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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-07-06 Daily Xml
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Bills

Return to Work (Scheme Sustainability) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 3, page 3, lines 5 and 6 [clause 3(2)]—Delete subclause (2)

No. 2. Clause 5, page 3, line 13 [clause 5(1), inserted subsection (2)(a)]—Delete ‘work injury has’ and substitute:

work injury or injuries have

No. 3. Clause 5, page 3, line 17 [clause 5(1), inserted subsection (2)(b)]—Delete ‘work injury has’ and substitute:

work injury or injuries have

No. 4. Clause 5, page 3, line 22 [clause 5(2), inserted subsection (3)]—Delete ‘Pending stabilisation of a worker's work injury or work injuries’ and substitute:

Pending an assessment of permanent impairment

No. 5. Clause 5, page 3, line 36 to page 4, line 30 [clause 5(2), inserted subsections (4) to (4e)]—Delete inserted subsections (4) to (4e) and substitute:

(4) An interim decision under subsection (3)—

(a) must be made in accordance with any requirements or principles prescribed by the regulations; and

(b) will have effect until—

(i) an assessment of whole person impairment has been made and determined under Division 5; or

(ii) 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—

(A) in the case of physical injury—35% or more; or

(B) in the case of psychiatric injury—30% or more.

(4a) Before bringing an interim decision to an end under subsection (4)(b)(ii), the Corporation must—

(a) give the worker at least 3 months written notice of its intention to bring the interim decision to an end under that subsection; and

(b) give the worker a reasonable opportunity during that 3 month period to furnish information to satisfy the Corporation that it is appropriate for the interim decision to continue.

No. 6. Clause 6, page 5, after line 26—Insert:

(2a) Section 22—after subsection (8) insert:

Note—

The Parliament confirms that this subsection is to be interpreted and applied in accordance with the principles enunciated in the reasons of the Full Court of the Supreme Court in Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17.

(2b) Section 22—after subsection (9) insert:

(9a) For the purposes of this section, an assessment (or parts of an assessment) may be undertaken by more than 1 accredited medical practitioners and their assessments combined so as to create 1 assessment.

No. 7. Clause 6, page 5, lines 27 and 28 [clause 6(3)]—Delete subclause (3) and substitute:

(3) Section 22(10) and (11)—delete subsections (10) and (11) and substitute:

(10) Subject to subsections (12) to (15) (inclusive), if—

(a) a worker has had a whole person impairment assessment under this section; and

(b) another impairment from the same injury or cause develops or manifests itself after that assessment,

then that other impairment—

(c) will be assessed separately; and

(d) —

(i) will not be combined in any respect (whether under this section or sections 56 or 58) with the impairment or impairments that have already been assessed; but

(ii) may be combined with any other impairment from the same injury or cause that has also developed or manifested itself after the earlier assessment.

Example—

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.

No. 8. Clause 7, page 5 lines 36 to 39—Delete the clause

No. 9. New clause, page 6, after line 3—Insert:

8A—Amendment of section 48—Reduction or discontinuance of weekly payments

(1) Section 48(2)—after paragraph (h) insert:

(ha) the worker—

(i) has been receiving weekly payments on the basis of an interim decision under section 21(3); and

(ii) the interim decision is brought to an end under section 21(4)(b)(ii); or

(2) Section 48—after subsection (10) insert:

(10a) If the Corporation is acting under subsection (2)(ha)—

(a) the notice under subsection (6) must be given as soon as practicable after the decision is made (but not necessarily before it takes effect); and

(b) subsection (10) does not apply.

No. 10. New clause, page 6, after line 14—Insert:

9A—Amendment of section 54—Redemptions—liabilities associated with medical services

Section 54(2)—delete subsection (2)

No. 11. Clause 10, page 6, after line 20—Insert:

(2a) Section 56(5)—delete subsection (5) and substitute:

(5) If a worker suffers 2 or more impairments arising from the same injury or cause, those impairments will be assessed together and combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines).

No. 12. Clause 10, page 6, line 21 to page 7, line 11 [clause 10(3)]—Delete subclause (3)

No. 13. Clause 10, page 7, after line 11—Insert:

(3a) Section 56(8) and (9)—delete subsections (8) and (9) and substitute:

(8) Only 1 claim may be made under this Division in respect of any impairments that have been combined as provided by section 22 and this section (and any impairment or impairments that are not combined under section 22 will not be combined under this section).

