Written by Workers Compensation Report editor Peter Angelopoulos.
SA Ombudsman Wayne Lines has been provided jurisdiction to assess complaints stemming from retraining injured workers under the Return to Work (RTW) Act 2014, with powers analogous to a Royal Commission, WCR has been told.
Lines said the Act made it “clear” his office could investigate complaints about whether RTWSA, self-insured employers and service providers had “complied with service standards” under the Act.
Those standards fall under schedule 5 of the Act. Standard 4(b) is designed to ensure early and timely intervention occurs to improve recovery and RTW outcomes, including after retraining (if required). Standard 4(d) is designed to ensure a worker’s employer is made aware of, and fulfils, the employer’s recovery and RTW obligations because early and effective workplace-based co-ordination of a timely and safe RTW benefits an injured worker’s recovery.
Lines said where a complaint was made about retraining of an injured worker, “my office will assess firstly if retraining of the worker is required and whether it is reasonable for the worker to expect retraining and, then, whether attempts to retrain the worker have been reasonable”. Where it appeared retraining was required but was not provided or was inadequate, “this office will undertake investigations to ascertain if the employer’s efforts were reasonable in all the circumstances”.
Lines said the ombudsman could request compensating authorities “undertake steps to resolve any breach” of the service standards.
Investigating RTW complaints might involve interviewing employers and accessing rehabilitation and medical files if relevant and necessary, he said. “The ombudsman has the powers of a Royal Commission to require the disclosure of all relevant documents and to summons people to give evidence under oath. In the first instance my office will review the handling of the complaint by the compensating authority as in many cases this will resolve the matter.”
But Lines said there was “nothing to prevent further investigation by reviewing relevant documents and interviewing witnesses and other parties to the complaint”.
Lines said schedule 5, Part 3, clause 5(2) of the Act made it clear that if a matter was referred to the ombudsman, compensating authorities, including self-insured employers, “will comply with any recommendation of the ombudsman … to ensure compliance with the service standards”.
He said if a complaint concerned an employer whose employee’s claims were managed by RTWSA and the ombudsman had recommended the employer take certain steps to ensure the worker’s RTW, the regulator could “exert pressure on the employer through the premium and penalties system to obtain the employer’s compliance”.
Further, clause 5(3)(c) outlined that for complaints about self-insured employers, the ombudsman must report to RTWSA on the outcome of any such investigation. “This may result in RTWSA taking into account the outcome of the investigation [and] the manner in which the self-insured employer conducted itself during the investigation process in its review of the self-insured’s registration,” Lines said. The ombudsman can also make recommendations to the state IR minister and parliament. Lines said statistical information about investigations would be published in the SA ombudsman’s annual reports.
This story first ran in Workers Compensation Report 1025, 14 July, 2015)
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