NSW Premier Barry O’Farrell must guarantee injured workers will not be worse off because of flagged reforms to WorkCover, the state opposition says.
Injured workers shouldn’t be worse off
Mr O’Farrell will announce on Monday an overhaul of workers’ compensation laws to rein in a $4 billion WorkCover deficit, News Ltd has reported.
Workers’ compensation premiums in NSW are double those in Victoria, and the state government is warning employers will end up facing premiums four to five times higher if the scheme isn’t reformed, the paper said.
NSW Opposition Leader John Robertson defended the WorkCover scheme, and accused Mr O’Farrell of wanting to strip away workers’ compensation rights.
“This is a scheme that provides an important safety net to everybody who works in NSW,” he told reporters in Sydney.
“A scheme that delivers benefits, and a scheme that makes sure that if you’re unfortunate enough to be involved in a work place accident and you can’t work because of that accident that your family doesn’t suffer as a result.
“Barry O’Farrell needs to explain firstly why this change is necessary, and he needs to guarantee that we’re not going to see injured workers in NSW worse off as a result of these changes.”
While the Labor opposition and unions have attacked the government over its plans to overhaul WorkCover, the NSW Business Chamber welcomed the move.
Chamber’s CEO Stephen Cartwright said high WorkCover premiums were a key barrier to economic growth in the state.
“It’s in the interests of employers and employees to have a workers compensation scheme that is fair and financially sustainable and comparable with those in surrounding states,” Mr Cartwright said in a statement.
“We don’t have that with the current scheme.”
He said the $4 billion blowout in the WorkCover scheme was evidence that the current approach wasn’t sustainable and needed an overhaul.
State WorkCover schemes are suffering worsening deficits, with the losses in South Australia now more than $1 billion. A recent audit by the NSW Audit General in November reported that the deficit of WorkCover NSW grew by $900m in the year to June 30 as injured workers found new ways to exploit the scheme! How SICK!
WorkCover deficit unmitigated disaster and blamed on injured workers
A $222 million blowout in the unfunded liability of the South Australian scheme has created more headaches for the government and businesses struggling to pay growing premiums.
The latest actuarial figures to December 31 show the unfunded liability has grown from $952m to $1.174bn in just six months. The unfunded liability was $55m in June 2001.
The state-based WorkCover schemes oversee the compensation of employees injured in workplace accidents.
An audit by the NSW Auditor-General in November found the NSW WorkCover scheme had a deficit of $2.4bn.
The South Australian opposition finance spokesman, Rob Lucas, said yesterday that Labor’s management of WorkCover had been an “unmitigated disaster”.
“Employers are still paying the highest levies in the nation and the scheme is suffering from the worst return-to-work figures in the nation,” Mr Lucas said.
“When the Labor government introduced their controversial amendments to the legislation in 2008 they claimed their actuarial advice was the scheme would be fully funded within five to six years. It is clear this will be yet another Labor broken promise. Labor can’t lay all the blame on global economic conditions, because for most of the past 10 years there was strong national economic growth, yet the unfunded liability rose year after year.”
SA Treasurer Jack Snelling yesterday said the underlying performance of WorkCover was still strong. “The reasons for an increase in the unfunded liability is because of reduced earnings on assets due to global economic factors as well as a reduction in the discount rate,” he said.
Michael Owen, SA Political Reporter
From: The Australian: http://www.theaustralian.com.au/national-affairs/workcover-deficits-unmitigated-disaster/story-fn59niix-1226308682150
March 24, 2012 12:00AM
As we previously stated, WorkCover assumes INCORRECTLY that it is seriously injured workers’ FAULT (again) for the WorkCover scheme’s multimillion deficit, eh! “The WorkCover NSW deficit grew by $900m in the year to June 30 as workers found new ways to exploit the scheme, which struggled under the weight of losses already sustained during the global financial crisis”
Now, now, don’t you think that those seriously injured workers are getting “benefits” for a reason? And what would that reason be? “A new way of exploiting the workcover scheme”? What a joke! How about “an accident at work and more often than not, due to the sheer negligence of the employer!”
It is Workcover Victims’ opinion and experience that WorkCover insurers (Agents) are increasingly seeking NEW WAYS TO EXPLOIT injured workers, so that the workcover insurers MAXIMALLY PROFIT.
Injured Workers do not ever – that we know of- receive half the “benefits” they are entitled to under the law!
