Changes to the Accident Compensation Act 1985

8/3/2019 Changes to the Accident Compensation Act 1985

http://slidepdf.com/reader/full/changes-to-the-accident-compensation-act-1985 1/24

AccidentCompensation ActChanges to the Accident Compensation Act 1985 explained

Edition No. 1March 2010



Introduction 1

Overview of changes 2

Key changes

Workers’ entitlement to compensation 5

Access to entitlements and support 6

Entitlements 8

Supporting injured workers back to work 11

Treatment expenses and accountability o service providers 15

Access to justice or seriously injured workers: common law 16

Decision making and dispute resolution 17

Employer premiums 18

Recovery rom third parties 19

Sel-insurance 20

Contents

WorkSae Victoria is a trading name o the Victorian WorkCover Authority.

While every eort has been made to ensure the accuracy o the inormation

in this document, it does not consider your individual circumstances and isprovided or general inormation only. It should not be viewed as a defnitiveguide to the law. WorkSae cannot be held responsible and extends nowarranties as to the suitability o the inormation or any particular purposeor actions taken by third parties as a result o this inormation.

This publication is protected by copyright.


http://slidepdf.com/reader/full/changes-to-the-accident-compensation-act-1985 3/24WorkSafe Victoria Accident Compensation Act Changes to the Accident Compensation Act 1985 explained 1

This guide has been developed to provide an overview of changes to Victoria’s

workers’ compensation scheme that were passed by the Victorian Parliamentin the Accident Compensation Amendment Bill 2009.

The guide can be used as a reference for employers, injured workers, Agentsand others who are involved in the workers’ compensation scheme and wouldlike to better understand what changes will occur and when.

For more details on how the changes may impact your individual circumstances,visit worksae.vic.gov.au , contact WorkSafe’s Advisory Service on (03) 9641 1444,freecall 1800 136 089 or call your WorkSafe Agent.

Introduction


http://slidepdf.com/reader/full/changes-to-the-accident-compensation-act-1985 4/242 Accident Compensation Act Changes to the Accident Compensation Act 1985 explained WorkSafe Victoria

Who do the changes aect? Summary Date o eect

Workers Entitlements

• Increaseintheno-faultmaximumlumpsumentitlementfor a permanent impairment from $409,200 to $503,000.

• A10%increaseinno-faultlumpsumentitlementsforsomeworkers who are compensated for spinal impairments only.

• Increaseintheno-faultlumpsumentitlementstoworkerswith apermanentpsychiatricimpairmentassessedattheexisting30%whole person impairment threshold, from $13,650 to $68,240.

10 December 2009

Workers Entitlements

• Increasesinweeklypaymentsfrom75%to80%ofpre-injuryincome after workers have received payments for longer than13 weeks.

• Superannuationcontributionsatthesuperannuationguaranteerate(currently9%)forworkersstillreceivingweeklypaymentsafter 52 weeks, calculated as a percentage of the worker’sweekly payments.

• Increasedcompensationforworkersentitledtoovertimeandshiftallowancesbyextendingthetimeforwhichtheseallowancesaretaken into account in the calculation of weekly payments, from26 weeks to 52 weeks.

• Increaseinthestatutorymaximumforweeklypaymentstotwice

Victoria’saverageweeklyearnings,currently$1,760.• Entitlementtoweeklypaymentsforupto13weeksforinjured

workers who have returned to work, but who require surgery fortheir work related injury where they have already received weeklypayments for 130 weeks.

5 April 2010

Family members Payments

• Increaseinthemaximumlumpsumpaymentfordependantsfollowingaworkplacedeathfrom$273,970to$503,000.

• Thesurvivingpartnerwhowaslivingwithaworkeratthetime of death will be deemed to be dependent on the earnings of thedeceased worker.

• Exceptincertaincircumstances,claimscanbedeterminedwithoutthe need to go to court.

• Extendeligibilitytopensionsandlumpsumsfordependentchildren of deceased workers up to the age of 25 who arefull-timestudentsorundertakingafull-timeapprenticeship.

10 December 2009

Overview ofchanges



Overview of changes


Workers Protection against discrimination

• Enhancedprotectionagainstdiscriminationforworkersmaking or pursuing compensation claims.

• Expandedpenaltiesfordiscrimination.

• TheabilitytoseekareviewofWorkSafe’sdecisionnottoprosecute discrimination.

• Anewrightforaworkertobringtheirownactiontoaddressdiscrimination in the Magistrates’ Court.

1 July 2010

Employers Request or inormation• AnemployerwillbeabletorequestfromtheirAgentawrittenstatementofreasonsexplainingwhycertainclaimsforcompensation were accepted or rejected.

5 April 2010

Workers Claims lodgement

• WorkerswillbeabletolloutanelectronicclaimformontheWorkSafewebsiteandsubmititviafaxand,withtheemployer’sconsent, by email.