No. 14. Clause 11, page 7, after line 23 [clause 11, inserted section 56A]—After subsection (1) insert:

Note—

A lump sum payment will be calculated in accordance with section 56, subject to the operation of this section.

No. 15. Clause 11, page 7, line 29 [clause 11, inserted section 56A(3)]—Delete ‘the election takes effect’ and substitute:

the lump sum payment is made

No. 16. Clause 11, page 7, lines 30 and 31 [clause 11, inserted section 56A(3)(a)]—Delete ‘within the meaning of section 24(1)’

No. 17. Clause 11, page 7, line 31 [clause 11, inserted section 56A(3)(a)]—After ‘for the work injury’ insert:

or injuries for which the election is made

No. 18. Clause 11, page 7, line 32 [clause 11, inserted section 56A(3)(b)]—Delete ‘for the work injury’ and substitute:

for—

(i) the work injury or injuries for which the election is made; or

(ii) another impairment arising from the same cause as the work injury or injuries for which the election is made.

No. 19. Clause 11, page 7, lines 33 to 37 [clause 11, inserted section 56A(4)]—Delete subsection (4)

No. 20. Clause 11, page 8, lines 10 to 17 [clause 11, inserted section 56A(7)]—Delete subsection (7) and substitute:

(7) If a worker makes an election under this section, the worker is entitled to continue to receive weekly payments under section 41 as a seriously injured worker until the day immediately preceding the day on which the lump sum payment under section 56 in respect of the election is paid.

No. 21. Clause 11, page 8, lines 18 to 26 [clause 11, inserted section 56A(8)]—Delete subsection (8) and substitute:

(8) There will be a reduction of the lump sum payable under section 56 to a seriously injured worker who makes an election under this section by the amount of any weekly payments made to the worker after the end of the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with subsection (7) after—

(a) in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under this section; or

(b) in any other case—the day on which the election is received by the Corporation.

No. 22. Clause 11, page 8, line 39 [clause 11, inserted section 56A(11)]—After ‘for the purposes of subsection (5)(b)(i)’ insert:

if satisfied that the election is in the best interests of the worker

No. 23. Clause 11, page 9, line 19 [clause 11, inserted section 56A(17)]—After ‘to an’ insert:

application for an

No. 24. New clause, page 9, after line 24—Insert:

11A—Amendment of section 58—Lump sum payments—non-economic loss

(1) Section 58(6)—delete subsection (6) and substitute:

(6) If a worker suffers 2 or more impairments arising from the same injury or cause—

(a) those impairments will be assessed together and combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines); and

(b) the worker is not entitled to receive compensation by way of lump sum under subsection (4) in respect of those impairments in excess of the prescribed sum.

(2) Section 58(9) and (10)—delete subsections (9) and (10) substitute:

(9) Only 1 claim may be made under this Division in respect of any impairments that have been combined as provided by section 22 and this section (and any impairment or impairments that are not combined under section 22 will not be combined under this section).

No. 25. Clause 14, page 10, lines 35 and 36 [clause 14, inserted paragraph (ba)]—Delete ‘not to extend the period of operation of an interim decision under section 21(4b)’ and substitute:

to bring an interim decision under section 21(3) to an end under section 21(4)(b)(ii)

No. 26. New clause, page 10, after line 36—Insert:

14A—Amendment of section 115—Powers of Tribunal on application

Section 115(1)—before paragraph (a) insert:

(aa) in the case of an application for an assessment of whole person impairment under Part 2 Division 5—give directions the Tribunal considers necessary to expedite the assessment; or

No. 27. Schedule 1, clause 1, page 11, after line 13 [Schedule 1, clause 1(1)]—Insert:

Category 1 seriously injured worker means a worker who, at any time during the period appointed by proclamation for the purposes of this definition (the Category 1 designated period), is (or becomes) an interim seriously injured worker;

Category 2 seriously injured worker means a worker who, at any time during the period appointed by proclamation for the purposes of this definition, being a period commencing immediately after the end of the Category 1 designated period, becomes an interim seriously injured worker;

compensating authority means the Corporation or a self-insured employer;

No. 28. Schedule 1, clause 1, page 11, lines 16 to 19 [Schedule 1, clause 1(1)]—Delete the definition of designated worker and substitute:

designated worker means a worker who, in relation to a physical injury, has been assessed to be a seriously injured worker under Part 2 Division 5 of the principal Act;

interim seriously injured worker means a worker who is taken to be a seriously injured worker under section 21(3) of the principal Act pending an assessment of permanent impairment under Part 2 Division 5 of the principal Act;

No. 29. Schedule 1, clause 1, page 11, after line 20 [Schedule 1, clause 1(1)]—Insert:

relevant day means a day appointed by proclamation as the relevant day for the purposes of the provision in which the term is used.

