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WORKERS COMPENSATION REGULATIONS 2002 (NO 20 OF 2002)
2002
THE
LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
Workers Compensation Regulations
2002
Explanatory
Statement
Circulated by authority
of
Simon Corbell MLA
Minister for Industrial
Relations
AUSTRALIAN CAPITAL TERRITORY
Workers
Compensation Regulations 2002
Explanatory Statement
Overview
The new Workers Compensation Regulations
provide for modern methods of medical assessment, rehabilitation and dispute
resolution. The Regulations also provide for the approval of appropriate
insurers, self-insurers and rehabilitation providers.
The Regulations
support the implementation of the Workers Compensation Amendment Act
2001, by providing clear guidance for the key parties regarding injury
management. Requirements for modern medical methods, rehabilitation,
referencing and conciliation are intended to reduce unnecessary
disputes.
The power to make these regulations is found under section 223
(previously numbered section 30) of the Workers Compensation Act
1951.
Part 1: Preliminary
Part one provides for the name and
commencement of the regulations. The Workers Compensation Regulations
2002 are to commence on 1 July 2002.
Part 2: Interpretation
generally
Regulation 5(1)(a) empowers the Minister to approve medical
guidelines. The application of guides, in hospital settings, outpatient
settings, non-legal rehabilitation settings etc, is a normal, contemporary
practice. Any guides or pathways approved by the Minister are intended for
doctors’ use as a reference. If the doctor determines that the
guide’s expected path of treatment is not appropriate for their patient
they must simply make reference to where and why they have preferred a different
path to that set out in the guide.
The medical guides would set out
clinically relevant research in a tool which can be used for diagnosis,
prognosis and treatment.
Regulation 5(1)(b) empowers the Minister to
determine a guide, or methodology, for doctors, to use in assessing a permanent
injury under part 4.4 of the Act.
Regulation 7 enables the Minister to
approve clinically relevant research material. Clinically relevant research is
medical research which has reached a point of refinement, testing and
professional scrutiny that enables the research to be applied by doctors when
treating their patients.
Under regulation 7, it is intended that licensed
internet sites which are established for the use of medical professionals, may
be approved as a source of clinically relevant research.
Regulation 8
defines evidence-based methodology. The application of the methodology is
explained under part 3, below.
Part 3: Medical
assessments
Part 3 outlines the method of medical assessment to be
used by all medical practitioners under the scheme and the use of specialists
for treatment purposes or reporting purposes.
Regulation 9 stipulates
that doctors must use evidence based methodology when conducting and reporting
on a medical assessment. Doctors must consider the particular investigations of
a person (clinical examination, X-rays, blood tests etc) and any known
clinically relevant research, or guidelines, when conducting the assessment.
When recording the assessment, the doctor must reference the research or
guideline.
The four categories of aetiology, diagnosis, prognosis, and
medical treatment provide a structure for all medical assessments to be made.
These categories in combination with the requirement to reference clinically
relevant research and guidelines will provide the insurer’s injury
management program with essential medical information to make informed
decisions. This essential information will also assist rehabilitation providers
to prepare personal injury plans for injured employees.
To remove any
confusion, the following are examples of how clinically relevant research or
medical guidelines would be applied.
An example of a medical
guideline:
(This example is taken from the British Colombia Workers
Compensation Board)
A guide for post-surgical rehabilitation for rotator
cuff repair could be developed using clinically relevant research as a basis,
for approval by the Minister. The guide could outline expected treatment,
activities and progress over 0-3 weeks, 4-6 weeks, 7-12 weeks, 12-16 weeks and
over 16 weeks. The guide could suggest that, under normal circumstances, a
patient should be returning to full-strength by week 16.
When assessing
an injured person with a rotator-cuff injury that requires surgery, it would be
expected that the treating doctor would consider the guide when documenting the
assessment.
The guide does not replace a doctor’s judgement and
skill. A patient’s particular circumstances may require a different
approach or time frame. However, the factors that determine a different
approach, or time frame, should be recorded by the treating doctor.
An
example of applying clinically relevant research:
A cleaner suffers a
needle stick injury emptying a waste paper bin. The injury causes little
physical damage but creates great anxiety as the person waits for the outcome of
an HIV test. The test is negative but the person has a debilitating
psychological reaction to bins. The patient wants to overcome the fear, but is
unable to meaningfully engage in their work.
The doctor reviews research
into the various strategies to deal with this kind of anxiety. After
considering the research and the patient’s particular circumstances, the
doctor determines that Cognitive Behavioural Therapy is the treatment strategy
that holds the greatest probability of success for the person.
