By John Walsh & Kate Keough
Registered employers should have an understanding of the process and be prepared, where necessary, to play a proactive role in the management of an injured worker's claim for compensation.
It is important for registered employers to have an awareness of the procedures, their rights and their responsibilities under the Workers Rehabilitation and Compensation Act ("the Act"). We provide regular comment upon matters that registered employers should be aware of.
Determination of the Claim
The procedure in relation to provisional liability and the determination of claims has recently been amended. When a claim form is lodged, a worker is now requesting that the claim be determined, rather than having to elect for either provisional payments or the determination of the claim.
If the claim cannot be determined within 7 days then the worker will receive provisional liability payments (unless excluded by the Act) for 13 weeks, or until the claim can be determined, whichever is the lesser.
Provisional liability payments cannot be recovered from the worker if the claim is subsequently investigated and rejected unless the worker is found to have acted dishonestly. It is important, therefore, that registered employers raise any concerns about the validity or compensability of a claim at the earliest possible time.
Employers have a right to maintain a position in relation to the determination of a worker's claim. If the employer is aware that the worker previously suffered from a similar injury/medical condition as a result of, for example, talk around the workplace or a medical history noted in the pre-employment stage, then the employer may be able to argue that the worker's claim should be treated as a secondary disability.
When a claim is accepted as a secondary disability the worker receives compensation, but WorkCover levies are not affected thereby minimising the financial impact of the claim on the business. The rationale is that employers don't deserve to be penalised for work injuries in situations largely outside of their control.
In the normal course a pre-injury employer is responsible for the first two weeks of income maintenance paid to an injured worker. However, employers should be aware that compliance with the reporting responsibilities within 2 working days after receipt of the injured worker's claim may result in the Corporation assuming responsibility to pay the worker's first two weeks of income maintenance.
Return to Work
The return to work process can be a quagmire, and employers need to be aware of the extent of their obligations when agreeing to Rehabilitation and Return to Work Plans.
If modified duties, which are really supernumerary duties (unproductive duties that add little or no real value to the business), are recommended by the rehabilitation provider or performed under a rehabilitation and return to work plan, an employer is not always obliged to pay a wage for the hours worked on the 'modified duties'.
The issue of payment for supernumerary duties should be raised when the Rehabilitation and Return to Work Plan is initially established. The onus is on the employer to establish that the duties being performed by the worker add little or no real benefit to the business and that the payments made to the worker while performing these duties should be characterised as income maintenance and the duties as work hardening.
The provision of supernumeracy duties other than the pre-injury employment duties should only ever be a temporary arrangement and designed to assist an injured worker to return to pre-injury employment duties. If a return to pre-injury duties is not possible and it is not reasonably practicable to maintain the worker in modified duties then the employer should request that the rehabilitation goal be altered to reflect a return to work carrying out more suitable duties that would be sustainable in the long term with another employer.
Employers should, however, be aware that if a return to pre-injury duties is not a realistic outcome the Act imposes an obligation to provide suitable employment where it is reasonably practicable.
An employer is only excused from the obligation to provide suitable employment where it can demonstrate that it is not reasonably practicable to provide suitable employment or that other exceptions under section 58B(2) of the Act apply.
Some of the following issues should be considered when formulating a proposal to WorkCover seeking a release from the obligation to provide suitable employment:
- the worker's medical status including diagnosis and prognosis;
- the worker's vocational skills, history and aptitudes;
- employment opportunities across the employer's organisation, and
- the history of the worker's rehabilitation and return to work
Since 1 July 2008 the Act allows an employer to pay a worker an appropriate wage or salary for undertaking alternative (suitable) duties that are different from the pre-injury employment duties. In other words if a factory worker now performs office work, it is appropriate to pay the worker the salary of an office worker. If there is a shortfall between pre-injury earnings and the new wage the worker is entitled to ongoing 'topup' income maintenance. Similarly, if modified duties can only be provided on a part time basis, then the injured worker is entitled to top-up income maintenance.
Section 58B(3) opens up the possibility to reposition injured workers into more productive alternatives. WorkCover are likely to pay for the re-training required for the injured worker to perform 'suitable duties' on a long term sustainable basis.
It is always prudent to ensure that any offer of suitable employment includes an outline of the worker's role and responsibilities, the duties to be performed, the position the worker should report to and the level of remuneration.
If you have any queries in relation to the rights and responsibilities of an employer in the rehabilitation process or generally or levy related concerns please contact: John Walsh; Margaret Kaukas, or Kate Keough.
The bonus/penalty scheme ceased to exist from 30 July 2010. Employers who have previously reduced their levies by maintaining lower claims costs through safe work practices and by providing suitable alternative employment for injured workers can no longer access these bonuses of up to 30%.
Similarly the Safework Incentive for Large Employers ceased on 30 July 2010. The WorkCover SA Board is in the process of considering whether to design and implement a replacement scheme. At this late stage it looks unlikely there will be a replacement in the near future.
The reconciliation statement setting out the actual remuneration paid to workers is required to be submitted by 31 July 2010. It is the last chance for an employer to access those bonuses. No bonuses will apply if the statement is not submitted.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.