Workcover NSW law reforms to start next week

workcover-nsw-reforms-oct15

The state government has announced that several workcover NSW law reforms will start next Friday, on 16 October.

The reforms to the workcover NSW law are introduced by the Workers Compensation Amendment Act 2015 which passed in August 2015, soon after being introduced by the NSW government.

The Act includes so called “enhanced benefits” for [certain] injured workers (i.e. payment of medical expenses, certain prostheses and aids for life for seriously injured workers, increased lump sum and minimum weekly payments, and new financial assistance for return to work, education and retraining) and premium reductions of between 5 and 20 % for businesses that maintain safe work places and help injured employees return to work.

According to the NSW government, the following benefits will apply from Friday, 16 October 2015 and apply RETROSPECTIVELY:

  • increased amount of lump sum compensation for permanent impairment
  • increased death benefit lump sum amount from $528,400 to $750,000
  • increased maximum for funeral expenses from $9000 to $15,000.

In addition, the Act has made changes to weekly benefits and retiring age. Injured workers are now entitled to up to 12 months of weekly payments of compensation after reaching retirement age, whether they were injured before or after 1 October 2012. When the weekly payments of compensation end, a further 12 months of medical benefits are available immediately.

The Workers compensation Amendment Act 2015 is one of two legal instruments underpinning the NSW government’s $1 billion worker comp reform package, the other being the State Insurance and Care Governance Act 2015, which commenced on 1 September.

The State Insurance and Care Governance Act 2015 replaced WorkCover NSW and the Motor Accidents Authority with three discrete organisations providing insurance and care services, regulation of the state’s insurance schemes, and work health and safety regulation, namely:

  • Insurance & Care NSW (icare) – this organisation is the workers comp nominal insurer and provides services in relation to various insurance and compensation schemes
  • The State Insurance Regulatory Authority (SIRA) – this organisation oversees all state insurance schemes as an independent regulator
  • SafeWork NSW – this organisation is the state’s workplace health and safety regulator.

Further information can be fuound on insurancereforms.nsw.gov.au (see below for extract)

[Source: Workplace OHS]

Capture1Medical benefit cap extended

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Medical benefits provided for two years from when weekly payments stop (or from the date of claim if no weekly payments were made) for all injured workers. This benefit is expected to commence from December 2015. More information will be made available closer to this date. Scenario: Meng had a soft tissue injury to her lower back while working as a primary school teacher.  Following a short time off work and physiotherapy, she returned to work and upgraded to full hours and duties and is no longer receiving weekly payments. Meng continues to report pain intermittently and 18 months later her back pain flares up and she needs medication and a few sessions of physiotherapy. Right now, Meng will not be able to access further treatment as more than 12 months have passed after her weekly payments stopped. She will need to access treatment through her private health cover or under Medicare. Under the benefit reforms, Meng’s treatment costs would be covered within the 2 year period since her weekly payments stopped.

Medical benefits provided for five years for those with 11-20% permanent impairment from when weekly payments stop (or from the date of claim if no weekly payments were made). This benefit is expected to commence from December 2015. More information will be made available closer to this date. Roger fell when getting out of his truck and hurt his right knee. He had a knee replacement and eventually returned to fulltime work. It’s been 3 years since Roger received weekly payments. Roger has had a recurrence of his symptoms and as a result needs his knee re-assessed. Right now, Roger is no longer eligible for medical expenses. He will need to access treatment through his private health cover or under Medicare.

Under the benefit reforms, Roger’s treatment costs would be covered within the 5 year period since his weekly payment stopped.

Capture2Artificial aids, home and vehicle modifications for life

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Lifelong access for all approved claims for access to artificial aids such as prosthetics, crutches, eyes or teeth, hearing aids and batteries, other artificial aids, and home and vehicle modifications. This benefit is expected to commence from December 2015. More information will be made available closer to this date. Scenario: Peter, a 45 year old boilermaker, made a claim for compensation for hearing loss six years ago. He was assessed and the insurer paid for the hearing aid. He had no time off work and did not receive weekly payments. Six years later, Peter’s hearing aid is not working well, making it hard for him to hear at work.Right now, Peter is only entitled to a replacement hearing aid for 12-months from the date of his injury (as he had no time off and didn’t receive any weekly payments). He now has to pay for the replacement hearing aid himself.

Under the benefits reforms, Peter will be able to claim a replacement hearing aid every five years, for life.

