Even more reason to feel unsafe at work: the new workers compensation law

The results of a five year survey of more than 8000 workers were unveiled at a workplace safety forum in Sydney last week. The survey found that one in four health and community workers believed their work is unsafe.

“Being a nurse or doctor in the public health system is one of the most stressful places to be,” said Sydney University research director Professor John Buchanan.

It’s ironic that the research was released at the same time as the workers compensation legislation was being rushed through the NSW Parliament. The changes can only add to the stress – and to the real hardships suffered by those who are injured in the course of their work.

The changes were made with so little debate and scrutiny that the consequences are still unclear, but the main thrust of the cuts is:

• the changes are retrospective: the ‘changes to weekly benefits, medical costs and duration [of payments] are to apply as soon as possible to existing claims’ and ‘changes to lump sum compensation are to apply to existing claims from the date of the legislation’s introduction’. The changes to weekly payments for existing claimants will be phased in, commencing in three months at the earliest. Police, paramedics and firefighters are exempt.
• weekly payments: most workers’ payments will cease after 2.5 years, unless there is total incapacity for work. Payments will then cease for those with total incapacity after 5 years, unless there is 20% whole person impairment. (Previously, payments continued until you could return to work or until retirement.) Workers will also now receive reduced payments from day one (95%), with a further drop to 80% at 14 weeks (although they retain 95% if working at least 15 hours a week). Payments remain at 80% (or 95%) until they cut out altogether.
• cover during travel retained in limited form: for decades, workers have been covered for injuries sustained on the way to or from work. The Government proposed to take this away. Late amendments to the legislation retained journey claims in a limited form. Workers injured when travelling are only covered ‘if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose’. The new provisions leave much uncertainty over which incidents are covered.
• cuts to cover for medical expenses: medical and other expenses are only paid for a maximum of one year from the date a claim is made or weekly payments cease, whichever is longer. There is an exception for ‘seriously injured’ workers. ‘Seriously injured’ is defined as a 30% whole person impairment, which would only apply to a small number of the very worst workplace injuries.
• limits on lump sums for injury; compensation for pain and suffering cut: lump sums payments are only available for very serious permanent injuries, defined as a 10% whole person impairment. Lump sum payments for pain and suffering are cut altogether. The requirement for workers to have received legal advice before signing away their rights to weekly compensation and accepting a lump sum payment is removed – if the “employer or insurer is satisfied” that the worker has waived this right.
• limits on claims for strokes and heart attacks: Heart attacks or strokes will not be covered unless the nature of employment gave rise to ‘significantly greater risk’.
• restrictions on cover for occupational disease: Disease is only to be covered where employment is the main contributing factor, rather than previously where it could be one of a number of contributing factors.
• partner’s claims for nervous shock abolished: currently the spouse, partner or direct relative of someone who has died in a workplace accident can access some cover if they are diagnosed as having nervous shock as a result and, for example, are unable to work for a period of time. This has been abolished.

Through sustained pressure from Unions NSW and other unions, some amendments were achieved:

Some amendments to the Workers’ Compensation legislation were achieved. They include:

•  Exempting , police, paramedics and fire-fighters from the changes
• Journey claims retained, in a limited form
• Retaining the current test for negligence for Work Injury Damages claims
• Slightly improving appeal rights in relation to work capacity decisions
• Retaining the ability to consider the risk of re-injury in any work capacity decision
• Ensuring workers get financial advice (paid for by WorkCover) prior to agreeing to commutations
• Removing the Government attempt to have workers subject to cost orders should they lose before the Workers Compensation Commission (although workers, not the Scheme, will now pay for their own legal costs)
• Review of the Act in two years instead of five years.