Mr President, I rise to give a statement about the publication of amended Impairment Assessment Guidelines under the Return to Work Act 2014.
The State Government has today published updated Impairment Assessment Guidelines, incorporating extensive community feedback on several key issues – including ensuring there is no set deduction in benefits for pre-existing injury and protecting workers’ choice of assessor.
The Return to Work Act was enacted in 2014 by the former Labor government under then Minister, John Rau, with bipartisan support – and requires the Treasurer (as responsible Minister), rather than Parliament, to publish the Guidelines.
The Guidelines, which have not been updated since 2015 and require changes to reflect clinical developments and improve efficiency, fairness and transparency, are used by medical assessors to assess the whole person impairment (WPI) percentage of injured workers.
The WPI rating determines the amount of compensation an injured worker may receive.
I have determined not to pursue changes proposed by ReturnToWorkSA which for asymptomatic and pre-existing impairments would have resulted in a compulsory 1/10th deduction from a worker’s WPI rating.
There were many submissions about this proposed change which did not reveal broad support for the new clause, citing its rigid application. Additionally, there appeared to be confusion about how the requirement was intended to be applied.
Therefore, I determined not to make this change.
Another proposed change, which would have meant only surgeons could act as an assessor following surgeries rather than other specialists such as Occupational Physicians, has also been rejected.
It was recognised that medical assessors who are not necessarily surgeons also have the expertise to undertake such assessments. Moreover, feedback from surgeons did not indicate strong support for this change.
In order to properly consider all of the diverse views on the Guidelines, I approved a broader consultation process than required by the legislation.
ReturnToWorkSA’s closing date for submissions was originally set at 25 June and, subsequent to that, I engaged in further meetings and consultation for a further two-month period.
In addition to consulting with 13 medical associations, we invited more than 120 individual accredited impairment assessors, the Law Society of SA and the Self Insurers of SA to provide submissions.
Over 50 submissions were received during the initial four-week consultation period in May and June of this year.
Two information sessions were held by ReturnToWorkSA, which, I am advised, were well attended.
I intend to make all of the submissions received in the initial consultation publicly available, subject to the consent of the authors of the submissions.
More than 30 of the over 70 proposed substantive changes were ultimately amended as a result of the submissions made during the initial four-week consultation period, and in the weeks after that from groups such as the Minister’s Advisory Committee.
The Committee contains members nominated by the Australian Medical Association as well as members nominated by employee and employer associations, including some who, I am advised, are members of the Law Society of South Australia.
The Committee was granted an extension of time to respond and ReturnToWorkSA presented another information session specifically for the Committee to assist it in preparing its submission. I also intend to make the Committee’s submission publicly available.
Ultimately, the updated Guidelines will provide greater clarity for all those involved in the worker’s compensation process, in particular workers and doctors.
The Government has made important changes to improve efficiency and fairness by reducing waiting times for injured workers arranging an appointment with an assessor.
ReturnToWorkSA advised me that in the 2020-21 financial year, as at 25 May 2021:
• 1939 WPI assessments were completed, yet just 12 assessors – that’s only 9% of all 129 accredited assessors – completed 56% of assessments.
• Meanwhile, about 40% of currently accredited assessors had yet to perform a single assessment in the financial year.
• As a consequence, there have been significant delays for an appointment with certain assessors, sometimes of up to about 12 weeks.
I determined that it was sensible to amend the Guidelines to ensure that injured workers would not need to wait any longer than six weeks for an appointment with an assessor.
Taking into account feedback received from the medical and legal community in particular, the updated Guidelines also include significant protections to maintain worker choice of assessor as well as protections to increase transparency in ReturnToWorkSA’s interactions with assessors in the course of reviewing reports for compliance with the Guidelines.
With regard to the latter issue, attention was drawn to judicial commentary regarding ReturnToWorkSA’s compliance functions in cases which have been before South Australian Employment Tribunal in recent years, such as the matters of:
• Canales-Cordova; and
The protections the Government is introducing in these new Guidelines are as follows:
1. Ensuring that ReturnToWorkSA cannot direct a worker to choose a particular assessor to conduct the assessment, unless the worker is unable or unwilling to do so.
2. Ensuring that ReturnToWorkSA cannot direct an assessor to alter their clinical opinion when reviewing the assessor’s report for compliance with the Guidelines.
3. Ensuring that workers and their representatives are promptly provided with copies of correspondence between ReturnToWorkSA and the assessor when reviewing the assessor’s report for compliance with the Guidelines.
4. Ensuring that ReturnToWorkSA commence arrangements for the payment of an assessor’s report fee as soon as the assessor’s initial report is received.
5. Ensuring that a worker’s appointment with an assessor is not delayed due to long waiting lists;
6. Making clear that ReturnToWorkSA cannot delay the booking of a worker’s appointment with an assessor, unless agreed with the worker within the six-week time frame requirement.
Finally, I wish to make absolutely clear that the updated Guidelines do not raise the 5 per cent threshold or the 30 per cent seriously injured person threshold, which are set in the Act and cannot be undone.
A copy of the new Guidelines is available in the Government Gazette.