5 April 2010

Workers Return to work

• Introductionofastagedapproachtotheconsequencesforworkers who do not comply with their return to work obligations.

• WorkSafewilldevelopsupportingmaterialswhichwillclearly set out how to comply with obligations for workers.

1 July 2010

Employers Return to work

• Introductionofsimpleandclearreturntoworkobligationsforemployers, reducing the emphasis on ‘paper compliance’ andfocusing on achieving return to work outcomes.

• Returntoworkinspectorswillcontinuetoprovideassistanceandguidance to employers; however, they will, where necessary, alsohave the ability to issue notices requiring compliance.

• Tougherpenaltiesforemployerswhofailtocomplywiththeirreturnto work obligations.

• IntroductionoftheabilitytoseekareviewofWorkSafe’sdecisionnot to prosecute alleged return to work breaches by employers.

• ‘Host’employerswillberequiredtoco-operatewithlabourhireemployers on the return to work of a worker who is injured while‘on hire’ to the ‘host’.

• WorkSafewilldevelopsupportingmaterialswhichwill clearly set out how to comply with obligations for employers.

• Aninemonthtransitionalperiodwillbeimplementedbetween 1July2010and31March2011toenableemployerswithexistingclaims to adjust to the changes in return to work obligations.

1 July 2010



Overview of changes


Employers Premium

• Therightforemployerstorequestareviewofstatisticalcaseestimates where there are data errors.

• Accesstoaformalinternalandexternalreviewprocessifemployers dispute their premium.

• Regularreviewofpremiumsettingbyanindependentbody.

• Introductionofnewpremiumavoidancemeasuresandrevisedpenalties to encourage premium compliance.

• Changestothedenitionsofremuneration,whichwillmore closelyalignwiththeVictorianpayrolltaxsystemandWorkCoverNew South Wales.

• Abilityfortrusteestoholdmultiplepoliciesforindependentbusinesses run under trusts.

1 July 2010

Workers Dispute resolution

• ConciliationOfcerswillbeabletodirectWorkSafeora self-insurertopaythereasonablecostsofmedicalandlikeexpensesupto$5,000atconciliation.

• Reimbursementofworkers’transportcoststoattendaconciliationconference capped at $50 per conference.

• Reimbursementoflostincomesustainedbyaworkerwhenattending a conciliation conference capped at $350 per day.

5 April 2010

Sel-insurers Sel-Insurance arrangements

• WorkSafehasthediscretiontoallowsubsequentapprovalsofself-insurers(followingtheinitialthreeyearapprovalperiod)for sixyearsforthoseself-insurerswhohavedrivenimprovements in safety, injury management and return to work.

• Self-insurersarenolongerrequiredtoprovideayearlyreporttoWorkSafe of common law proceedings; however, they are requiredtonotifyWorkSafeofanystrategicallysignicantmatters.

• Self-insurers’claimsmanagementpoliciesmustnowbedocumented and provided to their workers and WorkSafe.

• WorkSafeisabletoextendthetermofapprovalfora self-insurerthatisundergoingacorporaterestructure,such as when it acquires or sells a subsidiary company or whereaself-insureristakenoverbyaholdingcompany.

• Aself-insurerisabletomanagetheclaimsofacompany that it acquires.

• Aself-insurerhasmoreexibilityinchoosingthelimitsin its contingent liabilities insurance policy.

1 July 2010

Service providers Controls on proessional conduct

• NewpowersforWorkSafetosuspendpaymentstoaserviceprovider whilst they are under investigation for a breach of theAct and to disqualify service providers from the scheme.

5 April 2010

*Allguresarecurrentasat10March2010



Workers’ entitlement to compensation

Coverage or certain workers

A worker is entitled to compensation if they sustain an injury arising out of, or inthecourseof,employment.Indeterminingwhetherthisentitlementtocompensationexists,thelawsetsoutadenitionofwhoisconsideredaworker.

Inordertoclarifyworkerentitlementsandemployerobligations,particulargroups of workers have been deemed to be workers in the Act.

The Act has been amended to clarify that outworkers and municipal councillors aredeemed workers for the purposes of the Act.

Claims or mental injury caused by stress

TheActexcludesfromcompensationclaimsformentalinjuries(morecommonlyreferred to as stress claims) that arise from an employer’s reasonable managementactions. Such actions might include performance appraisals or disciplinary action.

Thefundamentalsoftheexistingprovisionformentalinjuryclaimshavenot changed;however,theexistingexclusionaryprovisionhasbeenamendedtosimplifythe language and clarify the meaning of ‘management actions’. Five additionalcontemporarymanagementactionshavebeenincludedinthenewdenitionintheAct:

• Appraisal

• Counselling

• Suspensionorstanddown

• Training

• Investigation.

Key changes

• Outworkersaredeemedtobeworkers.

• Municipalcouncillorsaredeemedtobeworkers.

• Thestressexclusionhasbeenamendedbyclarifyingthemeaning of ‘management action’.

