5th Oct 2017
WORKERS COMPENSATION UPDATE
To recap, the O’Farrell NSW government introduced legislation in 2012 that significantly amended workers compensation law in this State. The changes included the following changes, among others:
- A cap on weekly workers compensation payments of up to five years for injured workers with an incapacity for work, other than workers with a whole person impairment greater than 21%;
- Limiting treatment expenses to 2 years (in the event of whole person impairment up 10%) or 5 years (in the event of whole person impairment between 10-20%) from the date the entitlement to weekly workers compensation payments ends;
Seriously injured workers, with a whole person impairment of 21% or greater continued to have an entitlement to treatment of unlimited duration.
- A requirement that there is a “real and substantial connection between the employment and the accident or incident out of which the personal injury arose” for a journey to be a compensable journey; and
- An amendment to the definition of “suitable employment” which had no regard to whether suitable employment is available, is of a type or nature that is generally available or near to the worker’s place of residence.
The five year deadline was unfair as many people of genuine injury and incapacity, of many years duration in some cases, were going to be kicked out of the workers compensation system on the expiration of those five years. They may have to find other sources of money, like Centrelink benefits. However, we understand that Centrelink is not automatically available and subject to its own qualification criteria including the earning position of partners etc. Workers could suffer hardship. (Enquiries should be made with Centrelink for details).
The journey claim changes would limit the number of injuries which were otherwise compensable. According to judgments of the Workers Compensation Commission, interpreting and applying the legislation, the mere fact of travelling to and from work will not satisfy the “real and substantial connection” requirement.
There are reportedly in excess of 4000 injured workers who will be kicked out of the workers compensation scheme over the 2017/18 Christmas New Year period as a result of the five year deadline. This is despite the fact the scheme is $1.5 billion in surplus.
Workers have been receiving correspondence from their insurers in recent times foreshadowing this. Should you receive such a letter, please contact us for advice.
Relief on the way for injured workers?
On 21 September 2017, Labor MP Clayton Barr introduced a Bill into parliament to abolish the above amendments. The Workers Compensation Amendment (Protection of Injured Workers) Bill 2017 (“the Bill”) is “A Bill for An Act to amend the Workers Compensation Act 1987 to restore journey claims, to remove certain restrictions on workers’ entitlements to weekly payments and compensation for expenses and to make further provision with respect to the protection of injured workers.”
The Bill proposes to change the definition of “Suitable employment” to include consideration of, among other things, “whether the work or the employment is available”, “whether the work or the employment is of a type or nature that is generally available in the employment market” and “the worker’s place of residence”. Should this new definition be accepted and passed it will be much fairer. The current one is unfair because, in theory a job on the other side of the country, that is not realistically suitable and available to an injured worker, could be relied on by an insurer to demonstrate that there is suitable employment for the worker with their level of post injury fitness and negatively affect the calculation of the injured worker’s wages compensation benefits.
The Bill proposes to omit the sections of the legislation that contain and apply the “real and substantial connection” requirement in journey claims, the five year weekly compensation benefits deadline for injured workers with a whole person impairment less than 21% and the time caps on treatment. These would be good and positive changes for injured workers. We await with interest the outcome of the parliamentary debate and vote on the Bill.