SA's 'Return to Work' bill underway, but legal experts remain 'concerned'

State's Law Society shares the potential consequences of the bill

BY Paulinet Tamaray 13 Jul 2022

As the ‘Return to Work’ bill recently passed South Australia’s Legislative Council, the state’s Law Society expressed concern that the full impact of the reforms would still be “unclear.”

According to the Law Society of South Australia (LSSA), the state government’s amendments to the bill addressed some of the Society’s critical concerns in its previous submission.

“The Law Society is pleased that the Parliament has accepted amendments, put forward by the Government and Legislative Council crossbenchers, that reflect recommendations made in the Society’s submissions to Government,” the LSSA said.

Key amendments

The LSSA noted that it understands that the amendments:

Explain that a worker who suffered a work-related injury will be assessed for each damage, and their compensation will be based on the combination of the impairment of both injuries
Prove that the Preedy/Summerfield principle applies that would make the consequential injury combine with the original injury to calculate impairment because, before the amendment, the Preedy and Summerfield matters had not been standardized
Ensure that a seriously injured worker can receive a lump sum payment after being determined as a seriously injured worker and that there will be no deduction for the first 104 weeks that the claimant gets weekly maintenance payments
Give power to the South Australian Employment Tribunal (SAET) to give any directions to hasten the applications for whole person impairment assessments
Take out the definition of a “stabilized injury” on the Impairment Assessment Guidelines and to the Return to Work Act
Settle the problematic reference to “stabilised” injuries in relation to when a person’s status as an “interim seriously injured worker” is to end, and remove the 52-week limit for status as an interim seriously injured worker
Provide SAET with judgment to continue interim seriously injured worker payments during a dispute as to seriously injured worker status, and allow claimants to review decisions by the Return to Work Corporation to bring interim seriously injured worker status to an end

‘Concern’ over the reform

However, despite the Society’s appreciation of the government’s amendments, it warned that the “Return to Work (Scheme Sustainability) Amendment Bill” in its original form would likely endanger injured workers and employers to unnecessary litigation, costs, and delay.

“These latest amendments go some way to ameliorating some of those issues, although there are still several aspects of the Bill that Society is concerned may have unintended or undesirable consequences, and will be seeking further clarification on these provisions,” LSSA said.

The Society said that given the “complexity of the bill,” it is still examining the proposed reforms and intends to offer a detailed evaluation of the legislation’s effects.

“All workers put themselves at some degree of risk of physical or psychological injury,” the LSSA said. “In exchange for this risk, we must have a scheme that looks after those who suffer injury in the course of their work,” it added.