Why don’t you blame it on how you have been allowing the WorkCover system to run? Lowest ever premiums – does that ring a bell? Employer fraud? Insurer fraud? Sounds familiar?
In this interesting workcover NSW case -wherein an injured worker who, despite the fact that he performed his duties as a slicer, without further injury or incident was terminated after he received his lump sum – we explore whether impairment equals incapacity and whether the employer had a leg to stand on when terminating said injured worker.
We believe that this issue of “fitness for duty” and “risks associated with the undertaking of duties by injured workers” is probably going to become a hot topic of discussion, given the new OHS laws and OHS harmonisation.
Workcover case: does impairment equal incapacity
Summary of the workcover case: Riley and Bindaree Beef Pty Ltd  NSWIRComm 1057
In the course of his employment as a slicer for Bindaree Beef, the worker sustained injuries to his shoulders for which he received weekly compensation. Following surgery,Mr Riley (the injuerd worker) also receive a lump sum compensation for 40% loss of efficient use of both arms.
However and despite the fact that Mr Riley performed his his duties as a slicer, without further injury or incident, between May 2009 and October 2010, his employment was terminated by Bindaree Beef (the employer) about one month after he received his workcover lump sum.
The employer (Bindaree Beef) stated and maintained the decision to terminate the injured worker was due to the risk of re-injury. They further stated that they did so in order to fulfill its obligations under OH&S legislation to ensure the health and safety of its employees (and avoid any OH&S liability).
The injured worker commenced proceedings in the NSW Industrial Relations Commission (NSWIRC) seeking an order for reinstatement pursuant to Sections 242 and 243 of the Workers Compensation Act 1987 (NSW).
Section 242 :Application to Industrial Relations Commission for reinstatement order if employer does not reinstate
If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.
An industrial organisation of employees may make the application on behalf of the worker.
The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed.
Section 243 :Order by Industrial Relations Commission for reinstatement
The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order.
The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment.
If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation).
If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission.
Main evidence of the injured worker as provided at the Hearing
The submissions made and the evidence on behalf of the Worker were as outlined:
There was medical evidence from both his GP and Orthopaedic Surgeon that the injured worker was/is fit to work as a slicer
The injured worker had well demonstrated that he could (and did) perform his duties as a slicer without further injury or incident, after his surgery/treatment
The injured worker had acquired skills to avoid re-injury with the help & training of his rehab providers
The injured worker’s colleagues also gave evidence that the Mr Riley could perform his job to the necessary level /standard required
The termination issue interestingly only occurred AFTER the injured worker received his lump sum (never before, i.e during return to work, first year etc)
The Orthopaedic Surgeon stated that he was of the opinion that the risk of injury was no greater than would apply to any other slicer
The Orthopaedic Surgeon confirmed that impairment does not equal incapacity.
The IR Commission should only concern itself with whether the Worker is fit for his job not whether there is a risk of re-injury.
Main evidence of the employer (Bindaree) as provided at the Hearing
A rehabilitation provider engaged by Bindaree (read workcover NSW) maintained the opinion that the injured worker was at risk of re-injury
The injured worker said he had modified some of his work methods to take into account his injuries.
The treating doctors did not fully understand the nature of the duties performed by slicers
The Application was flawed because the reason for termination was not the Worker’s unfitness rather it was the risk of re-injury. Therefore Section 241(1) of the Workers Compensation Act 1987 (NSW) was not satisfied that section required that a worker has been terminated on the basis of their unfitness for work.
Bindaree had to fulfil its OH&S obligations by taking steps to prevent an identifiable risk eventuating and by providing a safe workplace.
The workcover case decision
Commissioner MacDonald ruled in favour of the injured worker and ordered that he be reinstated to his role as a slicer within 21 days and also ordered that he be paid an amount equivalent to the wages he would have earned for the period between the making of his reinstatement application and the IRC’s decision.
Commissioner MacDonald made the following comments:
The Worker was clearly terminated, at least in part, on the grounds that the Bindaree considered he was unfit to perform the inherent requirements of his slicer role due to his injuries, therefore the Commission had jurisdiction to determine the matter.
Bindaree had not produced any evidence from medical qualified person/s stating that the Worker was unfit or was at risk of re-injury whereas the Worker had evidence from his GP and an orthopaedic surgeon that he was fit for work as a slicer and at no risk of re-injury.
The Worker had evidence from two fellow workers that he could perform his job as a slicer without risk of injury and that he had performed his role without further incident.