Key changes



Key changes

Access to entitlements and support

Access to entitlements

When a worker is entitled to compensation, it is important that they can access theirentitlements simply and quickly.

Changes have been made to the claims process to help make lodging a claim formsimpler for workers and employers and to encourage earlier decision making.

Claims for compensation will be able to be given to or served on an employer moreeasily. An electronic claim form will be available on the WorkSafe website, which willallowaworkertollouttheformelectronicallyandcanthenbesubmittedwith asignaturebyfaxor,withtheconsentoftheemployer,byemail.

ThetimewithinwhichWorkSafeandself-insurersmustmakeadecisionaboutcertainclaimswillbespecied.WorkSafeandself-insurerswillneedtomakeadecision about claims for medical and like services within 28 days, which is thesame as the 28 day timeframe required for determining claims for weekly payments.

Protection against discrimination

Thereformsaredesignedtoimprovetheexistingprotectionsforworkerswhosufferdiscrimination because they have taken steps to pursue a claim for compensation orwhohavenotiedtheiremployer,anyotheremployerorWorkSafeofaninjury.

The reforms will broaden the range of prohibited discriminatory conduct, includingdismissal, altering the position of a worker to their detriment and threatening to

dothesethings.Thereformswillalsoextendprotectionsagainstdiscrimination toprospectiveemployees;forexample,jobapplicants.

Theamendments:

• prohibitawiderrangeofdiscriminationandimposetougherpenaltiesfor proven discrimination

• empowerworkerstorequestthatWorkSafeconsideraprosecutionagainst an employer or prospective employer

• allowworkerstobringacivilactionfordiscriminationagainstanemployer or prospective employer themselves.

Workerswillalsobeableto:

• seekdamagesforthediscriminatoryconduct

• seektobeemployedinasimilarposition• seekpaymentoflostincomeupto12months.



Key changes

Inaddition,itisanoffenceforemployerstorefuseemploymenttoajobapplicant,wherethedominantreasonisthattheapplicanthas:

• givennoticeofaninjury

• takenstepstopursueaclaimforcompensation,or

• compliedwitharequestbyWorkSaferegardinganinvestigationintopotentialbreaches of the Act.

Key changes

• Theprocessforlodgingaclaimformhaschanged.Workerswillbeableto lloutanelectronicclaimform,whichcanbesubmittedwithasignature byfaxand,withtheconsentoftheemployer,byemail.

• WorkSafeandself-insurersmustdetermineliabilityforclaimsformedical andlikeexpensesandweeklypaymentswithin28days.

• Theprotectionsforworkerswhosufferdiscriminationbecausetheyhave takenstepstopursueaclaimforcompensationornotiedofaninjuryhavebeen strengthened.



Key changes

Entitlements

Changes to the Act have resulted in an increase in a number of entitlements thatworkersmaybeeligibletoreceiveasaresultofawork-relatedinjuryorillness.

Currently,workerswhohavesustainedpermanentsignicantimpairmentsmaybeeligibletoreceiveno-faultlumpsumcompensation,knownasimpairmentbenets.

Further,thefamiliesofworkerswhohavediedasaresultofawork-relateddeathmay also be eligible to receive compensation.

The key changes to these forms of compensation are outlined in the table below.

Weekly Payments Previous legislation New legislation

Weekly payment rate ifa worker has receivedweekly payments forlonger than 13 weeks

75%ofpre-injuryincome

80%ofpre-injuryincome

Statutorymaximumfor weekly payments

$1,300 Twice Victoria’s averageweekly earnings,(currently$1,760)

Period for which overtimeand shift allowancesare taken into accountin the calculation of

weekly payments forworkers entitled tothese allowances

26 weeks 52 weeks

Payments or amilymembers ollowingwork-related deaths

Previous legislation New legislation

Maximumlumpsumentitlement fordependants followingawork-relateddeath

$273,970 $503,000

Impairment Benefts Previous legislation New legislation

Maximumno-faultlumpsumimpairmentbenetfor a permanent injury

$409,200 $503,000

No-faultlumpsumimpairmentbenet for a worker who hasa permanent psychiatricimpairmentandsatisestheexisting30% ‘whole person impairment’threshold

$13,650 $68,240

A number of other changes have been made to the Act that are designed to improveentitlements for injured workers and their families.



Key changes

Payments or amily members ollowing work-related deaths

Incertaincircumstances,provisionalpaymentsmaybemadetothedependantsof a deceased worker before an Agent has formally accepted a claim. These paymentscanbemadefor:

• reasonablecostsofburialorcremation,uptoacappedamount(currently$9,300)

• medicalandlikecostsrelatedtotheworker’sinjuryupto$7,500

• familycounselling,upto$5,320

• aweeklypensionforapartner,upto12weeks.

WhereitisappropriatethatWorkSafeexerciseitsdiscretion,thiswillensurefamiliescan receive some payments and do not have to wait for a claim to be processed.

