LSB September 2018_Web

WORKERS COMPENSATION
Mansfield Report: Return to Work Scheme
more efficient than previous regime
TONY ROSSI, PRINCIPAL, ROSSI LEGAL
On 4 June 2018, the Hon. John
Mansfield AM QC delivered to the
State Government his report pursuant to
s 203 of the Return to Work Act 2014.
The overarching conclusion is that, in the
context of the objectives of reducing the
cost of the scheme and the performance
of the dispute resolution process, the
Return to Work scheme (RTW scheme)
compares favourably to the previous
WorkCover scheme (the WRC scheme).
In the course of his report, Mr Mansfield
noted the complexity of the transitional
provisions and the resultant litigation
where, as at the time of his report, there
were still more than 10 matters proceeding
to the Full Court of the Supreme Court
of South Australia concerning the
statutory construction of a number of the
provisions.
In the circumstances, not surprisingly, Mr
Mansfield concluded that it is premature to
consider any major changes to the current
provisions of the RTW Act.
He did, however, provide some
recommended reforms “aimed at ensuring
the speedy resolution of disputes through
more robust investigation, transparency in
decision-making and more rigorous record
keeping.” 1
Those recommendations relate primarily
to the reconsideration process. Mr
Mansfield noted the relatively brief time
limit of 10 business days from the date of
receipt of a copy of the Application for
Review before the reconsideration process
must be completed. In the circumstances,
he considers the process is susceptible
to a “rubber stamping” exercise. That
concern has existed, anecdotally, for
years. He noted that, typically, very little
detail is given in the outcome of the
reconsideration and it is not possible to
discern the extent to which materials were
reviewed and reconsidered. He concluded:
“It is important that the reconsideration
process is, and is seen to be, a meaningful step
in the dispute resolution process.”
He then turned his attention to the lack
of data available from the ReturnToWork
Corporation (the Corporation) as to
whether the reconsideration process is
making any impact in dispute resolution.
He has recommended that the South
Australian Employment Tribunal (SAET)
collect statistical data of the number
of decisions that are resolved at the
initial reconsideration stage and that the
Corporation keep records comparing the
original decision with the outcome of the
dispute. Mr Mansfield considers that it
would be important to know whether the
negotiated outcome was more favourable
than the original decision. However,
a negotiated outcome which is more
favourable for the injured worker (or
the registered employer) than the initial
decision, does not, in itself, mean that it
was a poor decision. Meaningful statistics
would also need to include the extent
to which the negotiated outcome was
a better decision for the compensating
authority than what was originally sought
by the applicant. It would be unfortunate
if record keeping resulted in more
prolonged disputation out of concern that
a compromised outcome could be seen as
indicative of a poor original decision.
The SAET received unqualified support.
One of the matters that Mr Mansfield
was directed to consider was whether
the SAET should be merged with the
South Australian Civil and Administrative
Tribunal (SACAT). There was no
submission supporting such a merger at
this time (including the submission from
the SACAT itself) and not surprisingly in
the circumstances, Mr Mansfield did not
recommend such a merger.
Indeed, Mr Mansfield noted a steady
reduction in the number of applications
being made in recent years to the SAET
following the implementation of the RTW
scheme and that the duration of disputes
has reduced substantially since the transfer
of the workers compensation jurisdiction
to the SAET. 2
However, Mr Mansfield sounded a word
of caution that it is premature to make
a definitive finding in the circumstances
of the number of transitional claims that
remain to be resolved by the SAET and
the uncertainty about the law pending the
resolution of decisions which are currently
under appeal to the Full Court of the
Supreme Court. 3
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THE BULLETIN September 2018