WORKERS' COMPENSATION REFORM ACT 2004 (NO. 42 OF 2004) - SECT 118
WORKERS' COMPENSATION REFORM ACT 2004 (NO. 42 OF 2004) - SECT 118
118 . Part IX replaced
Part IX is repealed
and the following Part is inserted instead —
“
Part IX — Injury management
In this
Part —
“code” means the code of practice
(injury management) issued under section 155A(1) that is currently in
force;
“injury management system” means an
injury management system established under section 155B;
“return to work program” means a
return to work program established under section 155C(1);
“treating medical practitioner” , in
relation to a worker, means the medical practitioner who the worker has chosen
or accepted to have the primary responsibility for the medical care and
coordination of medical care for the worker.
155A. Code of practice (injury management)
(1) WorkCover WA may
issue a code of practice (injury management).
(2) The code may
include provisions and guidelines in relation to —
(a) the
establishment, content and implementation of injury management systems;
(b) the
establishment, content and implementation of return to work programs;
(c) the
development by approved vocational rehabilitation providers of service
delivery plans and the contents of, and other requirements in relation to,
those plans;
(d) such
other matters relating to injury management as WorkCover WA considers
appropriate.
(3) The code may adopt
the provisions of other publications, whether with or without modification or
addition and whether in force at a particular time or from time to time.
(4) Sections 41,
42, 43 and 44 of the Interpretation Act 1984 apply to the code as if the
code were regulations.
155B. Establishment of injury management systems
for employer’s workers
Each employer is to
ensure that —
(a) an
injury management system is established in relation to the employer’s
workers; and
(b) the
establishment, content and implementation of the injury management system are
in accordance with the code.
Penalty: $2 000.
155C. Establishment of return to work programs for
individual workers
(1) An employer of a
worker who has suffered an injury compensable under this Act must ensure that
a return to work program is established for the worker as soon as practicable
after either of the following occurs —
(a) the
worker’s treating medical practitioner advises the employer in writing
that a return to work program should be established for the worker;
(b) the
worker’s treating medical practitioner signs a medical certificate to
the effect that the worker has a total or partial capacity to return to work.
(2)
Subsection (1) does not require a return to work program to be
established for a worker —
(a) who
has returned to the position held by the worker immediately before the injury
occurred; and
(b) who
has a total capacity to work in that position.
(3) An employer must
ensure that the establishment, content and implementation of a return to work
program are in accordance with the code.
Penalty applicable to subsections (1) and
(3): $2 000.
155D. Injury management: insurers’
obligations
(1) An insurer must
take such action as is prescribed by the regulations in relation to making
each employer who is insured by the insurer aware of the employer’s
obligations under sections 155B and 155C(1) and (3).
(2) If an insured
employer requests the insurer to assist the employer to comply with any of the
employer’s obligations under section 155B or 155C(1) or (3), the
insurer must take such action as is reasonable —
(a) to
assist the employer to comply with the employer’s obligations that are
the subject of the employer’s request; and
(b) to
ensure that the employer complies with the employer’s obligations that
are the subject of the employer’s request.
(3) If an insured
employer requests the insurer to discharge the employer’s obligations
under section 155C(1) or (3) on behalf of the employer, the insurer must take
such action as is reasonable —
(a) to
discharge the employer’s obligations that are the subject of the
employer’s request; and
(b) to
comply with the employer’s obligations that are the subject of the
employer’s request,
within such time as is
reasonable in the circumstances.
Penalty applicable to subsection (3):
$2 000.
156. Approval of vocational rehabilitation
providers
(1) WorkCover WA may,
in writing —
(a)
subject to such conditions, if any, as it sees fit to impose, approve as a
vocational rehabilitation provider any person WorkCover WA considers
capable of satisfactorily providing vocational rehabilitation; and
(b)
revoke any such approval.
(2) In considering
whether or not to approve a person as a vocational rehabilitation provider, to
impose conditions on any such approval, or to revoke any such approval,
WorkCover WA —
(a) may
have regard to performance criteria established by an advisory committee under
section 100A, and to the advice of such a committee in a particular case;
and
(b) in
the case of the revocation of an approval that is subject to conditions, is to
have regard to whether or not there has been compliance with the conditions.