Thechangesalsoextendeligibilitytopensionsandlumpsumsfordependentchildrenofdeceasedworkersuptotheageof25whoarefull-timestudentsorundertakingafull-timeapprenticeship.Childrenofadeceasedworkerwhoarebornafter the worker’s death will now be treated as a dependant of the deceased worker.

Whereadeceasedworkerhasnodependants,non-dependentfamilymembers maybeeligible,incertaincircumstances,tobereimbursedforexpensesthat theyreasonablyincurredasaresultoftheworker’sdeath,iftheseexpenses causedthemnancialhardship.Themaximumamountthatcanbereimbursed will be $30,000 per family.

The surviving partner who was living with a worker at the time of death will bedeemed to be dependent on the earnings of the deceased worker.

Lump sum entitlements will also be able to be determined without the need togo to court, where the dependant is legally represented, is not a minor and is notunder a disability.

Lump sum impairment benefts

Lumpsumimpairmentbenetsforsomeinjuredworkerswhoarecompensatedforpermanentspinalimpairmentsonlyhaveincreasedby10%.

Weekly payments

Superannuation contributions have been introduced at the superannuationguaranteerate(currently9%)forinjuredworkersstillreceivingweeklypaymentsafter 52 weeks. This is calculated as a percentage of the worker’s weekly payments.

Injuredworkerswhoreceiveweeklypaymentsfor130weeksandhavesincereturnedtowork,butwhorequiresurgeryfortheirwork-relatedinjury,maybeentitled to weekly payments for up to 13 weeks.



Key changes

Key changes or:

Families o deceased workers

• Provisionalpaymentsincertaincircumstances.

• Increaseinmaximumlumpsumpaymentfrom$273,970to$503,000.

• Extendeligibilitytopensionsandlumpsumsfordependentchildrenof deceasedworkerswhoarefull-timestudentsorundertakingafull-timeapprenticeship, up to the age of 25.

• Childrenofadeceasedworkerwhoarebornaftertheworker’sdeathwillnow be treated as a dependant of the deceased worker.

• Thesurvivingpartnerwhowaslivingwithaworkeratthetimeofdeathwill

be deemed to be dependent on the earnings of the deceased worker.Injured workers with a permanent impairment

• Anincreaseinno-faultmaximumlumpsumentitlementforapermanentimpairment from $409,200 to $503,000.

• A10%increaseinno-faultlumpsumentitlementsforsomeworkerswithspinalimpairments only.

• Anincreaseinno-faultlumpsumentitlementstoworkerswhohaveapermanentpsychiatricimpairmentassessedattheexisting30%wholepersonimpairmentthreshold, from $13,650 to $68,240.

Long-term injured workers

• Anincreaseinweeklypaymentsfrom75%to80%ofpre-injuryincome after workers have received payments for longer than 13 weeks.

• Superannuationcontributionsatthesuperannuationguaranteerate(currently9%)forworkersstillreceivingpaymentsafter52weeks,calculatedasapercentage of the worker’s weekly payments.

• Extendtheperiodduringwhichovertimeandshiftallowancesaretakenintoaccount in the calculation of weekly payments, from 26 weeks to 52 weeks.

• IncreasingthestatutorymaximumforweeklypaymentsandpensionstotwiceVictoria’s average weekly earnings.

• Entitlementtoweeklypaymentsforupto13weeksforinjuredworkerswhohavereturnedtowork,butwhorequiresurgeryfortheirwork-relatedinjury.



Key changes

Supporting injured workers back to work

Early,safeandsustainablereturntoworkisbenecialforbothinjuredworkersandemployers. An open, constructive, consultative relationship between the injuredworker and their employer will help both parties work together to get the workerback to work as soon as they are safely able to do so.

The return to work provisions of the Act have been revised to reduce the focus oncomplexprocessesandpapercompliance,andincreasetheemphasisonoutcomes.This approach recognises that the needs of employers may vary depending on theirsize or industry.

The Act now includes a statement of purpose for return to work to help employers,workers and others involved in the return to work process understand the intention

of the legislation. These changes will not result in any lessening of current standards.

ThepurposeofthereturntoworkpartoftheActistoprovide:

• thatemployers,workersandotherpersonsinvolvedinthereturntoworkprocessco-operatetoensurethatworkerssuccessfullyreturntowork

• thatemployersareresponsibleforprovidingpre-injuryemploymentorsuitableemployment to enable workers to return to work

• thatworkersareresponsibleforparticipatinginthereturntoworkprocessconsistent with their capacity for work

• forworkerstoberepresented,assistedandsupportedinthereturnto work process

• foreffectiveoccupationalrehabilitationforworkerstofacilitatetheirearly and sustainable return to work.

WorkSafewillissueguidanceandComplianceCodes(similartoOccupationalHealthand Safety Compliance Codes) to provide employers with practical guidance on howto comply with the law.

