Workers comp changes a step in the right direction, but more to do

31st Aug 2015

The NSW Government is to be commended for partially restoring workers compensation benefits which were heavily cut in 2012, the Australian Lawyers Alliance (ALA) said today.

However, ALA Workers Compensation spokesperson Anthony Scarcella said he was concerned that the workers compensation amendments do not go far enough in assisting injured workers to return to work in a quick, safe and sustainable manner.

“The government is to be commended for investing additional resources back into the NSW workers compensation scheme, which will benefit workers who are injured and vulnerable following accidents in the workplace,” Mr Scarcella said.

“Many of the benefit restorations are thoroughly welcome, including an increase to death benefits and increases to lump sum compensation.”

“However it is deeply concerning that yesterday’s changes do not address some of the real deficiencies created by the 2012 amendments, and in fact create new and unnecessary problems for injured workers at a time when these people are in most need of assistance,” Mr Scarcella said.

“There are structural defects within the workers compensation legislation that prevent the delivery of benefits to injured workers. We remain concerned that the reform package provides very little by way of remediation of those defects.”

Mr Scarcella said he was particularly troubled by the changes to the entitlement to payment of medical expenses.

“Prior to the 2012 amendments, an injured worker was entitled to the payment of all medical treatment that was reasonably necessary as a result of a work injury,” Mr Scarcella said.

“This allowed for the provision of treatment that facilitated a return to work and supported a worker who needed continuing treatment to remain at work. However the amendments still restrict the period during which treatment expenses are payable.”

“The ongoing support for treatment depends upon the level of permanent impairment resulting from the injury. It is well known that there is no necessary relationship between the assessable degree of an impairment and the need for treatment,” Mr Scarcella said.

“There are many conditions that result in significant levels of impairment that require little treatment. The Government has recognised this by providing lifelong assistance with hearing aids, batteries, and other aids.”

“On the other hand there are many conditions, such as non-surgical back injuries, that result in little impairment but require significant ongoing treatment to support a worker continuing to work. The legislation also fails to recognise that the level of impairment can increase over time as a result of a deteriorating condition or subsequent surgery,” Mr Scarcella said.

“The ALA is calling for the complete repeal of Section 59A to allow an injured worker to receive all the medical treatment that is reasonably necessary as a result of his or her injury,” Mr Scarcella said. “This section counteracts the overall purpose and intent of the workers compensation legislation.”

Mr Scarcella said the amendments contain complicated transitional provisions that create uncertainty about who will be entitled to the partially restored benefits for medical expenses, and fail to acknowledge and act to rectify other problems created by the 2012 amendments.

Those include:

  • the restriction to only one medical assessment and one Medical Assessment Certificate for assertion of permanent impairment, which may effectively prevent access to one or many types of benefits and in particular medical expenses compensation
  • the present inability to aggregate impairments arising from different injuries where there is an assessable impairment for each injured part
  • the ambiguity in determining when the duration caps for medical expenses commence.
  • The failure to respond to the strong call for a reform and rationalisation of the multiple Dispute Resolution Systems

Mr Scarcella said he was concerned that the amendments did not provide injured workers with the certainty they deserve, with workers not being able access the new levels of benefits due to how the legislation is structured.

“The new workers compensation scheme benefits will be hard to deliver due to the structural defects already existing within the Act and highlighted by costly litigation over the past 3 years,” Mr Scarcella said. “This was set out in the Parkes Project reports and agreed to by all stakeholders.”

“The ALA is keen to work with the NSW government to address many of the structural deficiencies in the workers compensation scheme to ensure that the benefits are delivered to those in need,” Mr Scarcella said.

“In the meantime the ALA urges the NSW Government to seriously consider the recommendations by the Parkes Project.”

Tags: NSW WorkCover Workers compensation