Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020. 

The COVID-19 pandemic has had far reaching impacts on our lifestyle, health system, economy and governance. In Western Australia the Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 (“The Bill”) was introduced into Parliament on 24 June 2020. The Bill was successfully passed through West Australian Parliament on 13 August 2020. The Bill provides various amendments to the Workers’ Compensation and Injury Management Act 1981 (“The Act”) and will come into operation as soon as it receives Royal Assent.

The Bill is focused on easing the burden of West Australian health care workers who contract the COVID-19 virus and need access to workers’ compensation entitlements. The Bill does, however, also introduce a number of other significant developments in how West Australian workers’ compensation claims are managed. Here, most importantly is the removal of the ‘Termination Day’ or deadline by which an injured worker must elect to pursue a common law damages claim.

Workers' compensation claims and job security.

Anecdotally, it is reasonable to say that most of us have heard horror stories about the treatment of injured workers while they are on workers’ compensation. These accounts often involve the employer terminating the injured worker, the insurer demanding that the worker provide a voluntary resignation, the employer or insurer pushing the injured worker back to work before their symptoms have resolved or general ridicule being directed at the injured worker by management or colleagues.

The workers’ compensation system in Western Australia generally functions well and arguably outperforms the systems of other Australian states and territories. Notwithstanding this, the Workers’ Compensation and Injury Management Act 1981 (“The Act”) provides injured workers’ with a minimal level of job protection and leaves them exposed to various strategies that are used by employers and insurers to terminate the employment of injured workers.  

Where did the Novel Coronavirus or COVID-19 come from?

On 31 December 2019, the World Health Organisation was first informed about a growing number of pneumonia cases being diagnosed in Wuhan City, China. At the time, the cause of these infections was unknown but it was believed that they were somehow connected to the Huanan Seafood Wholesale Market. On 1 January 2020 the market was closed down. On 7 January 2020 the Chinese government announced that a novel coronavirus had been identified as the cause of the infections.

Instances of workplace bullying have been increasing over time.

Instances of bullying in the workplace have risen dramatically in Australia in recent times. In 2012, in response to mounting community concern, the Australian Government established a parliamentary inquiry into workplace bullying. The findings of the inquiry led to the creation of a specific bullying jurisdiction within the Fair Work Commission. Disturbingly, Safe Work Australia data confirms that workplace injuries related to bullying and harassment have nearly doubled in Australia over the past decade.

What is WorkCover?

WorkCover WA regulates West Australia's workers' compensation and injury management scheme. WorkCover's mission is ensure that work related injuries are effectively and efficiently managed so that injured workers are able to make a safe and sustainable return to work. The West Australian workers' compensation system is the largest privately underwritten scheme in Australia and involves insurance being provided by the Insurance Commission of Western Australia, 8 commercial insurers and 24 self-insuring entities.

WorkCover is funded by a levy on the workers’ compensation insurance premiums paid by West Australian employers and levies on approved self-insured employers.

WorkCover plays a number of key roles for the West Australian government. Here, for example WorkCover provides the government with strategic policy direction regarding work injury matters and workers' compensation. It also ensures that employers and service providers comply with the Workers' Compensation and Injury Management Act 1981 (“the Act”). Another important role that WorkCover plays is to provide a independent dispute resolution service for workers, their employers and the employer’s insurer. In the 2017 / 2018 financial year WorkCover was involved in coordinating and convening 2,035 conciliation conferences and 578 arbitrations in regards to disputes between workers' compensation claimants and insurers. 

Are retraining programs provided as part of a workers' compensation claim?

It is possible for injured workers to access specialised retraining programs during their workers’ compensation claim. In these case the insurer must have admitted liability in the worker’s compensation claim. The injured worker must meet specific eligibility criteria in order to be considered for a retraining program. These programs allow workers who are unable to return to their pre-injury employment to complete particular vocational training or tertiary studies. Retraining programs are accessible only while the workers' compensation claim is live and before it has been settled. Access to specialised retraining programs cannot not be built into any settlement agreement so if the workers' compensation claim is settled the retraining program will cease.
 