Therearevekeyreturntoworkobligationsforemployers:

• Provideemployment

• Planreturntowork

• Consultaboutthereturntoworkofaworker

• Nominateareturntoworkco-ordinatorwhoiscompetenttohelptheemployermeet their obligations

• Makereturntoworkinformationavailable.

There is also a new obligation for host employers of workers that are injured whileletonhiretoco-operatewiththelabourhireemployerontheworker’sreturntowork.

Provide employment

Theobligationforanemployertoprovidesuitableorpre-injuryemploymenttoaninjured worker for 12 months remains; however, the obligation now commences atan earlier point to support earlier intervention.

Thispointisdeterminedwhenanemployerreceiveseitheramedicalcerticate or a claim for weekly payments from a worker or another person on behalf ofthe worker, whichever is earlier.



Key changes

Plan return to work

Employersarerequiredtoplantheworker’sreturntowork.Theplanning obligationincludes:

• obtainingrelevantinformationabouttheworker’scapacityforwork

• consideringreasonableworkplacesupport,aidsormodicationstoassist in the worker’s return to work

• assessingandproposingsuitableemploymentoptions

• consultingwiththeworkerandtheirhealthcareproviders

• providingtheworkerwithclear,accuratedetailsaboutarrangements for their return to work

• monitoringtheworker’sprogress.

Consult about the return to work o a worker

Improvingcommunicationbetweenemployers,workersandhealthpractitionersthroughconsultationwillfosterbetterrelationshipsandco-operation,which arecrucialtoachievinggoodreturntoworkoutcomes.Employersmustconsult with the worker, the worker’s treating health practitioner and, if involved, theprovider of occupational rehabilitation services to the worker.

Nominate a return to work co-ordinator

Employersmustnominateareturntoworkco-ordinatorwhohasanappropriate level of seniority and is competent to assist the employer in meeting their returnto work obligations.

Employerswithrateableremunerationoflessthan$2millionmustnominatea returntoworkco-ordinatorfortheperiodthataworkerhasanincapacityforwork. This is required throughout the duration of the employer’s return to work obligations.Those employers with remuneration over $2 million must have a return to workco-ordinatorappointedatalltimes.

Make return to work inormation available

Employersmustmakereturntoworkinformationavailabletotheirworkersabout:

• employerobligationsandhowthesearemet

• rightsandobligationsofworkersinthecontextofreturntoworkandhow workers can obtain further information about these matters

• nameandcontactdetailsoftheemployer’sAgent• nameandcontactdetailsofthereturntoworkco-ordinator

• procedureforresolvingreturntoworkissues.

Co-operate with labour hire employers

Ifaworkeremployedbyalabourhireemployerisinjuredinthecourseofworkingforanotherperson(knownasthehost),thehostwillberequiredtoco-operatewiththelabourhireemployer,totheextentthatitisreasonabletodoso,togettheworkerback to work as soon as safe and practicable. This change recognises that boththe host and labour hire employer share accountability for return to work.

Itisprudentforemployerstokeeprecordsofreturntoworkarrangementseven

thoughthereisnolongeraspecicrequirementtodoso.



Key changes

Worker obligations

Workerobligationsarenowexpressedmoresimply.Workersarerequiredto make reasonable efforts to return to work in suitable employment and to activelyparticipate in return to work planning, occupational rehabilitation and assessmentsof rehabilitation and future work prospects.

A staged approach has been introduced to give injured workers fairer warningof penalties that might be imposed for failing to comply with their return to workobligations. Criminal sanctions have also been removed in relation to workernon-compliancewithreturntoworkobligations.

Encouraging and securing compliance

Providing a sound regulatory environment for return to work is important; however,this needs to be supported by an effective compliance framework. The powersofreturntoworkinspectorshavebeenincreasedtobetterfulltheirroleofinvestigatingnon-compliance,raisingawarenessandprovidinginformationandadvice about meeting return to work obligations and requesting employers whobreachtheirobligationstotakemeasurestocomply.Inspectorswillnowhavetheability to issue improvement notices to employers, similar to those issued by healthand safety inspectors.

To ensure transparency and accountability, inspector decisions will be subjectto internal and administrative review.

A nine month transitional period will be implemented, commencing on 1 July 2010and ending on 31 March 2011, to enable employers to adjust to the changes in

returntoworkobligations.Inpractice,thismeansthatifanemployerwithanexistingclaim is compliant with their return to work obligations under the previous legislationand continues to remain compliant, they will be deemed to be complying with theirnew obligations.

IfapersonbelievesanoffenceagainstthereturntoworkpartoftheActhasbeencommitted, they will be able to request WorkSafe bring a prosecution. WorkSafe willthen investigate the matter and either prosecute or give reasons for not doing so.There will also be an ability to request the Director of Public Prosecutions to reviewa WorkSafe decision not to prosecute under the return to work provisions of the Act.



