The Return to Work SA proposal would tighten the Impairment Assessment Guidelines (IAG) which injured workers are evaluated against, to determine whether they are eligible for compensation.
Currently, if a worker’s injury affects more than five per cent of their bodily capability, they’re 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.
The proposed reforms would automatically deduct 10 per cent from an injured worker’s assessment if they have a pre-existing injury.
Surgeons will also be required to assess a worker’s impairment post-surgery, raising concerns from medical practitioners and lawyers about workers being unable to choose their own doctor or an occupational physician to examine their injury.
Public consultation on the reform proposal ended on June 25, after Return To Work SA issued a 129-page draft review for feedback from stakeholders on May 28.
Law Society President Rebecca Sandford said the consultation process was “lacking in a number of ways”.
“The consultation process was just four weeks long in total, with only two weeks between the date of its information sessions on the changes and the date for responses from stakeholders,” Sandford said.
“Given both the breadth and technical nature of the changes, it is simply not feasible for key stakeholders to properly examine and respond meaningfully to the proposal in such a short space of time.
“The Society urges the Government to refrain from making any decisions about the Guidelines until there has been proper consultation and parliamentary debate on the Bill.”
The criticism from the state’s peak law body follows other legal groups, including the Australian Lawyers Alliance and Lawyers for Workers SA, which have expressed opposition to the changes.
Under the Return to Work Act 2014, Industrial Relations Minister Rob Lucas can approve amendments to the IAG after a consultation period with medical practitioners who undertake impairment assessments.
The minister’s powers under the Act bypass the need for amendments to undergo legislative review.
Labor, the Greens and SA Best have already stated their opposition to the reforms, with the Opposition notifying both houses of parliament of its intention to introduce a bill to mandate any proposed changes to the Guidelines undergo legislative review.
Sandford said the Law Society had not yet reached an “ultimate position” on the proposal, but their submission to Return to Work reflected the view that “insufficient time has been given to allow rigorous analysis of these changes”.
“The proposed changes to the IAGs were presented to the Society with no forewarning,” she said.
“The Society, and other key stakeholders, had no input into RTWSA’s review process that led to the consultation on these proposed changes.
“This has made providing feedback on the proposed changes exceedingly difficult on several fronts.”
Sandford also said RTWSA “did not identify the source” of the medical advice which prompted the agency to draft the proposed changes.
“In the absence of the medical advice upon which RTWSA has acted, it is not possible for the Society either to support or to oppose any of the proposed changes on ‘medical merit’ grounds,” she said.
Australian Medical Association SA Branch President Dr Michelle Atchison expressed similar concerns about the changes and also called on the Return to Work SA to reveal medical advice underpinning the changes.
She said it was “clear” after a meeting with the association’s RTWSA reference group that the proposal had come with “no input from clinicians that they were aware of, and had implications that could not be adequately assessed and addressed in the time available”.
“We are concerned that there is a lack of transparency about the reasons for both individual and collective changes, and ask to what degree the Guidelines’ development was based on a desire to cut costs, rather than to ensure improved outcomes for injured workers,” Atchison said.
She also said the AMA was specifically concerned with the requirement that assessments of musculoskeletal injuries be limited to surgeons.
“Many clinicians have accumulated many years of training and expertise in assessing injuries and have become specialists in the field of musculoskeletal injuries,” she said.
“It discriminates against these non-surgical assessors to consider their accumulated knowledge of aspects of a person’s injury and rehabilitation less valuable than that of a surgeon with ‘site specific’ knowledge but limited expertise in the broader rehabilitation context.”
Atchison also said limiting assessments to surgeons could create a “bottleneck” due to a limited number of assessors available to provide advice, potentially resulting in “more ‘fly in, fly out’ assessors at greater cost and possibly distress to the patient”.
The AMA recommended the reforms undergo review from the Ministerial Advisory Committee “rather than have this document put to us without evidence to support the proposed changes”.
RTWSA referred all inquiries to the office of Industrial Relations Minister Rob Lucas.
Lucas said he was yet to make a decision on the proposed changes and would consider advice from the Minister’s Advisory Committee.
He reiterated that he had approved a “broader consultation process than required by the legislation” involving 13 medical associations and more than 120 individual accredited impairment assessors”.
“Consultation has also taken place with the Law Society of South Australia and Self Insurers of South Australia,” he said.
“I will also consider advice from the Minister’s Advisory Committee established under the Act, which has been provided with additional time to consult.
“I am advised the Committee comprises medical practitioners nominated by the Australian Medical Association as well as representatives nominated by employee and employer associations, including members of the Law Society.”
He said the face-to-face information sessions on the reforms were “well attended”.
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.
“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.
“No decision to modify the Guidelines has yet been made … I will consider the proposed changes and feedback and make a decision in due course.”
Shadow Industrial Relations Minister Kyam Maher said it would be an act of “complete bastardry” if the Government moved to amend the guidelines knowing legislation was on the table to require legislative oversight.
“The opposition has continued to receive correspondence from people who are involved in the WorkCover scheme who are frustrated at the lack of consultation and where this is heading,” Maher said.
But Lucas said the Government would not support Labor’s Bill if it included changes to the “existing arrangements for the publication of the Guidelines”, noting the existing scheme was drafted under the former Labor Government with bipartisan support.
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