EBM Insights podcast series is a deep dive into current issues surrounding insurance and risk management in today’s ever-changing world.
Introduction:
Changes to WA workers’ compensation laws – 1 July 2024
Western Australia’s modernised Workers Compensation and Injury Management Act 2023 will come into effect on 1 July 2024.
The Act is a complete re-write of the workers’ compensation legislation, replacing the 1981 Act with a modernised statute that provides clarity and certainty for stakeholders. This podcast discusses some of the key changes that will be introduced when the legislation comes into effect. For more information, please contact your EBM Insurance & Risk broker or visit www.workcover.wa.gov.au.
A transcript of this podcast is below. The complete EBM Insights podcast series is available here.
00:00:00 Speaker 1 – Disclaimer
In this podcast, we have provided general advice only and not personal advice. In giving this advice, we have not considered your personal circumstances.
00:00:15 Speaker 2 – Sandy Cattley (Senior Marketing Specialist, EBM Insurance & Risk)
Welcome everyone. I’m your host, Sandy Cattley, and today we have some special guests with us from our Injury Management team. Julian Lane, the National Manager of Injury Management at EBM, Amy Lee, an Account Manager, and Luke Westell, the EBM Injury Management Team Leader.
Welcome, Julian, Amy and Luke. [guests speak – thank you]
So today, we’re diving into the significant changes coming to the Workers’ Compensation and Injury Management Act in WA.
Julian, could you give our listeners an overview of the key changes?
00:00:49 Speaker 4 – Julian Lane (National Manager – Injury Management, EBM Insurance & Risk)
Yeah, certainly, Sandy. So, there’s several crucial changes under the new legislation, some of the big ones are higher caps on medical expenses, prohibition on employers attending medical appointments, provisional payments to deferred liability claims, and a tightening of exclusions for psychological claims.
00:01:10 Speaker 2 – Sandy Cattley
Amy, what are your thoughts?
00:01:12 Speaker 3 – Amy Le (Account Manager – Injury Management, EBM Insurance & Risk)
Well, contractors will continue to be covered as workers unless the contractor is doing work that is in the course of or incidental to a trade or business regularly carried out by the individual in their own or the business name.
Additionally, we’ll see a unique provision for disability workers and NDIS participants. Only where the disability worker is engaged directly by the NDIS participant through a self-managed fund will the NDIS participant be deemed the employer.
00:01:40 Speaker 2 – Sandy Cattley
So, these changes sound quite comprehensive. Let’s breakdown some of the key points. Luke, could you walk us through the provisional payments and deferred liability claims.
00:01:50 Speaker 5 – Luke Westell (Team Leader – Injury Management, EBM Insurance & Risk)
Certainly. Under the new legislation, if an insurer defers their liability decision and no decision to accept or decline is made within 28 days, provisional payments must be commenced. Those are to include income, compensation and medicals.
Of particular concern is that back payment of the provision income compensation is to be from the date of injury, meaning delayed lodgement claims will need a very strong focus on the investigations to ensure a decision can be made prior to the 28th day.
Further to this, insurers will also have a deadline of 120 days to make a liability decision from the date of receiving the claim.
Failure to do so will result in liability being deemed accepted.
00:02:31 Speaker 2 – Sandy Cattley
That’s a significant change. Now moving on to psych injuries, what’s the extension of exclusions there?
00:02:37 Speaker 3 – Amy Le
Yes, the exclusion of psych injury now relates to any psychological or psychiatric condition arising from formal administrative actions. However, it doesn’t apply if the action is deemed harsh or unreasonable. There are key changes here from the word formal, meaning administrative action needs to be thoroughly documented.
We also need to encourage employers to review their policies and procedures to ensure that they include things like offering an employee a support person when going through the meetings or administrative action.
00:03:06 Speaker 2 – Sandy Cattley
And what about catastrophic injuries, any changes in that space?
00:03:11 Speaker 4 – Julian Lane
So, for catastrophic injuries, which consist of spinal cord and traumatic brain injuries, things like amputations and permanent blindness, there’s a pathway to the lifetime care services managed by ICWA (Insurance Commission of Western Australia).
This is funded by annual levies from insurers and doesn’t impact a workers’ statutory or common law rights.
00:03:32 Speaker 3 – Amy Le
But statutory settlements and common law damages cannot include amounts for treatment or health expenses if workers have entered the scheme and they can’t enter once awarded damages to prevent double dipping.
00:03:43 Speaker 2 – Sandy Cattley
These changes are intricate and essential for listeners to understand. Moving on, what’s the new claim process?
