Ref: VTHC, Friday 13 June 2008
In December 2007 the Minister for WorkSafe, Tim Holding, announced an
inquiry into the Accident Compensation Act. The State Government
appointed Mr Peter Hanks QC to conduct the review. The report goes to
the government in July.
A little historyIn 1985 the Accident Compensation Act (WorkCare) was
introduced by the Cain Labor Government. This had a focus on providing
rehabilitation services as soon as possible after injury to return injured
workers to gainful employment and also to enable the worker to return to
normal community life. WorkCare gave weekly payments (80% of pre injury
average), quickly and ongoing until return to work or retirement age.
The premiums for employers in the meat industry were
reduced dramatically with the introduction of WorkCare.
In 1992 when the Kennett Government got in WorkCare was changed to
WorkCover and there were numerous changes.The first widespread
changes were to throw more than six thousand long term injured workers
off compensation; limited workers’ rights to claim compensation; reduced
access to rehabilitation and abolished union representation in policy making.
Approximately every 6 months for the next 7 years there were
changes to the Accident Compensation Act. Most of these
changes reduced worker’s entitlements to compensation.
By October 1999 (when Labor got back in) entitlements for workers had
dropped dramatically.
Specific reductions included:
• a requirement to prove that employment was a significant contributing factor;
• the exclusion of a significant proportion of stress claims;
• the exclusion of compensation claims if workers had not told potential
employers that they had (in the dim and distant past) suffered illness or injury;
• removed compensation rights unless an injury report has been made within
30 days;
• the removal of the specialist appeals structures - replaced with
conciliation and the magistrate/county court;
• the exclusion of injuries that
occurred on the way to or from work;
• reduced weekly payments to:o 95%
of PIAWE (excluding penalties and overtime) for 13 weeks;o then after 13
weeks and up to 104 weeks:? payments dropped to 75% for people who
had no capacity to do anything at all;? payments dropped to 60% for people
who had a capacity to do anything other than pre-injury work (whether a job
was provided or not);after 104 weeks:? workers who could still do absolutely
nothing, forever, continued to receive 75%; and ? workers who could
theoretically do something, either now or in the future,
get NO WEEKLY PAYMENTS;
• medical expenses were terminated 12 months after weekly
payments were stopped.
• common law (the right to sue negligent employers)
was abolished since 1997;
• compensation for permanent injury had been taken away from or
reduced because they had established new ways of measuring impairment
- American Medical Association Guides to the Evaluation of Permanent Impairment
- with a 10% whole person impairment as a threshold for physical injuries.
These guides state that they should not be used for this purpose.
Psychological Impairment had to meet a threshold of 30% before any payment.
Psychological injuries that come from being permanently physically injured
don’t count at all. The impact of these changes meant that many workers
with permanent injuries did not get any lump sums for compensation;
• rehabilitation was reduced so that it was only available for return to work,
workers had no choice of who was the rehabilitation provider and no there
was no rehabilitation to improve quality of life or participation in the community.
After Labor got back into government, There have been minimal
improvements for workers since Labor returned to government.
• After October 1999, Common Law was reintroduced for some workers
(fewer than before November 1997).
People who were seriously injured through negligence between November
11, 1997 and October 20, 1999 were left in the black hole.
• Calculation of pre injury average weekly payments was changed so that
regular overtime and shift penalties were counted in for calculating weekly
payments in the first 26 weeks.
That improvement cuts out after 26 weeks so the workers who have serious
injuries and can’t work at anything are still as badly off as they were under
Kennett. For example a supermarket butcher who worked
Thursday to Monday earning $1000 a week before injury, who is too badly
injured to do any work receives $555 from WorkCover after 26 weeks.
• In 2004 the threshold for a lump sum payment for permanent impairment
from musculoskeletal injuries (backs and limbs) was reduced from 10% to 5%
and the minimum payment went from $5000 to $9190.
• By 2006 the weekly payments for workers who have a capacity to do
something went from 60% to 75%.
• In 2006 the cut off for weekly payments for most workers was
changed from 104 weeks to 130 weeks. Gifts for employers - Premium
ReductionsAfter Labor got back into government the employers have
been rewarded handsomely and repeatedly.? 2004 - premium reduction
of10% that is $180 million a year. ? 2005 - a further 10% premium
reduction of $170 million per annum.? 2006 - another 10% reduction
in the average premium rate that is $170.00 million per year.? 2007 -
this time 10% premium reductions gave employers around $167 million
per year.? 2008 - a further saving of 5% for employers of $88 million
was announced during the review process i.e. pre-empting any
recommendations from the review.In 4 years employers have been
given a 45% average premium cut! Across the board employers
have been saved $1,984 million.
