WORKPLACE LAW
An overview of the changes to the Return to Work Act NATHAN RAMOS, POLICY COORDINATOR, LAW SOCIETY OF SA
T
he Return to Work (Scheme Sustainability) Amendment Act 2022 Act (proclaimed in part on Thursday 28 July 2022) has been the subject of significant media attention and advocacy from stakeholders such as the Society in recent months, with a raft of changes to the Return to Work Act 2014 (SA) to have significant implications for some injured workers in South Australia. The frenzy of media coverage began in early June with the introduction of the Return to Work (Permanent Impairment Assessment) Amendment Bill 2022, which sought to overturn the principle established in Return to Work Corporation of South Australia v Preedy,1 and subsequently confirmed in Return to Work Corporation of South Australia v Summerfield,2 as to the combination of injuries, specifically consequential injuries, to be factored into a total assessment of whole person impairment. The stated reason for this was that an effective reversal of these decisions was urgently required to make South Australia’s workers’ compensation scheme sustainable into the future. Following advocacy by the Society, other legal bodies and Unions, that Bill was withdrawn and the first version of the Bill which ultimately became the Amendment Act was introduced into the House of Assembly on 15 June 2022, and contemplated amendments to the Return to Work Act 2014 (SA) which were far more complex than the earlier proposal. The Government subsequently tabled amendments to its Bill in the Legislative Council, many of which were reflective of the concerns raised by the Society in its submission of 24 June 2022, with the Bill passing on 5 July 2022 with these amendments as well as other amendments tabled by crossbenchers in the Legislative Council. As the dust has settled with the public
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debate and discussion having more or less concluded, this article attempts to summarise some of the key features of the amendments to the Return to Work Act 2014 and their implications. Confirming the Preedy/Summerfield Principle While the Government’s first attempt sought to address the perceived financial sustainability issue by doing away with the combination of injuries principle enunciated in Preedy and Summerfield, the current Bill instead enshrines that principle. Reference was made in the Bill’s second reading speech of 15 June 2022 that the ‘same injury or cause’ test as established in the Summerfield decision would, specifically, “remain the test for combination of impairments under the act.” Despite this reference, the drafting of the Bill itself did not succinctly establish that test to a sufficient level to not give rise to the potential for further test litigation. The Society flagged this concern in its submission noting that the Bill, as it was drafted at that stage, it did not fully reflect the perceived intention to confirm the Summerfield decision. The Society’s suggestions were subsequently followed when the Government amended sections 56 and 58 of the Act to substitute “same injury or cause” for “same trauma”. The Government’s amendments to section 22 also incorporate a direct reference to the Summerfield decision, noting that it is Parliament’s intention that section 22(8) be interpreted and applied in accordance with Summerfield. As a result, amendments to the Act now confirm the principle enunciated in the decisions of Preedy/Summerfield and has (hopefully) put its application beyond doubt. Increasing the WPI threshold to 35 % One key change effected by the Bill is
the increase by five per cent of the whole person impairment (WPI) threshold to constitute seriously injured worker status under the Act. This is achieved via an amendment to section 21 of the Act to clarify that a “seriously injured worker” constitutes a worker whose work injury has resulted in a permanent impairment of 35% or more (rather than 30% as originally specified). Despite this, the WPI remains fixed at 30% or more for those who have suffered psychiatric injuries. Practically, this amendment sets a higher threshold to enliven seriously injured worker status and thereby an entitlement to weekly payments ongoing to retirement age, medical expenses for life and a lump sum payment for noneconomic loss. A range of workers who would have been classified as a seriously injured worker under the Act, prior to the July 2022 amendments, will now not qualify and not be entitled to the range of benefits to which they would previously have been entitled. For those whose work injuries occurred on or after 1 July 2015, this amendment has been accompanied by an entitlement to lump sum compensation for economic loss for those with WPI assessments in the 30% - 34% range. Option to take a lump sum payment under section 56A Those who meet the newly defined seriously injured worker status now have the option to elect to receive a lump sum payment, rather than weekly payments as they would have previously, pursuant to new section 56A. The Society raised some concern at the lack of detail as to how this option would work in a practical sense, in that there was no detail in the initial draft of the Bill about how a lump sum payment would be determined in such a situation.