The eligibility criteria is strict and the application process is relatively complex. To ensure that you have the best chance of accessing a retraining program during your workers’ compensation claim, we suggest that you obtain legal advice from a specialist personal injury lawyer.

Growth of commercial vehicles on Western Australian roads.  

Western Australia's coastline stretches for over 12,000 kilometers and Perth's metropolitan area is over 120 kilometers end to end, making it one of the longest cities in the world. Not surprisingly to travel around these area's requires many kilometers of roads and many motor vehicles. The Australian Bureau of Statistics reported that in 2018 Western Australian drivers traveled over 27,401 billion kilometers. 

To move people and freight around Perth and Western Australia more and more commercial vehicles are being used. The Australian Bureau of Statistics has confirmed that in the last decade the use of road freight has increased, year on year, in all states across Australia. In recent years, Western Australian's have also enthusiastically embraced ride sharing services like Uber, Ola and Shofer. Traditional taxi's are also still regularly used by many Western Australian's and the Department of Transport has recently introduced the Transport (Road Passenger Services) Act 2018 in an effort to make the on demand transport industry safer, fairer and simpler for consumers to use.          

Given that there are increasing numbers of commercial vehicles on Western Australian roads and that these vehicles are travelling comparatively long distances, it is not surprising that problems associated with road congestion and driver fatigue are increasing.  

The West Australian Department of Mines, Industry Regulation and Safety's regulations on operating commercial vehicles provide very clear requirements for what lengths of time workers are allowed to drive and how often they must take breaks. Notwithstanding our generally good road and motor vehicle regulations and standards, accidents involving commercial vehicles are commonplace.          

Public transportation in Western Australia. 

Public transportation began in Western Australia in 1831 with a very basic ferry service, however, this service was short lived. In 1836 the first reliable ferry service between Perth and Fremantle was established. On 1 July 2003 the Public Transport Authority Act 2003 was introduced and the Public Transport Authority ("PTA") was formed to manage the delivery of public transport in Western Australia.

During the 2017 / 2018 financial year the PTA spent $1.470 billion on delivering metropolitan and regional bus, train, ferry and freight services and regional school bus services. These services were used over 139 million times during the period.    

Motor vehicle injury compensation - how does the system work?

The Insurance Commission of Western Australia ("ICWA") administers the Compulsory Third Party ("CTP") motor vehicle insurance scheme in Western Australia. In 2018 ICWA generated more than $1.5 billion in revenue and earnings and paid $391 million in compensation payments to people injured in motor vehicle accidents.

 When a negligent motor vehicle driver injures another driver, passenger, cyclist or pedestrian the injured person is able to make a claim for personal injury compensation. When ICWA receives an application for compensation it assess the claim and then makes a decision regarding liability. If ICWA accepts liability for the accident and the injuries caused, it indemnifies or takes the place of the negligent driver in legal proceedings that seek compensation for the claimant. Put simply ICWA becomes the defendant in these proceedings and the injured person or plaintiff is then able to sue ICWA for damages under the CTP scheme.           

Injured in a motor vehicle accident at work? Do you claim workers' compensation or road accident compensation?

This seems like a straight forward question. If you have a motor vehicle accident injury while you are at work most of us would assume that your employer is required to assist and that you would just lodge a workers' compensation claim. Unfortunately it is not always that simple and how you proceed can depend on a number of legal factors such as: your employment contract, whether you are self employed, your relationship with your employer and whether the accident was caused by another road users' negligent driving.

Given this information you need to decide whether you should you make:

• A workers' compensation claim;
• A road accident compensation claim against the negligent driver involving the Insurance Commission of Western Australia; or
• Proceed with both claims?  

Before making any decisions regarding how you might claim compensation in these circumstances it is vital that you obtain legal advice from a specialist personal injury lawyer to ensure that you claim for ALL the compensation you are entitled to receive.