The Legislative Council passed a bill to modernise workers’ compensation laws in Western Australia. The new bill was to rewrite the existing Workers’ Compensation and Injury Management Act 1981 (now repealed). The aim was to provide clarity and insert some key changes as promised by the current state government.
The Workers Compensation and Injury Management Act 2023 was assented to by the Governor on 24 October 2023. It relies heavily on the rules and regulations that have now been finalised. It commenced operation on 1 July 2024. This is a repeal and replace Act, meaning the old Act is gone and this new Act will take its place.
Key Changes at a Glance
The Workers Compensation and Injury Management Act 2023 represents the most significant reform to WA workers comp law in decades. Key updates include:
| Detail | Old Law (Workers Compensation Act 1981) | New Law (Workers Compensation Act 2023) |
|---|---|---|
| Definition of a Worker | A broad definition. | A clearer definition that specifically mentions and likely excludes many contractors. |
| Employer Claim Submission Timeframe | Employers had 7 working days to forward submitted claims to their insurers. | Employers have 7 days to forward submitted claims to their insurers. |
| Insurer Decision Timeline | Insurers had 14 days from getting the claim to make a claim decision. | Both insurers and self-insurers have 14 days to make a claim decision. |
| Calculation of Pre-Injury Average Weekly Earnings | Multiple methods. | Average earnings 12 months before the injury (excluding unpaid leave). |
| Medical Expense Cap | 30% of the prescribed amount. | 60% of the prescribed amount. |
| Income Compensation Step-Down | Reduced after 13 weeks. | Reduced to 85% after 26 weeks unless defined as an Award Worker. |
| Return to Work Programs | Less importance on return-to-work programs. No mention of return to work case conferences. | Employers must create a return-to-work program for capable injured workers. A return to work case conference can be arranged. Workers must engage. |
Key Changes to Workers Compensation Law:
Definition of a Worker
The law continues to cover employees and apprentices, but it also now clarifies contractors’ working arrangements. The Act defines a contractor as someone contracted to do specific work for another person. For example, a builder working as a sole trader who supplies their own ABN and works for another client is usually not covered under the client’s compensation insurance.
Learn More: Are Contractors Covered by Workers Compensation?
Extended Claim Process Timeframes
Workers still have 12 months from the date of their work injury to claim workers compensation. Employers now have 7 days to forward the submitted claim form to their insurers. Insurers and self-insurers must provide a liability notice within 14 days. If they haven’t decided after 28 days, they are required to send a deferred decision notice and start paying provisional payments. If 120 days pass from the date the insurer received your claim, they will be considered to have accepted liability for your injury and must begin making compensation payments.
Calculation of Pre-Injury Average Weekly Earnings
Worker income compensation payments are now calculated based on a worker’s average earnings from 12 months before the injury, excluding unpaid leave. Previously, their weekly income was calculated based on their Award earnings at the time of injury plus the average of some overtime and allowances over the 13 weeks before their injury. If the worker has been employed in that position for less than one year, the weekly rate of income is now calculated from the start of their employment to the day before the injury occurred.
Previously, payments were reduced after 13 weeks if not an Award worker. Now, the step-down to 85% of the worker’s pre-injury income applies only after 26 weeks if there is one. In some cases, the 85% step-down causes the payments to fall below the base award rate or the minimum set under the Minimum Conditions of Employment Act WA. In these instances, a safety net minimum weekly rate of income compensation may apply instead.
Learn More: How are Workers Compensation Payments Calculated?
Medical Expenses Cap
The limit for medical/statutory expenses has been doubled from 30% to 60% of the prescribed amount. Workers also have the freedom to choose their own healthcare providers. To ensure the privacy and integrity of a worker’s medical assessment, employers and insurers are now prohibited from attending medical examinations. The cap is indexed annually to ensure that it keeps up with rising treatment costs.
Return to Work Programs & Certificates of Capacity
A Certificate of Capacity must be issued by the treating medical practitioner. They describe the worker’s capacity, restriction and expected recovery. If a doctor certifies the worker with the capacity to work, employers must establish a return-to-work program. Workers are expected to actively participate in the return-to-work plan. A return-to-work case conference can also be arranged by the employer, your employer’s insurer, a workplace rehabilitation provider, or your treating medical practitioner. Workers are required to attend, participate, and cooperate in a conference, so it is vital that you choose who assists you. The employer, insurer and rehab providers are not allowed to be in attendance while you are being treated.
Refined Psychological Stress Claims
The Act expands on the exclusionary provisions that prevent workers from claiming compensation for psychological injury. The legislation now excludes any psychological injury caused by “administrative action” taken by an employer. This can include an appraisal of the worker’s performance, suspension & disciplinary action, expectation of promotion, etc.
Catastrophic Workplace Injuries
Workers catastrophically injured in workplace accidents are now covered under the Catastrophic Injuries Support Scheme (CISS). This is similar to individuals catastrophically injured in motor vehicle accidents. Catastrophic injuries include spinal cord injuries, traumatic brain injuries, amputations, severe burns and permanent blindness.
Dust Diseases Workers’ Compensation
Some dust diseases are now covered under a presumption of work injury. It’s the employer who has to prove the disease was not caused in the course of the employment.Increased Non-Compliance Penalties
The penalty for not complying has doubled, increasing from $5,000 to $10,000 per employee. To avoid this penalty, employers are now required to submit all claim forms and medical certificates within the correct timeframe.
Pre-Employment Checks
The new act prohibits employers from asking about any previous workers compensation claims when hiring. If an employer asks about past claims, workers have the right to decline. This helps reduce stigma around work injury claims and ensures a fairer hiring process.
Modernised Workers Compensation Laws for WA
Some changes to the Workers’ Compensation Act may seem small, and it has been stated that “the intention of the changes is to modernise the Act, not change any of the fundamentals”. However, this will likely still have an impact as the wording of the 1981 Act was interpreted by the Courts over 40-odd years. These changes in the wording will likely have an effect (from the 1981 Act) on a lot of work injury cases going forward. It’s important for both employees and currently injured workers to understand how this new Act will affect their rights to compensation in the future.
Anvil Legal’s workers’ compensation lawyers can help you navigate the nuances of these new changes specific to your work injury. Contact us today to have your claim reviewed by a qualified and well-experienced lawyer.