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1 1 Questions and answers for employers 17 October 2012 Return to work 1. What are employers return to work obligations? Employers have an obligation to provide suitable employment (where reasonably practicable) to assist a worker return to their pre-injury role, under Section 49 of the Workplace Injury Management and Workers Compensation (WIM) Act 1998 and as outlined in the Guideline for workplace return to work programs (September 2010). Alternatively if a worker is unable to return to their pre injury role and the employer is unable to provide permanent redeployment, the employer may also offer suitable employment while the worker is participating in rehabilitation to be redeployed with a new employer. If an employer has suitable employment available but does not provide it to the worker, the employer may be inspected by WorkCover, which may result in a financial penalty (see question 5 What is the role of the WorkCover inspector? ). 2. What are suitable duties? Suitable duties are any duties identified that may be provided by the employer for the purposes of facilitating recovery from the workplace injury. Suitable duties must be: in line with the worker s capacity for work meaningful provided for the purpose of increasing a worker s capacity for work. Note: Suitable duties are not a return to work outcome, but rather, a rehabilitation strategy used to achieve a return to work outcome. 3. What is suitable employment? Section 32A of the Workers Compensation Act 1987 defines suitable employment as: employment in work for which the worker is currently suited: (a) having regard to: (i) the nature of the worker s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under Section 44B), and (ii) the worker s age, education, skills and work experience, and (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and (v) such other matters as the WorkCover Guidelines may specify, and (b) regardless of whether the work or employment is available, and whether the work or the employment is of a type or nature that is generally available in the employment market, and the nature of the worker s pre-injury employment, and the worker s place of residence.

2 2 4. If an employer has limited resources, how do they identify suitable duties? If an employer does not have a return to work coordinator or sufficient resources available to assist in identifying suitable duties for workers, it is recommended they contact their insurer to request assistance. The insurer may be able to provide an early referral to a workplace rehabilitation provider to assist with the identification of suitable duties. 5. What is the role of the WorkCover inspector? In addition to providing advice on returning injured workers to work, WorkCover inspectors are now authorised to issue legally binding improvement notices to employers when they are not meeting their return to work obligations. Failure to comply with the improvement notice can attract maximum penalties of up to $11,000 for businesses that fail to meet their injury management and return to work obligations. A three-month grace period from 1 October 2012 applies when improvement notices will only be issued in the most serious circumstances. 6. When will companies be inspected? A company may be inspected either in response to a complaint about how they are managing a worker s return to work or as part of a WorkCover-initiated program where an employer may have a worker with capacity to return to work but has not yet done so. 7. What are the changes to Sections 48 and 49 of the WIM Act 1998? A worker who has current work capacity is required, in co-operation with the employer and/or insurer, to make reasonable efforts to return to work in suitable employment. If a worker is non-compliant with their injury management obligations, an insurer has the ability to review the worker s entitlement to weekly payments. It is the obligation of the insurer to ensure all reasonable return to work opportunities have been provided to the worker prior to reviewing and determining the worker s entitlement to weekly payments. A worker is treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which, as per Section 48: (a) the worker is waiting for the commencement of a workplace rehabilitation service that is required to be provided under an injury management plan for a worker, or (b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer, or (c) if the employer s response is that suitable employment or pre-injury employment will be provided at some time, the worker is waiting for suitable employment or pre-injury employment to commence. 8. Are there any changes to the dispute process? Yes. There is still an ability to dispute liability for a claim under Section 74 of the 1998 Act. The Section 74 notice requirements have now been simplified. These disputes may still be determined by the Workers Compensation Commission. Work capacity assessments and decisions, as introduced in the new legislation, do not follow the same dispute resolution process as disputes for liability. Instead there is an extensive review process which may include one or all of the following; an internal review by an insurer; a review by WorkCover; and a review by the WorkCover Independent Review Officer. These decisions are binding on the insurer. The Workers Compensation Commission does not have the jurisdiction to determine these disputes as per Section 43 (3) of the 1987 Act.

