Which Guidelines for disputes?

Recent case law at the new South Australian Employment Tribunal (SAET) means that you may be asked to undertake an assessment and provide a Whole Person Impairment (WPI) report for a matter which is in dispute using previous WorkCover Guidelines for the Evaluation of Permanent Impairment.

This will be where the determination of a worker’s non-economic loss lump sum entitlement was made prior to 1 July 2015 and a notice of dispute or application for review was filed respectively in the Workers Compensation Tribunal (WCT) prior to 1 July 2015 or in the SAET on or after 1 July 2015.

As the WorkCover Guidelines apply in these circumstances, a request for an assessment may be accepted from a worker’s legal or other representative.

Irrespective of who requests an assessment and report, if it is unclear which Act or Guidelines apply and why, you should contact the requestor and ask for further information.

If you have any questions about which Act and Guidelines apply to your assessment, please contact the Impairment Assessment Services team on (08) 8233 2072.

Decision summary

A worker who sought compensation for non-economic loss for an injury resulting in permanent impairment disputed the determination made by the agent. The impairment assessment was undertaken prior to the 1 July 2015 under the Workers Rehabilitation and Compensation Act 1986 which included the application of the WorkCover Guidelines to the Evaluation of Permanent Impairment (the WorkCover Guidelines) and the determination of the workers entitlements was made under the Workers Rehabilitation and Compensation Act 1986 on the 23 May 2015.

If the worker had lodged a notice of dispute before 1 July 2015, they would have been entitled to challenge the determination in the Workers Compensation Tribunal (WCT). However, the worker did not seek a review of the determination until after 1 July 2015 and this meant that her application for a review of the determination had to be filed in the new South Australian Employment Tribunal (SAET).

This gave rise to the issue of which legislation the SAET should apply to the resolve the worker’s application for review: the Workers Rehabilitation and Compensation Act 1986 or the Return to Work Act 2014.

The Full Bench of the SAET determined that it was required, as a matter of law, to apply the relevant sections of the Workers Rehabilitation and Compensation Act 1986. This means that the WorkCover Guidelines will apply to any subsequent assessments requested to assist in the resolution of the worker’s application for review.

Prior to this recent decision of the SAET, only disputes lodged in the WCT prior to 1 July 2015 would have any subsequent assessments undertaken using the WorkCover Guidelines. 

As a consequence of this decision, any dispute of a determination made prior to 1 July 2015, whether filed in the WCT before 1 July 2015 or in the SAET on or after 1 July 2015, will be considered under the Workers Rehabilitation and Compensation Act 1986, and any subsequent assessments must be undertaken using the WorkCover Guidelines.