What the legislative changes mean for you & How to save costs: A guide to injury management and prevention. Agenda. The changes

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Tracey Butler WorkCover Queensland

March 2014

What the legislative changes mean for you

&

How to save costs: A guide to injury

management and prevention

Agenda

 What’s changed  What the changes mean to you

 When do the changes apply  The buck stops with rehabilitation

 Return to work: what we know

 Recovering at work and suitable duties  Secondary injuries and common law

claims

 Key Messages

The changes

Applying from 15 October 2013

 New method for determining permanent impairment (DPI, WPI and GEPI)

 A > 5% common law threshold has been introduced

 The limitation period for late Notices of Assessment has altered  The requirement and training for a rehab and return to work

co-ordinator (RRTWC) has changed

 Reduced red tape for rehabilitation policies and procedures

For injuries sustained prior to 15 October 2013, the old provisions apply (new s678)

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The changes, continued

Applying from 29 October 2013 (date of assent)

 The way psychological/ psychiatric Injury claims are determined has changed to

“the major significant contributing factor”  Insurer responsible for rehabilitation (incl

common law claims)

 Gratuitous care at common law amended to address Cameron v Foster

 Penalties for fraud increased

 Fraud prosecutions moved to the Regulator  Employers can now ask workers for

disclosure of pre-existing conditions  Employers can access claims histories  The Regulator replaces Q-COMP

Changes impacting our claim determination

process

PPI claims (amendment to section 32) – applies to injuries from 29 October 2013

 employment must be:

“the major significant contributing factor”

 applies to aggravations and to secondary PPIs

Effective from 29 October 2013, prospective employers can request claims history (section 571D):

 in approved form

 with application fee

 with worker’s consent  to be requested from the Regulator The Regulator has published the approved form.

Limitations on what an employer can do with this information (see s571D(3))

Disclosure of pre-existing

conditions

Disclosure of pre-existing conditions (new section 571A – 571C) – applies to “employment processes” from 29 October 2013

• “prospective employer” may ask “prospective worker” in writing about pre-existing conditions • written request must be accompanied by

information about future duties and implications of failure to properly disclose

• prospective worker must disclose “pre-existing injury or medical condition”

• condition that exists during employment process that a person suspects or ought reasonably to suspect might be aggravated • not entitled to compensation or damages if

worker “knowingly” makes “false or misleading disclosure”

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Disclosure of pre-existing

conditions

• terms are defined in s571A • written request must be accompanied

by information about future duties and implications of failure to properly disclose

• not entitled to compensation or damages if false or misleading disclosure

Disclosure of pre-existing

conditions

A few cautions for employers: • duties need to be clearly described so

worker can make an informed decision about whether they need to disclose an injury/condition

• discrimination issues may arise (see ADCQ for information)

• if an employer knows about a worker’s pre-existing condition they owe a heightened standard of care – becomes relevant if common law claim lodged See our fact sheet and links to ADCQ fact sheets

Rehabilitation/Return to work changes

Insurers are responsible for rehab (section 220):

 We must take all steps reasonably practicable to secure rehab and early return to work (RTW)

 We must develop and maintain a RTW program in consultation with the employer, worker and treating registered persons

 Referrals will no longer be made to RTW Assist

 If a worker lodges a Notice of Claim (NOC), we must refer them to an accredited return to work program unless they can’t participate because of their injury

 We’ll be updating our common law rehab policy for accreditation Common law rehab applies to all claims unless litigated.

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Rehabilitation/Return to work changes

Criteria for obligation to have RRTWC have changed (section 220):  Employers now only need to have a Rehabilitation and Return to

Work Co-ordinator (RRTWC) and documented rehab policies and procedures when:

 in a “high risk industry” and wages in the preceding year are > 2,600 X QOTE

 if not “high risk” then only if wages > 5,200 X QOTE  QOTE is currently $1 370.10

 RRTWC are no longer required to complete training with a registered training organisation. They must now be appropriately qualified. This is defined as:

“having the qualifications, experience or standing appropriate to perform the function”

Assessing permanent

impairment

A few key points:

 Applies to injuries from 15 October 2013  Deletes old terminology and methodology ie.

“WRI”, Table of Injuries, AMA4, prescribed disfigurement

 Replaced by: “DPI”, “WPI”, “GEPI” and AMA5  DPI – Degree of Permanent Impairment,  WPI – Whole Person Impairment  GEPI – Guide to Evaluating Permanent

Impairment

 DPI must be assessed using GEPI

 Lump sum = DPI X statutory maximum

 Applied immediately to industrial deafness

claims, and have seen a few physical injuries assessed

New medical assessment

review

A few key points:

 Applies to injuries from 15 October 2013

 Section 186 amended to allow a further review of permanent assessment if the worker disagrees with the assessment

 Worker can request that the injury be assessed again by a doctor agreed to by the worker and the insurer  If the insurer agrees to a further

review, the original notice is taken to never have been given

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An intro to GEPI

The States have been moving to a more harmonised model for some time:

 Based on the NSW model with minor changes

 Written by doctors for doctors

 Has been gazetted by the Regulator  Assessing doctors must be trained and can be

independent or treating practitioners

It references AMA5 for most injury types:

