Changes don’t go far enough

“The absence of legal assistance for injured workers is grossly unfair.” - Greens MP David Shoebridge
“The absence of legal assistance for injured workers is grossly unfair.” – Greens MP David Shoebridge

Union lobbying and public complaints about the severity of cuts to WorkCover have led the NSW government to make minor amendments to the scheme. The following summarises the recent amendments and main recommendations of the Parliamentary Standing Committee on Law and Justice.

Medical treatment

The 2012 reforms restricted the timeframe in which injured workers could access medical treatment. Further, workers suffering industrial hearing loss had their entitlements to lifetime assistance for hearing aids, batteries and repairs reduced to an entitlement of one set of hearing aids and 12 months of batteries and repairs.

After the government’s latest changes, seriously injured workers who made claims before October 2012 can once again get hearing aids, prostheses and modifications to their homes and cars until they reach retirement age. This change does not apply to people who made claims after October 2012.

To be eligible for medical benefits until retirement age, the injury threshold is lowered from 30 per cent of a worker’s body to 21 per cent.

Weekly payments

The government now allows injured workers to continue to be eligible for weekly compensation payments until a disputed work capacity assessment has been resolved. This follows criticism that workers were getting no benefits during the months it took for their disputed claims to be settled.

Pre-approval for treatment

The parliamentary inquiry recognised that seeking pre-approval for medical treatment was sometimes impractical or unreasonable and recommended that the government amend the scheme to make it more flexible.

The government’s 2012 amendments require that the insurer grant prior approval for all medical treatments unless the treatment occurs within 48 hours of the injury or is exempted under WorkCover guidelines.

This strengthened the power held by insurers to delay treatment, which in turn could delay a worker’s recovery, make the injury worse and reduce the chances of a durable return to work.

It also adversely affected injured workers who required ongoing treatment to maintain the level of fitness needed to keep working.

For instance, nurses with back injuries unable to gain pre-approval from the insurer for treatments, such as physiotherapy, which they require to keep working or to return to work sooner.

Legal representation

The 2012 changes prevent lawyers acting for injured workers in connection with a review of an insurer’s work capacity decision.

This has left injured workers “vulnerable and without adequate representation in what is a highly complex area of law,” the committee said.

The committee called on the government to consider allowing lawyers to be paid or recover “fair and reasonable fees” for compo work.

“The absence of legal assistance for injured workers is grossly unfair and the scheme must urgently be amended to restore the right to legal representation for all injured workers,” Greens MP David Shoebridge said.

Returning to work

In 2012 the government put a cap on the length of time WorkCover would pay weekly payments for all but the seriously injured – whether they had returned to work or not. Prior to this the weekly benefits generally continued until retirement age.

The parliamentary committee noted concerns that “some employers failed to understand or adhere to their obligations to provide suitable employment, and that there is a lack of enforcement when employers fail to meet these obligations.”

The committee called on the WorkCover Authority to consider introducing incentives to encourage compliance and penalties for non-compliance, along with an education campaign to inform employees and employers of their rights and obligations.

The NSWNMA is getting reports of employers deciding that injured nurses who have been given suitable work to accommodate their partial incapacity, often for extended periods of time, are now classed as having a non-work related injury because their benefits have ceased.

As a result nurses have been stood down and not allowed to return to work unless they have medical clearance declaring them fit to undertake the full inherent requirement of their pre-injury position.

The NSWNMA says this interpretation is incorrect and inconsistent with both workers compensation and industrial legislation.

Any nurse put in this situation should call the Association for advice.

The 2012 “reforms” at a glance

  • Workers compensation for trips to and from work no longer covered.
  • Weekly payments stop at two-and-a-half years for most injured workers.
  • Medical expenses stop one year after weekly payments cease.
  • Lump sum payments for pain and suffering removed.
  • Heart attacks and strokes no longer covered.