Payments to workers have been modified in order to emphasise the need for early return to work. Workers will in future be entitled to a maximum of 26 weeks on their award rate whilst totally unfit for work. After this period, workers will be entitled to the current statutory rate if they remain totally unfit for work.

Weekly payments are to commence within 21 days after the claim for compensation has been made unless the claim is disputed or the insurer has a "reasonable excuse" for not commencing payment. If the latter is the case, such an excuse is not viable beyond 42 days, when liability has to be disputed or payments commence.

Once partially fit for employment and if the employer refuses to make suitable duties available, the worker can receive Section 38 benefits (at the award rate or 80% of the award rate) whilst undertaking approved rehabilitation or job seeking for up to 52 weeks. After this time, a further 52 weeks will be paid under S40 (the difference between what the worker earned pre-injury and what they are currently capable of earning) whilst the worker remains away from work and is job seeking or undertaking rehabilitation.

At the expiration of 104 weeks? incapacity for work, payments can be discontinued if the worker is no longer job seeking or if s/he is unemployed as a result of the labour market and not the injury.

If a worker unreasonably rejects suitable employment, payments will be reduced to the difference between the current weekly wage rate for the worker?s pre-injury job and what s/he can now earn in suitable employment.

Benefits for workers who were injured prior to 1 August 1998 will be paid differently if they had ever received benefits whilst partially incapacitated and not at work (Section 38 benefits). They will be able to receive Section 38 benefits for a total of 104 weeks (52 weeks at award rate or 80% of their award rate and 52 weeks at the fixed rate). The review at the end of 104 weeks will be applied in the same way.

Those workers who are unable to return to their pre-injury employer will be assisted by vocational rehabilitation activities. These will include on-the-job training, a second injury scheme for employers who employ injured workers and attendance at vocationally oriented training courses.

Liability for weekly benefits may be commuted. The Compensation Court will determine the lump sum and the court must be satisfied that the termination of liability is in the best interests of the worker.

The 1998 legislation aims to reduce the level of disputation and to try remedies other than the legal system to speed up the process of dispute resolution. Several initiatives are being introduced that will facilitate this process:

• Injury Management Consultants will be approved by the WorkCover Authority to assist insurers, employers and treating doctors when there is disagreement over the suitability of selected duties that are offered by an employer. The criteria for appointment as an injury management consultant will be developed in the near future.
• Approved Medical Specialists will also be appointed by the WorkCover Advisory Council to be the final arbiter (subject to agreement of the parties concerned) of disputes over assessments of incapacity, suitability of employment and fitness for work. Their certification will be prima facie evidence for the court.
• The current medical panels and referees will continue to be utilised but usage rates should reduce given the introduction of the other two categories for the medical profession.
• If an insurer disputes liability, the insurer must give notice of the dispute to the claimant including details of the reason, referral to a conciliator or the way a worker can access conciliation or seek assistance from a Trade Union. Insurers are to give copies of specific reports to workers - investigators, rehabilitation providers and assessments of employability - or they cannot use them to dispute liability.
• Access to conciliation will be expanded through the appointment of additional Conciliators whose role in dispute resolution is confirmed by the 1998 Act.

Premiums are to be pegged at an average of 2.8% of wages from 1 October 1999 to 30 September 2000. The legislation intends that the scheme achieve a long term average premium rate of 2.8% of wages and the Advisory Council will monitor premium setting so as to achieve this rating.

• Injured workers have an obligation to notify their employer as soon as possible after injury and before the worker voluntarily leaves the employment where the injury occurred. They will need to attend a doctor to obtain a medical certificate if they wish to claim loss of wages. They then need to cooperate in any management plan developed for them by the insurer/employer. Failure to participate could result in cessation of weekly benefits once the insurer advises the worker in writing that benefits are to cease, the reason they are ceasing and what action the worker needs to take to be entitled to resumption of payments.

• The first obligation on an employer is to have a current workers compensation policy with a licensed insurer in NSW.
• Prior to an accident occurring, an employer is required to develop an Return to Work Program that mirrors the Program requirements of their insurer. They will also be required to review their existing Rehabilitation Programs to ensure that they do not conflict with the Insurer?s Injury Management Program.
• Employers are to notify the insurer as soon as they become aware (and at a maximum of forty-eight hours) that a worker will be absent from normal duties for longer than 7 days (i.e. has sustained a significant injury).
• All other injuries are to be reported within seven days.
• Claims for compensation are to be forwarded by the employer to the insurer within 7 days of receipt.
• The employer will then participate in the development of an Injury Management Plan for the individual worker which will include enabling a return to work on selected duties. The suitable employment provided to the worker must meet the definition described in S43A of the Workers Compensation Act and be equivalent to, or the same as, the preinjury employment of the worker.
• Failure to provide suitable employment could affect the premium payable by that employer either through a weighting in the claims experience factor or through a surcharge on the premium payable.

• The insurer has the responsibility of advising employers on the need for an Injury Management Program and ensuring that employers are aware of the requirements of this Program. When an injury occurs, it is the insurer?s responsibility to contact the worker, treating doctor and employer within three days of the notification, if the worker is likely to be off work for seven days or more.
• The insurer will ensure that an injury management plan is developed for the worker that will assist the person to return to work in a timely, safe and durable way. This plan will contain details of the Nominated Treating Doctor and the obligations of each party in relation to the return to work of the injured worker.
• Prior to acceptance of liability, the insurer can pay for services provided by the nominated treating doctor if the doctor is prepared to participate in the Injury Management Plan and for the cost of other specified treatment.

• Doctors are to play a pivotal role in the administration of the new scheme. The focus is on early intervention and communication with the workplace. In order to achieve this, medical practitioners will be requested to nominate as the Treating Doctor.
• Nominated treating doctors will become the initial focal point of all plans in relation to injury management for individual workers. The worker will nominate and the doctor will agree to be the nominated treating doctor. The nominated treating doctor will coordinate all aspects of the worker?s treatment and return to work management. This latter aspect can be done in various ways - via the medical certificate and return to work form in consultation with the employer?s rehabilitation coordinator and the insurer, or by using an accredited rehabilitation provider.
• Nominated treating doctors are to, provide appropriate medical certification of incapacity, participate in the Injury Management Plan, provide medical reports relating to the worker?s fitness for work, provide and arrange appropriate treatment and recommend suitable duties that the worker is capable of performing. In addition, they are to be available to discuss the worker?s injury management with the employer, insurer and other service providers.

WorkCover Information Centre: 13 10 50 http://www.workcover.nsw.gov.au 1 December 1998

For further information

Contact	:	OHS & Workers Compensation Coordinator - Mary Yaager
Phone	:	(02) 9264 1691
Email	:	m.yaager@labor.org.au
WWW	:	http://ohs.labor.net.au/ohsnet/news/

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