28/08/2014. The Structure Workplace Injury Rehabilitation and Compensation Act 2013 Act of Parliament

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1 Janis Veldwyk At the end of the workshop participants should: Be more familiar with the Workplace Injury Rehabilitation and Compensation Act 2013 Know Employer and employee obligations with relation to Worker s compensation claims Know the process for disputing a WorkCover claim Know obligations with regard to return to work of injured workers The Structure Workplace Injury Rehabilitation and Compensation Act 2013 Act of Parliament Conciliators Court of Appropriate Jurisdiction * Magistrates * County * Supreme Minister Gordon Rich-Phillips Victorian WorkCover Authority Authorised Agents Self Insurers Service Providers * Rehabilitation * Medical Examiners * Investigation * Legal Representation Commences 1 July 2014 Combines Accident Compensation Act 1985, Accident Compensation (WorkCover Insurance) Act 1993 into Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) Covers compensation, rehabilitation, return to work, dispute resolution, WorkCover insurance and premiums Medical Panel 1

2 Aims to Reduce the incidence of accidents and diseases in the workplace Provide a framework for the effective occupational rehabilitation of injured workers and their early return to work Ensure appropriate compensation is paid to injured workers in the most socially and economically appropriate manner, as expeditiously as possible Ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses Enhance flexibility in the system and allow for adaptation of the particular needs of disparate work situations Improve health and safety of persons at work and reduce the social and economic costs to the Victorian community of accident compensation Covers all the other aspects of workers compensation in a more logical sequence: How to make a claim Responsibilities of employers Who is eligible for compensation Weekly payments Other payments i.e. o Medical and like expenses o Occupational Rehabilitation o Superannuation o Lump sums o Death of a worker Return to Work o Worker obligations o Employer obligations Resolving disputes Access to Information o Worker can request information regarding which is relevant to the claim for compensation o Employer cannot get information, but can only request written reasons why the claim was accepted 2

3 Claims received prior to 1 July 2104 will continue to be dealt with under the Accident Compensation Act 1985 Claims received after 1 July 2014 will be dealt with under WIRC Act Employers will no longer be required to take out a WorkCover Insurance Policy Requirement to be registered with VWA Employers with current WorkCover Insurance Policy automatically be registered with VWA from 1 July 2014 WIRC Act Part 1 Preliminary Section 3 Definition of Injury Injury means any physical or mental injury and, without limiting the generality of that definition, includes (a) industrial deafness; and (b) a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment); and (c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease Part 2 - Division 1 Workplace Injuries Display if you are injured poster Maintain a register of injuries When a worker gives notice of injury acknowledge this in writing Flow charts are used detailing the injury notification process and claims lodgement 3

4 Part 2 - Division 2 Claims for compensation that may be lodged with the VWA If a person making a claim for compensation in respect of an injury arising out of or in the course of or due to the nature of employment, becomes aware that the employer (a) has not complied, and is not likely to comply, with section 73(1); or (b) is refusing to receive the claim; or (c) cannot be identified after the person has taken reasonable steps to identify the relevant employer; or (d) cannot be found after the person has taken reasonable steps to find the relevant employer; or (e) is dead, or is an externally-administered body corporate under the Corporations Act or has ceased to exist that person may lodge the claim with the Authority. Part 2 Division 3 - Entitlement to compensation Types of Claims Weekly payments and medical expenses Medical expenses Permanent impairment (s.212) Pain and suffering (s.212) Death claims 4

5 Part 2 - Division 3 - Entitlement to compensation As with the ACA the following can also be included in the definition of workers Students Apprentices Contractors Part 2 Division 3 - Entitlement to compensation Employment must significantly contribute to the injury Note: significant contribution means the employment must contribute to the occurrence of the injury in a way that is not insignificant, trivial or minimal Part 2 Division 3 - Section 40 -When no entitlement to compensation (1) There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following (a) management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer; (b) a decision of the worker's employer, on reasonable grounds, to take, or not to take, any management action; (c) any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action; Part 2 Division 3 - Section 40 - Compensation Is Not Payable If it is proved that an injury to a worker (whether or not intended to be inflicted) was deliberately or wilfully self-inflicted, there is no entitlement to compensation in respect of that injury. if it is proved that an injury to a worker is attributable to the worker's serious and wilful misconduct (including, but not limited to, being under the influence of intoxicating liquor or a drug), there is no entitlement to compensation in respect of that injury. 5

