Workers Rehabilitation and Compensation Advisory Council - Communique August 2022

Update regarding the Deputy Chair and expression of interest.

Ms Peggy Cheong gave the Council an update on her temporary position as Acting Executive Director at NT WorkSafe.  Approval was granted from the Minister of Attorney General and Justice to recruit for a temporary Deputy Chair from within the Council. This will be done as an out of session action item and the successful applicant will be announced at a later date.

Permanent Impairment

Consistent with the nationally harmonized approach to permanent impairment assessment, the Northern Territory adopts AMA5 with modifications by NT WorkSafe.

The level of impairment assessment on a whole person basis is relevant in relation to the threshold, and duration limits.

The Northern Territory case law relating to the permanent impairment is developing. For assistance and information Supreme Court Decision Kaefer v Spohn was attached and provided to the Council.

“Currently, The Northern Territory and other states use AMA guides as varied as part of their permanent impairment assessment processes which include the establishment of panels of doctors. Typically, workers’ compensation schemes provide for a threshold for access to the lump sum for permanent impairment.  The threshold in the NT is 5% whole of person impaired. The assessment of impairment on a whole of person basis in accordance with the Guides.”

There is potential that the Council are able to improve the application of the impairment provisions of the legislation and assessments. The Council agreed to note the above and monitor developments including whether any legislative change may be required.

Portability of benefits

The Council discussed the issues relating to clarification around prolonged absences and the management on return to Australia, and whether the period outside Australia counts towards the period of time section 61A of the Return to Work Act (1986) (the Act). Weekly payments of compensation are suspended where a claimant resides outside of Australia. Payments can continue for up to four years while a person is overseas.

Clarification was sought by the Council in relation to what happens when a claimant returns to Australia, particularly in relation to long absences. The Council agreed to note this items and agreed to monitor whether or not they needed to carry out any further research.

Action items

The Chair briefly reviewed the council’s action register.

Update on deemed diseases

At the Councils previous meeting held on 24 April 2022, concerns were raised pertaining to the proposed removal of Parkinson’s disease for all work involving manganese. This was a recommendation from Dr Tim Driscoll in the revised “Deemed Diseases in Australia” report (the report). NT WorkSafe conducted a search on the data available for the period January 2012 to December 2021 and found there have been no claims for Parkinson’s disease in this period.

In relation to the revised Deemed Diseases report, it included COVID-19 in frontline healthcare occupations (such as nurses, doctors, and physiotherapists). As at 1 July 2022, NT WorkSafe has been notified of 47 claims related to COVID-19, with 20 claims being accepted and out of those 20 claims 18 claims were for contracting COVID-19, with 9 of those being within the cohort identified in the proposed deemed diseases occupations.

The Council approved by way of vote to support the inclusion of the new identified deemed disease in Schedule 2 of the Regulations – Prescribed diseases and kinds of employment to the Minister and further to remove Parkinson ’s disease from the Schedule.

Number of days for the completion of a mediation

Currently, part 6A of the Return to Work Act 1986 (the Act) provides a dispute resolution process by way of mediation. Pursuant to section 103D of the Act, the mediation process must be completed within 28 days. This allows seven days for NT WorkSafe to process documents from the applicants and to appoint a mediator.

The Council agreed that If section 103D(2), 103D(2AB) and 103D(3) were amended to working days, rather than days, this would still meet the intent of the timeframe, being that dispute resolution process does not have an infinite timeframe to resolve. This would not preclude mediations being completed in a shorter timeframe, however would assist the mediators and ensure the parties to a mediation are available within the timeframe provided. This will also assist, where a claimant may not have a legal representative at the commencement of the mediation process, however is entitled to have representation and needs to engage a solicitor for advice and also potentially to be available for a mediation conference.

The Council agreed to write to the Minister and request to amend section 103D(2), 103D(2AB) and 103D(3) of the Act to include ‘working days’ rather than ‘days’.

Draft annual report for review

As per Schedule 2, section 15 of the Return to Work Act (the Act), the Council must by 30 September following the end of that year, prepare a report about their activities that year and the operation of the Act during that year.

The Council were provided with a draft report for the 2021-2022 financial year. Council members were advised to review the report. This report will be provided to the Minister for approval and to be published on the NT WorkSafe website at a later date.

Next meeting

The next meeting date will be scheduled for 3 November 2022.
The meeting ended at 2:05pm.