Special Edition: New WA Workers' Compensation Act - Do you know how it will affect you?

Potentially this may affect you in two ways. Firstly, as a business owner (WC insurance is compulsory with a $15000 fine) and secondly, as a clinician interacting with injured employees.

The enactment of the Workers Compensation and Injury Management Act 2023 in October 2023 marks a new era in workers' compensation in Western Australia. The WCIMA23 is a complete rewrite of the prior legislation, the Workers' Compensation and Injury Management Act 1981 and will come into effect on 1 July 2024.

Disclaimer: The following is a synthesis of information from various sources for your benefit. However, as every person's situation varies, do your research and don't rely solely on this before making important decisions. The information is primarily focused on aspects of the Act that relate to clinicians providing treatment services.

Key points

Following injury, an employer must forward claim details within 7 days to the Insurer ($5000 fine). The claim may be provided directly to the Insurer by the worker, but this unlikely as most would not know who is the Employer's insurer.

The Insurer has 14 days to provide the worker with a decision ($5000 fine). This can be;

  1. Accept liability
  2. Decline liability
  3. Deferred liability (previously called Pended liability). The insurer will have 120 days to make a decision otherwise the claim is deemed accepted.

Section 36 Provisional payments

After 28 days from the date the Insurer receives the claim, provisional payments will commence. Provisional payments are not recoverable from a worker. The worker is entitled to up to 5% of reasonable medical expenses (approximately $7500) whilst in the Deferred liability phase.

Section 64 Reducing or ceasing income payment

The step down of an Employee's wage will now occur after 26 weeks (cf. 13 weeks).

An Employer can't suggest that an Employee consent to the suspension of their income payments while taking leave (e.g. annual), a fine of up to $15000.

It is worth knowing that if an Employer intends to reduce income payments, they must inform the employee with written notice. If the Employee makes an application within 21 days of receiving written notice, the Employer must continue to pay the full income payment until the dispute is resolved.

Section 69 Medical Expenses

There has been an increase in the Medical Expenses cap from 30% to 60% of the prescribed amount. This is approximately an increase from $75,000 to $151,000. While this is a large increase, because this type of claim is in the minority, Insurers aren't seeing it likely that this will increase the overall claim costs. These costs will continue to be indexed annually.

As before, Employees can request an extension of the statutory cap when they have reached 75% of their maximum allowable amount.

Section 82 Reasonable Miscellaneous Expenses

Miscellaneous expenses are in addition to the Medical Expenses entitlement.

Some of the expenses include;

  • First aid, Emergency transport
  • Repair or replacement surgical appliance, or artificial limb
  • Replace or repair damaged clothing
  • Wheelchair or similar appliance
  • Travel

Section 167 Return to Work Obligations

These remain the same, but are worth noting so that you can support the Employee should they be concerned about their ongoing employment (i.e., contributing to their psychosocial stress).

  1. Employers need to have an Injury Management system in place and support the return-to-work process where possible
  2. Employers to make the worker's pre-injury position available or provide a suitable position for the worker
  3. A worker cannot be dismissed solely or mainly due to the worker's incapacity at any time within 12 months from the date of incapacity.

There are many more penalties and increased amounts for breaches of the above sections, for example;

  • s. 26(1) Failure of employer to give claim to insurer $5,000.00
  • s. 160(2) Failure of employer to establish a return to work program $5,000.00
  • s. 168(3) Dismissal of worker without notice $10,000.00
  • s. 168(2) Dismissal of worker with incapacity for work $10,000.00 s. 209(7) Failure of employer to keep records $5,000.00

As a clinician, you can review a range of information on the WorkCover WA website (see Information Sheets) or as a business owner, talk with your insurance broker.