Workcover Vic laws to be re-written to improve clarity & clean up the maze – really?

workcover-maze

As posted earlier, it has recently come to our attention that the Victorian Government has introduced a new bill into parliament with the intention to consolidate the current law governing a Victorian worker’s entitlements to workcover compensation, into a single Act that is simpler and easier to use. According to an article in the Lexology, if the new Bill is passed, it will do more than just clarify existing provisions, it will go some way to addressing poor claims decisions and better recognising mutual obligations of employers and workers…. oh really?

Workcover Vic laws to be re-written to improve clarity & clean up the maze – really?

Victorian compensation laws re-write to improve clarity and employer rights

 Norton Rose Fulbright LLP
Barry Sherriff
September 30 2013

 Introduction

The Workplace Injury Rehabilitation and Compensation Bill 2013 introduced into the Victorian Parliament on 18 September will help to clean up the maze that workers’ compensation laws have become through countless amendments over almost 30 years.

If passed, the Bill will do more than just clarify existing provisions, it will go some way to addressing poor claims decisions and better recognising mutual obligations of employers and workers.

The Bill combines and revises the current Accident Compensation Act 1985 (ACA) and Accident Compensation (WorkCover Insurance) Act 1993 (ACWIA) in a single Act that is to commence on 1 July 2014. It will not alter the level of entitlements for injured workers, claims processes or premium calculation.

Improved structure for ease of navigation

Similar to the approach taken in the model Work Health and Safety Act, the Bill puts up front the entitlement and process provisions that employers and workers will most want to find, with administrative arrangements and some definitions and technical matters at the end and in Schedules.

Ease of navigation and understanding of processes is also assisted by the innovative inclusion of flow-charts on the key topics of:

  • Notice of injury and making a claim
  • Employer objections to a decision to accept or reject a claim (new)
  • Return to work obligations of employers and workers
  • Impairment benefits process
  • Dispute resolution process if a worker disagrees with a decision
  • Common law process
  • Employer registration, premium and premium review

Limited employer objection to claims decisions

A process will be provided for objection by an employer where a claim has been accepted by the Authority,…

….but the employer believes that the claimant is not a worker as defined, or the objector was not the correct employer.

If the Authority affirms the decision to accept a claim, the objector may bring an appeal to the Supreme Court. A decision to set aside the acceptance of the claim will result in payments to the worker ceasing.

While this provides some relief for an employer, it does not revert to the broader entitlement of an employer (removed from the legislation in 1994) to obtain relief from any poor claims decisions. The new objection provisions are only a step in the right direction, dealing with only an aspect of the concerns of employers, with limited relief to employers and minimal cost to the scheme.

Employers will still need to review diligently the performance of the insurers and press actively for appropriate ongoing review of the entitlements of specific workers.

Clarifying mutual return to work obligations

The obligations of an employer and worker for the pursuit of a timely return to work are usefully set out in flow-charts in the Bill.

The Bill continues without change the obligations of an employer to plan and assist the return to work of an injured worker as described in sections 194 to 196 of the ACA.

The obligations of a worker to assist this process are more clearly stated, with the Bill arguably requiring a higher level of engagement and effort from a worker.
A worker will be required to use occupational rehabilitation services, participate in assessments and participate in interviews “to the extent it is reasonable to do so” rather than the current standard of merely to “actively participate” and “co-operate”.

This change may prove to be more than mere semantics. It may improve return to work outcomes or provide more opportunity for cessation of payments where workers are not genuinely pursuing return to work.

Premium assessment reviews options enhanced

The Bill includes a two stage process for review of premium assessments that is similar to the current process under the ACWIA. The first stage is an internal review by the Authority. The second stage is an external review of the internal review decision, by either an appeal to the Supreme Court (as at present) or a new process for review by the Victorian Civil and Administrative Tribunal (VCAT).

The Bill sets out, with a useful flow-chart summary, the steps for each of those stages.

This is a positive change that provides for a clear and possibly more timely process, through the use of VCAT.

While the Bill allows an employer up to 60 days to make an application for internal review and 60 days after the internal review decision to seek external review, these time periods will in practice be challenging, given the complexities of issues such as classification and claims estimates.

It is important to note that bringing an application for review will not suspend the liability of an employer for the assessed premium. Applications for review should accordingly be made and pursued in a timely manner to limit cash-flow and associated issues pending any reimbursement or off-set following a successful review.

Implications for employers

Employers should consider not only the way in which the Bill may provide benefits to them, but also if the wording of provisions is clear and workable. The legislative processes allow an opportunity for amendments to be made, and this should be pursued where possibly unintended consequences of changes in policy or drafting are identified.

The introduction of the Bill and particularly the clarity it introduces, provide an excellent opportunity for employers to review their relevant policies and procedures, to ensure that they are compliant, and to grasp new opportunities for effective claims and liability management. Areas of particular focus should include:

  • Initial claims notification
  • Interaction with the Authority and insurers throughout the claims management process
  • Active involvement in claims review and dispute processes
  • Effective claims management, including management processes, skills and training
  • Early intervention and diligent ongoing review for return to work
  • Interaction between workers’ compensation, discrimination, OHS and employment compliance issues and policies
  • Premium assessment (classifications, claims estimates etc)

 

Omigod, and this “Bill” is supposed to also help us, injured workers “better understand the system“?!

