The state government is facing growing political and legal backlash against its attempt to tighten labor compensation guidelines amid warnings that 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 Labor Relations Minister Rob Lucas to step back from proposed new guidelines after lawyers and doctors warned injured workers would be “a little tough” with underhanded changes.
They argue that Return to Work SA is trying to enforce the changes by “rushing” changes to government guidelines on assessing impairment – a method that bypasses the legal review.
Currently, the injury of an injured worker needs to be assessed according to the guidelines to determine if they are entitled to compensation.
If the injury affects more than five percent of your physical performance, you are entitled to a lump sum. If their injury affects more than 30 percent of their physical performance, they are considered “seriously injured” and are entitled to regular income payments as well as a one-off payment.
PMN attorney Eloise Theodore, who sent a joint letter to MPs on behalf of over 60 lawyers condemning the proposed guidelines, said Return to Work SA wanted to tighten the assessment criteria, which means some workers could miss payments .
She said after the changes, doctors who assess injured workers would no longer have the discretion to choose an assessment method that would result in a higher percentage of impairment.
“I would describe it as a major tightening of the criteria that makes it virtually impossible for people with certain injuries to hit the 30 percent threshold,” she told InDaily.
The proposed changes would also automatically subtract 10 percent from the assessment of an injured worker who has pre-existing physical degeneration or injury.
Rob Lucas could just sign on the dotted line announcing it for Thursday and all of this could happen without any real supervision from anyone
Australian Lawyers Alliance SA President Sarah Vinall said the change could result in “thousands” of workers with normal bone or joint degeneration or other pre-existing injuries being pushed below five or 30 percent, meaning that they would miss payments.
“Most people over the age of 30 would experience some degeneration of their bones on an X-ray, which is normal and expected,” she said.
“Even if you’ve never had bone or pain issues in your life, the changes will reduce your impairment (from the changes) by 10 percent.
“For many people, a 10 percent deduction could cause them to fall below the five percent threshold, and it could even cause people to fall below the 30 percent threshold, and so miss those payments.”
In a letter to MPs – viewed by InDaily – six occupational health professionals described the change as “tough” and claimed it would “lead to unfair outcomes for people with valid, permanent and often debilitating impairments.”
“The requirement to deduct 10 percent of the impairment for a pre-existing condition such as bone loss means that the majority of workers 30 to 50 years of age and older will pay a 10 percent deduction for any impairment, even if there are no symptoms or effects on their daily life at all before the accident at work, ”they wrote.
Theodore said the government is also proposing to limit a worker’s ability to choose the doctor they think is best suited to assess their injury.
She said the proposed new guidelines will make it mandatory for injured workers in need of surgery to be assessed by surgeons rather than occupational doctors.
“Most of the surgeons on the accreditation list are intergovernmental – they are fly-in and fly-out doctors,” she said.
“Based on my experience in this area, I believe that the Return to Work Corporation wants to limit the selection of doctors to these surgeons because they think they will get better reviews from them, they think they will be more . “Conservative.”
In a letter to MPs, DBH partner Amy Nikolovski, whose law firm represents hundreds of workers in South Australia, wrote that the changes would be “enforced without proper consultation or debate”.
What they are suggesting is a fairly fundamental change to the scheme
Nikolovski told InDaily that the proposed changes would not be subject to parliamentary scrutiny as Return to Work SA proposed a change in policy, not legislation.
“On Monday, Rob Lucas could just sign on the dotted line if he wanted to, write it out for Thursday and all of this could happen without any real supervision from anyone,” she said.
“To us it looks like the tribunal recently made some decisions that Return to Work was not happy with and they changed the guidelines so that these particular cases do not apply.”
Nikolovski said Return to Work conducted a four-week public consultation but did not reach out directly to law firms or workers’ groups for information about the process.
The backlash has prompted Labor to submit a bill to parliament requiring the government to pass parliamentary amendments to state policies on workers’ compensation.
Shadow Labor Relations Minister Kyam Maher said the government should postpone implementation of the proposed new guidelines until “appropriate consultations” have taken place.
“We think it would be pretty slim to make these very, very far-reaching changes before there is an opportunity to move law changes,” he told InDaily.
“What they are proposing is a pretty fundamental change in scheme.”
But Nikolovski said she was concerned that the government might enforce the new guidelines before Labor tabled its bill later this month.
In the meantime, the Greens have filed a motion in the House of Lords condemning the changes proposed by the government.
Green MLC Tammy Franks told Parliament on Wednesday that the guidelines “suffered from a serious lack of meaningful advice” and would lead to “harsh and unreasonable results for the injured workers of our state”.
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Connie Bonaros, SA Best MLC, also condemned the proposed guidelines and tweeted that the government “has the potential to abandon injured workers when they are most at risk”.
In a statement to InDaily, Lucas said he has yet to decide whether to change the guidelines.
“After 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 intended to ensure greater efficiency and consistency, reflect clinical developments and improve fairness and transparency in the impairment assessment process.”
Lucas said he approved a “wider consultation process than required by law,” which included the Law Society and Self Insurers of South Australia, 13 medical associations and over 120 accredited individual impairment assessors.
He said the Marshall administration would not support Labor law, arguing that the existing program was designed and implemented with bipartisan support under the former Labor administration.
According to the Lucas office, around 40 percent of the currently accredited assessors have not yet carried out an assessment in this financial year and some assessors experienced delays of up to 12 weeks.
InDaily contacted Return to Work SA for comment, but a spokesperson referred questions to Lucas’ office.
The public consultation on the proposed changes ends at 6 p.m. today.
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