When
completing the medical certificate the doctor would make reference to this
research under the heading of ‘treatment’. This draws the attention
of the rehabilitation provider and the insurer’s injury management program
to the research, and enables the parties to reference the research when
developing the personal injury plan.
In developing the personal injury
plan for the person, the doctor, in consultation with the patient and the
rehabilitation provider, incorporates the treatment into the plan.
An
example of applying a medical guideline:
A guide to diagnose and treat
low back pain could be approved by the Minister. The guide provides a number of
clinical determinants to distinguish between serious spinal injury, a nerve root
problem and acute low back pain. The guide is based upon clinically relevant
research, and provides indicators of recovery time and probabilities of
particular diagnoses.
The guide also provides a guide to expected time
frames for recovery and possible treatment strategies for acute low back pain,
that is not a serious spinal injury or a nerve root problem.
A mechanic
suffers a lower back strain, causing pain and restricted mobility. The doctor
examines the patient and considers the guide. The doctor determines the patient
is not suffering from serious spinal injury nor nerve root damage.
After
examining the patient and considering the guide, the doctor determines that the
guide’s expected path of treatment and recovery is applicable to the
patient. The doctor explains the treatment plan to the patient and sets the
first steps into motion. In completing the medical certificate, the doctor
would note the aetiology of the injury and make references to the guide when
documenting the diagnosis, prognosis and treatment.
An example of
considering a medical guideline but not applying a medical
guideline:
Using the above example of the mechanic, after examining the
patient and considering the guide, the doctor determines that the guide’s
expected path of treatment is not appropriate for their patient. The doctor
maps out a treatment plan, explains the plan to the patient and sets the first
steps into motion. In completing the medical certificate the doctor would make
reference to where and why they have preferred a different path to that set out
in the guide.
Regulation 10 distinguishes between medical assessments
by specialists that are referred by a person’s treating doctor and those
that are referred by a worker, employer or their representatives.
This
provision is made to distinguish between assessments that are conducted by
specialists who are assisting the treating doctor to treat the patient, and
assessments that are conducted to confirm or challenge a person’s medical
condition. This separation of a treatment stream and a reporting stream is
intended to prevent the stagnation of medical treatment of an injured person due
to litigious factors.
The notice required by regulation 10 ensures that
the reasons for any referral to a specialist to confirm or challenge a
person’s medical condition is known by all parties. The imperative to
provide notices also dissuades all parties from ‘doctor
shopping’.
Any medical assessments conducted by medical specialists
must be consistent with evidence based methodology.
Regulation 11 states
that reports made for the purpose of confirmation or challenge must identify any
differences between the specialist’s assessment and any assessments
conducted by other doctors of the person’s injury. The specialist’s
report must also outline the specialist’s medical assessment of the
person, and why the specialist prefers their own assessment.
Copies of
any and all medical specialist reports for the purpose of confirmation or
challenge must be disclosed by the requesting party to the other parties
mentioned in regulation 10.
Regulation 12 enables the treating doctor to
refer the injured worker to a specialist for treatment. Provided the worker
agrees, the medical specialist becomes the worker’s treating doctor. The
first assessment by the new treating doctor (the medical specialist) must
address the four categories of medical assessment (aetiology, diagnosis,
prognosis and treatment) using evidence based methodology.
Part 4:
Medical referees
Part 4 sets out the purpose and function of medical
referees and provides for the appointment of medical referees. Medical referees
are expert advisers that can be called upon by a conciliator or a Court.
Medical referees do not make decisions about a persons claim, but assess all
existing medical evidence and provide a report on the worker’s medical
condition to the parties involved in the conciliation and the conciliator, or
the Magistrate.
Regulation 13 refers to consultation that may be
initiated by the Minister when considering appointing medical
referees.
Regulation 14 explains what a medical referee must do when
asked to provide professional advice on a person’s medical condition by a
conciliator or the Court. The medical referee is an expert for the use of the
conciliator or the Court. Medical referees do not make legal or administrative
decisions about a person’s claim. In a court setting the medical referee
may be cross examined by the parties to the hearing, with the Magistrate’s
consent.
The medical referee’s report must be provided to the
conciliator or the Magistrate for disclosure to the parties as soon as
practicable.
Part 5: Rehabilitation providers
Part 5 sets
out the role of rehabilitation providers and provides for the approval of
rehabilitation providers. Part 5 enables the Minister to approve providers
based upon criteria determined by the Territory, this contrasts with the
previous arrangement of relying upon approvals from other
jurisdictions.
Division 5.1 defines psycho-social factors. This is a new
conceptual tool used by modern workers compensation schemes internationally.