No. 30. Schedule 1, clause 2, page 12, line 3 [Schedule 1, clause 2(3)]—Delete ‘trauma’ and substitute:

cause

No. 31. Schedule 1, clause 2, page 12, lines 8 to 12 [Schedule 1, clause 2(4)]—Delete subclause (4) and substitute:

(4) For the purposes of this clause, the final examination relating to a worker by an accredited medical practitioner is the last attendance when the accredited medical practitioner needs to see the worker in order to enable the accredited medical practitioner to complete and issue the permanent impairment assessment report under section 22 of the principal Act (even if that report is subsequently substituted, supplemented or expanded).

Example 1—

If an accredited medical practitioner sees a worker, and then following that appointment determines that they do not need to see the worker again, then the final examination will be the date of that last attendance. This is even if the accredited medical practitioner determines they do not need to see the worker again but does require an x-ray or other test to be obtained.

Example 2—

If an accredited medical practitioner sees a worker, and then following that appointment determines they need further tests and will need to see the worker again following those tests, then the final examination will be the date of that further attendance (as long as the accredited medical practitioner does not need to see them again in order to complete and issue the permanent impairment assessment report under section 22 of the principal Act).

No. 32. Schedule 1, clause 3, page 12, line 13—Delete the heading to clause 3 and substitute:

3—General provision and thresholds—seriously injured workers

No. 33. Schedule 1, clause 3, page 12, lines 15 and 16 [Schedule 1, clause 3(a)]—Delete paragraph (a) and substitute:

(a) a worker who has been assessed to be a seriously injured worker under Part 2 Division 5 of the principal Act immediately before the designated day will continue to be regarded as a seriously injured worker; and

No. 34. Schedule 1, clause 3, page 12, after line 19 [Schedule 1, clause 3]—Insert:

(2) In the case of a Category 1 seriously injured worker—

(a) in relation to an assessment of the degree of whole person impairment made before the designated day—after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is 30% or more under Part 2 Division 5 of the principal Act; and

(b) in relation to an assessment of the degree of whole person impairment made on or after the designated day—after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is—

(i) in the case of psychiatric injury—30% or more under Part 2 Division 5 of the principal Act; and

(ii) in the case of physical injury—35% or more under Part 2 Division 5 of the principal Act.

(3) In the case of a Category 2 seriously injured worker, in relation to an assessment of the degree of whole person impairment made on or after the designated day, after the assessment is made the worker will be regarded as a seriously injured worker for the purposes of the principal Act if the worker is assessed to have a degree of whole person impairment that is—

(a) in the case of psychiatric injury—30% or more under Part 2 Division 5 of the principal Act; and

(b) in the case of physical injury—35% or more under Part 2 Division 5 of the principal Act.

No. 35. Schedule 1, clauses 4 and 5, page 12, line 20 to page 13, line 25 [Schedule 1, clauses 4 and 5]—Delete clauses 4 and 5 and substitute:

4—Elections—seriously injured workers

(1) This clause applies in relation to the operation of section 56A of the principal Act, as enacted by this Act.

(2) If a worker is a designated worker before the designated day, the worker may make an election under section 56A on or after the relevant day and subclause (4) will apply in relation to the worker.

(3) If—

(a) a worker is a Category 1 seriously injured worker; and

(b) the worker is assessed to have a degree of whole person impairment that is 30% or more under Part 2 Division 5 of the principal Act; and

(c) that assessment is made before the designated day,

the worker may make an election under section 56A and subclause (4) will apply in relation to the worker.

