The McDougall review – a possibility of further legislative reform

  • Newsletter Article
  • Published 18.05.2021

Key Takeaways

The McDougall review into icare, and the worker’s compensation scheme more broadly, was published on 30 April 2021. 

The review examined icare’s execution of the changes it was created to achieve, but also addressed the issues and challenges facing the scheme’s ability to achieve its goals under the current legislation. 

McDougall makes a host of recommendations, some of which would require legislative change – potentially lighting the way ahead for further reforms. 

Highlights

Recommendations that would involve legislative change include:

  • Consolidating relevant legislation, including the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 into a single piece of legislation.
  • A response to the changing nature of work and the gig economy and the extent and ways gig workers should be able to access benefits.  
  • Replacing the WPI threshold test for an entitlement to weekly benefits and medical expenses with something that more accurately reflects the need for compensation.
  • Allowing a further assessment of whole person impairment where there is a significant deterioration in a compensable injury.  
  • Amending s60 of the Workers Compensation Act 1987 to read ‘reasonable and necessary’ instead of ‘reasonably necessary’. 
  • Allowing negotiated settlement of disputed death benefit claims subject to  the approval of the Personal Injury Commission. 
  • Relaxing the criteria for access to commutations.

Implications

While at this stage the recommendations are only that; they highlight key pressure points identified by stakeholder groups and provide a sketch of what changes might be on the horizon. 

Of course legislative change is nothing new for the scheme, though some of the proposed changes would alter rights and entitlements left untouched by prior reforms. 

In particular, the suggestion that there be a rewording of s60 and a more modern definition of ‘worker’ would see an end to the long line of authority addressing the legislation in its current form. 

Other suggested changes would tweak (or overhaul) the amendments made in 2012 and see a worker’s entitlement to weekly benefits and medical expenses determined by something other than a WPI threshold. 

Wider access to commutations would allow more workers to negotiate an exit from the scheme, and negotiated resolution of death benefit claims (currently not permitted) would permit a compromised resolution in cases where the liability outcome is uncertain for both sides. 

Certainly those who are engaged with the scheme on a daily basis will be watching and waiting for the response to these recommendations and for some an indication as to what’s next for the scheme. 

Miriam Browne

Partner

P: 02 8257 5869

Email Miriam