There are renewed calls for the government to commit to restoring workers compensation benefits from stakeholders across NSW. Recent forums held by the WorkCover Independent Review Office (WIRO) and the Law Society of NSW have highlighted the systemic problems in the ‘reformed’ WorkCover scheme.
Workers’ compensation has been an ongoing issue under successive governments but the 2012 amendments were arguably the most unfair and unnecessary. Rights to legal assistance were removed for many workers, new thresholds were imposed that mean most worker’s benefits are denied after 2.5 years or less of income assistance and medical support. Even some of the most terribly injured workers are not considered to be “seriously injured” under this scheme.
This means, for example, if a worker has their lower limb amputated, but the stump that remains extends 8cm or more below the knee, they are not classified as “seriously injured”. The same brutal threshold denies benefits to workers with serious back injuries, shoulder reconstructions and debilitating mental illness.
In an affront to the concept of rule of law, the government made the changes retrospective; denying benefits even to people who had obtained past court rulings in their favour or had long settled cases. This is not the first time this happened, the ALP first took this approach when it cut back benefits on 2001.
Last week in Penrith the Law Society held a Workers’ Compensation Forum to hear from injured workers as well as medical and legal experts on the practical implications of the Workers Compensation Amendment Bill 2012 which delivered these harsh and unnecessary cuts to the workers compensation scheme. Speakers at the forum included Immediate Past President of the Law Society of NSW Ros Everett, solicitor and personal injury Accredited Specialist Steve Groves, and Penrith based surgeon with a medico-legal practice in personal injury and negligence Dr Richard Deveridge.
In 2012 the Coalition government argued that the slashing of workers’ compensation benefits was necessary because the scheme was projected to run into deficit, but reports have since shown that the figures which the Government relied upon to push through their savage cuts were based on an incorrect projection. The scheme is now back into a multi-billion dollar surplus and any savings must be urgently returned to injured workers through the restoration of all lost benefits.
One of the most damaging aspects of the 2012 amendments was the ‘Nile Amendment’ which removed injured workers’ right to legal representation. The amendment made it unlawful for lawyers to be paid to help an injured worker review an insurer’s Work Capacity decision. Insurer’s have internal lawyers and specialists making the Work Capacity decisions to deny injured workers benefits (the usual form of the decisions is something to the effect of “despite your nasty back injury we think you can work as a market gardener and have no ongoing wage loss – so benefits denied’). The process of reviewing these decisions is impossibly complex, and many injured workers have poor English, difficulty reading and/or writing. Some have acquired brain injuries. In every case it is unlawful for a solicitor to be paid to assist these workers. They are on their own. They lose their benefits.
This system is designed to set ordinary people up to fail: if there are fewer challenges to compensation decisions, the scheme’s surplus can increase, and premiums for employers can be reduced – all at the expense of properly and fairly supporting injured workers.
From a medical perspective, the amendments have led to unnecessary and substantial delays in injured workers receiving rehabilitation treatment and surgery. Under the reforms only “seriously injured” workers are entitled to payment of their reasonable and necessary medical expenses beyond a set period and the provision of weekly benefits beyond 5 years from the date of injury. To be classified as “seriously injured” you must have a whole person impairment of greater than 30%, a threshold which has been criticised as extremely harsh and unfair.
When the 2012 Workers Compensation “reforms” were introduced the government claimed they would help more injured workers return to work but the opposite has happened. The Law Society raised serious concerns that as more and more injured workers been shifted off the workers compensation scheme they have been moved onto social services benefits such as Centrelink and Medicare.
The WIRO seminar welcomed more than 500 lawyers, insurers, policy makers and other stakeholders to continue a productive, industry-wide discussion on the NSW workers’ compensation scheme.
In his opening address, the Independent Review Officer, Kim Garling, outlined the important work WIRO does, including dealing with employers’ complaints about insurers (where they previously had no avenue), completing crucial Work Capacity Reviews (which are published within minutes on their website), and collecting data on disputed Work Cover claims through the Independent Legal Assistance and Review Service (ILARS).
He indicated WIRO’s intention to use its power to hold its first inquiry into parts of the WorkCover scheme, which could then inform members of Parliament. The Parkes Project Inquiry will examine:
- the potential for amalgamation of the Workers Compensation Acts
- ambiguities in the Workers Compensation Acts and the Regulation
- resolution of conflicts apparent in the legislation to align the Acts with current Government policy
- reduction of the complexity of the legislation, and
- the identification of potential enhancements to the legislative framework to benefit all stakeholders.
The closing date for submissions is 24 February 2015.
The Greens NSW are committed to reversing the unfair reforms to the workers’ compensation scheme, simplifying the system, and restoring all lost benefits and the right to legal advice.
We will continue to push for just outcomes for injured workers, who deserve a navigable system, ongoing support, and reasonable access to benefits.
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