Background

Following substantive amendments to the Workers’ Compensation and Injury Management Act 1981 in November 2005, there have been numerous consultations and proposals for a complete re-write of the legislation with a view to modernising the mechanism to provide statutory compensation and common law damages to Western Australian employees injured in the course of employment.

These proposed changes are again at the fore with the release of the draft Bill. The Workers’ Compensation and Injury Management Bill 2021 (Consultation Draft) (‘the draft Bill’).

Proposed Changes

The draft Bill is extensive and includes some 652 provisions, with a large number of both minor and substantial proposed changes. Of particular significance is:

• A new definition of ‘worker’ – s6 of the draft Bill provides a more simplified definition, being all persons who are employees for the purposes of PAYG tax.
• An expansion of the s5(4) provisions under the current Act – s7 of the draft Bill expands the administrative action exclusion to any psychological or psychiatric condition.
• An updated consent authority – s34 will introduce an irrevocable consent authority, allowing insurers to obtain relevant records to assist in managing claims.
• The introduction of a lifetime care scheme for catastrophically injured workers – the draft Bill proposes expansion of the Catastrophic Injuries Support Scheme for motor vehicle accidents to cover catastrophically injured workers, funded by a levy on insurers.
• The introduction of provisional payment obligations – where a liability decision has not been made within the prescribed timeframe, new provisions will result in deemed acceptance of liability and an obligation to make provisional payments.
• Changes to the Prescribed Amount – referred in the draft Bill as the ‘general maximum amount’, provision is made for a change to the medical expenses limit from 30% to 60% of the general maximum amount. The calculation of the general maximum amount will also be based upon different indexation methodology.
• Uncapped ‘miscellaneous expenses’ – the draft Bill provides no cap on miscellaneous expenses, which will include first aid and emergency transport, surgical appliances/artificial limbs, travel, and wheelchairs.
• Changes to weekly payments – including extending the step down rate from 13 weeks to 26 weeks, and simplifying the method of calculating a worker’s rate of pay.
• Changes to settlements – the draft Bill restricts the current s92(f) settlement pathway to claims where the worker has not less than a 15% whole person impairment and has elected to pursue common law damages.
• Prohibiting attendance at medical examinations – the draft Bill will prohibit employers, insurers, or agents of insurers from being present at a worker’s medical examination with a treating medical practitioner.
• Provision for a mandatory five yearly review – the draft Bill provides that the Minister will be required to review its operation and effectiveness at least every five years.

The Next Steps

The draft Bill has been released for public consultation, with WorkCover inviting submissions until 10 November 2021.

After this, we anticipate a final Bill will be introduced to the WA Parliament in 2022.

Moray & Agnew will provide further updates on developments and, once the legislation is passed, will be offering information sessions to interested clients.