It is time for improvements to WorkCover for workers. Workers are
the people who suffer from injuries and illnesses that we get in the course of,
or arising from, work. We want a system that provides adequate and just
compensation to injured workers.
What do we want?
Compensation must be paid for workers with injuries or illnesses
arising out of, or in the course of employment. It should not be harder to
get compensation for some injuries and illnesses such as psychological
conditions, heart attacks and strokes. We argued to repeal sections 82(2A),
82(2B), and 82(2C) of the Act in order to have “adequate and just compensation”.
Some changes that we asked for to simplify the system and make it fairer
for injured workers, are:
• a WorkCover Certificate of Capacity, requiring
time off work; limited hours of work or medical treatment should serve as
the lodging of a claim;
• failing to put injuries in a register within 30 days
should not be grounds to reject a claim;
• claims for injuries that are made
worse by work should not be rejected because the worker did not disclose
some previous injury or illness to a company when they applied for a job;
• it should be illegal to threaten, discriminate against or sack anybody for
claiming workers’ compensation, assisting another worker to claim or
reporting risks.
Improved weekly payments
The union movement has recommended that payments should start
within 7 days of a claim being made (not waiting for 45 days which is what
happens now with most claims).
This was called ‘provisional payment’. It is not a new idea. Payments start
that soon in NSW.
The union movement strongly recommended that weekly payments should
be based on “normal weekly earnings” (NWE) that includes piece rates,
penalty rates, overtime, allowances, commissions, bonuses, salary
packaging and the like. We also argued that superannuation should
continue to be paid.
The union movement strongly supported the VTHC recommendation that
weekly payments be 100% of the NWE for the first 52 weeks and
then 80% of NWE.
The VTHC recommendation is that the period of entitlement to weekly
benefits for workers with a capacity for employment suited to the worker
(meaning employment for which the worker is currently suited and work
that is available) should be increased to 260 weeks.
Rehabilitation - Return to Work
The VTHC proposal is that the AC Act be amended to require the employers
to consult and reach agreement with the injured workers and their treating
practitioners on offers of employment suited to the worker.
Unions recommended that the AC Act should be amended to recognise the
health and safety representatives elected under the Occupational Health
and Safety Act 2004 and recognise their powers.
They also recommended that the AC Act should state that the injured
workers have the right to be represented by HSRs, Job Delegates or
Union Officials.
The VTHC recommendation is that the employers’ obligation to provide
pre-injury employment (when the worker is fit to perform them) or suitable
employment (if the worker has a capacity to work but is not fit for pre-injury
employment) should be extended to be the period of the weekly payments.
It also supported the development of a Compensation/Return to Work
Inspectorate who had similar powers and responsibilities to inspectors
appointed under the Occupational Health and Safety Act.
Dispute Resolution Unions argued that Conciliation Officers have limited
powers to resolve disputes when the agent/employer maintain their position
and will not consider any alternative. The employers’ freedom of choice of
claims agent (from the VWA list) can result in the claims agents
being unwilling to contradict employers, for fear of losing the account.
These claims go to Conciliation where they are not resolved and usually
go on to be settled on the steps of the Court because the powers of the
Conciliation Officers are so limited. The worker does not get paid for
months or years, does not get essential treatment and work relationships
break down.
The VTHC also recommended that:
• The powers of the Conciliation Officers at the Accident Compensation
Conciliation Service (ACCS) be amended to provide for a full Administrative
Review of any dispute relating to a claim for compensation, with the right to
appeal to the Court. The AC Act should provide that Conciliation Officers can
affirm,amend, or replace a decision of an agent/employer/self insurer that has
created the dispute.
• The AC Act be amended to unequivocally provide that a worker be
represented throughout the dispute the process
.• The Conciliation Officers be given the powers to issue directions with
respect to return to work obligations.
Permanent Impairment
Unions do not accept that the AMA Impairment Guides are the
appropriate\way of evaluating the impact of permanent injuries.
We also argued that stress, anxiety and depression that come from
having pain, not being able to do the work that you want to or live a normal
life should be compensable.
We argued that further work needs to be carried out on developing an
appropriate method of measuring the pain and suffering from disability
and impairment.Until appropriate measures have been developed and
agreed on the unions support the threshold of 5% for all injuries including
psychiatric. These are not all of our arguments and recommendations, but
it gives some idea of what the unions have said about the Accident
Compensation Act.
NB: The VTHC website acknowledges the AMIEU for the research and
preparation of the above information.
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