NSW government fails to fix workcover NSW scheme

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The NSW government has failed to act on an independent report raising serious concerns about the plight of injured workers following its controversial changes to WorkCover NSW laws for almost 18 months.

NSW government fails to fix workcover NSW scheme

NSW government fails to fix concerns over injured workers scheme after 18 months

June 26, 2015 | Sean Nicholls
Sydney Morning Herald State Political Editor

The NSW government has failed to act on an independent report raising serious concerns about the plight of injured workers following its controversial changes to WorkCover laws for almost 18 months.

The report’s author, WorkCover Independent Review Officer Kim Garling, says a key aspect of the operation of the workers’ compensation scheme is unfair to injured workers and “needs to be fixed”.

The 2012-13 annual report of the WorkCover Independent Review Office was handed to then finance minister Andrew Constance in November 2013.

It found injured workers were being put at a “double disadvantage” thanks to changes introduced by the O’Farrell government in 2012.

Under the controversial overhaul of the WorkCover system, each insurer makes a work capacity decision about the injured worker which is used to decide whether or not to pay them weekly compensation.

The government removed the existing right of workers to have their legal costs paid by insurers on a regulated fee basis when disputes arise.

It also prohibited lawyers from charging for any advice in such matters, meaning injured workers needed to rely on firms willing to do pro bono work.

The change sought to create a level playing field, given that insurers are also prohibited from obtaining legal advice.

But Mr Garling’s report said insurers “are utilising the services of lawyers” regardless, thanks to a legal loophole.

“That has therefore left the injured worker at a double disadvantage and contrary to the intention of the government that the system be efficient, fair and equitable,” the report states.

The WorkCover Independent Review Office 2013-14 annual report, tabled in Parliament on Thursday, notes the situation is ongoing and recommends amending the law to allow injured workers to pay lawyers to review work capacity decisions.

Mr Garling told Fairfax Media the loophole “places the worker in a double disadvantage because they don’t understand the process of the law and are battling against someone who’s thoroughly qualified at what they do”.

“Access to lawyers is very important, particularly for injured workers, because many of them don’t have the same educational standard and language understanding as many other workers do,” he said.

Mr Garling said it was “extraordinary to exclude lawyers from that process and not only to exclude them but say they can’t be paid. I think that was not appreciated at the time and needs to be fixed.”

A spokesman for Finance Minister Dominic Perrottet noted the changes aimed to address a $4.1 billion deficit in the scheme.

He said the most seriously injured workers were now “receiving more benefits, premiums have been reduced by 17.5 per cent, the return to work rate has improved and the scheme is back in surplus”.

In a statement, WorkCover said work “now under way” to address matters raised in the 2014 annual report, “some of which have already been resolved”.

[Source: http://www.theage.com.au/nsw/nsw-government-fails-to-fix-concerns-over-injured-workers-scheme-after-18-months-20150626-ghyf7o.html ]



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3 Responses to “NSW government fails to fix workcover NSW scheme”

  1. It’s only a matter of time before the NSW government will be held accountable for the bashing up of injured workers.

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    • @WCV /Staff- 130 weeks. Got cut off letter. Calculated dates from start to cut off. That equals almost 150 weeks! WTF!
      Would using this help in conciliation (to fight for continuation of wages) or would they just change it? Still have at least 2 more major surgeries to go- which will be after cut off. Not sure what to do or how to play this part of the game. Any advice is appreciated. (I’m in Vic)
      Thanks, Skippy

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      one-legged skippy June 29, 2015 at 9:14 am
  2. @Skippy- In VIC, a worker is not entitled to weekly payments after the second entitlement period (130 weeks) unless one of the following applies:

    – no current work capacity indefinitely
    – returned to work (has a Current Work Capacity and has a Current Weekly Earnings) subject to strict criteria
    – returned to work (has a CWC) subject to strict criteria and requires time off work to have surgery for their work-related injury.
    So you should be entitled to weekly pay for your surgery(ies) and should alert your case manager when you have surgery. You can get up to 13 weeks weekly pay for surgery but need to meet strict (harsh) criteria (see below)

    Also:
    A worker with a CWC may apply to receive weekly payments after the second entitlement period (which is 130 weeks)
    The worker must satisfy all four criteria to be eligible for weekly payments beyond the second entitlement period:
    -work at least 15 hours per week
    -have current weekly earnings of at least $184 per week (indexed annually)
    -worker is incapable of undertaking further additional employment or work which would increase their current weekly earnings.
    -the likelihood that the worker’s current level of capacity is likely to continue indefinitely, that is, the current level of capacity will not improve in the foreseeable future.
    —————————————————–

    Of importance, the online Claims manual (VIC) states:
    Weekly payments for surgery post 130 weeks

    Ref: AC Act: S93CA Compensation for incapacity arising from surgery after second entitlement period or WIRC Act: S164 Compensation for incapacity arising from surgery after second entitlement period

    A worker who suffers an injury on or after 5 April 2010 may apply to the agent to receive up to 13 weeks of weekly payments after the second entitlement period if they require time off work for surgery for their work-related injury.

    Criteria

    To be entitled to weekly payments for surgery the worker must meet all these criteria:

    -have suffered an injury arising out of or in the course of employment on or after 5 April 2010
    -have received weekly payments
    have returned to work for at least 15 hours per week and have CWE of at least $184 per week
    -not be entitled to weekly payments after the second entitlement period, that is, the worker has not after 130 weeks been assessed as having no current work capacity and likely to continue indefinitely to have no current work capacity OR be entitled to weekly payments after second entitlement period
    -not have had their entitlement to weekly payments terminated on the basis of having no entitlement
    -not have received weekly payments (except where there is an entitlement to weekly payments after the second entitlement period) for at least 13 consecutive weeks after the expiry of the second entitlement period
    -not apply for weekly payments for surgery until 13 weeks post the 130 weeks second entitlement period
    -have obtained the agent’s acceptance of liability for the surgery
    -suffer an incapacity resulting from or materially contributed to by the surgery
    – not reached retirement age before the surgery occurs. The worker is able to reach retirement during the limited period of weekly payments.

    If an application for weekly payments for incapacity from surgical treatment post 130 weeks is accepted a worker may receive weekly payments for the period of incapacity resulting from of materially contributed to by the surgery for up to a period of 13 consecutive weeks commencing on the day on which the surgery is performed.
    —————————————————–
    Note re counting weeks for weekly pay

    A week count as opposed to a day count is required to calculate a worker’s entitlement to weekly payments. A ‘week’ is deemed to be the period Sunday to Saturday.

    Each week in which any amount of compensation in the form of weekly payments or weekly payments of pension or superannuation contributions is paid or payable, whether for all or part of that week and whether consecutive or not, should be counted as one week to calculate 13 weeks, 26 weeks, 52 weeks, 104 weeks and 130 weeks.

    Example:

    A worker ceases work on a Thursday and remains incapacitated throughout the next week and returns to full pre-injury duties the following Tuesday.

    Week 1 – Thursday & Friday

    Week 2 – Monday to Friday

    Week 3 – Monday

    The worker has received three weeks of weekly payments.

    The legislation also provides that where the entitlement to compensation has been established, the employer is required to pay the first 10 days of time lost. This period is included in the week count, on the same basis as above.

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