3 9. What does a work capacity assessment involve? 3 A work capacity assessment is the process of reviewing and evaluating all evidence on file. It is a continual process of assessment, reassessment and information-gathering conducted by the insurer throughout the life of the claim. It involves a review of a worker s functional, vocational and medical status to determine their ability to return to work in pre-injury or suitable employment with the pre-injury employer or at another place of employment. 10. What evidence or information will the insurer consider in undertaking a work capacity assessment? A work capacity assessment considers all available information, which may include, but is not limited to: reports from the treating doctor, treating specialist or other allied health professionals WorkCover certificates of capacity independent medical reports injury management consultant reports the worker s self-report of their abilities and any other information from the worker injury management plans reports from a workplace rehabilitation provider such as workplace assessment reports, return to work plans, functional capacity evaluation reports, vocational assessment reports, work trial documents, job seeking logs, activities of daily living assessments, etc information from the employer such as documents relating to return to work planning information obtained and documented on the insurer s claim file. 11. What is a work capacity decision? A work capacity decision is a discrete decision made at any point in time during the life of the claim and can be about any one of the six types of decisions as per Section 43 (1) of the 1987 Act: a) a decision about a worker s current work capacity, b) a decision about what constitutes suitable employment for a worker, c) a decision about the amount an injured worker is able to earn in suitable employment d) a decision about the amount of an injured worker s pre-injury average weekly earnings or current weekly earnings, e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment, f) any other decision of an insurer that affects a worker s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a) (e). 12. What is the employer s role in the work capacity assessment? Under the old legislation The nominated treating doctor determines fitness for work and communicates with the employer via the WorkCover medical certificate. Under the new legislation The insurer determines work capacity via a work capacity assessment and decision. The WorkCover certificate of capacity is completed by the nominated treating doctor and is one of the factors considered by the insurer in determining capacity for work. The insurer s case manager should be in regular contact with the employer to discuss the worker s work capacity at regular intervals during the claim. It s also recommended that the employer maintain close contact with their insurer.

4 4 13. What is the work capacity review process? If a worker disputes a work capacity decision, they are required to submit a request for review to the insurer in writing using the Application for review of a work capacity decision form within 30 days of the decision being communicated. The insurer needs to review the decision and reply within 30 days (acknowledging the request for review within seven days). If, on receipt of the outcome of the internal review decision by the insurer, the worker does not agree with the decision, the worker can refer their dispute for a merits review by WorkCover. If the worker is dissatisfied with the outcome of the merits review by WorkCover they can apply to the WorkCover Independent Review Officer for a further review. Judicial review by the Supreme Court may also be available. 14. What happens if a worker s capacity for work changes after a work capacity decision is made? If new information regarding the worker s capacity for work becomes available after a work capacity decision is made, the insurer will determine the most appropriate course of action, depending on the stage of the claim (number of weeks of benefits paid), the work capacity decision that has been made, and the new information provided. If the insurer has made a work capacity decision that will result in a reduction or discontinuation of the worker s weekly payments and a formal work capacity decision notice has been issued, the worker may request a review of the work capacity decision. The worker would lodge a completed Application for review of a work capacity decision form with the insurer within 30 days of receiving the work capacity decision from the insurer. The new information will be part of the body of evidence considered in the insurer s review of the work capacity decision. If the worker has returned to their full pre-injury duties, weekly payments have ceased and the worker then provides information that indicates reduced or no capacity for work, the employer and the insurer should work collaboratively with all parties to review the reason for the worker s change in capacity and develop an appropriate injury management plan that considers the worker s new circumstances. The insurer should also advise of any impact on weekly payments and benefits as a result of a further work capacity decision that is made following receipt of the new information. WorkCover certificate of capacity 15. Is the WorkCover certificate of capacity applicable for all workers? The WorkCover certificate of capacity replaced the WorkCover medical certificate from 1 October 2012 for all workers, including workers who are exempt from the legislative changes. The new certificate focuses on what the worker can do rather than what they can t do. 16. How long will workers be able to submit the old WorkCover medical certificate? The old WorkCover medical certificate will be accepted for six months following implementation on 1 October The WorkCover certificate of capacity can be accessed via the WorkCover NSW website (workcover.nsw.gov.au), via the WorkCover Publications Hotline ( ) from 1 November 2012, or from insurers. The Information for medical practitioners completing the WorkCover certificate of capacity provides further detail regarding the certificate. Premiums 17. How will premiums be impacted? There is no change to the way NSW premiums are calculated. Work capacity decisions have been introduced to give insurers greater ability to drive more timely and positive return to work outcomes, which should reduce claims estimates and premiums.

5 18. Are there employer penalties for late submission of wage reimbursement schedules? If an employer does not provide monthly wage reimbursement schedules for a consecutive three-month period their claims will be estimated as if their claimants have no capacity to work. If an employer is one month from premium renewal and has not been submitting wage reimbursement schedules monthly, or sends them in for a period greater than one month, their insurer will estimate their claims as if the claimants have no capacity to work. This estimation could increase an employer s premium. 19. How do journey claims now affect premiums? If a journey claim is accepted it will be used in calculating premiums as of 1 January Making a claim 20. Are there any changes to the way insurers accept claims and notify employers? This has not changed. Insurers should always consult and advise their employer customers of their decision to accept/reasonably excuse/decline a claim. 21. What does the date of claim mean? The date of claim is the date of the first notification of a workplace injury given to the relevant insurer. 22. Are there any changes to the claim form? 5 There are two new claim forms a general injury claim form and an other work related injury claim form, which will cover, for example, a motor vehicle accident at work. The new claim forms are available from workcover.nsw.gov.au Claiming benefits From 1 October 2012 new claimants are entitled to weekly payments that are more reflective of their preinjury earnings in the early stages of their claim, and rewarded with increased weekly payment amounts for working above 15 hours a week. 23. How do employers ensure they are paying workers properly? The calculating pre-injury average weekly earnings form can be used to help employers provide correct information for the purposes of determining entitlements to weekly payments. The form is available on the WorkCover website. Insurers are required to commence or authorise payments to the worker within seven days of notification (if provisional liability is accepted). The employer should always liaise with their insurer to ensure they are paying their workers the correct weekly rates. This is particularly important when a worker increases their capacity to work and is then financially rewarded by a higher weekly entitlement. The distinction between award and non-award workers has been removed for new claims. 24. How do employers calculate pre-injury average weekly earnings (PIAWE)? The calculation includes the average of a worker s ordinary hours/earnings, shift and overtime allowance. Once 52 weeks of weekly payments are made on a claim, the shift and overtime allowances are not included in the calculations.