 

[Dictated by WCV and posted on behalf of workcovervictim]

 

Related Post

New WorkCover Victoria laws introduced into Parliament



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7 Responses to “Workcover Vic laws to be re-written to improve clarity & clean up the maze – really?”

  1. Thankyou WCV for highlighting the elephant in the room full of big words that mean nothing.

    “provide more opportunity for cessation of payments where workers are not genuinely pursuing return to work.”

    Says it all. Did the authors go to the Greg Pearce and Barry O Farrell school of How to destroy injured worker’s lives?

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  2. I have just been told by the Accident Compensation Conciliation Service (ACCS) 9940-1111 that if your Workcover claim is knocked back by the insurer and you request conciliation,

    It is now up to the discretion of a conciliation review officer after consulting with your employer and their insurer whether or not you can have a conciliation hearing! Please ring 9940-1111 to clarify this.

    Also whilst talking to them on the phone they asked for my phone number as i don’t have my own phones anymore due to becoming poor from getting injured at work 2 years ago the women grunted at me and slammed the phone in my ear for some reason i now can not get back through to them on the phone i had borrowed.

    These ACCS people are not your friends workers they are despicable little people getting way overpaid to bat for the Insurance companies by the look of it if not the employers to stitch you right up to get nothing be warned.

    Google employment positions for a senior conciliator they get paid more than the prime minister let alone the conciliators its disgusting and thats not taking into consideration there bonuses leave entitlements holidays etc.

    Brace your self people you have just lost another right to a fair go!!

    Take from the deserving to pay the undeserving was their call of the day!

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    ........................ October 9, 2013 at 3:10 pm
    • ACCS it’s an expensive and “useless” institution and so tax payers’ again pay for it.
      ACCS DO NOT have enforcing power so the insurer’s bloke just goes to the meeting and tells the insulting scripts all around.
      The injured worker will reject the insulting and arrogant offer, the ACCS issue you LISTEN LISTEN “a certificate giving you permission to go to Magistrate Court”!!
      What a joke and what a waste of taxpayers’ money!
      I need ACCS’ permission to sue the fraudulent insurance company which denied my RIGHTS?
      ACCS it is a waste of money for sure!

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      Xchangingvictim October 19, 2013 at 8:45 am
    • These Accs hearing i had yesterday was crap. After the insurance company not answering a request for 6 months and then deciding they are sending me to another IME what a joke, did not even get questioned on why the long delay. In the end the conciliator got pissed at me and just said i have made my decision and walked out.
      This is what is going on now and you have no say. Work cover victoria is a joke on the injured worker. They dont do the right thing from the start and then they dont want to know about a secondary problem that has been caused by their neglect. The whole system is criminal.

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  3. The concilliators are in a tough position as the ACCS is a toothless tiger. By law they cant enforce anything as long as the insurer has the tiniest strand to hold on to. Whne I had conciliation I was told yes I agree with you, if I side in your favour, the insurer will wait the maximum of 28 days to dispute the decision and that just drags out the legal process even longer.

    That’s why the give the notice of dispute as that’s required for it to go to court as it can save you the 28 days waiting time that the insurer will take advantage of. Insurers know they can just fight things all the way to the courts and then back down or take their chances.

    A conciliation is does not hold the same enforceable power as a court and the insurers know that, as long as they can show ANY reason to dispute the ACCS becomes powerless.

    This is why people need things to be pushed through court. I have told my solicitor that I wont be accepting an offer on the day of the hearing. If they can make me wait close to 2 years to get it to court, then I have nothing to lose by waiting a extra day. If a case is settled out of court then it doesn’t go through the court records and in the eyes of the legal system it never happened.

    we need to get more cases on court files and show the legal system exactly what is going on with workcover. Look at derryn hinch the other day, how quick was he in court being prosecuted for what he did with the sex register and naming and shaming, why is it that a prosecution for that can be in court within a few weeks or months, yet workcover can take over 2 years.

    Effectively when the insurers lie and cheat to avoid paying they are commiting fraud. I don’t think somebody from the public who committed fraud against an insurance company would be granted 2 years before a criminal trial is heard regarding it.

    Things like this do need media exposure and somebody like hinch would be great to have on board to support it

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  4. Some more information:

    Workers rally over Vic compo change

    -Emergency workers have rallied in Melbourne over changes to Victoria’s accident compensation

    -Opposition Leader Daniel Andrews said the changes will restrict access to compensation for post-traumatic stress for emergency services workers.

    -He said Labor would oppose the changes in the parliament and repeal them if it wins government in November next year.

    for further information click on link: http://www.dailytelegraph.com.au/news/breaking-news/workers-rally-over-vic-compo-change/story-fni0xqi3-1226748917955

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    HuntingWorkcover October 30, 2013 at 12:31 pm