NSW Injured workers could be disadvantaged after recent court ruling

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Thousands of New South Wales workers could be stopped from accessing lump sum workers compensation payments they need for financial stability. A recent decision in the NSW Court of Appeal, in Cram Fluid Power V Green, means seriously injured workers can no longer top up their initial lump sum payments if their condition deteriorates.

Workers compensation: Thousands of injured NSW workers could be disadvantaged after recent court ruling

By state political reporter Brigid Glanville and Andrew Griffits

Posted 16 Sep 2015 on ABC

In 2012 the NSW Government, under the former premier Barry O’Farrell, overhauled workers compensation with the aim of reining in Work Cover’s $4 billion deficit.

The changes were heavily criticised because they slashed medical benefits for workers, including people who had lost limbs and hearing.

Solicitor Steve Groves from Lamrocks Solicitors in Penrith said he had dozens of clients who will now be left without money they were told in 2012 they could continue to receive.Injured-worker-NSW

“When the act was amended in 2012 by the then O’Farrell government the workers were told that anyone injured after that date could only make one claim for lump sum compensation for permanent impairments,” Mr Groves said.

“The people that were injured before that date, they were told that they could make one more claim for lump sum compensation,” Mr Groves added.

“They didn’t know they were having their one go.”

In August the Government announced a $1 billion package winding back some of the cuts put in place in 2012. That announcement was welcomed by industry and workers.

But any goodwill the Government received from the August announcement is likely to be lost after this latest development.

Scheme should ‘protect workers rights’: Greens

Debbie Stewart (pictured) injured her knee when she fell over on her way to work in 2000 and has been on crutches for more than a decade.

She has had multiple procedures to repair the damage including two knee replacements, the first at age 39, and since then has had a number of revisions.

“Each surgery I’ve had I’ve got more and more reliant on them [the crutches], and now I’ve got problems with my back and my shoulders and my left knee is now playing up because it’s taking the strain of my right knee,” Mrs Stewart said.

“It’s really tough, just having to rely on other people. It makes it difficult when you have to ask someone to help you get your shoes on, I can’t use the bathroom because I can’t get in and out of the shower.”

After the first surgery Ms Stewart received a $40,000 lump sum payment. She was able to go back to work for many years, but has recently stopped because her situation has worsened.

She was about to have her conditions re-assessed to receive a second small lump sum payment.

“But now I’ve been told I can’t claim for another lump sum to cover that injury status,” she said.

Greens MP David Shoebridge is calling on the Government to change the legislation so the scheme does its job and “protects workers rights”.

“Not only was the Government aware of this when they forced the reforms through in 2012, but the Government has been directing the response in this case and it was the Government who defended this case and said no worker should get these additional benefits,” he said.

In a statement, Finance minister Dominic Perrottet said: “The issues raised by the decision of the NSW Appeals Court in the case of Cram Fluid Power vs Green are complex and the State Insurance Regulatory Authority is currently reviewing the findings.

“The NSW Government is continually looking at ways to ensure the workers compensation scheme is fair, sustainable and person-centered.”

 

[Source: http://www.abc.net.au/news/2015-09-16/nsw-workers-could-lose-compensation-payments/6779518]


Fears thousands will still slip through the net after workers compensation changes

August 31, 2015 by Anna Patty, Workplace Editor

Teacher Dianne Denton who injured her shoulder in a fall in late 2013 has less than two months to appeal an insurer’s decision.

Teacher Dianne Denton (pictured) who injured her shoulder in a fall in late 2013 has less than two months to appeal an insurer’s decision.

Injured workers will no longer have the opportunity to top up lump sum compensation payments if their condition deteriorates over time as a result of a NSW Court of Appeal decision which has ruled they will be limited to making just one claim.

The decision comes after the state government restored some of the benefits it took away from injured workers under its WorkCover reforms in 2012.

However, the government ignored warnings from the WorkCover Independent Review Office when it amended the workers compensation scheme earlier this month, introducing changes which increased benefits for people with the most serious injuries and those needing hearing aids and prosthetic limbs who lost benefits in 2012.

However, for the vast majority of people with less serious injuries needing continuing medical treatment, WorkCover Independent Review Officer Kim Garling warned that access to benefits would be more difficult.
MSW Finance Minister Dominic Perrottet says the government is committed to a scheme that places the injured worker at the centre.