Capture3Lifetime medical expenses for workers with high needs

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Lifelong medical expenses for workers with high needs. For injured workers with permanent impairment greater than 20%. This is already available for those with more than 30% permanent impairment.This benefit is expected to commence from December 2015. More information will be made available closer to this date.Scenario: Poh, a 50 year old enrolled nurse, was injured at work a few years ago when she fell while lifting a patient. She sustained compression fractures to her lumbar spine.While off work, Poh completed Certificate IV in Leisure and Health. A year ago, she returned to her pre-injury employer in a new role as a diversional therapist. So she can work the same hours as before her injury, Poh requires ongoing pain relief medication and occasional physiotherapy treatment for flare-ups. Her physiotherapist also monitors and upgrades her independent exercise program.

Right now, Poh would not be entitled to medical and related expenses as more than 12 months have passed since her weekly payments stopped. This means she would need to pay for her own medication and physiotherapy.

Under the benefit reforms, Poh will have ongoing access to medical expenses for life.

Capture4Return to work assistance

RTW-NSW

Return to work assistance is a one off payment of up to $1000 to help injured workers who have secured work with a new employer, for expenses such as tools, work clothes, transport and child care.This is for any injured worker who returns to work with a new employer.This benefit is expected to commence from mid-2016 following consultation and drafting of regulations. Scenario:Emma, a 37 year old process worker, injured her right knee at work. She was treated for her injury and attempted to return to her pre-injury employer, but was not able to. Emma had a vocational assessment and set a goal to seek work as a call centre operator. Emma was off work for 16 weeks and was receiving 80% of her pre-injury average weekly earnings. She couldn’t afford new clothes to start her new job.Under the benefit reforms, Emma and others like her who have an offer of employment, can apply for return to work assistance to pay for items that will assist them to take up their new position.

Capture5Education and retraining assistance

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Up to $8000 for education and retraining assistance. For workers with greater than 20% permanent impairment who have been receiving weekly payments for 78 weeks (18 months) or more.This benefit is expected to commence from mid-2016 following consultation and drafting of regulations. Scenario: Sharon, a 25 year old stable hand, had multiple fractures (lower limbs, pelvis and collarbone) from a fall from a horse. In the two years that passed, she had a range of treatment and interventions, some of which were not successful. Sharon’s condition deteriorated and her doctor certified she was not able to return to her pre-injury employer.Under the benefit reforms, Sharon can apply for up to $8000 of education and retraining assistance which will assist her in gaining a diploma in office administration to re-join the workforce as an administration assistant in a veterinary practice. The payment would be made to the registered training organisation.

Capture6Minimum weekly payment for injured workers with highest needs

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Minimum weekly payment for injured workers with highest needs, indexed twice a year.

For injured workers with greater than 30% permanent impairment

This benefit is expected to commence from December 2015. More information will be made available closer to this date.

Scenario: While working as a casual sales rep visiting clients, Anna had a serious injury in a car accident, just over 12 months ago. Anna currently has no capacity to work and has recently been assessed as having greater than 30% permanent impairment. Anna’s pre-injury average weekly earnings were $500 a week.Right now, Anna’s weekly payments are based on her pre-injury average weekly earnings of $500 a week. For the first 13 weeks Anna received 95% of $500, which is $475 a week. From 14 weeks onwards, Anna received 80%, which is $400 a week and will continue to receive this amount as long as required.

Under the benefit reforms, at the time Anna is assessed as having greater than 30% permanent impairment, her weekly payments would be adjusted to $788.32 a week and indexed twice a year. Anna would be supported by an additional $388 a week.

Capture7Minimum hours removed for workers with high needs

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No minimum work hours for workers with high needs who have some work capacity. They will continue to receive weekly payments after 130 weeks.For workers with more than 20% permanent impairment, with some work capacity.

This benefit is expected to commence from December 2015. More information will be made available closer to this date.

Scenario: Aran is a 43 year old mechanic. Following a work place accident, he had a below-the-knee amputation. For almost two years, he had no work capacity and was receiving weekly payments of $1000. Aran then returned to work part time, working 10 hours a week. During this time he was receiving $500 a week from his employer and $500 from the insurer in weekly payments. It is unlikely that Aran’s capacity for work will increase much in the future.Right now, Aran will cease to receive weekly payments from the insurer after 130 weeks. This is because he has some work capacity but is not working the required minimum 15 hours per week. This means Aran will only receive $500 per week from his earnings in employment in the future.Under the benefit reforms, Aran will continue to receive $500 in weekly payments from the insurer in addition to his $500 earnings from his employer

Capture8Increased amount of lump sum compensation

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Increased amount of lump sum compensation for those with permanent impairment of more than 10% (15% or greater for psychological injuries).This benefit commences from 16 October 2015 and applies to workplace injuries on or after 5 August 2015 that resulted in permanent impairment that meet the minimum thresholds.

Scenario: John is a 60 year old construction worker. He had a fall at work two years ago. After a number of operations, pain management treatment and home modifications, John had reached maximum medical improvement and has lodged a claim for permanent impairment. He was assessed as 31% permanent impairment and is considered a high needs injured worker. Previously, his lump sum benefit would have been $60,500. Under the benefit reforms, this will be $83,040 – a 38% increase.

