Australia: Workers compensation changes in NSW leave injured workers in the lurch

Last Updated: 17 October 2016
Article by Grant Avery

A study by Macquarie University has found changes the government made to the NSW workers compensation scheme four years ago have given only limited help to injured workers wanting to return to work.

Professor Ray Markey of the university's Centre for Workforce Futures led the study, titled The Impact on Injured Workers of Changes to NSW Workers' Compensation: June 2012 Legislative Amendments. The study examined the process by which injured workers return to work and the obstacles they face in doing so.

Cost savings achieved by cutting compensation payments to injured workers

The government's rationale for revamping the scheme in 2012 was that it was in crisis, with a reported deficit of $4.1 billion. However, by October 2013 the government reported that the scheme was no longer in deficit, even though employers had been granted a 7.5 per cent reduction in compensation premiums in the interim.

Unfortunately, the change in the scheme's finances was achieved mainly by dramatically cutting the compensation available to ill and injured workers. Heart attacks and strokes are no longer covered. Neither are payments for nervous shock experienced by the families of seriously injured or deceased workers.

Furthermore, injured workers stop being entitled to be compensated for the cost of medical treatment as early as two years after they stop receiving weekly payments, which means that the cost of any necessary additional medical treatment has to be borne by the worker themselves, the public health system and ultimately, the taxpayer.

According to the report, the proportion of the cost of workplace injury and illness borne by workers and their families has increased from 43.7 per cent in 2001 to 73.9 per cent in 2009. Over the same period, the proportion of the cost borne by employers has fallen from 24.8 per cent to 16 per cent.

Decline in transparency of WorkCover scheme

Two other disturbing changes introduced by the new legislation were the ban on payment for legal advice regarding insurers' work capacity decisions – meaning that workers have to deal with the insurance company on their own and no longer have access to an independent compensation commission to appeal an insurer's decision – and a sharp decline in the publicly available information from WorkCover NSW regarding compensated injury and illness.

Regrettably, the deliberate opaqueness which now surrounds the WorkCover scheme equates to decreased accountability of operators of the scheme.

Employer obligations to find suitable duties for injured workers

It is important for injured workers to be able to return to the workforce in whatever capacity they can, for their wellbeing, both physically and psychologically, as well as for the economy.

However, the report found that some employers are not complying with their obligations to help insurers find suitable duties for injured workers. Too often, a worker's return to the workplace is obstructed by bureaucratic red tape and the reluctance of insurers and employers to find places for workers who have been injured. Payment for realistic retraining options is often refused. The inability to return to work can have a devastating effect on the worker and their entire family.

The report concluded that self-insured employers are able to self-regulate and thus focus on ways to drive injured workers out of their employment, rather than devising injury management plans to provide them with suitable duties.

Anecdotal evidence supplied by workers who were interviewed for the report also points to the reluctance of employers to employ anyone who has ever made a workers compensation claim of any type.

Rather than blaming employers for providing unsafe workplaces where workers can suffer injury, the tendency in Australia is to blame the worker, label them as a "bludger" and assume that they are almost certainly rorting the system. In effect, the injured worker becomes a pariah and is consigned to the scrapheap.

Delays in insurer approvals of medical treatment

A significant change introduced by the new workers compensation legislation is that injured workers need to obtain pre-approval from the insurer before they can attend medical appointments or have surgery.

It is a fact that insurers' interests diverge from the objective of returning injured workers to work. Instead they focus on the prime objective of maximising profit by minimising and delaying medical treatments and finding ways to decline liability.

According to the report, the practical outcome is that insurers can delay approval and therefore compensation for medical treatment indefinitely. Obviously, such delays will often lead to a further deterioration of the worker's health.

Bullying and harassment of injured workers by insurance companies

The report found bullying and harassment of injured workers by insurance companies is a problem that undermines workers' confidence and acts against the likelihood of them returning to work.

It cited the case of one worker who needed special orthopedic shoes after a steel bar fell on his feet. The WorkCover insurer took 18 months to approve the special shoes. In the meantime the insurer told him time and again that he had to look for work, despite knowing he could not do the work without the orthopedic shoes.

In another case, a truck driver who injured his back tried setting up his own business organising deliveries, but WorkCover rejected the proposal as the insurer could not monitor his earnings. He was out of work for more than five years.

Grim parallels between WorkCover changes and the CTP scheme proposed for NSW

If the characteristics of the new workers compensation scheme sound familiar, that might be because they have much in common with changes to the compulsory third party (CTP) insurance scheme which have recently been proposed for NSW and which have received significant press coverage in recent months. (See Proposed reforms to NSW CTP scheme to disadvantage accident victims and safeguard insurers' profits.)

Cutting compensation to those who are injured, forcing them to deal with insurers on their own without legal support, putting decisions about medical treatment solely in the hands of insurers, leaving those who are injured no option but to rely on Medicare and Centrelink – is any of this starting to sound familiar?

Grant Avery
Workers compensation
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions