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'Sneaky' workers compensation changes could hit thousands

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The State Government is facing growing political and legal backlash against its attempt to tighten-up workers compensation guidelines, amid warnings the proposed changes could result in thousands of injured workers receiving lower payments.

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Labor, the Greens and SA Best have urged Industrial Relations Minister Rob Lucas to back down from the proposed new guidelines, after lawyers and medical practitioners warned injured workers would be “bit hard with sneaky changes”.

They argue Return to Work SA is attempting to enforce the changes through “rushed” amendments to the state’s Impairment Assessment Guidelines – a method that bypasses the requirement for legislative review.

Currently, an injured worker must have their injury assessed in accordance with the guidelines to determine whether they are eligible for compensation.

If their injury affects more than five per cent of their bodily capability, they are entitled to a lump sum payment. If their injury affects more than 30 per cent of their bodily capability, they are deemed “seriously injured” and are entitled to ongoing income payments as well as a lump sum payment.

PMN lawyer Eloise Theodore, who sent a joint letter on behalf of over 60 lawyers to MPs condemning the proposed guidelines, said Return to Work SA wanted to tighten the assessment criteria, meaning some workers could miss out on payments.

She said under the changes, doctors who assess injured workers would no longer have the discretion to choose an assessment method that would result in a higher impairment percentage.

“I would describe it as a severe tightening of the criteria, making it all but impossible for people to reach the 30 per cent threshold with certain injuries,” she told InDaily.

The proposed changes would also automatically deduct 10 per cent from an injured worker’s assessment if they have any pre-existing bodily degeneration or injury.

Rob Lucas could just sign on the dotted line, gazette these for Thursday and these could all just happen without any real oversight from anybody

Australian Lawyers Alliance SA President Sarah Vinall said the change could mean “thousands” of workers with normal bone or joint degeneration, or other pre-existing injuries, could be pushed below the five or 30 per cent thresholds, meaning they would miss out on payments.

“Most people over the age of 30, if they get an x-ray, they would have some degeneration of their bones, which is normal and to be expected,” she said.

“Even if they’ve never had any problems with their bones or any day of pain in their life, (under the changes) their impairment will be reduced by 10 per cent.

“For a lot of people that deduction of 10 per cent could knock them below the five per cent threshold and it could even knock people below the 30 per cent threshold and so they miss out on those payments.”

In a letter to MPs – seen by InDaily ­­– six medical practitioners who specialise in occupational medicine described the change as “harsh” and claimed it would “result in unjust outcomes for people with valid, permanent and often debilitating impairments”.

“The requirement to deduct 10 per of the impairment for pre-existing condition such as degeneration of bones, will mean the majority of workers who are 30 to 50 years and older will wear a 10 per cent deduction for each impairment even if there were no symptoms or impact on their day to day lives at all before the work injury,” they wrote.

Theodore said the Government was also proposing to limit a worker’s ability to select which doctor they believe is best suited to assess their injury.

She said the proposed new guidelines made it mandatory for injured workers who require surgery to be assessed by surgeons, rather than occupational physicians.

“Most of the surgeons on the accreditations list are interstate – they are fly-in and fly-out doctors,” she said.

“It is my opinion, based on my experience in this area, that the Return to Work Corporation wants to limit the selection of doctors to these surgeons because they think they’ll get more favourable assessments from them, they think they’ll be more conservative.”

In a letter sent to MPs, DBH partner Amy Nikolovski, whose law firm says it represents hundreds of workers in South Australia, wrote that the changes were being “rushed through, without proper consultation or debate”.

What they’re proposing is quite a fundamental change to the scheme

Nikolovski told InDaily that because Return to Work SA was proposing to amend guidelines rather than the legislation, the proposed changes would not be subject to parliamentary scrutiny.

“On Monday, if he wanted to, Rob Lucas could just sign on the dotted line, gazette these for Thursday and these could all just happen without any real oversight from anybody,” she said.

“What it looks to us like, is there’s been some recent decisions in the Tribunal that Return to Work haven’t been happy with and what they’ve done is changed the guidelines so that those particular cases won’t apply.”

Nikolovski said Return to Work ran a four-week public consultation, but it did not contact law firms or workers’ groups directly to notify them of the process.

The backlash has prompted Labor to introduce a Bill to parliament making it mandatory for the government to pass changes to the state’s workers compensation guidelines through parliament.

Shadow Industrial Relations Minister Kyam Maher said the Government should hold-off implementing the proposed new guidelines until “proper consultation” has occurred.

“We think it would be pretty poor form to make these very, very sweeping changes before there’s been an opportunity to agitate legislative change,” he told InDaily.

“What they’re proposing is quite a fundamental change to the scheme.”

But Nikolovski said she was concerned the Government could enforce the new guidelines before Labor introduces its Bill later this month.

Meanwhile, the Greens have lodged a motion in the Upper House condemning the government’s proposed changes.

Greens MLC Tammy Franks told parliament on Wednesday that the guidelines “suffer a severe lack of meaningful consultation” and would result in “harsh and unreasonable results for those injured workers of our state”.

SA Best MLC Connie Bonaros has also condemned the proposed guidelines, tweeting that the Government has “the potential to abandon injured workers when they are at their most vulnerable”.

In a statement to InDaily, Lucas said he was yet to decide whether to modify the guidelines.

“Following the consultation process, I will consider the proposed changes and feedback and make a decision in due course,” he said.

“The proposed changes to the guidelines are to ensure greater efficiency, consistency, reflect clinical developments, and improve fairness and transparency in the impairment assessment process.”

Lucas said he had approved a “broader consultation process than required by the legislation”, with 13 medical associations and over 120 individual accredited impairment assessors consulted, alongside the Law Society and Self Insurers of South Australia.

He said the Marshall Government would not support Labor’s Bill, arguing the existing scheme was drafted and enacted under the former Labor Government with bipartisan support.

According to Lucas’ office, about 40 per cent of currently accredited assessors have yet to perform an assessment this financial year and there have been delays of up to 12 weeks for an appointment with some assessors.

InDaily contacted Return to Work SA for comment, but a spokesperson referred questions to Lucas’ office.

The public consultation on the proposed changes closes at 6pm today.

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