Key changes

Key changes

• ThereturntoworkpartoftheActnowincludesastatementofpurpose,whichwill help employers, workers and others involved in the return to work processto understand the intention of the legislation.

• Fivekeyreturntoworkobligationsforemployers:

– Provide employment

– Plan return to work

– Consult about the return to work of a worker

– Nominateareturntoworkco-ordinatorwhoiscompetenttohelptheemployer meet their obligations

– Make return to work information available.• Newobligationforhostemployerstoco-operatewithlabourhireemployer.

• WorkSafemayissueguidanceandComplianceCodes(similartoOccupationalHealthandSafetyComplianceCodes)toprovideemployerswithpracticalguidance on how to comply with the law.

• Flexibilityonhowtocomplywithreturntoworkobligations,includingno formal requirement to keep particular documents.

• Astagedapproachtotheconsequencesforworkerswhodonotcomply with their return to work obligations.

• Returntoworkinspectorswillcontinuetoprovideassistanceandguidance to employers; however, they will, where necessary, also have the ability to issuenotices requiring compliance.

• TheabilitytoseekareviewofWorkSafe’sdecisionnottoprosecuteallegedreturn to work breaches.

• Tougherpenaltiesforbreachesofreturntoworkobligationsbyemployers.

• Aninemonthtransitionalperiodwillbeimplemented,between1July2010 and31March2011,toenableemployerswithexistingclaimstoadjustto the changes in return to work obligations.



Key changes

Treatment expenses and accountability o service providers

Inadditiontolumpsumandweeklypaymententitlements,WorkSafecanalsopaythe reasonable costs of medical and like services for the management of a workrelated injury or illness.

Medical and like services may include treatment by a medical practitioner,physiotherapy, chiropractic, osteopath and other personal services, such asoccupational rehabilitation, which may assist a worker’s rehabilitation.

As a result of the changes to the Act, in certain circumstances WorkSafe is requiredto provide 28 days written notice to an injured worker prior to terminating theentitlement to medical and like services. This change is intended to provide greaterconsistency with the notice period requirements for terminating weekly payments.

The Act will now provide WorkSafe with a discretionary power to require approval tobe sought for certain medical and like services before these services are provided.A list of those services that require prior approval will be available on the WorkSafewebsite.However,carandhomemodicationsareexamplesofservicesthatwillrequire prior approval.

WorkSafemayproduceguidelinestoexplainthedeterminationofreasonablecostsfor medical and like services.

Healthcareprovidersplayanimportantroleinassistingwiththerehabilitationandrecovery of injured workers. WorkSafe monitors the conduct of those healthcareproviders who deliver a service under the scheme.

Changes to the regulation of healthcare providers will now allow WorkSafe tosuspend payments and, in serious cases, disqualify providers from providing servicesunder the scheme for a period of time or revoke the provider’s approval under thescheme. The courts will have similar powers where a provider is found guilty of anoffence under the Act.

Key changes

• WorkSafemustprovide28daysnoticepriortoceasingpaymentsformedicaland like services in certain circumstances.

• WorkSafewillrequirepriorapprovalforsomemedicalandlikeservices.

• WorkSafemayproduceguidelinesonthedeterminationofreasonablecosts

for medical and like services.• ThesanctionsavailabletoWorkSafeforthemanagementofserviceprovidershave been strengthened.



Key changes

Access to justice or seriously injured workers:common law

The Act allows a seriously injured worker to sue for common law damages wheretheotherparty’snegligencecausedorcontributedtothework-relatedinjury.Commonlawdamagesprovidea‘one-off’lumpsumpaymenttoaninjuredworker.

Commonlawdamages(undertheschemewhichcommencedon20October1999)are restricted to workers who have sustained a ‘serious injury’.

Some changes have been made to the common law provisions in the Act.

Previously, the dependants of a worker could be denied any entitlements if theworker died from a cause unrelated to their workplace injury, before their serious

injury application for a workplace injury was determined.The reforms will allow a serious injury application to continue where a worker diesbefore their serious injury application is determined and leaves behind dependants.Inthisway,thedeceased’sestatecanstillreceivethedamagestowhichtheworkerwould have been entitled.

Inordertopreventunnecessarydelaysanddisputes,itisimportantthatWorkSafeandself-insurershaveaccesstosufcientinformationtoenableanaccuratedecision to be made about a worker’s application.

An authority to obtain medical information is mandatory if a worker makes a seriousinjury application. This authority will be revoked if the worker withdraws their seriousinjury application or the application is resolved. This authority will replace the currentvoluntary ‘Form D’ medical authority.

An anomaly has arisen in the common law provisions that can result in unfair legalcost consequences for workers who continue to receive weekly compensationpayments while pursuing a common law damages claim.

Delays in matters being heard at court are often beyond a worker’s control, andworkers should not suffer unfair legal cost consequences as the result of this delay.The amended Act now provides that weekly payments received by a worker afterthe making of a statutory counter offer are to be disregarded for the purpose ofdetermining legal costs consequences when the matter has resolved.

