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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-08-25 Daily Xml
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Bills

Return to Work (Impairment Assessment Guidelines) Amendment Bill

Introduction and First Reading

The Hon. I. PNEVMATIKOS (15:58): Obtained leave and introduced a bill for an act to amend the Return to Work Act 2014. Read a first time.

Second Reading

The Hon. I. PNEVMATIKOS (15:59): I move:

That this bill be now read a second time.

I rise today to speak on the Return To Work (Impairment Assessment Guidelines) Amendment Bill 2021. The bill I am introducing today focuses on section 22 of the act regarding the Impairment Assessment Guidelines and solely arises as a result of recent actions and decisions made by the Treasurer to change these guidelines.

The Impairment Assessment Guidelines play an integral role within the Return To Work scheme assessing the level of disability affecting workers as a result of workplace injury and accident. These guidelines are used by accredited doctors, who are required to use these guidelines to determine the nature and extent of a worker's level of injury for the purposes of lump sum compensation. It is one means of at least attempting to address the effects of injury and accident and making some effort to redress those impacts. The intent of the guidelines is to provide for an objective, fair and consistent method of assessing permanent impairment arising from a work injury, resulting in a fair and equitable outcome for all injured workers and businesses.

Currently, under division 5, section 22(4)(f) of the Return to Work Act, the minister responsible may, from time to time, amend or substitute the Impairment Assessment Guidelines. As many, if not all, in this chamber would be aware, ReturnToWorkSA, acting for the Treasurer, proposed extensive changes to the Impairment Assessment Guidelines. Yesterday, those changes were gazetted and announced by the Treasurer. These changes were presented as according to the Return to Work Corporation 'to provide improved clarification and consistency of assessments' and to make for a 'fairer scheme for workers and employers'. However, no-one I spoke to regarding these changes shared that view.

In mid-June, I was contacted by worker's compensation lawyers and doctors about the changes, as initially proposed by the Return to Work Corporation on behalf of the Treasurer. After those initial conversations, I met with an extensive range of people working in worker's compensation, including around 60 lawyers from plaintiff law firms, the Lawyers for Workers group, Australian Lawyers Alliance, many doctors, specialists, SA Unions and almost all unions with offices in South Australia and workers to discuss the proposed changes.

Every single person I spoke with raised grave concerns that these changes would result in workers' rights being taken away and further confusion and instability to the Workers Compensation Scheme. My consultation with these groups uncovered the various concerns with the changes and brought to light the extensive, uninformed and ill-conceived proposal for change. The reality is that the changes proposed are contrary to the rhetoric. They are extensive and will significantly reduce entitlements and supports available to workers who suffer injury or disease.

The Treasurer explained to us in this chamber that his changes to the guidelines would not affect those percentage thresholds, namely 5 per cent and 30 per cent whole person impairment. The Treasurer assured us that the goalposts in that regard would not change, and that is true, but he omitted to explain that the rules of the game were significantly changing.

The proposed changes targeted three main cohorts of workers. The first is those who have a minor disability and meet the 5 per cent threshold of whole person impairment assessment. The proposed changes effectively erode that 5 per cent threshold, making it impossible for many workers to receive lump sum compensation for a variety of injuries, including those to the knees, arms, hips, ankles and wrists.

For example, if a tradesperson fractures their knee whilst in the course of their employment and this results in a trauma to the joint requiring surgery, and the worker continues to experience ongoing restrictions of movement, this disability will establish an entitlement to lump sum compensation. Under the previous guidelines, the existing guidelines, a worker could have the movement in his knee measured as well as his scarring assessed as part of the impairment assessment, and this would reach an impairment rating of 5 per cent whole person impairment.

In the new gazetted guidelines their restricted movement is assessed; however, scarring is not incorporated in the assessment and any asymptomatic wear and tear is also deducted from the impairment assessment. This means that any asymptomatic wear and tear that most of us over 30 years of age have would be incorporated into that assessment and deducted. This renders it impossible for workers to meet the 5 per cent threshold and therefore have no entitlement to compensation.

On the other end of the scale, those workers who have serious injury, with a whole person impairment of 30 per cent or more, under the current system a worker with a disability of 30 per cent or more would be classified as seriously injured. As a seriously injured worker they would be entitled to claim ongoing medical and treatment costs as required, and would be able to claim income support if and when they are unable to work.

For example, a full-time nurse who injures her neck and suffers a nerve injury, which affects the use of her arm as a result of failed spinal fusion surgery, on the current guidelines would have an impairment rating of 31 to 33 per cent whole person impairment. On the new guidelines the impairment would fall short of the 30 per cent figure, and she would have a rating of 26 to 28 per cent whole person impairment.

So the Treasurer is correct in saying that the 30 per cent threshold is not changed. It just means that fewer workers will be entitled to compensation because of the obstacles put in place by these guidelines to prevent them from receiving that entitlement as envisaged in the act. Thirdly, workers with pre-existing injuries or asymptomatic injuries will incur a deduction with no limits, as long an assessment does not reach less than zero per cent. The new guidelines' requirement for an additional discount or deduction for pre-existing asymptomatic conditions means that workers will be doubly penalised.

The Return to Work Corporation and the government do not want to see negative or minus percentage assessment. I understand that, because logically a negative assessment potential would mean that the worker owes a debt to the Return to Work Corporation as a result of a workplace injury or accident that a worker may have suffered. In essence, what this provision does is reduce a worker's entitlement by having regard to an injury or condition that not even the worker was aware they had that supposedly pre-existed their work injury.

