The end of summer – proposed legislative amendments to the assessment of permanent impairment

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Limebite 06/22

The end of summer – proposed legislative amendments to the assessment of permanent impairment

Authors:

Joe Parisi, Tahnee Virgin

UPDATE – This bill was withdrawn on 14 June 2022

Introduction

The Return to Work (Permanent Impairment Assessment) Amendment Bill 2022 is set be introduced into the South Australian Legislative Council.

The Bill seeks to amend the permanent impairment assessment process to narrow the circumstances whereby impairments arising from work injuries can be combined.

Under the Return to Work Act 2014 (SA) (RTW Act), assessments of whole person impairment for individual injuries are combined if they arise from “the same injury or cause” or the “same trauma”.

The leading decision on the issue of combination is the decision of Return to Work Corporation of South Australia v Summerfield [2021] SASCFC 17. In Summerfield, the Supreme Court of South Australia held that impairments can be combined if:

the worker suffers two or more injuries arising from the same incident; or
the impairments arise from an injury and a consequential injury (for example, an impairment from a right knee injury sustained in a fall would be combined with an impairment from a left knee injury caused by ‘overuse’ due to the right knee injury).

The decision is significant because, if impairments are combined, it leads to higher lump sum entitlements and increases the chances of the injured worker meeting the 30% threshold so as to be treated as a “seriously injured worker” under the RTW Act and therefore entitled to extended benefits. Return to Work SA sought, but was refused, special leave to appeal Summerfield to the High Court.

Amendments proposed

The Bill proposes to amend section 22(8)(c) of the RTW Act so that only injuries with arise from “the same trauma” are to be assessed together and combined.

It also introduces a new definition of “trauma”, which is intended to overcome Summerfield. This will likely result in consequential injuries not being combined for the purposes of assessing a worker’s whole person impairment.

For more than one injury arising from a series of events to be treated as part of “the same trauma”, a worker would need to prove that all the events forming the series of events are the “exclusive causes of both or all of the injuries”.

Using the above example of the knee impairment, the left and right knee impairments would not be combined as they do not arise from the same exclusive causes – as the cause of the right knee injury was the fall, and the left knee injury was the overuse.

If introduced in its current form, the amendments made by this Bill will apply to all section 22 assessments where the final assessment by an accredited assessor, or attendance by the worker for the purposes of the assessment, is undertaken after 1 January 2023, even if the assessment is for injuries which occurred prior to 1 January 2023.

Reaction to Bill

The amendments proposed will make it much more difficult for workers to reach the 30% whole person impairment threshold required to be treated as a seriously injured worker.

The changes will also, in many cases, reduce lump sum entitlements for injured workers.

However, the proposed changes may also have an unexpected consequence; they may impact the application of the one assessment rule in section 22(10) – which specifies that there is only one assessment for injuries arising from the “same trauma” including any consequential injuries. It can be expected that a worker will seek to argue an entitlement to more than one assessment as consequential injuries would no longer meet the proposed definition of “same trauma.”

If the proposed changes become law, it can be expected that there will be a “rush” of workers seeking to have their assessments completed before 1 January 2023.

As reported by the media, the Bill faces considerable opposition by various unions and workers advocacy groups – notably with the CFMEU stating that it will demonstrate if the Bill is tabled.

UPDATE: The Bill discussed in this Limebite was not passed. Instead, the Return to Work (Scheme Sustainability) Amendment Bill 2022 was passed. If you have any queries in relation to the amendments to the Return to Work Act 2014, please contact us.

Joe Parisi Principal, Adelaide Direct: +61 8 8215 7006 jparisi@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.