How Covid-19 Workers' Compensation Changes Impact the Assessment of Damages in SA

05 May 2020

The advent of Covid-19 has seen many changes in the world over and the South Australian workers compensation scheme has not escaped unscathed.

Deferral of WPI Assessments

Due to the introduction of various social gathering restrictions and social distancing measures, on 2 April 2020, Return to Work South Australia ("RTWSA") issued a notice advising a hold on arrangements for any Whole Person Impairment assessments ("WPI assessments") from 2 April 2020 until 30 June 2020 ("the Notice").

WPI assessments are a necessary pre-requisite to determining an injured worker's/claimant's entitlement to a lump sum payment as part of their workers compensation claim.

This lump sum payment forms part of the recovery sought by RTWSA against your insured where the incident resulting in injury to the worker/claimant arose during the course of their employment and they made a workers compensation claim with respect to the same in addition to pursuing your insured for damages on a common law basis as a third party tortfeasor.

What this means for you :

  • There will be a delay in RTWSA providing a final recovery notice of all payments made to or for the benefit of the injured worker/claimant.
  • However, this need not affect any assessment of the injured worker's/claimant's claim for damages on a common law basis (provided you already have sufficient evidence to enable an assessment of their common law entitlements).
  • It may though, delay the progression of the injured worker's/claimant's common law claim to resolution dependent on RTWSA's willingness to provide a release in circumstances where their full exposure/liability to the injured worker/claimant cannot be calculated precisely.

On behalf of the legal profession, the Law Society of SA expressed to RTWSA their concerns that the lack of WPI assessments will result in unreasonable delays in progressing claims. They identified some medical practitioners then willing to continue with face-to-face assessments, and also raised the possibility of telehealth assessments or an agreement that a physical assessment is not required.

In response, RTWSA advised on 23 April 2020 that they anticipated a lifting of the Notice within the next few weeks given SA's continued improved Covid-19 statistics.

Deferral of Elective Surgeries

Covid-19 also caused the deferral of various elective surgeries in anticipation of the onslaught of positive Covid-19 cases requiring Intensive Care treatment.

Fortunately, the restrictions on elective surgeries were lifted in South Australia from 28 April 2020.

It is anticipated that there are some minor group claims which may have been affected by this ban, with the result of that the progression of the claims is delayed.

What this means for you:

  • There may be a delay in progressing an affected claim to finalisation where the injured worker/claimant has been referred to/booked for elective surgery.
  • However, this need not affect any assessment of the injured worker's/claimant's claim for damages on a common law basis (provided you already have sufficient evidence to enable an assessment of their common law entitlements), particularly if the injured worker/claimant decides they are prepared to defer undergoing surgical treatment until after resolution of their claim.
  • Alternatively, their damages can be assessed with a contingency as to the costs of surgery and the likely outcome of the same.

Proposed Legislation: Certain Presumptions

Two Bills have been introduced in Parliament on 8 April 2020 recommending amendments to the Return to Work Act 2014 (SA). Both Bills seek to achieve the same result, but with different degrees of specificity and covering slightly different categories of workers/persons.

Essentially, the Bills seek to introduce a presumption (in the absence of proof to the contrary) that if a person is diagnosed with Covid-19 who is from a designated group of workers or who works in a designated group of employment, then they are presumed to have contracted Covid-19 as a result of their employment.

The designated group of workers or designated group of employment essentially include emergency service workers, healthcare workers, workers in aged care, childcare workers and school teachers, etc.

The Bill introduced by the Greens MP Tammy Franks MLC covers a broader range of persons and sets up a means of entitlements inclusive of:

  • Setting the date of injury as the date of testing for Covid-19.
  • Assuming that a worker/claimant is incapacitated for work during the period of mandatory isolation while awaiting the test results.
  • Setting the end date of the work injury as the date the worker is advised that he/she no longer has Covid-19.
  • If an injured worker/claimant receives workers compensation benefits due to suffering from Covid-19, mandating payments of workers compensation benefits for 3 weeks after the injured worker/claimant returns to work or ceases to be incapacitated for work.

What this means for you (if the Bills are passed):

  • There is a reduced likelihood that an injured worker will be infected with Covid-19 in the course of employment and also have a common law claim for damages against a third party tortfeasor. There will be exceptions to this however, including for example a labour hire worker deployed to work at third party premises;
  • In such an event, you must bear in mind the possibility that RTWSA might have a right of recovery if that injured worker/claimant has made a workers compensation claim with respect to the same.

We will of course have to review the above upon finalisation of the Bills.

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