It further relegates anyone over 30 years of age, who has normal wear and tear of joints and muscles—not to mention those who are working in hard labouring jobs—that they be penalised and subject to a greater deduction. No workers compensation scheme in Australia that I am aware of penalises workers with a double deduction. Just as Return to Work had stated, the Treasurer in his ministerial statement yesterday assured the parliament these changes were not wholesale and that the advice he was given was taken seriously. But there was much doublespeak, and the insult to workers continues.

The gazetted impairment guidelines merely muddy the waters and use clever language to hide the true changes. The rhetoric does not match the reality. These new Impairment Assessment Guidelines gazetted yesterday add insult to injury, run contrary to the act and erode workers rights in a comprehensive and systematic manner. These gazetted changes go further than those originally proposed by Return to Work for consultation earlier.

These changes pose a double penalty for workers, meaning the workers who were not even aware of underlying health conditions, which they may not even know about, will have their entitlements deducted to a point where they receive no entitlements. Unlike the proposed changes, these gazetted changes place no cap on this double deduction, meaning seriously injured workers could receive nothing at all. These changes are not only unconscionable; it is outright, blatant discrimination, with inadequate and improper consultation.

But wait, it gets better. As required by the act, the Treasurer and the Return to Work Corporation set about consulting on the changes. It appears the government simply went about this to tick a box. The changes that have been made to the guidelines do not reflect the consultation I have had; nor are they supported by constituents I have heard from. Simply, the Treasurer has sought to go ahead with the changes, disregarding the advice provided by professionals in the area, be they doctors, specialists or lawyers.

It has been known within the workers' compensation sphere for some time now that if Return to Work is dissatisfied with an outcome it will generally continue litigation through appeals in order to get the outcome that suits them. A review of the tribunal and Supreme Court decisions and appeals reveals a Return to Work Corporation that is litigious and not prepared to accept the interpretation of the Return to Work Act and case law.

There are myriad cases that I will list, and I urge members to read them: Onody v Return to Work Corporation, Palios v Return to Work Corporation, Canales-Cordova v Return to Work Corporation, Frkic v Return to Work Corporation, Esposito v Return to Work Corporation, Gooch v Return to Work Corporation, Opie v Return to Work Corporation, Return to Work Corporation v Summerfield, and there are many more to illustrate this point.

There is no doubt that there is a substantial amount of case law where Return to Work has not achieved their perceived outcome in the court system and has now elected to make changes to the law with the new Impairment Assessment Guidelines. It is apparent that Return to Work do not like how these laws are being interpreted and these changes are an attempt to rewrite them with no act of parliament or parliamentary scrutiny.

Since 2014, the Return to Work Act has been the subject of much litigation and unnecessary cost to the workers' compensation scheme in an endeavour to interpret the legislation in a way that suits the intent of the Return to Work Corporation. When this parliament passed the Return to Work Act in 2014 it followed extensive consultation and debate. For the last seven years, the courts have been plagued and required to interpret the intent of the law as enunciated in the legislation. What we are seeing is the Treasurer and the Return to Work Corporation bypass the act, bypass adequate consultation and bypass the courts' decisions to create the outcomes they want.

Neither the Return to Work Corporation nor the Treasurer as an executive has the mandate to change the law without the consent of the parliament. They are not lawmakers; they are not interpreters of the law. Parliament makes the laws, and the courts interpret them where there is any degree of confusion or ambiguity.

Yesterday, the Treasurer's statement reflected the Return to Work Corporation's alleged agenda of improving 'efficiency, fairness and transparency'. Well, one would expect that efficiency would also include less litigation and appeals; however, this is completely unfounded. With changes this big in subordinate legislation that go against current case law and the Return to Work Act itself, there is no doubt that litigation will increase. It will cost workers more, cost the corporation more and further pressure the court system, which is already running at capacity.

Through this process, we have not been given any clarity on who has advised Return to Work or the Treasurer to make these changes. During estimates we heard the Treasurer and Return to Work unable to answer who advised on these changes. It is not inconceivable to assume that Return to Work itself created these changes in-house.

I acknowledge that consultation into the changes was broader than what the act stipulates; however, key stakeholders were left out, and these are significant and substantial changes through delegated legislation. This further illustrates my point that this is a backdoor approach to changing legislation without any debate, without any parliamentary scrutiny.

The draft proposed changes were circulated to accredited impairment assessment doctors, as well as several other organisations involved in the Return to Work scheme. No unions, workers compensation lawyers or the public were asked to comment on the proposed changes. In their submission to Return to Work regarding the changes, the Law Society noted the 'organisations representing workers or employees generally such as unions, Business SA and industry groups' were missing from the consultation process.

The Law Society went on to mention specific concerns with the proposed changes, but were particularly critical of the methodology Return to Work and the Treasurer used for the consultation process, making the point that it was substandard in its call for feedback and the time frame for consultation that was presented.

This bill aims to bring due and proper process to this area of the Return to Work Act. Simply, wholesale changes to entitlements, as well as responsibilities under the legislation, cannot be made without parliamentary scrutiny. Just like other rules, subordinate legislation and regulations, changes to the Impairment Assessment Guidelines should be assessed by the appropriate instruments held by the parliament.

The bill also includes a retrospectivity clause, meaning that the changes that have been gazetted would be reversed if this bill were to pass. These gazetted changes are another part of the Marshall government's agenda to erode workers' entitlements without the full scrutiny of the parliament and continues their trend of unvetted changes.

We cannot let these types of sweeping changes be made by one person. The minister may like to hide behind the decisions being completely made by ReturnToWorkSA, but in fact the buck stops with him. The Return to Work corporation is not the legislator and nor should it be.

Workers fought hard for these rights, and with the stroke of a pen Rob Lucas has the power to take away these rights. These are retrograde changes that will hurt people. Let's not go back to a time where there were no protections and no workers compensation scheme at all.

Debate adjourned on motion of Hon. T.T. Ngo.

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