(4) If this subclause applies in relation to a worker, section 56 (as amended by this Act) and section 56A (as enacted) of the principal Act will apply subject to the following modifications and qualifications:

(a) the age factor (AF) applying in relation to the worker will be taken to be the worker’s age at the date of the election rather than the relevant date as it applies in relation to the worker under section 5 of the principal Act;

(b) the total payment under section 56 that the worker can receive cannot exceed the prescribed sum applicable for 29% whole person impairment;

(c) section 56A(8) will apply so that the only amounts to be deducted are weekly payments made to the worker under section 41 of the principal Act where—

(i) the payments are made on or after the designated day under this subclause and before the date of the election; and

(ii) the payments are made after the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with section 56A(7) after—

(A) in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under section 56A; or

(B) in any other case—the day on which the election is received by the Corporation under section 56A.

(5) If a worker—

(a) is a Category 1 seriously injured worker who is assessed to be a designated worker on or after the designated day under subclause (3); or

(b) is a Category 2 seriously injured worker,

the worker may only make an election under section 56A if the worker is assessed to have a degree of whole person impairment that is 35% or more under Part 2 Division 5 of the principal Act and, in the case of a Category 1 seriously injured worker, subclause (6) will apply in relation to the worker.

(6) If this subclause applies in relation to a worker, section 56 (as amended by this Act) and section 56A (as enacted) of the principal Act will apply subject to the following modifications and qualifications:

(a) the age factor (AF) applying in relation to the worker will be taken to be the worker’s age at the date of the election rather than the relevant date as it applies in relation to the worker under section 5 of the principal Act;

(b) section 56A(8) will apply so that the only amounts to be deducted are weekly payments made to the worker under section 41 of the principal Act where—

(i) the payments are made on or after the designated day under this subclause and before the date of the election; and

(ii) the payments are made after the period of 104 weeks from the date on which the incapacity for work first occurs, other than weekly payments made in accordance with section 56A(7) after—

(A) in the case of an election made by a 50% or more WPI worker—the day on which the relevant application is referred to the Tribunal under section 56A; or

(B) in any other case—the day on which the election is received by the Corporation under section 56A.

(7) Despite any other provision, a worker who is a seriously injured worker as a result of an injury that is attributable to a trauma that occurred before 1 July 2015 is not entitled to make an election under section 56A of the principal Act.

5—Interim decisions under section 21(3) of Act

(1) This clause applies in relation to the application of the amendments made by section 5(2) of this Act.

(2) In this clause, a reference to the relevant provision is a reference to subsection (4)(b)(ii) of section 21 of the principal Act as enacted by section 5(2) of this Act.

(3) The amendments made by section 5(2) of this Act apply as follows:

(a) in relation to a Category 1 seriously injured worker—

(i) the principal Act as amended by section 5(2) of this Act will apply from the designated day under this subparagraph; and

(ii) until the designated day under this subparagraph, the amendments will apply as if a reference to 35% in the relevant provision were a reference to 30%; and

(iii) on and after the designated day under this subparagraph, in relation to a worker with a physical injury, the compensating authority may also act under the relevant provision if it appears that the worker's likely degree of whole person impairment is not likely to be 35% or more;

(b) in relation to a Category 2 seriously injured worker—the principal Act as amended by section 5(2) of this Act will apply from the designated day under this paragraph.

No. 36. Schedule 1, clause 6, page 14, lines 1 to 10 [Schedule 1, clause 6(4) and (5)]—Delete subclauses (4) and (5) and substitute:

(4) Despite any other provision of the principal Act or this Act, in the case of a worker whose injury or injuries have stabilised, and who on or after the commencement of this subclause gives a written notice to the compensating authority selecting a particular accredited medical practitioner to undertake an assessment under section 22 of the principal Act of the degree of impairment resulting from the injury or injuries, the Return to Work Scheme Impairment Assessment Guidelines published March 2015 apply in relation to the injury or injuries rather than the version of the Impairment Assessment Guidelines applying immediately before the commencement of this subclause, unless the Return to Work Scheme Impairment Assessment Guidelines published March 2015 already applied, in which case, that version will continue to apply.

No. 37. Schedule 1, clause 7, page 14, after line 16 [Schedule 1, clause 7]—Insert:

(2) Subclause (1) does not apply in relation to the Impairment Assessment Guidelines that apply under clause 6(4).

No. 38. Schedule 1, clause 8, page 14, lines 17 to 19 [Schedule 1, clause 8]—Delete clause 8 and substitute:

8—Supplementary income support

The amendment made to the principal Act by section 8 of this Act applies in relation to surgery approved by a compensating authority—

(a) before the designated day in relation to surgery that is conducted on or after the designated day; or

(b) on or after the designated day.

Consideration in committee.