The regulations require rehabilitation providers to develop reasonable
rehabilitation strategies to deal with psycho-social factors that may be
restricting a person’s rehabilitation, in the context of assisting the
person to return to work.
Division 5.2 outlines what the Minister must
take into account when considering a person or entity’s application to be
approved as a rehabilitation provider.
The intention of regulation 19(e)
is to require disclose of any ownership, or management relationships, approved
rehabilitation providers might have with insurers or other organisations that
have a material involvement in the Territory’s workers compensation
scheme.
Division 5.3 outlines the conditions on a provider’s
approval. Regulation 22 sets out the qualifications or pre-conditions required
of professionals who will be working as, or for, rehabilitation
providers.
Regulation 23 requires rehabilitation providers to keep
detailed written records about cases referred to them by insurers. The
requirements are consistent with the intention that personal injury plans should
be in writing and tailored to the particular worker. The record should
accurately reflect the deliberations leading to the personal injury plan, the
specifications of the plan itself and anything that led to a change in the
plan.
Regulation 24 requires providers to keep a database of statistics
arising from results of referred claims. If a provider is no longer approved or
ceases operation for what ever reason, the records must be passed to the
Minister or the Minister’s delegate. Alternatively the Minister may ask
providers to pass on the data to a Government agency.
Division 5.4
outlines the rehabilitation provider’s role. Regulation 30 emphasises the
rehabilitation provider’s role in leading and initiating the development
of personal injury plans. Regulation 30 also outlines what rehabilitation
providers must consider when developing a personal injury plan. Regulation
30(4) only requires providers to develop reasonable strategies to address
factors inhibiting rehabilitation in the context of assisting the person to
return to work.
Division 5.5 sets out what actions the Minister may take
to redress a breach of the rehabilitation provider’s obligations under the
Act or Regulations. The division allows the Minister to revoke a rehabilitation
provider’s approval, or take other actions, including imposing penalties
or conditions on approval.
Should there be further guidance or
clarification required, regulation 31 empowers the Minister to make
protocols.
Part 6: Conciliation
Part 6 introduces a
pre-court dispute resolution process for workers compensation claims. The
intention of conciliation is to resolve disputes that may arise in the context
of injury management. The aim of conciliation is to enable injury management to
continue. The focus of conciliation is intended to be the particular issue(s)
in dispute rather than the claim as a whole (regulation 37).
Regulation
38(2) stipulates that the rejection of a worker’s claim cannot be
addressed by conciliation. Workers disputing the rejection of their claim may
file an application with the Magistrate’s Court.
Regulation 40
ensures that the parties exchange information about the matter before the
conciliator at least seven days prior to the conciliation
hearing.
Regulation 41 provides that a party may be represented at the
conciliation hearing. A representative could be an advocate, a union official,
a solicitor etc.
Regulation 44 outlines the conciliator’s powers
to: decide that an issue is not appropriate for conciliation; assist the parties
to reach agreement and record the agreement; and make a recommendation if the
parties cannot reach an agreement. The deliberations and discussion can not be
used as evidence in arbitration. However, a recommendation can be admitted in
evidence for arbitration.
Regulation 46 requires the Minister to review
the effectiveness of the conciliation process after August 2004.
To
facilitate any administrative or procedural matters, the Minister has the power
to make a protocol about conciliation under regulation 47.
Part 7:
Arbitration
Part 7 sets out the arrangements for arbitration of
issues arising from a workers compensation claim.
Regulation 48 clarifies
under what circumstances an employer or worker may apply for
arbitration.
Regulations 50, 51 and 52 allow for the establishment of a
tripartite committee to conduct arbitration. The tripartite committee would be
appointed as a dispute resolution body. The committee is not in existence at
the time the regulations were made. Unless and until a committee is
established, arbitrations are conducted by the Magistrates Court. It the
committee is established, the Magistrates Court’s role would include
determining questions of law referred to the Court by the committee and
arbitrating matters that cannot be arbitrated by the committee (for instance,
because of a party objects to arbitration by committee).
Regulation 55
stipulates that only one medical referee should be used to assist with
arbitration, unless the referee is unavailable.
Regulation 56 empowers
the Magistrates Court to determine procedures in relation to matters arbitrated
by the Magistrates Court.
Regulations 57 and 58 provide for costs orders
regarding arbitration.