00:03:49 Speaker 4 – Julian Lane
Previously workers had to give notice of an injury which is no longer required. However, a claim still needs to be submitted within 12 months. There’s likely to be some leniency given to workers on this depending on the circumstances.
Employers will have seven (7) calendar days to provide the claim form and medical certificate to the insurer from the date it’s provided to them by the worker, and this is a change from five (5) business days and failure to do so may result in a $5000 fine, which is up from $1000 previously.
00:04:26 Speaker 2- Sandy Cattley
Let’s touch on return- to-work changes.
00:04:29 Speaker 3 – Amy Le
Yes, so employers can’t attend clinical examinations with workers now, but they are permitted to attend return-to-work case conferences, which is now an introduction in the new Act, workers are obliged to participate in these return- to-work case conferences, even if they’re unfit.
00:04:45 Speaker 2 – Sandy Cattley
These changes are definitely reshaping the landscape.
Moving on to compensation, how is income compensation calculated now?
00:04:53 Speaker 5 – Luke Westell
Income compensation or as we used to call it, weeklies, is based on 12 months of earnings and 85% drop down is affected from Week 26 onwards, which is an extension from the current 13-week mark, and there will be safety nets in place, such as workers entitlements not dropping below the base award for their role, plus any regular additional earnings such as over award payments or overtime and allowances etc.
Also, annual leave is specifically addressed as a separate entitlement that could be taken concurrently so that is to say that workers can take leave and receive both their income compensation and annual leave payments.
Contractual provisions requiring employees to take accrued annual leave within a certain threshold can therefore remain in place to help reduce large leave liabilities from arising.
00:05:40 Speaker 2 – Sandy Cattley
And medical expenses?
00:05:43 Speaker 3 – Amy Le
Entitlement to medical expenses has doubled and medical transport like the Royal Flying Doctor Service, is now a miscellaneous expense. We have seen cases where seriously injured workers, particularly those working remotely, could exhaust their medical entitlement by the time they leave the hospital, creating difficulties in facilitating their recoveries.
Ministerial order fixed fees generally aligned with the Australian Medical Association and will be updated annually.
00:06:11 Speaker 2 – Sandy Cattley
Thanks, Amy.
Now let’s shift to settlements and dispute proceedings, what’s the new approach?
00:06:15 Speaker 4 – Julian Lane
There’s now a single pathway for the settlement of statutory claims, with direct oversight and a separate process for the settlement of common law claims.
Additionally, an arbitrator also has the power to dismiss a proceeding and refer to a medical panel.
00:06:32 Speaker 2 – Sandy Cattley
One of the state government election promises was to prohibit employers asking whether a worker has had a previous workers’ compensation claim in their pre-employment screening. Can you tell me a bit about how the legislation addresses this?
00:06:47 Speaker 3 – Amy Le
Yeah, so prohibitions on pre-employment medical screening disclosures relating to previous workers compensation claims have been put into place and there are fines of up to $10,000 that exist for violation.
00:06:58 Speaker 4 – Julian Lane
So, this is just another example of the greater responsibility that’s being put on to employers with increased fines across the board for non-compliance.
00:07:07 Speaker 2 – Sandy Cattley
And how can employers best prepare themselves for the changes?
00:07:11 Speaker 4 – Julian Lane
So, we know the new legislation is going to result in claims costing more. Prevention is always better than cure, so investing in health and safety really should be paramount. Reviewing your policies and procedures should be done regularly, but with these upcoming changes, it’s a good opportunity to ensure they’re still fit for purpose through EBM’s Risk Solutions Network.
There are providers available to our clients that provide their services in this space and to access this, our clients can speak with their broker or Injury Management Account Manager.
00:07:43 Speaker 3 – Amy Le
And from a claims management perspective, supporting your workers, engaging them within your workplace with meaningful, suitable duties as soon as possible makes a huge difference. Working with your Injury Management Account Manager can help work through any speed bumps that may occur along that journey.
00:08:00 Speaker 4 – Julian Lane
Having the EBM team behind you can really help your business navigate these changes and I’d encourage all the listeners out there to reach out if they have any questions.
00:08:10 Speaker 2 – Sandy Cattley
So, these are some big changes and I feel like we’ve only scratched the surface.
Thanks again to Amy, Julian and Luke for coming along today, and for our listeners, if you’d like to catch up on any of our other podcasts, they’re all available on Spotify.
Thanks for joining me.
[end]
EBM’s Workers’ Compensation and Injury Management team will be providing clients with further information prior to the Act coming into effect on 1 July 2024.