6 6 25. What are the wage entitlement periods? There are three entitlement periods, which are outlined below. First entitlement (Section 36) 0 13 weeks all workers, whether they have current work capacity or no current work capacity, are entitled to 95 per cent of their PIAWE minus any deductable amount, or the maximum statutory rate minus the deductable amount ( whichever is the lesser) for an aggregate period not exceeding 13 weeks. Second entitlement (Section 37) weeks workers are rewarded with a higher weekly payment if they have capacity to work and are working 15 hours per week or more ( 95 per cent of their PIAWE minus any deductable amount). The worker s weekly payments are less if the worker has capacity for work and is working less than 15 hours per week, or has no capacity to work (80 per cent of their PIAWE minus any deductable amount). After the second entitlement period (Section 38) weeks A worker s entitlement to weekly payments after the second entitlement period is determined based on a work capacity assessment made by the insurer. For the worker to be entitled to weekly payments, the insurer must have determined they have no capacity for work indefintiely. Alternatively, if the worker has capacity for work, they are entitled to weekly payments after the second entitlement period only if the worker: o o o has applied to the insurer in writing no earlier than 52 weeks before the end of the second entitlement period has returned to work for at least 15 hours per week and is in receipt of current earnings of at least $155 per week is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker s current weekly earnings. Workers assessed to have capacity for work after the second entitlement period who do not meet these criteria are not entitled to weekly payments. Cessation of payments after five years (Section 39) week 260 onwards the worker must be assessed as having more than 20 per cent permanent impairment to be entitled to weekly payments after 260 weeks. If eligible, the worker s weekly payments are subject to Section 38. Seriously injured workers (i.e. those with a permanent impairment greater than 30 per cent) are not subject to Section 38 requirements. 26. What impact does the greater than 20 per cent and greater than 30 per cent impairment thresholds have on weekly payments? Workers who have a permanent impairment of more than 20 per cent (but not more than 30 per cent) are entitled to weekly payments past 260 weeks. That entitlement is subject to work capacity assessments and decisions regarding the worker s work capacity and whether they are working. Workers who have a permanent impairment ofmore than 30 per cent are entitled to receive payments until retirement age. 27. What impact will dependants have on calculating weekly payments? Dependants are no longer included in determining entitlements to weekly payments.

7 28. Do the legislative changes impact entitlements to weekly payments for all workers? The Workers Compensation Legislation Amendment Bill 2012 was assented on 27 June The following commencement dates are set for the new benefits provisions: seriously injured workers on 17 September 2012 new claims made on or after 1 October 2012 injured workers currently in receipt of benefits, where the claim was made prior to 1 October 2012, on 1 January The legislative changes will not impact workers who perform the following roles: police officers paramedics firefighters coal miners The changes will also not impact: workers who make a dust disease claim; and emergency services volunteers. Medical benefits 27. What happens if a worker returns to work with no weekly payments in the first 12 months, then at a later stage downgrades their capacity for work and becomes entitled to weekly payments? Is the worker entitled to medical expenses for a further 12 months? No a worker is entitled to medical expenses for 12 months after weekly payments have ceased or 12 months from the date the claim was made if no weekly benefits are claimed. If weekly payments are reinstated at some point after the 12 month period, the worker is eligible for medical expenses but only for the period they are entitled to weekly payments. 28. When is a worker entitled to hearing aids? 7 When a worker is diagnosed as having a work related hearing loss and has been assessed as having six per cent or more binaural hearing loss, no further hearing aids or replacements will be provided beyond 12 months unless a new claim has been made. To meet the requirements for a new claim for hearing loss a worker would need to have experienced deterioration in hearing due to continued exposure to noise in the workplace either with the same or a new employer, and be confirmed through an assessment by an ear nose and throat specialist. If this is accepted as a new claim the worker would be eligible for the provision of hearing aids from 12 months from the date that claim is made. Permanent impairment 29. What are the changes to permanent impairment (PI)? 11 per cent is the new threshold to settle a worker s PI claim. Only one claim can be made, and there are no top-ups payable. There can only be one assessment of permanent impairment. This one assessment is used for determining eligibility to make a work injury damages claim or a commutation.

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