Return to Work SA Amendment Bill 2022

 

The Return to Work (Scheme Sustainability) Amendment Bill 2022 (SA) (the Bill) passed Parliament on 6 July 2022 and is to commence on a day to be fixed by proclamation.

The Bill will amend the Return to Work Act 2014 (SA) (the Act).

 

We summarise some of the key changes.

 

Change of seriously injured worker meaning

The Bill will amend what it means to be classified as a seriously injured worker under Part 2 Division 4 of the Act by increasing the whole person impairment threshold (WPI).

The Bill changes the threshold percentage to 35% or more in the case of physical injury however the WPI threshold remains the same for psychiatric injuries and remains at 30%.

Transitional provisions provide that the changes will apply to any work injury where the final examination relating to the worker by an accredited medical practitioner occurs on or after 1 January 2023. This applies even if the injury is attributable to trauma that occurred before 1 January 2023.

 

Assessment of permanent impairment

The Bill inserts new subsections 22(10) and (11).

These new subsections deal with situations where a worker has had a whole person impairment assessment and a subsequent impairment from the same injury or cause develops or manifests itself after that assessment.

The changes are illustrated in the example set out in the Bill:

“A worker suffers impairments arising from injuries A and B which both arise from the same cause. The worker has those impairments assessed under section 22. After the assessment of the impairments arising from injuries A and B, the worker develops further impairments from injuries C and D which arise from the same cause as injuries A and B. The worker is entitled to be assessed for the impairment arising from injuries C and D and to combine the impairments from those injuries. However, the worker cannot combine the impairments arising from injuries C and D with the impairments arising from injuries A and B under this Act.”

 

Interim Seriously Injured Worker decisions

The Bill inserts a new provision which provides that if an interim decision has been made regarding a worker, it will only have effect until, among other existing reasons, it appears that, due to a material improvement in the worker’s likely degree of whole person impairment, the worker’s degree of whole person impairment is no longer likely to be:

• in the case of physical injury—35% or more; or
• in the case of psychiatric injury—30% or more.

 

Before an interim arrangement can be discontinued by a compensating authority in line with this provision a compensating authority must provide a worker at least 3 months written notice of their intention to bring the interim decision to an end under the relevant subsection and provide the worker a reasonable opportunity during that 3 month period to provide information that the interim decision should continue.

 

Lump sum payments—non-economic loss – section 58

The Bill amends subsection 58(6) of the Act to provide that if a worker suffers two or more impairments arising from the same injury or cause, the impairments will be assessed together, and that the worker is not entitled to receive compensation in respect of those impairments in excess of the prescribed sum. The Bill provides that only one claim can be made under this division in respect of impairments that have been combined.

The Bill inserts new prescribed sums for non-economic loss payments where the worker has a WPI of 30% or more.

Lump-sum payments for seriously injured workers (“SIW”)

Except for those workers with noise induced hearing loss, psychiatric or consequential mental harm injuries, the Bill provides for a new section 56A which provides the option for seriously injured workers to receive a lump sum payment under section 56 of the Act.

A worker can at any time following an assessment and determination that a worker is SIW elect to receive a lump sum payment. Any weekly payments an SIW is entitled to will cease one day before the lump sum is paid and there will be a reduction in the lump sum payable based on the amount of weekly payments that had been made to the worker (if any).

 

 

 

 

Disclaimer: this does not constitute legal advice and we do not represent it to be legal advice. If you seek advice, please contact us on 7093 2350 or mail@melinolegal.com.au