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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-23 Daily Xml
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Motions

Impairment Assessment Guidelines

The Hon. T.A. FRANKS (16:07): I move:

That this council condemns the minister for industrial relations for his proposed backdoor changes to the impairment assessment guidelines, which will deny even more injured workers their rights and access to fair compensation.

I rise today to condemn the attempt of this Treasurer, in his role as minister for industrial relations, to sneak through quite substantial and significant changes to the impairment assessment guidelines under the Return To Work Act 2014. I am sure all of us here have been contacted by the many concerned workers, lawyers and medical practitioners who have been horrified—and rightly so—by the changes that are proposed.

Minister Lucas and ReturnToWorkSA are trying to make significant changes to the impairment assessment guidelines. Those are the guidelines that are used under the act to assess compensation entitlements for injured workers. It is already difficult and often traumatic for those injured workers to receive fair compensation under our current scheme. These proposed changes, however, that are sneakily being pushed through, will mean even more people will miss out on the very help and compensation that they actually deserve.

The proposed changes to the independent assessment guidelines are being rushed without oversight and they suffer from a severe lack of meaningful consultation. They will result in harsh and unreasonable results for those injured workers of our state. They were circulated to medical practitioners, but not to legal firms that regularly represent those injured workers and their families. A consultation paper was sent out to a tiny handful of stakeholders on 28 May this year. They have only until the end of this week to provide feedback on these significant changes to the current guidelines.

While the consultation paper was dated 28 May, many affected parties, and certainly their legal representatives, actually only heard of the proposed changes much later than that 28 May date. I particularly note that the Australian Lawyers Alliance only found out about these changes last week, and today is 23 June. I agree with the Australian Lawyers Alliance and their concerns that it is 'not appropriate or in the spirit of the Act that such widespread changes be made under the guise of amendments to the guidelines'. I thank the South Australian ALA president for her response and information to me.

So what are these changes? There is a total of 72 proposed changes and I will go through some of the worst ones. The key change is that many workers will now no longer meet the 5 per cent whole person impairment (WPI) threshold so will no longer be entitled to lump sum compensation for the injuries that they have sustained. It will also be more difficult to receive lump sum compensation for workers who have sustained the most common work injuries, such as to the neck, lower back, elbows, arms, legs and knees. Not only will these be harder to get but the lump sum entitlements for serious injuries to the neck, lower back, hips and knees will be substantially reduced.

The PRESIDENT: Order! Honourable members should not have conversations in the line of sight of the member on her feet.

The Hon. T.A. FRANKS: Classification as a seriously injured worker will be much more difficult to achieve. Many workers who have been prevented from working will now also no longer meet the 30 per cent whole person impairment threshold that classifies them as a seriously injured worker. Even if these workers can no longer return to their employment, their income payments will stop after two years.

The impairment ratings for back and neck injuries, which were already rated harshly, will be reduced, meaning a worker can effectively never reach the 30 per cent whole person impairment rating threshold even for the worst back injury imaginable. It is even harder to achieve a whole person impairment rating that reflects a worker's injuries, even a little bit, as now there will be a new requirement for a minimum mandatory one-tenth deduction for unrelated and/or pre-existing injuries, even if the pre-existing condition or injury was asymptomatic. This is unimaginably cruel and I will outline further in a moment just what that looks like.

Another concern is that some of these changes—and some legal practices have raised this with me—appear to contravene the act itself, ensuring that it will no longer provide fair compensation for work-related injuries nor would the scheme be operating on a fair basis. The proposed changes also ensure that any impairment due to the side effects of pain medication, which are reversible upon ceasing, does not qualify for an impairment rating. This is heartless.

So what? Workers should choose between being in pain or potentially being able to access fair compensation? What a cruel, cruel choice that would be, but that is what it looks like to me: cruelty. What if an injury will require years-long or lifelong pain medication as part of its management or rehabilitation? Pain medication can have some serious side effects and this should be recognised not ignored.