MSW Finance Minister Dominic Perrottet (pictured below) says the government is committed to a scheme that places the injured worker at the centre.

MSW Finance Minister Dominic Perrottet says the government is committed to a scheme that places the injured worker at the centre.

“Where the insurer disputes whether the treatment is reasonably necessary there are instances where the compensation period expires before a decision is made by the Workers Compensation Commission or on appeal to the court,” he said.
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Mr Garling was also concerned that injured workers would no longer be assessed for their long-term needs, based on their level of permanent impairment. Instead, they will be given only one assessment which means if their condition deteriorates at a later date, or after surgery, they will not be able to ask for an increase in their lump sum compensation payment.

A NSW Court of Appeal decision in Cram Fluid Power v Green on Thursday has confirmed that injured workers will not be entitled to make a further lump sum claim if their condition worsens.

Patrick Scala, from Shoalhaven Heads, said he was “shattered” to learn on Friday that he will have no further entitlement to a lump sum payment.

He injured his lower back on three occasions between 2005 and 2008 when he was working as night filler packing shelves at a supermarket. He received a lump sum payment in 2009 and has not worked since 2007.

“My condition has got worse since 2007 but the door has been slammed shut,” he said.

“In the last three years, I’ve had two hip replacements and back surgery and am going in for another one on the 9th of September because the first surgery failed,” he said.

Sydney teacher Dianne Denton injured her right shoulder in a fall in late 2013 and after the pain became progressively worse, a specialist doctor recommended surgery earlier this year. But because she can only qualify for payments for medical expenses for two years from the date of her injury under the government’s latest amendments, her window will expire in October.

“I am disappointed that …the insurer automatically said sorry, we cannot open your case,” she said.

NSW Greens MP David Shoebridge said the Court of Appeal decision meant that once an injured worker had their level of impairment assessed “they are stuck with that assessment forever, regardless of any serious deterioration or surgery that has made their injury significantly worse”.

“The effect of this is that thousands of workers are prevented from getting access to necessary medical treatment and income support.”

NSW Finance Minister Dominic Perrottet said the government was committed to a workers compensation scheme that is “fair, sustainable and places the injured worker at the centre”.

“[T]he 2015 insurance reforms passed this month will see $1 billion of benefits and premium reductions distributed to injured workers and business.”

A WorkCover NSW spokesman said it was reviewing the Court of Appeal decision which relates to the 2012 changes.

He said the government had considered advice on the 2015 reforms from a range of stakeholders.

“The assessment of whole person impairment for an injured worker is intended to occur once the injured worker’s condition has stabilised,” the spokesman said.

“Any potential for delays in treatment associated with ongoing legal disputes should be mitigated by the extension of medical entitlement time periods, a feature of the recent changes to the workers compensation system.”

Australian Lawyers Alliance spokesman Anthony Scarcella said he welcomed the government’s decision to restore extra resources to the workers compensation scheme.

However , he was “troubled” by the changes to the entitlement to payment of medical expenses.

“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,” he said.

“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.”

[Source: http://www.smh.com.au/nsw/fears-thousands-will-still-slip-through-the-net-after-workers-compensation-changes-20150828-gja5l4.html]



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One Response to “NSW Injured workers could be disadvantaged after recent court ruling”

