Seeking to influence claims
Of major note for employers are the two new employer offences that are intended to prevent employers from avoiding the workers’ compensation scheme and allow the Worker’s Compensation Regulator to prosecute non-compliant employers.
The changes mean that employers must:
- not attempt to avoid the workers’ compensation process. Employers are prohibited from giving benefits or causing detriment to injured workers with an intention of persuading the workers from applying for compensation or pursuing entitlements for the injury.
A benefit could include payment of medical bills for a worker, rather than allowing the worker to make a Workcover claim. Such action would be a ‘benefit’ and that a ‘substantial reason’ for doing so would be to influence a worker so as to avoid a claim.
- Provide workers with information statements about the workers’ compensations scheme, before or shortly after employment begins. These statements must comply with regulatory requirements, though employers are exempt from providing a statement if the worker has received one within the last 12 months.
The information statement is yet to be published by WorkCover and will include information about the worker’s right to choose their own treating doctor, and to not have their employer or insurer present during treatment.
Insurers will also be required to give the information statement to workers and employers as soon as possible after a compensation application is lodged.
Wages information timeframe
If an injured worker has an accepted workers’ compensation claim, insurers and employers have new obligations to assist the timely payment of weekly compensation:
- if WorkCover does not have necessary information to calculate a worker’s weekly compensation entitlement, the employer must give the necessary information to WorkCover within five business days of receiving a notice from WorkCover. Penalties may applying including and a penalty payment to WorkCover for any overpayment.
- While waiting for information to calculate a worker’s weekly compensation entitlement, insurers must start paying a basic weekly amount to an injured worker. Implementing a default payment is intended to ease financial stress on injured workers with accepted claims, by providing them with more immediate cash flows.
Suitable duties and rehabilitation
The 2023 Review found that insurers make insufficient enquiries in verifying and supporting rehabilitation and return to work processes as a result there will be greater investigation:
- insurers must form opinions with greater scrutiny when determining if it is practicable for an employer to provide suitable duties. The insurer is not satisfied with an employer’s opinion that it can’t provide suitable duties, the insurer must look further into why the employer considers it not practicable
- insurers must ensure workplace rehabilitation service providers meet requirements prescribed by scheme directions. Workers unhappy with a workplace rehabilitation service provider can request the insurer to engage an alternative provide of the worker’s choice, and the insurer must accommodate this request if feasible;
- insurers must ensure there is a written rehabilitation and return to work plan outlining objectives and steps for the worker to return to suitable duties within 10 business days after claim approval. The plan must be reviewed and modified against new information as it arises and the worker’s recovery progress;
- insurers and employers are prohibited from interfering or acting inconsistently with the worker’s right to choose their workplace rehabilitation provider and doctors for their medical treatment; and
- host employers with a labour hire worker supplied to them must support the rehabilitation and return to work obligations of labour hire providers to assist an injured worker with rehabilitation. This includes providing suitable duties to the injured worker.
Further, given that the frequency of secondary psychological or psychiatric injury claims to injured workers, there new requirements on insurers to take all reasonable steps to minimise this risk.
We expect this will mean greater scrutiny on employers to support the insurer meet this obligation through suitable duties and rehabilitation in the workplace.
Greater coverage of Codes of Practice
Changes to the Act will also allow for new codes of practice will be developed in consultation with stakeholders, which will be reviewed every five years.
These laws expand provisions to allow codes to be made in relation to not just insurers, but to employers and other persons in performing functions, exercising powers or complying the Act.
Further, that the codes may prescribe steps for compliance with offence provisions that require “reasonable steps” to be taken. Failing to take actions in accordance with a code of practice could result in penalties; which have also been increased.
If you would like more information about these changes or would like to discuss, please contact the Workplace Relations Team on 1300 889 198.
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