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Recovery/Return To Work Plans & Workers Compensation in the Era of COVID-19

Written by Andrew Wright

March 31, 2020

COVID 19 | Boylan Lawyers

Recovery Return to Work (RTW) Plans

 

South Australian workers who suffer an injury at work are entitled to a maximum two years of wages and three years of medical expenses. The general exceptions are if you are a seriously injured worker, or if you require surgery.

There is a big emphasis on rehabilitating and returning injured workers to work, and rightfully so. Section 3 of the Return to Work Act 2014 sets out the Objects of the Act and essentially repeats what I have just said, namely that rehabilitation and return to work is paramount. (RTW Act)

Unfortunately, COVID-19 has created barriers for insurers to rehabilitate and return to work injured workers within a 2-year period.  Workers can no longer attend, or no longer effectively attend the likes of physios/surgeons/psychiatrists/gyms/workplaces/study to name just a few rehabilitative services and so most Return to Work Plans currently in force between insurers and injured workers, cannot and are not being achieved. (ss24 and 25) That also raises issues of mutuality (breach of mutuality) though hopefully common sense prevails for each fact that presents.

Whilst a couple of weeks of non-adherence to a plan could be ‘brushed aside’ on the basis that each of the contracting parties to the plan ‘get on with it’, the same cannot be said for the current predicament. Consideration and discussion of this issue now will have less adverse implications in the future. As far as I am aware, insurers have not turned their mind to this issue at all.

Similarly, what of the situation (of which there are many examples) where workers are keen to proceed with elective surgery so they can get the best and most timely treatment to put them in a position to get back to work as soon as possible, thus adhering to the Objects of the Act?

If a worker gets to the end of their entitlements and hasn’t been sufficiently rehabilitated and is no longer employed by his pre-injury employer (not uncommon) and not entitled to weekly payments due to the expiry of two years then why should this worker be at a further disadvantage due to the unavailability of appropriate rehabilitation during the time he was on payments?

S39(3) of the RTW Act makes it clear there is no entitlement to weekly payments after 2 years, but surely that has to be based on the insurer adhering to the Objects of the Act, namely rehabilitating and, if possible returning the worker to work (pre-injury employer or some other new employer)?

The worker must be provided with the best chance possible of selling his labour on the open labour market after the expiry of entitlements. At least, this must have been the intention of the legislature?

Solution

Extend the time allowed for weekly payments commensurate with the delay in ‘access to rehabilitation’.

 

The ‘R’ word

 

Redeeming entitlements under the repealed Act worked. It still works under this Act with the Self-Insured employer, so why can’t a policy decision created by Return To Work (The Corporation) be reconsidered in light of the COVID-19 crisis?

  • It would allow matters to settle much earlier and without the need for judicial intervention. Redemption talks could commence now and without the need for SAET (South Australian Employment Tribunal). In fact, now is the best time as we have the Independent bar without a court room and therefore with time to consider settlements, that could take the form of a redemption.
  • It would reduce the unfunded liability of the scheme. It would possibly encapsulate an overall settlement where the employer may wish to be involved for s18 issues at least. It would give the worker and employer certainty now.
  • It would give the worker money at a time it is needed most.
  • It would alleviate the need to attempt to follow a recovery/return to work plan that cannot be followed or can be followed but at great risk.
  • It would alleviate an influx of arguments from workers representatives that their clients haven’t been adequately rehabilitated and therefore s39 shouldn’t apply.

Solution

Get redemptions back on the table!

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