Changes to WA Workers Compensation Act

From 1 July 2024, key changes for the Western Australia Workers Compensation and Injury Management Act 2023 and accompanying Regulations 2024 will take effect. With the 1st of July fast approaching, it's critical that employers, health providers and service providers are across these changes for a seamless transition and implementation.

Overview of the changes

Essentially, the modern Act is a complete rewrite of the current Act to provide a clear scope of who it applies to, when decisions will be made, what entitlements are available, and how and when claims will be closed (either by recovery, return to work or settlement).

The new Act has been developed to:

Ensure the Act is responsive to industrial, technological and commercial developments including changes to the way we define who workers are, for example, contractors, and gig economy workers, as well as the way in which we communicate in the digital age;
Increase entitlements where appropriate, including doubling the medical and health capped expenses and extending the duration of wages before step down. Also, covering workers catastrophically injured under the uniform Catastrophic Injuries Support Scheme administered by the Insurance Commission of Western Australia (ICWA);
Improve cohesion and readability, recognising the confusing nature of the existing (1981) Act following haphazard amendments.

What are the key changes?

Below is a summary highlighting key changes and updates for your attention. You can also download a full copy of the Workers Compensation Injury Management Regulations 2024, supporting the Principal Workers Compensation Injury Management Act 2023, via the WorkCover WA website.

Area	Key Changes
Working directors	The exclusion that prevented coverage of public company directors is removed. A company director will not be covered by the workers compensation scheme unless the person is a 'working director' (as defined) The minimum weekly rate of income compensation payable does not apply to a working director, the rate of income compensation is determined by reference to the statement of the working director's remuneration.
Reasonable administrative action exclusion for psychological injury claims	Psychological or psychiatric disorders which result from 'reasonable management action' will not be an injury from employment, unless the action is unreasonable and harsh; This extends on the existing Act, which excludes stress related claims resulting from reasonable administrative actions undertaken by the employer, such as demotion, dismissal, or retrenchment, unless harsh and unreasonable.
Claiming compensation	Workers now have 12 months after the injury occurs to make a claim for compensation. Employers must submit the claim to the insurer within 7 days of receiving the claim form. If an insured employer fails to give a worker's claim to their insurer for any reason, the worker may give the claim to the insurer. Claims made under the 1981 Act will be taken to have been made and continue under the relevant section of this Act.
Responding to a claim for compensation	Insurers must issue a liability notice within 14 days. 'Deferred decision notice' to be issued within 14 days. Within 28 days of receiving claim and a deferred decision notice issue, provisional payments are to be paid. Deemed liability acceptance day = 120 days from receipt of claim.
Income compensation entitlement	Income compensation payments will be calculated over a 12-month period. A step down to 85% of the worker's pre-injury weekly rate of income will now apply after 26 weeks of payments instead of 13 weeks. Note: A safety net weekly rate of income will apply to ensure compensation does not go below the base award rate.
Injury Management and return to work	Employers have an obligation to establish a Return To Work program for partially incapacitated workers. Injured workers have an obligation to participate in Return to Work programs.
Reducing or discontinuing payments	An employer will no longer have to wait 21 days to reduce or discontinue income compensation payments when a worker has returned to work Workers must be informed of the basis for reduction or discontinuation of payments and the amount of compensation payable if not returning to work at full capacity. An employer who intends to reduce or discontinue income compensation payments on the basis of medical evidence must give the worker written notice in accordance with the regulations. The medical evidence must be shared with the worker. The worker has 21 days to make a dispute. Payments must not be reduced if a dispute is made. The definition of 'return to work' will remain the same.
Common law	While the worker's degree of permanent impairment must be at least 15% remains the required threshold, it must now apply to both the commencement of proceedings as well as the awarding damages. This means that the writ cannot be issued, or settlement claim effected, without the impairment assessment and election being registered. New provisions for conditions which have not stabilised 18 months post-injury. There will be special provisions for dust disease claims, including a Dusts Disease Panel, and court proceedings to begin before thresholds have been met for those workers that have been diagnosed with less than 2 years to live.
Policy changes	Industrial Disease policy which was previously administered by the Insurance Commission of WA for mining employers is no longer required and compensation claims for specific dust diseases are now included in the new Act under Workers Compensation policy. WorkCover WA will maintain its role in setting recommended premium rates for workers compensation policies but a new review process will be implemented where employers seek to challenge the premium charged by insurers.
Settlement	Registration of a settlement agreement will be the only pathway to settle a workers compensation claim via a lump sum and to discharge an employer's liability for the injury. There is no requirement under the Act for liability to be accepted or determined or any timeframe prescribed before a settlement can be registered. Every settlement will require a statement by the worker in the approved form acknowledging that the worker is aware of the consequences of registering the settlement agreement.
Treatment choices	Worker's have the right to choose their own medical and allied health practitioners. Employers, insurers and agents of insurers are prohibited to attend medical examinations.
Non-compliance	Penalties for non-compliance will double from fines of up to $5,000 to up to $10,000 per employee.

How Coverforce can help

For more information on Workers Compensation, contact your local Coverforce Broker or get in touch with our specialist Workers Compensation team here.

The information provided in this article is of a general nature only and has been prepared without taking into account your individual objectives, financial situation or needs. If you require advice that is tailored to your specific business or individual circumstances, please contact Coverforce directly.

REFERENCES

https://www.workcover.wa.gov.au/resources/modernising-was-workers-compensation-laws/
https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a147404_currencies.html&view=asmade
https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a147404_subsidiary.html

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