Finally, the other significant change is that the proposal would limit the types of doctors who can make these assessments, precluding many South Australian doctors who have been performing these assessments for many years from continuing to do this work. Instead, ReturnToWorkSA will be looking to doctors who, by and large, no longer practise medicine, many of whom are interstate. But what is particularly devious about these changes, about this approach, is that under the guise of providing clarity this minister and ReturnToWorkSA are harming workers to benefit themselves. I quote the feedback that I have been provided by Duncan Basheer Hannon Lawyers:

The proposed IAGs, presumably prepared under this sub-section, do not assist injured workers subject to the Return to Work Act 2014 (SA) ('the Act') and instead, focus too heavily on the economic operation and financial enrichment of the Corporation, to the detriment of injured workers. We note that the [ReturnToWorkSA] scheme was 102% funded, well within the Board target range of 90%-120%, according to the [ReturnToWorkSA] Annual Report of 2019-20. As the Chairman and CEO say themselves in their annual report, the [ReturnToWorkSA] scheme was $122M better off than the previous financial year.

So let's take stock so far. These changes do not benefit injured workers. They have not received sufficient oversight or review, and potentially they may even contravene the act itself. But there is more, and it is worse. Some of the new requirements are not just unnecessary but are uncaring towards the injured worker to the point that they border on cruel.

For example, let's talk about peripheral nerve injuries. Medical doctors have raised concerns that the proposed changes will require assessors to rate impairments using investigations or tools that have not been validated by medical science. It is proposed that the assessment of peripheral nerve injuries can only be done using nerve conduction studies.

However, it is well known that these studies have a high false negative reading rate, such as 50 per cent for the ulnar nerve in the arm, resulting in no impairment being recognised for the worker despite them having a significant injury. Workers with peripheral nerve injury will have to wait at least 12 months, as well, before they can access any lump sum entitlement that they may have, and no explanation is provided as to why they need to wait so long.

Another example is the new requirement for injured workers to wait at least 18 months after an initial diagnosis of complex regional pain syndrome before they might be able to access any lump sum entitlements they have. Again, there is no explanation as to why the wait needs to be so long. For context, that is longer than the maximum medical improvement requirement. The existing criteria for CRPS was already extremely difficult for injured workers to satisfy, and this change simply makes it harsher.

I have been contacted by many doctors who have raised concerns that some of the proposed changes are 'medical fictions'. If implemented, they would potentially reduce the rateable impairments and accordingly the entitlements of injured workers in a number of contexts. For example, it is a medical fiction to change the guidelines in respect of iatrogenic—that is, medication induced—injuries, including claims for dental and upper and lower intestinal tract injuries where it is the view of ReturnToWorkSA that medication should not be regarded as consequential injuries to be combined as arising from the same injury, cause or trauma.

As I have covered previously, the impact of taking medication on that injured worker, that person (which I wish the minister would recognise them as) who is an injured worker and who needs to take that medication because of their injury, can be very serious. It makes no sense to discount the impacts of that.

Another fiction, another cruel, new requirement is to impose mandatory deductions for pre-existing or unrelated conditions and injuries. It is even more insidious than it sounds. What we are talking about here is a condition or injury that has no regular impact on the worker's ability to undertake the work, and that is often symptomatic, being used to deny them fair compensation for their workplace injury.

As if the mandatory minimum one-tenth deduction was not enough, there is more. If there is X-ray evidence justifying a greater deduction on top of the minimum mandatory deduction for a pre-existing and/or unrelated injury, including if a worker's body is completely asymptomatic, that greater deduction will be applied even if it results in the worker receiving nothing.

These deductions can occur for things you would never even think you could possibly count. For example, as medical evidence suggests that every adult has degeneration of their bones, it is likely that any worker over the age of 30 will have a 10 per cent deduction even without any symptoms of that, and indeed many who are potentially older will face a greater deduction.