(3) An implied and
non-revocable condition of a person’s approval as a vocational
rehabilitation provider is that the person is to comply with the code in
relation to —
(a) the
development and content of service delivery plans;
(b)
other requirements in relation to service delivery plans; and
(c)
other requirements applicable to vocational rehabilitation providers.
156A. Vocational rehabilitation services
(1) WorkCover WA, upon
request, is to provide to workers, employers and other persons information as
to the persons who are approved vocational rehabilitation providers.
(2) If a person
providing vocational rehabilitation —
(a) is
not an approved vocational rehabilitation provider; or
(b) is
an approved vocational rehabilitation provider but contravenes a condition
imposed in respect of the person’s approval,
the amount of any fee
or other reward paid in respect of the vocational rehabilitation is not to be
regarded as a reasonable expense incurred in respect of vocational
rehabilitation for the purposes of clause 17(1a).
(3) If a fee or other
reward is paid for the provision of vocational rehabilitation mentioned in
subsection (2) by a person who —
(a) not
being approved as a vocational rehabilitation provider, held himself or
herself out as being so approved; or
(b)
being approved as a vocational rehabilitation provider subject to any
condition, contravenes any such condition,
the person who paid
the fee or other reward may recover as a debt due from that person the amount
of the fee or other reward paid.
156B. Arbitrators’ powers in relation to
return to work programs
(1) The employer of a
worker, or a worker, may apply for an order of an arbitrator requiring the
worker to participate in a return to work program.
(2) The arbitrator may
require the worker to participate in a return to work program if satisfied
that —
(a) a
return to work program is required under section 155C(1) to be
established for the worker;
(b) the
worker, without reasonable excuse, refuses or has failed to participate in a
return to work program; and
(c) the
establishment, content and implementation of the return to work program are,
or will be, in accordance with the code.
(3) The arbitrator may
require the worker to participate in a return to work program other than that
proposed by or on behalf of a party to the application.
157. Information about injury management matters
(1) WorkCover WA is to
provide information and advice on injury management generally.
(2) WorkCover WA is to
make available, upon request, to employers, workers and other persons such
information or other assistance as it considers appropriate to facilitate the
arranging of injury management.
(3) WorkCover WA may
make arrangements with other persons or authorities for the use of facilities
for providing information about injury management and related matters.
(4) An arbitrator may
request WorkCover WA to provide information on injury management or related
matters, and WorkCover WA is to provide that information to the arbitrator.
157A. Early identification of injuries that
require, or may require, management
(1) An insurer or a
self-insurer shall, not later than the expiration of 7 days after
acquiring the knowledge referred to in paragraph (a) or (b), give to
WorkCover WA notice in writing, containing the prescribed particulars,
with respect to —
(a) a
worker whose period of incapacity the insurer or self-insurer knows to have
exceeded 4 consecutive weeks; or
(b) a
worker whose periods of incapacity during any period of 12 months or less
the insurer or self-insurer knows to have exceeded, in sum, 12 weeks.
Penalty: $1 000.
(2)
Subsection (1) does not apply —
(a) to
an insurer or self-insurer who is exempted under subsection (3) and who
is acting in accordance with the exemption; or
(b) in
relation to a period of incapacity with respect to which notice has already
been given under —
(i)
this section;
(ii)
section 155 as in force before section 118 of
the Workers’ Compensation Reform Act 2004 came into operation; or
(iii)
section 155 as in force before
8 March 1991, being the day on which section 33 of the
Workers’ Compensation and Assistance Amendment Act 1990 came into
operation.
(3) WorkCover WA may,
in writing, exempt an insurer or a self-insurer from the requirement to comply
with subsection (1), either absolutely or subject to such conditions as
it sees fit to impose, and any such exemption has effect according to its
tenor until revoked by WorkCover WA.
(4) If WorkCover WA is
of the opinion that a worker’s injury should be reviewed to determine
whether a return to work program should be established for the worker,
WorkCover WA may —
(a)
notify the worker, the worker’s employer and the employer’s
insurer of that opinion; and
(b)
inform those persons of the requirements of section 155C and 155D and
their obligations under those provisions.
157B. Mediation and assistance
WorkCover WA may
provide mediation and independent guidance on injury management and related
matters with a view to facilitating the informal resolution of questions and
disputes arising from those matters.
”.