  1. The worse thing about this is the fact all your entitlements are determined on the one assessment. It can be agreed at a time before the changes, between both parties, to accept a percentage of impairment lump sum and down the track when your level of impairment may have worsened due to deterioration or aggravation (whether you got back to work or not) you could then have further assessments by an IME, or by an Approved Medical Specialist (AMS) (for the Workers Compensation Commission in NSW). At that time all your rights would be re-determined if you had medically deteriorated according to the WorkCover Guides to the Evaluation of Permanent Impairment. If for example, you were given 5%WPI because you had a cervical disc protrusion without radiculopathy due to an injury in 2004 and you were offered a lump sum by the insurer pretty quickly so they could get rid of your claim, which you took, then you got worse and the protrusion caused nerve root irritation that caused pain and numbness in your shoulder, down your arm and into your fingers (radiculopathy) in, say 2011, and you were again assessed by an IME or an AMS and the insurer agreed you then had a 15% WPI and were awarded an additional amount for the extra impairment (less the amount you had already been paid). At this point you would have been able to either take a commutation so you get a lump sum roughly based on the amount the insurer might have to pay out for you in the future, plus legal costs (usually though you might be offered much less than the claim is actually worth), or you may have chosen to file a Work Injury Damages (WID) claim, in which case, if you can prove the employer has been negligent, you can sue for economic loss till the age of retirement less what you have been paid already by the insurer and you pay your own legal costs. If you had chosen not to do either at the time you would have found after the 2012 changes your insurer would basically carry out a work capacity assessment and make a decision that you can work regardless of whether you actually can or can find a job as they make the decision and usually find an IME to dispute your doctor/specialist! You can’t take the matter to the WCC any more because it is part of a work capacity decision but you may have been able to ask for a merit review or a procedural review and until recently you are not allowed to pay a solicitor to assist (I believe there have been some recent changes and there is some limited legal help now) but if the insurer’s decision in the end is that you could work 15 hours a week as a crossing supervisor or as a telemarketer or some obscure job no one ever heard of, they can then determine how much they will pay you or your benefits are cut of all together.
    Now if all the above happened to you, but in 2014 you finally had a spinal fusion making your WPI percentage 25%, you would expect you could then have all your rights to treatment and weekly payments restored because you would now be over 20% WPI but and this is the clincher– you can’t, because you are now stuck with the percentage of injury before the 2012 legislative changes and the insurer has most likely closed your case under the new time limits that are set out in the new legislation.
    Before the case (noted in the news articles above) was determined by the Court of Appeal it was accepted that anyone who had had a previous Section 66 lump sum agreement based the percentage of injury, would have the opportunity to have at least one further chance, based on the knowledge this would be the last time to have a percentage of injury determined.
    People who waited to have surgery after the changes are now discriminated against because those who had the surgery before have much greater rights regarding treatment and weekly payments even though in truth they had the same level of impairment. It seems to me the Anti-Discrimination Act is in contradiction with the Workers Compensation Acts in NSW. Whatever the case all your rights are now determined by the one percentage of injury not just the Section 66 lump sum. This is why it is so unfair and why there needs to be something done.

    The other point no one has made is the manner injury is determined to be permanent. In NSW the IME or AMS must determine whether the injury is permanent on the basis that there will not be a 3% change in your condition within a certain period. The NSW WorkCover Guides to Evaluation of Permanent Impairment state “The permanent impairment will be fully ascertainable where the medical assessor considers that the person has attained maximum medical
    improvement. This is considered to occur when the worker’s condition has been medically stable for the previous three months and is unlikely to change by more than 3%WPI in the ensuing 12 months with or without further medical treatment (ie further recovery or deterioration is not anticipated).”

    This means if the IME or AMS has written anywhere they consider the injured worker may deteriorate at some later time without treatment etc without specifically stating they don’t expect this in the next 12 months then they should not have made the determination your injury is permanent and should have said so in the report (There is a 3%WPI for activities of daily living in relation to the spine which could make that difference if your pain becomes so great can’t do anything). The issue in the past was that the assessors as well as the other parties knew there would most likely be further deterioration and that, if it occurred even within 12 months, the person would then have the opportunity to have a further assessment that would remedy the fact they may have been a bit hasty in determining the injury was permanent.

    While most specialists can determine how an injury might progress ie if you had a broken leg, the doctor would expect it would heal within 6 weeks and further mend properly within a year, but if you have a broken back whether you are at the point of permanent injury is harder to determine. While bones may mend, soft tissue such as disc injuries, are likely to get worse over time. With or without treatment is another thing. You don’t know how the injury will proceed until you stop treatment and now in NSW that will occur 12 months after your weekly payments stop (if not before), so you don’t know till then what will happen after your treatment stops!

    The lack of psychic ability of an IME was remedied in the past by the right to further WIP assessment when it was found your injury had not reached maximum medical improvement after all!
    If we all had a crystal ball before 2012 we would have all waited till after the changes, so, in future I would suggest with every workplace injury the government issues a crystal ball because they may just be about to move the goal posts so you can never score again!!!
    I wish some politicians out there would stop kicking “own goals” or if they are bound to keep it up, hope you break your toes on your crystal ball because you sure aren’t using it to look into the injured worker’s future!!!
    Politicians-don’t forget- too many own goals and you lose the game and when you break too many toes you get to go on workers comp which is a greater punishment than you have ever known!!

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    Bashed and bullied September 23, 2015 at 4:07 pm