6 Part 2 Division 3 - Section 41 Pre-existing injury or disease (1) Subsection (2) applies if it is proved that, before commencing employment with the employer (a) a worker had a pre-existing injury or disease of which the worker was aware; and (b) the employer in writing (i) advised the worker as to the nature of the proposed employment; and (ii) requested the worker to disclose all pre-existing injuries and diseases suffered by the worker of which the worker was aware and could reasonably be expected to foresee could be affected by the nature of the proposed employment; and (iii) advised the worker that subsection (2) will apply to a failure to make such a disclosure or the making of a false or misleading disclosure; and (iv) advised the worker as to the effect of subsection (2) on the worker's entitlement to compensation; and (c) the worker failed to make such a disclosure or made a false or misleading disclosure. (2) If this subsection applies, any recurrence, aggravation, acceleration, exacerbation or deterioration of the pre-existing injury or disease arising out of or in the course of or due to the nature of employment with the employer does not entitle the worker to compensation under this Act Part 2 Division 3 - Section 46 Out of or in the course of employment (1) An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 39(1) and (2) if the injury occurs (a) while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day during any authorised recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury Travelling for the purposes of the worker's employment Travelling for the purposes of a worker's employment does not include travelling to and from the worker's place of employment Attendance at any school for the purposes of any trade, technical or other training Compensation not payable if a substantial interruption of or substantial deviation from the worker's journey made for a reason unconnected with his or her employment 6

7 Part 3 Division 2 Claims management Employer Decision Making Is the claim documentation valid? o claim form o certificates of capacity Do we believe employment was a (significant) contributing factor? Are we prepared to accept liability for this claim? Is the claim minor or standard? Part 3 Division 3 - Claims Management Initial Claims Management - If You Accept Liability Is it a minor claim, i.e. does it fall below the employer liability excess of first 10 days of compensation and/or first $660 medical and like expenses. Is it a standard claim, i.e. does the cost exceed the first 10 days and/or $660 medical and like expenses. Part 3 Division 3 Claims management Employer on receipt of any claim for compensation must Notify the VWA Agent of any minor claim (where the worker is off work for only 10 days or less and medical costs are less than $660), the employer is fully liable for these costs Send any claim form and medical certificates to VWA Agent within 10 calendar days of receipt fines can be levied Pay fortnightly payments to an injured worker on normal paydays - as soon as claim is accepted Receive any claim for compensation Part 3 Division 3 Claims management What Claims Can Be Rejected? Weekly payment and medical expenses Medical expenses only Death claims 7

8 Part 3 Division 3 Claims Management Initial Claims Management If You Do NotAccept Liability The Employer does not pay any compensation or medical and like services Immediately gather all information supporting the reasons for not accepting the claim, include: o description of the worker s duties o description of the worker s area o description of the circumstance surrounding the incident o factual relevant statements from witnesses, supervisors, etc. Send all of the above together with claims documentation to VWA Agent within 10 calendar days from the day the employer receives the claim Part 3 Division 3 Claims Management Rejection Time Frames by VWA Agent New claims for weekly payments o Within 28 calendar days of VWA agent s receipt of claim Medical expense only claims o Within 60 calendar days of VWA agent s receipt of claim Part 3 - Division 4 Employer objection Can request written reasons in relation to the decision to accept a claim by VWA (via its authorised agents) The Authority must, within 28 days after receiving a request, comply with the request. May lodge an objection regarding a decision to accept a claim on the grounds the worker was not a worker within the meaning of the WIRC Act or the employer was not the correct employer Part 3 - Division 5 Liability for payment of compensation Where employer does not meet their liability the VWA becomes liable, but may impose a penalty on the employer Compensation can also be increased if there is an unreasonable delay by the employer or VWA 8

9 Part 4 Division 2 - Return to Work Obligations of employers Very similar to ACA employers must: Appoint a Return to Work Coordinator Have information available Provide injured worker with suitable or preinjury employment Consult with the injured worker, etc. Part 4 Division 2 - Return to Work Obligations of employers Return to Work Coordinator Assists the employer to implement the rehabilitation requirements of the WIRC Act Assists injured workers to remain at work whenever practicable or to return to work as soon as possible after injury Ensures that return to work plans are established Initiates and maintains contact with the treating doctor and other health professionals Ensures that workers need of specialist rehabilitation services are referred to appropriate rehabilitation providers Maintains communication and provide relevant information for workers, managers, unions, health care professionals, rehabilitation providers and authorised agents Monitors what is happening to injured workers and their progress Maintains confidential records Ensures that steps are taken to reduce the risk of further injury and subsequent injuries of that kind 9