Part 8: Compulsory insurance policies —
contents
Part 8 outlines what must be contained in a workers
compensation insurance policy. The previous arrangements required insurers to
use a prescribed policy. The regulations allow insurers to tailor policies to
their clients, provided they include the compulsory elements identified in part
8. Any other elements must be consistent with the Act.
Regulation 60
determines that employers are to be indemnified for compensation, not other
liabilities. 60(2) specifies that any amounts that should not be indemnified by
the insurer, as specified in the Act, should not be written into the insurance
policy as if they are being indemnified by the insurer.
Regulation 66
stipulates the insurer must include a provision in policies which requires an
employer to pay an additional amount if the employer under estimates their wages
bill by at least 10%. The additional amount is equivalent to twice the
difference between the actual premium the employer paid and the premium that the
employer would have paid if they had correctly identified their
wages.
Part 9: Approved insurers
Part 9 deals with the
Minister’s power to approve an insurer to sell insurance policies under
the Workers Compensation Act 1951. Part 9 also sets out the conditions
insurers must comply with to remain approved insurers and what actions can be
taken by the Minister to redress a breach of these conditions.
Regulation
68 outlines what must be included in an insurer’s application for
approval. The regulation requires written commitment to give effect to the
insurer’s injury management program and personal injury plans (see chapter
5 of the Act).
Regulation 72 stipulates that, upon request, insurers must
inform the Minister of any changes that affect their approval, specifically:
their ability to meet their liabilities; their liquidity; and their ability to
meet obligations under chapter 5 of the Act.
Regulation 75 sets out the
principles insurers must apply when working out premiums.
Regulation 77
requires insurers to allocate new rehabilitation providers to workers whose
existing rehabilitation provider’s approval has been suspended or revoked.
This ensures that workers who have started vocational rehabilitation are not
disadvantaged if their rehabilitation provider is suspended or loses their
approval.
Regulation 81 outlines actions available to the Minister to
deal with a breach by an insurer of their obligation under the Act and
Regulations, short of the insurer’s approval being revoked. This
regulation is intended to provide options for sanctions for insurers who breach
their conditions or the Act. The history of any actions taken against the
insurer after 1 July 2002 may be considered by the Minister for the purposes of
renewing an insurer’s approval when their existing approval expires at the
time set by the Minister at regulation 70.
Regulation 84 stipulates that
compulsory insurance policies issued by insurers who have had their approval
revoked are no longer valid seven days after the revocation takes effect.
Despite this circumstance, employers are still required to hold compulsory
insurance policies. An employer must, therefore, engage a new compulsory
insurance policy with an approved insurer before the end of the seven day
period.
Part 10: Self-insurers
Part 10 deals with the
Minister’s power to approve an employer to act as a self-insurer under the
Act. Part 10 sets out the conditions employers must comply with to
remain self-insurers, and what actions can be taken by the Minister to redress a
breach of conditions.
Regulation 95 outlines what happens if the Minister
decides to suspend or revoke a self-insurer’s exemption. If an
employer’s status as a self-insurer is suspended or revoked, the employer
must purchase a compulsory insurance policy from an approved
insurer.
Part 11: Miscellaneous
Regulation 96 relates to
section 28 of the Act. The section refers to employment-related diseases, where
the nature of the employment contributes to specific kind of diseases. These
diseases are primarily related to working with chemicals. The schedule is
consistent with the Territory’s commitment to International Labour
Organisation protocols.
Regulation 99 relates to section 132 of the Act,
‘Rejecting claims from 1 year’. In order for an insurer to reject a
worker’s claim for compensation one year after the claim was made, the
insurer must seek leave from the Magistrates Court. Regulation 99 stipulates
that the insurer must notify the worker of its intention to apply to the
Magistrates Court to reject the claim. Regulation 99(4) provides that if a
claim is rejected in these circumstances, the insurer cannot cease compensation
payments to the worker for at least eight weeks.
Regulation 100 enables
the Minister to approve protocols regarding the contents of forms made by
entities mentioned in the Act, such as insurers, rehabilitation providers or
employers. The intention of the protocols would be to create consistent
recording and reporting of data and to provide the scheme participants with
consistent wording for forms, if required.
Schedule 1 relates to
regulation 98 and section 28 of the Act. The schedule lists employment-related
diseases, where the nature of the employment has a high probability of
contributing to specific kind of diseases. These diseases are primarily the
result of working with chemicals. The schedule is consistent with the
Territory’s commitment to International Labour Organisation
protocols.
Schedule 2 is a list of on-the-spot offences for which
infringement notices may be served under chapter 12 of the Act. The schedule
also sets out the relevant fines for on-the-spot offences.
Schedule 3
lists the reviewable decisions under the Act and the Regulations.
The
Dictionary defines terms in the Regulations and refers to terms defined in the
Act.