Summary of the Amendments
In June the Government introduced changes to the Workers Compensation scheme in NSW. There are significant changes to benefits designed to give more assistance to return to work and provide better financial support for more seriously injured workers.
The Act makes a number of significant amendments to the Workers Compensation Act 1987 (the 1987 Act) and the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) including:
Changes to the calculation of weekly benefits, include:
· the introduction of step-downs during three entitlement periods (weeks 1–13, weeks 14–130, and after week 130), 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.
· seriously injured workers will receive increased weekly benefits.
· no weekly compensation is payable after five years (with an exception for injured workers with more than 20 per cent whole person impairment).
· work capacity testing will be introduced for the first time similar to the Victorian model.
· insurers will be required to assess the workers capacity for employment and his or her ability to earn.
· work capacity decisions will be binding subject to the an internal review by the insurer and a merit review by the WorkCover Authority.
WorkCover Independent Review Officer
A new office of the WorkCover Independent Review Officer (WIRO) has been established.
The WIRO may review the insurers’ procedures in making work capacity decisions, but not the merits of the decision. A review cannot proceed until the dispute has been subject to an internal insurer review and a merit review by the Authority. The WIRO may make recommendations that are binding on insurers and WorkCover.
The WIRO may also investigate complaints regarding insurers and make non-binding recommendations.
The Workers Compensation Commission does not have jurisdiction to determine disputes about work capacity decisions.
Medical and Hospital expenses
Payment of an injured worker’s expenses for medical, hospital and rehabilitation treatment and services will be limited to treatment and services provided within 12 months after a claim for compensation is first made or within 12 months after weekly payments cease (with an exception for workers with more than 30 per cent whole person impairment).
Lump Sum compensation
Changes to lump sum compensation for permanent impairment include:
· lump sum compensation for permanent impairment will no longer include a separate component for pain and suffering.
· there will be a minimum whole person impairment threshold of greater than10 per cent whole person impairment for lump sum compensation.
· only one claim for permanent impairment compensation may be made, and
· an assessment of degree of permanent impairment for a lump sum compensation claim will be binding for the purposes of commutations and common law work injury damages claims.
No compensation will be payable for an injury that is a disease (or the aggravation, acceleration, exacerbation or deterioration of a disease) contracted in the course of employment unless the worker’s employment was the main contributing factor.
No compensation will be payable for journey claims, except for work, workers compensation or training related journeys.
The Act also amends the current costs provisions, prohibiting the making of any costs order in Commission proceedings.
On 26 September 2012, the Minister announced that a new Independent Legal Assistance and Review Service (ILARS) would be established in the office of the WIRO. This service will deal with applications for funding for injured workers to seek resolution of their dispute in the Commission. The WIRO has indicated an intention to ensure that funding is made available for approved legal service providers at an early stage of the process to enable supporting material to be obtained.
The Minister’s announcement included confirmation that transitional arrangements would allow for any matters registered in the Commission by 31 December 2012 to be finalised in accordance with the old costs provisions.
The Bill received assent on 27 June 2012.
Following an amendment, the amending Act 2012 will not apply to police officers,
paramedics or fire-fighters.