The changes are a clear overreach by this minister, Minister Lucas, the minister for industrial relations. The act allows for deductions but only where there is a previous impairment. Asymptomatic degeneration or asymptomatic arthritis, as an example, are not impairments, yet these changes treat them as such.

So what will these changes look like for South Australian workers? As members of this council and this parliament we have all been provided, I believe, with a wealth of examples in our inboxes, but I am not sure if any of this is getting through to the minister in charge of this scheme, so I will walk all of us through just some examples of what these proposed changes will mean for South Australian injured workers.

Let's consider a full-time nurse who badly injures her neck and also has a nerve injury affecting the use of her arm. She has fusion surgery, but that fails, and then she is left with nerve pain down the arm. On the current guides, the impairment would be assessed as a 31 per cent to 33 per cent whole person impairment. On the proposed guidelines, the impairment will be 26 per cent to 28 per cent whole person impairment.

The requirement to deduct 10 per cent of the impairment for a pre-existing condition, such as the degeneration of bones, will mean that the majority of workers who are 30 to 50 years old (or older) will wear a 10 per cent deduction for each impairment even if there were no symptoms or impact on their day-to-day lives at all before their workplace injury.

An example of the significance of this will mean that a person who suffered a knee injury, requiring knee replacement surgery, which results in a poor outcome, and who would normally be assessed at a 30 per cent whole person impairment, would have their impairment reduced by 10 per cent. On this example, no accredited assessor could exercise clinical judgement to avoid reducing the impairment, even though prior to the work injury the worker was fully fit and functional with no symptoms.

A worker with a previously asymptomatic condition, including arthritis, must have a deduction applied, notwithstanding that the condition was entirely asymptomatic. If a worker were to have their teeth damaged or their mouth injured, the new table in the proposed changes to the impact assessment guidelines would only consider the injury or damage in terms of that person's ability to chew or consume food. No consideration is given to the other functions of teeth and how damage to them might affect things such as that person's speech or appearance.

One of the crueller changes in a litany of cruel changes relates to how the guidelines would treat surgery and scarring. One of the new requirements is that if there are multiple claims, the scars relating to each claim must be assessed chronologically and any scarring from the previous claim must be deducted as pre-existing. As if this was not absurd enough on its own, surgical scars are disallowed for compensation.

For example, in a case where a person has, say, a meniscectomy (the surgical removal of all or part of their torn meniscus)—which I should be able to say better because I have had that—they will be assigned a 4 per cent whole person impairment. The lack of acknowledgement of the resultant scarring means that a person cannot reach the 5 per cent threshold for compensation, despite this clearly being a serious injury.

Similarly, if we consider the case where a tradesperson is working with a fractured knee resulting in a trauma to the joint requiring surgery and has ongoing restriction of movement, in the current guidelines they could have the movement in their knee measured as well as the resultant scarring and would more likely than not have an impairment greater than 5 per cent whole person impairment. In the proposed guidelines, their restricted movement and their scarring will not be included and they will have an impairment below that 5 per cent threshold. On this example, no accredited assessor could exercise clinical judgement to rate the impairment at 5 per cent or above.

I hope the council can now see that, overwhelmingly, the changes will result in lowering impairments and they will require doctors to adopt a rating method that ensures a much lower percentage impairment than is currently the case. We already know that this scheme is quite harsh in its operations. This eradicates their current ability to apply expert medical judgement and will almost certainly result in unjust outcomes for people with valid, permanent and often debilitating impairments.

I urge this council to stand with the Greens and with injured workers and those who care for them and represent them and condemn not only these changes but this farce of a process and this failure of a minister. This is surely an overreach on the part of Minister Lucas and of ReturnToWorkSA. I am not interested in hearing that this is technically allowable under the act as it stands. That does not make it right or good and it certainly does not make any changes that will help our injured workers. I commend the motion.

Debate adjourned on motion of Hon. D.G.E. Hood.

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