Capture9Increase in death benefit lump sum amount

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Increase in death benefit lump sum amount from $528,400 to up to $750,000, indexed twice a year. This benefit is for the dependents of deceased workers, or if no dependents, the worker’s legal representative.This benefit commences from 16 October 2015 and applies to claims for compensation for a workplace fatality that occurred on or after 5 August 2015.

Scenario: Jim was working as an electrician when he had a fatal accident at work.  Jim had a wife and two young children at school who were all dependent on his income. Previously, the lump sum death benefit payable to Jim’s family would have been $528,400.

Under the benefit reforms, the lump sum death benefit payable has increased to $750,000. This is a 41% increase.

Capture10Increase maximum for funeral expenses

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Increased maximum for funeral expenses from $9,000 to $15,000, for families or friends of deceased workers. Increase is in line with current market costs.This benefit commences from 16 October 2015 and applies to claims for compensation where the date of the workplace fatality was on or after 5 August 2015.

Jim was working as an electrician when he had a fatal accident at work.  Jim had a wife and two young children at school who were all dependent on the income from his employment. The maximum amount for funeral expenses had not changed since November 2004 although the cost of funerals had increased. Jim’s funeral costs were $12,000. Previously, his wife would have received $9,000 back.

Under the benefit reforms, Jim’s wife will be fully reimbursed for the funeral costs. The maximum amount payable for funeral expenses is up to $15,000, which represents an increase of 67%.

Capture11Weekly payments and retiring age

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A worker is entitled to up to 12 months of weekly payments of compensation after reaching retiring age. This benefit now applies to all eligible workers, regardless of when they were injured.This benefit commences from 16 October 2015 and applies to claims for compensation that occurred after 1 October 2012.

Note: This benefit was already available to those who made a claim before 1 October 2012.

Ken is a 64 year old real estate agent. He injured his knee while at work and currently has no capacity for work while he undergoes treatment. Ken turns 65 in 3 months, which is his retiring age. Previously, Ken’s weekly payments would have stopped when he reached retiring age. Under the benefit reforms, Ken is now entitled to the three months up to retiring age and up to 12 months of weekly benefits post retiring age.

Capture12Claim for secondary surgery

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For all injured workers who require secondary surgery.

A claim for secondary surgery. Must be on the part of the body affected by earlier surgery, and approved by the insurer within two years of the earlier surgery.This benefit is expected to commence from December 2015. More information will be made available closer to this date.

Scenario: Adam is a 36 year old council worker who developed significant burns to his forearm and part of his hand as a result of exposure to chemicals. Adam had initial surgery and returned to work for the Council in an office-based role. His entitlement to weekly payments ended a few years ago and he is now no longer entitled to medical payments.Adam’s condition requires two future skin grafts to optimise his hand function as outlined in his surgeon’s treatment plan. Right now, Adam will have to pay for these medical expenses himself.

Under the benefit reforms, so long as the secondary surgery is approved within two years of the earlier surgery being approved, Adam will be able to have the operations and the post-surgery treatment (i.e. physiotherapy, medication, etc) funded by the insurer.

Capture13Suspension of a work capacity decision

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When a worker requests a review of a work capacity decision made by an insurer, the insurer is prevented from reducing or stopping weekly payments until the review has been completed.

This benefit is expected to commence from December 2015. More information will be made available closer to this date.

Kerry was working as a secretary when she had a trip at work resulting in an ankle injury. Six months later she had not returned to work and was receiving weekly payments of $1,000. The insurer made a work capacity decision and informed her that she had capacity to work full-time with her pre-injury employer and that her weekly payments would cease, giving her three-months’ notice in writing.Kerry requested an internal review by the insurer and the outcome was that the insurer decision was upheld. She then requested a WorkCover merit review and the decision was upheld. Kerry requested a review by the WorkCover Independent Review Office (WIRO). WIRO found there had been a procedural error in the original insurer notification. WIRO directed the insurer to carry out a new work capacity decision.Right now, Kerry’s weekly payments would have ceased at the time of the original date sited by the insurer. Under the benefit reforms, Kerry would continue to receive weekly payments while each review process was undertaken and finalised, as long as she made the request for review within the specified timeframes.

Capture14Legal costs for a review of a work capacity decision

Legal practitioners are currently unable to charge injured workers or insurers in connection with a review of a work capacity decision. The new legislation allows for the payment of legal costs for legal advice on a review of work capacity decision subject to a regulation being made. The details will be defined in a new regulation following consultation with the legal community and other key stakeholders. This will commence once the regulation is ‘made’, that is formally approved and published by the Government. We will update you as more information becomes available.

 



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