COVID-19 BILL WILL OPEN THE FLOODGATES

Legal Directions

On 24 June 2020 the Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020 (The Bill) was introduced to the
Western Australian Parliament.

The Bill makes a number of proposed amendments to the Workers’ Compensation and Injury Management Act 1981 (The Act), including in relation to the calculation of the prescribed amount, the introduction of prescribed diseases, and the removal of the termination day for common law claims.

Prescribed amount

The maximum entitlements under the Act are indexed annually based on wage statistics from the Australian Bureau of Statistics.

The proposed amendments to the prescribed amount are aimed at preventing a reduction in entitlements in the future, due to the effects of reduced average weekly earnings during the COVID-19 pandemic.

Prescribed diseases

The Bill also seeks to introduce Part III Division B in relation to prescribed diseases which, if contracted by a worker in prescribed employment, are taken to have been contributed to by the employment unless the employer proves otherwise (i.e. a rebuttable presumption in favour of the worker having contracted the disease at work).

This provision is limited to prescribed diseases and prescribed employment, both of which are to be specified by Regulations. The Second Reading Speech makes it clear this provision seeks to protect health care workers who are at particular risk of exposure to COVID-19 – it is anticipated the Regulations will likely only cover health care workers and other limited ‘essential workers’.

Common law termination day

Perhaps the most significant amendment is to s93L, with the complete removal of ss93M and 93O.

The Act currently requires a worker to make an election to pursue common law damages prior to the ‘termination day’. Under the proposed changes, this requirement will be removed, with workers needing only to bring common law proceedings within time under the Limitation Act 2005 (WA), being three years from the date of injury.

From the Second Reading Speech it is apparent this amendment was being considered as part of WorkCover’s current review of the Act, but is being brought forward due to the COVID-19 pandemic and the limitations on workers accessing
AMS specialists for impairment assessments.

The proposed s93T, dealing with the transitional arrangements, makes it clear the removal of the termination day requirement is to have retroactive effect. That is, a worker who has been injured and for whom the termination day has passed, would nonetheless be able to bring a common law claim, as long as the statutory limitation period has not expired.

This has the effect of opening employers and insurers to common law actions in current claims where the termination day has passed and the worker’s right to elect had been extinguished.

Summary

Needless to say, the further ‘tweaking’ of the Act has the potential to introduce further complexity and unforeseen inconsistencies. One such example is that s93L(3) is left referring to a repealed provision (s93N(1)). It can only be hoped that the
Western Australian Parliament makes the ongoing re-write of the legislation a priority after the COVID-19 pandemic passes.

Insurers should take particular note of the proposed removal of the termination day and the retrospective effect of this. Moray & Agnew is well-placed to provide advice and assistance with respect to this issue.

Further information / assistance regarding the issues raised in this article is available from the authors, Daniel Costanzo – Partner and Daniel Coster – Senior Associate or your usual contact at Moray & Agnew.

The above content was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.


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