10 Part 4 Division 3 Obligations of workers Very similar to ACA workers must: Participate and cooperate in RTW planning Make reasonable efforts to RTW in suitable employment or pre-injury employment Actively use occupational rehabilitation services provided Participate in an interview with a representative of the VWA (i.e. VWA Agent) if requested to do so Part 4 Division 4 Termination of compensation Section 116 Failure to comply with RTW arrangements Payments can be: Suspended Terminated Ceased until a decision is made regarding the entitlement to compensation By the VWA Agent on 14 days notice Part 4 Division 7 Functions and powers of inspectors Include the power to enter workplaces Ability to obtain information Remove items from workplaces Issue improvement notices An inspectors powers under this Division are generally aligned with the powers of occupational health and safety inspectors under the OHS Act

11 Part 5 Division 2 Weekly payments Pre-injury average weekly earnings (PIAWE) are defined as the earnings of the worker for the previous 12 months or less if employed continuously by that employer for this period calculated at: 1. The worker s ordinary time rate of pay for - 2. The worker s normal number of hours per week Fixed by employment 3. Also included areovertime or penalty payments 4. The monetary value of certain non-pecuniary benefits use of a motor vehicle, residential accommodation, education fees and health insurance Part 5 Division 2 Weekly payments Benefits Definitions CURRENT CAPACITY FOR WORK - Ability to be able to perform some work in the workplace NO CURRENT CAPACITY FOR WORK - Unable to perform any duties within the workplace Phases of Benefits - No Work Capacity First 13 weeks 14 weeks to 130 weeks After 130 weeks 95% of their PIAWE to a maximum of twice the State average weekly earnings - currently $2,050 a week. 80% of their PIAWE, to a maximum of twice the State average weekly earnings - currently $2,050 a week. 80% of their PIAWE to a maximum of twice the State average weekly earnings - currently $2,050 a week, if they still cannot work and this is not likely to change. Payments may continue until retirement age unless there is a change in the worker's capacity. Phases of Benefits Some Current Work Capacity First 13 weeks If they have returned to work - 95% of their PIAWE to a maximum of twice the State average weekly earnings - currently $2,050 a week, less what they are currently earning a week. 14 weeks to 130 weeks If they have returned to work - 80% of their PIAWE, to a maximum of twice the State average weekly earnings - currently $2,050 a week, less 80% of what they are currently earning a week. After 130 weeks 80% of their PIAWE, to a maximum of twice the State average weekly earnings - currently $2,050 a week, less 80% of what they currently earning a week Weekly payments can continue if: 1.a worker has returned to work and is working at least 15 hours a week and earning $177 or more a week; and 2.because of their injury, they are likely to remain physically or mentally incapable of working beyond this level, in any job. 11

12 The worker will receive overtime and shift allowances for the first 52 weeks of weekly payments Superannuation at the rate of 9.5% will be paid after 52 weeks of incapacity, if the following criteria is met: o The injury occurred on or after 5 April 2010 o The worker is receiving weekly payments o The worker has been receiving weekly payments for 52 weeks o The worker is under the age of 65, and o The worker is not receiving superannuation from their employer as part of accident make-up pay under an award or agreement Part 5 Division 2 Weekly payments A worker who is injured within 130 weeks before reaching retirement age or who is injured at any time after reaching retirement age is entitled to weekly payments for up to 130 weeks Part 6 Division 2 Disputes and conciliation Similar to ACA The worker has a requirement for the dispute to be lodged with the ACCS The Conciliation Officer will conciliate the dispute with an aim to bring the parties to agreement The Conciliation Officer can refer the matter to a Medical Panel When the Conciliation Officer can give a Direction for weekly payment or medical and like expenses. 12

13 Part 7 relates to Actions and proceedings for damages and give information to employees on how to apply for common law damages Part 8 is for Self-insurers Part 9 is for Non-WorkCover employers Part 10 Premium and registration of employers Covers information regarding: o Premium calculations o Premium review o Review by VCAT and appeal to the Supreme Court o Recovery of premium and penalty o Review by the Minister All of the above were covered in the ACA and the calculation and other matters relating to premium remain unchanged. More information available from Victorian WorkCover Authority (03) or (toll free) Questions?..\..\Injury-Rehibilitation-Compensation-Guidebook.pdf 13

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