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Monday, 19 October 2020
Important Changes to Workers’ Compensation Legislation – the End for the Termination Day
Insured Practices undertaking personal injury work or who have done so in recent years should give urgent consideration to the potential implications of a legislative change which came into effect on 12 October 2020.
The Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Act 2020 (WA) (Amendment Act) and supporting amendment regulations were designed to address a small number of priority issues in response to the COVID-19 pandemic. The explanatory material indicates that the priority changes were brought forward from the current rewrite of the workers’ compensation legislation.
The Amendment Act and amendment regulations discontinue the common law termination day as explained further below.
They also:
- establish a presumption of work-related injury for COVID-19 contracted by health care workers;
- provide for a revised notice to be given to workers about common law claims;
- provide for email service of liability decision notices to workers from insurers and self-insured employers; and
- provide for annual indexation of capped worker entitlements.
All changes commenced on 12 October 2020, other than the revised notice to be given to workers about common law claims which commences on 16 November 2020.
What has changed?
Before the Amendment Act commenced on 12 October 2020 workers who wished to pursue common law damages were required to make an election to do so by the ‘termination day’. The termination day was generally 12 months from the date the worker made a claim for compensation but could be extended in specified circumstances.
The Amendment Act discontinued the termination day by deleting relevant provisions in the Workers Compensation and Injury Management Act 1981 (WA) (Act) with effect from 12 October 2020.
There is no longer any time constraint in the Act itself impacting on a worker’s ability to pursue common law damages.
What has not changed?
The amendments do not affect the procedural requirements to elect to pursue common law damages based on a permanent whole of person impairment of at least 15%, and to commence proceedings after an election is registered with the Director, Conciliation, WorkCover WA (Director).
The amendments do not affect the application of the limitation periods under the Limitation Act 2005 (WA) that apply to common law claims for personal injury.
Transitional arrangements in the legislation provide for workers to make an election to pursue common law damages even if the termination day had expired before 12 October 2020 (as discussed further below).
The government has recommended that workers obtain appropriate legal advice about the effect of the transitional arrangements that permit an election to be made even if the termination day had passed before 12 October 2020.
Transitional provisions
The transitional provisions are set out in new section 93T of the Act. They provide that a worker can elect to retain the right to seek damages in respect of a cause of action accruing before 12 October 2020 even if the termination day had passed before 12 October 2020. This indicates that certain workers who had lost the right to elect will have regained it. Practitioners and workers should urgently consider the potential expiry of the limitation period and the steps that may need to be taken prior to that expiry in appropriate cases.
Note that under section 93T the Amending Act expressly does not affect the validity or effect of the following if they occurred before 12 October 2020:
- an agreement or assessment recorded by the Director under section 93L(2) of the Act; or
- an election registered by the Director in accordance with the regulations.
Please Note: The above information does not constitute legal advice. Practitioners should satisfy themselves as to the effect of the legislative changes.
