it is presently reduced after four weeks.

Weekly benefit payments will still be limited. For workers with permanent total incapacity, the maximum prescribed amount can be extended up to $228,0000, up from $50,000.

The prescribed amount is the total amount available for any injury; if an injured worker dies then his or her dependents receive the prescribed amount, minus any weekly payments already received.

The amendments propose reintroducing lawyers into the whole system (rather than simply during final appeals) and the creation of a new Workers' Compensation Dispute Resolution Authority, which will oversee a process of conciliation conferences and arbitration.

Under the existing legislation, "injury management" — the process by which injured workers return to work — was voluntary, and only vocational rehabilitation was required. Labor's amendments would require large employers to develop their own policy and procedures for injury management and encourage insurers to provide resources for smaller companies to develop these as necessary.

Labor also proposes that injured workers be legally required to participate in injury management and rehabilitation activities. Failure to do so could result in the stoppage of payments.

While workers should have the option of returning to work, and employers be legally required to make arrangements to facilitate this process, Labor's amendments are not aimed at giving workers greater options. Instead, they are aimed at saving employers and insurers money by compelling injured workers to participate in attempts to return to work, and allowing an earlier reduction in weekly compensation payments.

Labor proposes to maintain the "two-gate" system for access to common law introduced by the state Coalition government in 1999. Under this system, injured workers assessed to have a "whole person impairment" (WPI) of greater than 25% (currently the threshold is 30%) are eligible to receive uncapped compensation payments.

For workers assessed to have a "serious impairment" of between 15% and 25% compensation is capped at a maximum of $275,000. Labor's updated amendments maintain its previous position to exclude workers' secondary and consequent impairment, including psychological impairment, in assessing WPI. This is aimed at reducing workers' access to civil damages.

The proposed amendments will extend the deadline for seeking common law damages to 12 months, extendable by an additional six months.

Workers with a serious impairment will also no longer lose their entire statutory benefit. Instead, all coverage of medical and other expenses will cease and weekly payments will be reduced to 70%, then to 50% after three months and cease after six months.

As common law damages are reduced by the amount of weekly benefits that the worker has already received, the phasing down of benefit payments and ending of coverage of medical expenses can only be interpreted as intended to dissuade injured workers from making common law claims.

From Green Left Weekly #570

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