The NSW workers' compensation amendment Bill, which passed through the Lower House yesterday, cuts journey claims and includes controversial retrospective provisions, but does not curtail recess claims as recommended by the WorkCover inquiry.
The Workers Compensation Legislation Amendment Bill 2012 amends the NSW Workers Compensation Act 1987 and Workplace Injury Management and Workers Compensation Act 1998, and is being debated in the Upper House today.
Among the extensive changes:
- claims for injuries sustained while travelling between home and work will be abolished;
- weekly payments will step down after 13 weeks, instead of 26, "with weekly payments after week 130 only available to totally incapacitated workers or partially incapacitated workers who have returned to work for at least 15 hours per week";
- no weekly compensation will be payable after five years (except for injured workers with more than 20 per cent whole person impairment);
- insurers will conduct work capacity assessments of injured workers at "various stages" throughout the life of a claim;
- medical and other treatment expenses will not be paid for more than one year after weekly benefits cease (except for injured workers with more than 30 per cent whole person impairment);
- a minimum impairment threshold of 10 per cent (instead of one per cent) will apply to lump-sum compensation claims for physical injuries;
- workers will be allowed to waive the requirement to obtain legal advice before agreeing to a lump sum;
- compensation will only be payable for heart attacks, strokes and their underlying diseases if "the employment concerned gave rise to a significantly greater risk of the worker suffering the injury";
- compensation will only be payable for a disease (or the aggravation, acceleration, exacerbation or deterioration of a disease) contracted in the course of employment if the employment was the main contributing factor; and
- nervous-shock claims by the dependants of deceased or injured workers will be abolished.
A spokesperson for State Finance Minister Greg Pearce told OHS Alert the Government decided not to adopt the recent WorkCover inquiry's recommendation to limit claims for recess injuries "to circumstances where the employment has been the significant contributing factor".
It also declined to remove the entitlement of the estate of a deceased worker (with no dependants) to receive a death benefit, he said.
Retrospectivity and early return to work
According to Schedule 12 of the Bill, most of the amendments extend to injuries and compensation claims sustained or made "before the commencement of the amendment".
The Bill makes it clear that a worker who sustained a journey injury prior to 19 June 2012 will continue to be paid weekly benefits, but it is less clear how the reforms will affect an injured worker who has been receiving weekly benefits for, for example, four years and 11 months.
This uncertainty is a good reason to "halt the legislation and take more time to consider it", Unions NSW secretary Mark Lennon told OHS Alert.
"This is the problem with the legislation. It has been rushed through, so there's no clear understanding of all the impacts on, particularly, workers," he said.
NSW Greens MP David Shoebridge said the amendments took away workers' rights "from the moment" it was introduced to Parliament.
"This retrospectivity wasn't even recommended by the rushed hatchet committee set up by the Government," he said.
He also said the amendments did nothing "to contain the sky-rocketing fees paid to private insurers to manage claims: one of the real reasons that the scheme is in the red".
But Ai Group NSW director, Mark Goodsell, said insurers "do not earn underwriting profit from workers' compensation in NSW, and are not set to profit from reform".
"It is a Government-run scheme and the State's employers bear the costs... NSW employers are tired of bearing the costs of a scheme that are increasing because it is taking longer to return workers to fitness than it did five years ago," he said.
Goodsell said businesses "strongly supported" the Bill, which "brings the NSW scheme back in line with the schemes in other states, and focuses on returning the less seriously injured to work earlier".
"It provides for more objective work capacity assessments, and more consistent support in the early weeks of a claim for all workers, regardless of whether they are covered by an award or not. It requires both employers and workers to play their part in ensuring early and durable return to work," he said.
Compensation authorities to be consolidated
The NSW Safety, Return to Work and Support Board Bill 2012 also passed through the Legislative Assembly yesterday.
This Bill consolidates the governance arrangements for the WorkCover Authority, the Motor Accidents Authority and the Lifetime Care and Support Authority by establishing the Safety, Return to Work and Support Board, which will determine the general and investment policies for the authorities.
It also abolishes the Sporting Injuries Committee, conferring its functions on the WorkCover Authority.
