Please note that this blog is no longer relevant due to legislative changes that were enacted in 2020. We are often asked about how the workers' compensation system operated before this change and thought that it was appropriate to continue to host this blog for reference purposes. If you would like to learn about the legislative amendments that changed the workers' compensation termination date you can read about it here.

What is a 'Form 36 Notice to Worker About Termination Date for Election'?

If liability in your workers' compensation claim has been admitted, a Form 36 Notice to Worker About Termination Date For Election should be sent to you by your employer or their insurer. The purpose of the Form 36 Termination Date Notice is to inform you that, if you intend to make a common law damages claim, you must elect to do so prior to the Termination Date. The Form 36 Termination Date Notice is sent approximately 26 weeks before the Termination Date. 

A Termination Date sounds scary. What does it really mean?

Put simply, the Termination Date is the date, 12 months from the date on which the injured worker lodged their workers' compensation claim with their employer. Particular importance is placed on the Termination Date as it is the date by which you must elect to pursue a common law claim against your employer.

Contrary to common misconceptions the Termination Date is not:

• the date when injured workers that are receiving workers' compensation are terminated from their employment;
• the date when injured workers receiving regular workers' compensation payments have their payments cut;
• the date when a workers' compensation claim is settled or finalised; or
• the date by which all treatment in regards to a workers' compensation claim must be completed.

Workplace deaths – a background. 

Information on global workplace fatalities is not reported or collected in a standardised fashion. Formed in 1919 the International Labour Organisation (“ILO”) is an agency of the United Nations and attempts to bring together governments, employers and workers from 187 member states. The ILO maintains statistics on workplace injuries and fatalities but recognises that in many countries workplace accidents and deaths are significantly under-reported. In joint research between the ILO and a couple of Finnish universities it was estimated that in 1998 there were 350,000 workplace deaths across the world. This research found that Morocco was the most dangerous country to work in as it recorded 48 deaths per 100,000 workers. In more contemporary research the ILO found that in 2015 there were 38 deaths per 100,000 workers in the Occupied Palestinian Territory.    

Anatomy of the shoulder.

One of the most complex joints in the body, the shoulder provides nearly 360 degrees of motion. This high range of motion is, however, offset by the decreased stability of the joint which is prone to dislocation and traumatic injury.

Anatomy of the neck, spine, back and spinal cord.

In possibly the first historical mention of the spine and the spinal cord, Herophilus (325–260 BC), a Hippocratic physician working in the Alexandrian School of Medicine demonstrated that the cord was an extension of the hind brain and named it the ‘spinal cord’. Around 160 AD, while working as a physician for the Roman emperor Marcus Aurelius, Galen completed dissections and vivisection's that enabled the anatomical details of the vertebral column, spinal cord and nerve roots to be recorded. Galen described the cord as being like “a river rising from its source, extended from the brain, continuously sending forth a nerve channel to each of the parts that it meets, through which both sensation and motion are conveyed”.

Post-traumatic stress disorder – background.

Humans have been exposed to traumatic events throughout our evolution as a species. Unfortunately, the evolutionary process has not improved our ability to cope psychologically with exposure to extremely traumatic events. Here, it is fair to say that an attack from a sabre tooth tiger or being a first responder in a catastrophic car crash can elicit similar physical and psychological responses.   

During the First World War ‘shell shock’ became a significant medical and military issue and one that both the Axis and Allied armies struggled to treat. The British army, frustrated by the debilitating symptoms of shell shock, appointed Charles S. Myers, a medically trained psychologist to investigate the psychiatric impact of modern warfare. It has been argued that this early research was a precursor to the later development of post-traumatic stress disorder (“PTSD”) as a recognised psychiatric diagnoses.

At last - legislative relief for injured workers

Recent changes to West Australian workers’ compensation legislation, have for the first time in many years, stripped away a statutory obstacle that was a major impediment to injured workers accessing their legal rights and obtaining a sense of justice.

Over the last 20 years, various repressive legislative changes enacted in the states and territories of Australia have impacted adversely on the ability of injured workers to access common law rights and legal damages. Separovic Injury Lawyers views the workers’ compensation legislative framework in West Australia as very unsatisfactory.

Here, in particular the imposition of a tight deadline by which the injured worker must confirm that they intend on making a common law claim means that claimants are often prohibited from making a common law claim or receive less compensation than they deserve. Further to this, being prohibited from making a common law claim by an arbitrary and nonsensical deadline robs deserving claimants of their common law rights and it could be argued that this is an impost on our democratic process.      

After watching the legal rights and access to justice of injured victims be steadily eroded over time, this legislative change is a very significant ‘breath of fresh air’ for workers’ compensation claimants and plaintiff injury lawyers in West Australia. The removal of the ‘Termination Date’ by which an injured worker must confirm that they intend to make a common law claim is the first improvement to the legal rights and access to compensation enjoyed by West Australian workers in memory. 

Most workplace injuries involve medical treatment and rehabilitation programs that are provided to the injured worker over many months and sometimes years. In each workers’ compensation claim it is hoped that the injured worker responds positively to their treatment and over time, regains the ability to work. Once an injured worker regains some capacity for work,  they must participate in a rehabilitation return to work program, that usually involves starting with an appropriate and suitable part time work trial gradually building up hours in either the pre-accident job or an alternative lighter job. All rehabilitation work trials must be approved by the worker’s GP. Importantly, it is not a matter for the employer or insurer to determine when or how a worker can or should go back to work. This is a medical decision which is made usually by the worker’s GP or treating specialist.

Over the years, Separovic Injury Lawyers have seen return to work programs become a major source of conflict between injured workers, the employer and their insurers. These conflicts often arise where the worker is pressured to return to work before they are physically or mentally ready to do so. Often in these cases, the injured worker may still be suffering from pain or discomfort caused by the work injury. Alternatively, the employee could be in a situation where the work trial is aggravating their injury, but they think they are legally obliged to push on, based on what they are being told by the insurer, employer or rehabilitation provider.  

Generally, the employer or their insurer is keen to have the worker return to work as soon as possible after the accident and thereby be in a position to stop paying weekly payments of compensation as soon as possible.

Injured workers entering the West Australian workers’ compensation system often become frustrated by a lack of information surrounding medical appointments and examinations. Requests to attend medical appointments, usually to be reviewed by a medical specialist  can come from the worker’s employer, their insurer or the worker’s plaintiff injury lawyer. The medical reviews that these parties may request the worker to attend are for the purpose of obtaining medical evidence, in the form of medical reports. This evidence is used for various legal purposes relating to the management of the worker’s claim for compensation. The medical evidence obtained through these examinations can determine whether a worker’s weekly payments should be discontinued, whether the worker could return to work, the level of impairment resulting from the injury, how much lump sum compensation the worker could be paid and whether the worker could make an industrial negligence claim. Not attending or obstructing a medical appointment requested by the employer or their insurer can result in a range of consequences for an injured worker, the most serious of which includes the suspension of the worker’s right to claim compensation & in particular ongoing weekly payments of workers compensation.   

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.