Thischangetothecostsprovisionsappliestoseriousinjuryapplicationsrst lodgedwithWorkSafeonorafter17June2009.

Key changes

• Aworker’sseriousinjuryapplicationmaycontinuewhereaworkerdies before their application is determined.

• AnauthorityforWorkSafeoraself-insurertoobtainmedicalinformation will be mandatory if a worker makes a serious injury application.

• Delaysinmattersbeingheardatcourtareoftenbeyondaworker’scontrol, and workers should not suffer unfair legal cost consequences as a resultof this delay. The amended Act now provides that weekly payments receivedby a worker after the making of a statutory counter offer are to be disregardedfor the purpose of determining legal costs consequences when the matterhas resolved.



Key changes

Decision making and dispute resolution

Disputes can increase the costs and delay the delivery of entitlements to injuredworkers. They can also impact on return to work outcomes for the parties involved.

TheamendmentstotheActaredesignedtopromotetheefciencyoftheconciliation process for workers and employers and quicker resolution of claimsin a number of ways.

The Accident Compensation Conciliation Service is the primary vehicle for resolvingstatutorybenetsdisputes.ToensuretheACCSoperatesinatransparentandaccountablemanner,thefunctionsandpowersoftheSeniorConciliationOfcerhavebeenexpanded.

Inparticular,ConciliationOfcerswillnowbeabletodirectWorkSafe oraself-insurertopaythereasonablecostsofmedicalandlikeexpenses up to $5,000.

Furthermore, workers will be able to be reimbursed for transport costs to attenda conciliation conference, capped at $50 per conference, and for lost income,capped at $350 per day, as a result of attending conciliation.

Medical Panels are another mechanism available to workers and employers to helpresolve disputes. The Medical Panel process has been amended with the aim ofimproving the quality of referrals of medical questions to the Panel by ConciliationOfcersandtheCourts.

The limitations on the jurisdiction of the Magistrates’ Court to deal with workers’compensation claims has been removed, allowing the court to hear a wider range

ofmattersrelatingtothesetypesofdisputes.Inparticular,theMagistrates’Court willbeabletohearmatterswherethevalueexceeds$40,000.Thisamendment has been designed to reduce delays in the resolution of claims as well as avoidthe late transfer of cases to the County Court and the higher costs associatedwith that jurisdiction.

There is now a legislated review process for employers to seek internal review byWorkSafe of an agent’s decision, which is designed to improve the transparencyof decisions made by WorkSafe and its Agents. The outcome will be limited topremium impacts.

EmployerswillbeabletorequestwrittenreasonsfromAgentswhereinitialliabilityisaccepted for most claims and request a review by WorkSafe of decisions relating toliabilityforaclaimincertaincircumstances.Ifemployersremaindissatisedfollowing

the outcome of the WorkSafe internal review, they will be able to appeal to theSupreme Court.

Key changes

• ConciliationOfcerswillnowbeabletodirectWorkSafeoraself-insurertopaythereasonablecostsofmedicalandlikeexpensesupto$5,000.

• Reimbursementofworkers’transportcostsandlostincomewhenattending conciliation conference.

• ThelimitationsonthejurisdictionoftheMagistrates’Courttodealwithworkers’compensation claims has been removed.

• EmployerswillbeabletorequestwrittenreasonsfromAgentswhereinitial

liability is accepted for most claims and request a review by WorkSafe ofdecisions relating to liability for a claim in certain circumstances.



Key changes

Employer premiums

Victorianemployerswithanannualpayrollofmorethan$7,500payapremium to WorkSafe for compulsory WorkSafe insurance. The premium is the cost tothe employer for the insurance policy. The employer’s premium is determined bya number of factors, including the size of their payroll, how risky their industry isand the cost of any recent claims.

The changes to the Act are designed to provide greater transparency andunderstanding about how WorkSafe determines an employer’s premium.

Part of the process to calculate an employer’s premium involves the use of statisticalcaseestimatingtoestablishtheaveragecostofanemployer’sclaims.Employers will now have the right to request a review of an estimated claim cost where they

consider it has been calculated based on incorrect data relating to that claim.

A more transparent internal process has also been introduced for employers to seekareviewoftheirpremiumwherethereisadisputeoverthecalculation.Employerswill also be able to appeal the internal review decision to the Supreme Court,if necessary.

Anindependentexpertbodymustconductareviewofpremiumsettingeveryveyears, providing greater transparency in setting premiums.

Thedenitionsofremunerationusedincalculatinganemployer’spremiumhavebeenmorecloselyalignedwiththeVictorianpayrolltaxsystemandtheWorkCoverAuthority of New South Wales.

Trustees may be permitted to hold separate policies for independent businesses

run under trusts.

