Workers compensation and human rights
13th Apr 2017
Since the enactment of the Charter of Human Rights and Responsibilities (Charter) in 2006, it has been necessary for Victorian legislation to be compatible with the 20 basic human rights set out in the Charter. One of these rights, particularly relevant to the field of personal injury, is the right to recognition and equality before the law. This right holds that everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.
Under the Charter, human rights may be limited by Parliament. However, such limitations must be necessary and reasonable, and there must be clear reasons for the decision.
When a Member of Parliament introduces a Bill, they must provide a statement of compatibility to the effect that they believe the bill is compatible with the rights set out in the Charter. If the bill contains any provisions that limit Charter rights, the Member should set out the nature and extent of the incompatibility and explain clearly why the incompatibility is reasonable and necessary.
In the area of workers' compensation, discrimination is apparent in both the treatment of psychiatric injuries and the entitlements of older workers.
In order to obtain an impairment benefit for pain and suffering, a worker with a musculoskeletal injury must be assessed as having at least a 5% whole-person impairment (WPI). By contrast, a worker with a psychiatric injury must be assessed as having at least a 30% WPI to obtain compensation.
In justifying this discriminatory provision to Parliament, the responsible Minister referred to the need to maintain the scheme’s integrity and economic viability. By ‘integrity’, the Minister was presumably referring to the notion that a psychiatric injury is less capable of being objectively verified than a physical injury (that is, it is easier for a worker to ‘put on’ a psychiatric injury than a physical one).
The reference here to ‘economic viability’ holds that, due to the prevalence of psychiatric injury in the modern workplace, if every worker who sustained a psychiatric injury could obtain impairment benefits, the scheme’s costs would blow out.
‘Economic viability’ is also a justification in limiting weekly payments for mature workers. As the law stands, a worker who is aged 63½ or older when they sustain injury is limited to 130 weeks of payment. This applies even if the worker would otherwise be entitled to weekly payments beyond 130 weeks, and even if (as is increasingly common) the worker had intended to work beyond the age pension ‘retirement age’ of 65.
In justification of this provision, it has been argued in Parliament that past the age of 65, a worker would ordinarily be able to obtain an aged pension instead of weekly payments.
While the above justifications of discriminatory provisions are contestable on multiple fronts, at least justifications were given.
By contrast, no justification has been provided with respect to the discriminatory provision which holds that workers over the age of 65 cannot receive a 9% superannuation payment in addition to their weekly payments. As this superannuation payment is a fraction of the weekly payment, and would only be payable to a mature worker for a maximum of 18 months (workers under the scheme are not entitled to superannuation payments until they have received weekly payments for 12 months), it is difficult to see how the ‘economic viability’ of the scheme would be compromised by extending the superannuation payment to older workers. Arguably, this infringement of the human rights of mature workers is not reasonable or necessary.
In the right case, the refusal of a WorkCover insurer to pay superannuation to a mature worker on the basis of this discriminatory provision could be the subject of review by the Supreme Court of Victoria.
Watch this space.
David Schwartz is a Senior Associate at Adviceline Injury Lawyers. He specialises in common law and statutory benefits claims for injured workers. David currently sits on the editorial committee of Precedent, the bi-monthly journal of the Australian Lawyers Alliance.