Changes to Workers Compensation
04 January 2002
The Workers' Compensation Legislation Further Amendment Bill 2001 was passed by both Houses of Parliament in December 2001 . The Bill affects all claims lodged after 27th November 2001.The Bill will impact on Common Law claims from the 27th June 2001.
There unions opposed a number of changes to the Workers Compensation laws and campaigned strongly against the Carr Government over the past twelve months not to introduce these changes. The unions warned the Government that these changes could have a devesting effect on seriously injured workers.
It must be pointed out however, that the Governments original package of changes all but wiped out common law claims; workers had no right to legal representation; and lump sum payments would have been abolished altogether.
The Unions were able to achieve some concessions from the Carr Government such as:
· The reduction of the threshold from 25% to 15% (whole of body). This is the injury threshold test for a worker to overcome before being able to sue their employer for negligence
· The removal of the requirement for the election. Previously the injured worker had to elect whether to stay in the statutory scheme or pursue benefits through Common Law
· The reintroduction of lump sum compensation for weekly benefits to be commuted. This is where a worker can opt to take a lump sum payment rather than a weekly pension from the insurance company. The Government however, has placed specific restrictions and barriers on these lump sums being offered by the insurer
· The right of workers to be legally represented at all levels of dispute including mediation
· The prevention of the WorkCover Scheme being privatised and placed in the total control of insurance companies. The Scheme will remain Government operated and controlled.
· The benefits for Permanent Disability have been increased under the Statutory Scheme to $250,000.00
· The modification of new assessment guidelines which workers will now be assessed under in order to claim a permanent disability benefit. The previous guidelines were extremely rigid and harsh. The Government allowed the Unions to nominate Doctors to represent them on the Committee responsible for developing the Medical Assessment Guidelines. The nominated Doctors were able to improve the guidelines for certain injuries
· The addition of new injury categories under the Permanent Disability lump sum table. These new categories include; psychological injuries, loss of a body function (eg internal organ damage) etc
· Uninsured liability scheme: - previously injured workers were not able to access Common Law if their employer was uninsured. This provision has changed and the worker is now able to claim through the uninsured liability scheme
· The inclusion of an appeal mechanism from medical assessments. These medical assessments, which were conducted by an approved medical specialist were binding and final and the workers had no right of appeal. These assessments can now be appealed
· The removal of non-qualified persons conducting medical assessments. In the original package the Government would have allowed non-qualified persons to make final determinations on an injured workers rights to benefits
· The establishment of a division within the new Workers' Compensation Commission where unions are able to pursue complaints against employers who fail to provide suitable duties
While the unions were able to get the Government to agree to some of these concessions, Unions remain opposed to a number of aspects of the legislation such as:
· The removal of the second gateway i.e. monetary gateway to access Common Law. Previously a worker could sue an employer for negligence provided they could establish to a Court they would receive a certain amount of money in damages - $58,000 or greater). This has been abolished and there is only one gateway, which is an injury threshold test. A worker must now prove that they have a certain level (15% whole of body) of permanent impairment to their whole body. This is too high and will still exclude many seriously injured workers
· The Unions believe that the 15% (whole of body) permanent impairment injury threshold test maybe too high and could exclude many seriously injured workers
· The Unions believe that the 10% threshold to access compensation for pain and suffering is too high and may exclude many seriously injured workers from accessing this benefit
· The Unions oppose the removal of the right to recover damages for pain & suffering, and loss of enjoyment of life. The Unions also oppose the removal of the right to recover economic loss for expenses relating to payments for increased transport costs, home modifications, nursing care etc. While these benefits have been added to the statutory scheme the Unions are concerned that they will not be as generous and the access to these benefits may be limited
· An injured worker is not able to add a physical and psychological injury together to reach the injury threshold test of 15% (whole of body)
· The Government intends to introduce guidelines for psychiatric and psychological injury, which have not been scientifically tested or validated. All injured workers will be assessed under the Government's untested guidelines. Injured workers will effectively become the Government's experimental guinea pigs and lab rats
· The barriers to access lump sum weekly compensation appear too restrictive and Unions believe that the Government should reconsider some of these barriers to access commutations
· The introduction of guidelines that negatively impact on the benefit an injured worker would receive under the permanent disability table. This includes, psychiatric and psychological injuries
Where to from here?
The Government's changes to Workers Compensation in NSW are not fair or balanced. These changes are aimed at reducing compensation for injured workers, rather than employers being required to pay their proper share. One of the major reasons that the WorkCover Scheme is in debt is that the Government has not been charging the employers an adequate premium rate.
The major changes impact on the workers compensation payments and access to those payments.
The Government's changes do nothing about injury prevention or compliance. Every accident is preventable. The unions will continue to campaign and get the Carr Government to address front-end issues such as injury prevention, and compliance by employers to ensure the future of the scheme. Employers must be held to account for their actions in situations where workers are killed or injured.
Another major problem with the WorkCover Scheme is that some employers are not paying their way, which is contributing to the scheme's deficit. Unions will mount a campaign to ensure that employers pay the right amount. Unions want to know if the Carr Government supports this initiative, or if it will be left to Unions to police this troubled area.
Unions will also commence a major campaign on workplace safety, and will be conducting prosecutions on those employers who are not providing safe workplaces, adequate training and equipment for their employees.
Unions will also be campaigning for top-up insurance arrangements. It appears that the political process has failed and Unions therefore need to look at other ways of achieving adequate compensation for persons who are injured at work through no fault of their own. Unions will pursue compensation benefits for Union members similar to those available through superannuation schemes such as death and disability payments.
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