To encourage voluntary disclosure and employer compliance, penalties associatedwith WorkSafe insurance premiums have been rationalised. Penalties have also beenintroduced for those engaging in, or providing advice on, premium avoidance schemes.

Key changes

• Employersmayrequestareviewofanestimatedclaimscostonthegroundsthatit is erroneous due to coding or other data entry error.

• Amoretransparentformalinternalreviewprocesshasbeenintroducedforemployers who dispute the amount of premium they are charged.

• Therewillberegularreviewofthesettingofpremiumsbyanindependentbody.

• DenitionsofremunerationhavebeenmorecloselyalignedwithpayrolltaxandWorkCover New South Wales.

• Trusteesmaybepermittedtoholdseparatepoliciesforindependentbusinessesrun under trusts.

• PenaltiesassociatedwithWorkSafeinsurancepremiumshavebeenreviewedand rationalised.



Key changes

Recovery rom third parties

The Act provides an avenue for recovery of a workers’ compensation costs froma third party that has caused or contributed to a worker’s injury or death.

Hostemployers(thosewhoemploylabourhireworkers)haveinthepastsoughttoprotect themselves from liability by including ‘hold harmless’ clauses in their labourhire agreements.

By enabling, or appearing to enable, a host employer to avoid legal liability, a holdharmless clause reduces the incentive for the host employer to adopt safer workpractices for labour hire workers.

These clauses will now be void for recovery purposes under the Act. The

amendments mean that any contractual provisions that require a worker’s employerto indemnify a third party (such as a host employer) for any liability that might beimposed upon the third party by the Act are void.

The purpose of this amendment is to ensure that each party remains accountablefor its role in workplace safety.

Key change

• ‘Holdharmless’clausesarenowvoidforrecoverypurposesunderthe Accident Compensation Act 1985.



Key changes

Sel-insurance

Thechangesoutlinedinothersectionsofthisbookletimpactonself-insurersinthesame way as they do on any other employer who holds a WorkSafe insurance policy.

Thissectionofthebookletrefersspecicallytoreformsthatimpactontheadministrationandmanagementofself-insurance.

Self-insuranceallowseligibleemployerstodirectlymanageandpayfortheworkers’compensationclaimsoftheiremployees.Self-insurersrepresentaround10%ofallwages in Victoria.

ThechangestotheActwhichrelatetoself-insurersaredesignedtoincreaseexibilityandclarifyregulatoryrequirementsfortheseemployers,whileretainingan

appropriate focus on ensuring that their workers receive the same compensationoutcomes as other workers.

Previously,self-insurerswereapprovedforaninitialperiodofthreeyears,withsubsequent approvals for four years. WorkSafe now has the discretion to allowthesesubsequentapprovalsforsixyearsforself-insurerswhohavedrivenimprovements in safety, injury management and return to work. This discretionistobeexercisedcarefullyandinresponsetogoodperformance.

Inaddition,self-insurersarenolongerrequiredtoprovideayearlyreporttoWorkSafeof common law proceedings; however, they are required to notify WorkSafe of anystrategicallysignicantmatters.

Aself-insurer’sclaimsmanagementpoliciesmustnowbedocumentedandprovidedto their workers and WorkSafe.

WorkSafeisalsoabletoextendthetermofapprovalforaself-insurerthat isundergoingacorporaterestructureorwhereaself-insureristakenoverby a holding company.

Foremployerswhomovefromtheschemeinsurancetoself-insurance,itisnowmoretransparenthowtheyelecttoassumeresponsibilityfortheirexistingclaims.

Aself-insurerisnowabletomanagetheclaimsofacompanythatitacquires.

Key changes

• WorkSafehasthediscretiontoallowsubsequentapprovals(followingtheinitialthreeyearapprovalperiod)toextendfromfourtosixyearsforself-insurerswhohave driven improvements in safety, injury management and return to work.

• Self-insurersarenolongerrequiredtoprovideayearlyreporttoWorkSafeofcommon law proceedings; however, claims management policies must now bedocumented and provided to WorkSafe and to workers.

• WorkSafeisabletoextendthetermofapprovalforaself-insurerthatisundergoing a corporate restructure, such as when it acquires or sells a subsidiarycompany or is taken over by a holding company.

• Aself-insurerisabletomanagetheclaimsofacompanythatitacquires.





WorkSae Victoria

WorkSae Agents

Agent contact details are all available atworksafe.vic.gov.au/agents

Advisory Service

Phone (03) 9641 1444Toll-free 1800 136 089Email [email protected]

Head Ofce

222 Exhibition Street, Melbourne 3000

Phone (03) 9641 1555Toll-free 1800 136 089Website worksafe.vic.gov.au

For information about WorkSafe inyour own language, call our Talking yourLanguage service

1300 559 1411300 650 5351300 661 4941300 660 2101300 662 3731300 722 595

1300 724 1011300 725 4451300 781 8681300 554 9871300 782 4421300 782 343

Documents

Changes to the Accident Compensation Act 1985