 Some exceptions (where Drs consider other methodology is better suited): pain, psych, hearing loss, visual

 Where there are multiple methods, choose option that gives highest DPI

 Maximums under AMA5 for certain body parts (eg upper limb 60% WPI)

 Rounding up and down

Common law changes

Greater than 5% DPI threshold introduced  Applies to injuries from 15 October 2013

 For over a period of time claims, date of injury = date of health practitioner consultation (s235A)

 Physical injuries combine to come up with one DPI

 Cannot combine physical and psychiatric injuries (so will have 2 DPIs that are NOT added)

 In the long term it reduces our claims but in the meantime we are expecting more common law claims than we are currently receiving  We are updating our policies to deal with extra injuries and common

law only claims

Common law changes

Other changes effective from 29 October 2013

 We are responsible for rehabilitation, this applies to all claims that aren’t already litigated

 New limitation period where Notice of Assessment issued late – six month extension

 New urgent and common law only processes

 Clarification of gratuitous care (to address Cameron v Foster)  Amendments to factors to consider for ISV assessment  Changes to indexing of general damages

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Fraud

Prosecutions will be managed by the OSFWA (the Regulator)  Matters will be referred to the Regulator if we “reasonably believe

someone has committed an offence”  Applies to all prosecutions from 29 October 2013

Increased penalties

 Increased to $55 000 or five years imprisonment (previously $44 000 and 18 months)

Changes to Q-COMP

Powers moving to the Regulator from 29 October 2013:  Medical Assessment Tribunal (MAT)

 Reviews

 Self insurance licensing  Monitor insurer performance  Scheme data analysis  Approved forms

Powers moving to WorkCover from 29 October 2013:  Tables of Costs

The Buck Stops with Rehabilitation

Reduce claims costs and impact on premium  Employer online provides a premium simulator

 Use the simulator to demonstrate the premium savings that can be made by reducing claims costs

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The Buck Stops with Rehabilitation

Policyholder A

Reduce the Stat Claims costs

Return to work: What we know

 early return to work reduces the risk of long-term disability

 injured workers who are offered suitable duties are twice as likely to return to work  the longer someone remains off work the less

likely it is they will ever return.

If someone is off work for:

 20 days, the chance of ever getting back to work is 70%

 45 days, the chance of ever getting back to work is reduced to 50% and

 70 days, the chance is then again reduced to 35%

Realising the Health Benefits of Work, April 2010, Australasian Faculty of Occupational and Environmental Medicine.

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Factors you can control

 be aware of injuries in the workplace  lodge claims early

 availability of meaningful suitable duties  early identification of suitable duties  facilitation of a supportive work environment  active and constructive participation in injury

management

 open communication with all parties  be involved in worksite visits and case

conferencing.

Suitable duties program—purpose



focus on what the person can do (at home and at work)



match capacity with appropriate duties



agree work tasks for graduated RTW



start with reduced hours or tasks



appropriate commencement date



involve everyone in development



include medical involvement/guidance



incremental increase in duties/hours.

Good work is good for you!!!

Suitable duties plan—what should it

include?



overall goal



start, completion, review dates



specific tasks/duties to be performed



restrictions/limitations



days/hours to be worked



upgrading recommendations

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Recovering at work—best practice



have clear, well defined goals



reassure worker a positive RTW outcome is achievable



practice regular, open communication



involve worker in the suitable duties planning



appropriate commencement of RTW program



provide a supportive and positive RTW environment.

Outcomes of SDP’s



work hardening improvement

(physical and psychological)



benefits include:



reduction of additional aggravations/

exacerbations



reduced claims costs



reduced downtime



reduced claim durations



reduced loss of productivity/skills



reduced IR/union/staff issues



reduced common law



assists to mitigate loss (future

economic loss).

Why do workers bring common law claims?

Workers are more likely to lodge a common law claim if:



they aren’t working anymore, working less or are at

risk of not working in the future



seriousness or severity of injuries



they don’t have/maintain a good relationship with

WorkCover or their employer



their employer didn’t maintain communication with

them after they were injured

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Managing people differently because of injury

will increase the likelihood of additional

injuries – focus on the person holistically

Working with people holistically will remove the chance of secondary injury. In cases of already diagnosed injuries, an holistic approach will increase

opportunity of a positive outcome

Worker contributors of secondary injuries

 Not knowing their treatment program (duration, medical advice)  Impact on family and activities of daily living (socially or at home)  Long periods of isolation at home with no contact from anyone  Employers and/or family displaying lack of interest

 Feeling removed from work environment, failing to feel part of the team

 Job security and/or fear of re-injury

 Lack of compassion, communication or understanding  Placing blame for accident

 Communication breakdown -seek to listen before understood.  Feeling of worthlessness

Employer flag of secondary injuries

 Failure to lead the RTW program (participate and actively

involved)

 Care factor, not interested outside of work  Communication (initial & regular communication)  Communication breakdown -seek to listen before understood  Casting judgement about a persons ability to function outside of

work compared to when at work

 Employers fear of re-injury (not offering RTW duties)  Failing to involve worker about current events when away from