The Hon. J.K. SZAKACS: I move:

That the Legislative Council's amendments be agreed to.

Briefly, this bill is returned from the Legislative Council with a significant number of amendments from both the government and the crossbench. On the part of the government, these amendments have been the product of extensive consultation with interested stakeholders, including business groups, trade unions and legal practitioners. The government also received detailed written submissions from groups including the Law Society of South Australia, the Australian Lawyers Alliance and Lawyers for Workers.

ReturnToWorkSA has advised that none of the amendments incorporated into the bill, including those accepted from the crossbench, will materially increase the costs or liabilities of the scheme, and will not put upward pressure on the average premium rate. The amendments adopted in the Legislative Council make the drafting of the bill clearer, and make the bill operate in a way that is fairer to injured workers and reduces the scope for future legal disputes over the interpretation of the bill. Key features of these amendments include:

expressly codifying the Summerfield decision;

fairer rules for the interim seriously injured workers who cannot yet undertake their permanent impairment assessments;

changes to ensure seriously injured workers who accept a lump sum payment under section 56A are not disadvantaged compared with those other workers who receive lump sum compensation;

ensuring that the language for the combination of impairments is consistent between key provisions dealing with permanent impairment assessment;

revoking the second edition impairment assessment guidelines published by the former Liberal government and replacing them with the former first edition guidelines for future assessments; and, finally,

clearer transition provisions.

At this stage, I wish to place on the record the government's thanks to all those stakeholders for their constructive contributions during the development of these amendments.

Mr COWDREY: In my contribution to this committee stage, I want to reiterate the view shared by the opposition and, I believe, the crossbench from the other place as well, that the process to get to this point has been absolutely shambolic. There is no other way to describe it.

If we walk through the process of how we got here today, we had the original bill that we were told by the ReturnToWork board, by the government, needed to be passed, otherwise the scheme would fall apart. That bill was pulled just after we were told this had to happen. The government then went away and, three days later, introduced another bill to the parliament. Neither of these bills had any real consultation with industry, with injured workers, with unions or with the broader business community prior to their introduction.

We then had the government use their numbers in the lower house—which is their prerogative to do—to pass this bill last sitting week. It moved to the upper house, and there were 30-plus amendments, some of which were operational amendments. We ended up with the bill coming back here with additional crossbench amendments to take us to a point of 38 amendments to the bill being on file.

The minister drew everyone's attention, I think, to the fact that this government have put a premium on retrospective consultation, to consult after the matter, after they introduce bills through this parliament, after they stake their colours to the mast.

I want to make this very clear in terms of this process. When we sat down and had our briefing with ReturnToWork—well after the bill was introduced, may I add—we asked specifically how the government had arrived at this second bill. They walked us through the fact that the government had abandoned the previous bill and that they were then tasked with developing some ideas for cost-saving mechanisms for the scheme. ReturnToWork then made it clear that those ideas were pushed aside and the minister's office had contacted them, providing them with a range of options that the minister's office wanted costed as potential options to make changes to the scheme.

I want to make this very, very clear. This scheme still has an unfunded liability in the order of $400 million to $600 million. The government has admitted that through questioning in the committee stage. The outcomes—these ideas, this bill and the ongoing impact of this bill, and the operation of the scheme moving forward—are on this government. The ongoing impact to workers, to business and to the scheme as a whole is on this government.

The opposition is proud of how we have conducted ourselves through this process, of how we have gone about our business. We consulted. We sought independent advice from the government. This should have been done by the government prior to bringing a bill to this place, if there was any rigour at all to the process that they undertook.

We on this side of the house still have very serious concerns about the ongoing viability of the scheme. The actuary does share some of those concerns; these are identified through their identification of a number of references to risks to the scheme. Through the sensitivities, it is clear that there is the potential for this to increase the break-even premium significantly more than what the government has indicated.

But we understand that the board and the government have made it incredibly clear that rates will rise, that the board will have a meeting, will decide that a rise in rates is necessary—but for this parliament acting. We support the bill on this basis. We support the bill on the basis that Business SA and the business community have offered their support for the bill, but this is not how you draft legislation. This is not how you conduct government. If the Labor Party are going to continue this, to not provide any consultation on bills that they introduce to this place, they will very quickly learn that the South Australian public has very little appetite to see governments legislate in this manner. With that, the opposition indicates its support for the bill.

Motion carried.

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