Bindaree did not raise any issue about the Worker’s ability to work as a slicer until the lump sum settlement.
What does this all mean?
If an injured worker has a degree of permanent impairment (total body impairment as calculated under the AMA guide 4th Edition – in Vic) it does NOT necessary mean that the injured worker should be deemed incapacitated to perform their duty/job!
The total opposite can also apply, for example an injured worker can have zero or a very low degree of permanent impairment (as calculated with those ANCIENT AMA 4th edition guidelines) but yet be totally UNFIT for work
The Act (law) clearly stated that an employer must ensure it has evidence demonstrating that the injured worker is unfit or incapable of performing the inherent requirements of his / her usual duties. Even if ergonomic aides are required.
Fairfield City Champion today reports that NSW businesses want an urgent WorkCover reform. Mr Cordina stated that “”When you’re in a situation where an employee can have a disagreement with the supervisor and suddenly they throw their hands up and say they’re stressed, take off and then you’re up for a $150,000 claim and you can’t do anything about it — it is a farce.
Is it really “a farce” for those victims of relentless bullying in the workplace? Those who have suffered irreparable psychological injuries in the workplace? We believe $150,000 is a FARCE!
Businesses want workcover reform
BY TAMARA GASSER
21 Mar, 2012 01:00 AM
WORKERS’ compensation legislation was a hot topic of debate during a meeting of local business leaders and NSW Treasurer Mike Baird.
Mr Baird met with Cumberland Chamber of Business members in Wetherill Park on Friday.
John Cordina, the head of Cordina Chickens in Girraween, told the treasurer he believed the current WorkCover system was in need of urgent reform.
“It is far worse than whatever you imagined possible,” Mr Cordina said.
“When you’re in a situation where an employee can have a disagreement with the supervisor and suddenly they throw their hands up and say they’re stressed, take off and then you’re up for a $150,000 claim and you can’t do anything about it — it is a farce.”
While not offering specifics, Mr Baird said major announcements would be made regarding WorkCover in coming weeks.
“At the moment we have a scheme that is not working in terms of those who have to claim and it’s not working in terms of business,” he said. – [at least an honest opinion for once 😉 ]
Several business leaders from manufacturing and construction sectors used the meeting to speak of their struggle to compete in an increasingly global market.
Hadrian Morrall, executive director of Pro Pac Packaging in Wetherill Park, said state matters such as payroll taxes and workers’ compensation needed to be addressed so companies could better compete interstate and overseas.
Mr Morrall said the government should work towards a more even playing field.
“It worries me . . . this mentality that as long as we are competitive with other states we’ll be fine,” he said.
“It is a global market we now have to compete with.”
Mr Baird said the best thing for NSW was to make businesses as competitive as possible within Australia.
“We can start with a level playing field across the country, whether that we be through regulation, the cost of business, competitiveness, the tax regime and things like the workers comp scheme,” he said.
“We are benchmarking ourselves against other states.”
WorkCover NSW has seemingly “clarified” the alarming cost of workers’ compensation claims for stress, industrial deafness and musculoskeletal disorders in a publication called “Occupational Disease and Wellbeing Strategy 2011-2015”, and outlined what they plan to do to “help employers reduce them”-oh what a lovely way of phrasing it, eh! Part of their strategy is to develop and coordinate compliance programs such as the Bullying Prevention Compliance Strategy…
WorkCover NSW plan to reduce high workers’ compensation costs
According to the [popup url =’http://www.workcover.nsw.gov.au/formspublications/publications/Documents/nsw-occupational-disease-wellbeing-strategy-2011-2015-3531.pdf ‘] Occupational Disease and Wellbeing Strategy [/popup] -WorkCover NSW 2011-2015, the number of claims for occupational diseases in NSW is increasing, and the average cost of a disease claim is twice that of a claim for an injury.
According to the publication, between 2007 and 2010 there were:
more than 17,000 claims, at an average cost of $19,600 per claim, for mental disorders such as work-related stress, anxiety and depression;
more than 4000 claims, with an average cost of more than $36,400, for musculoskeletal disorders, including inflammatory and degenerative conditions;
more than 9400 claims, at an average cost of more than $46,600, for occupational noise-induced hearing loss;
more than 500 claims, at an average cost of nearly $60,000, for occupational cancers such as mesothelioma, melanoma and leukaemia; and
more than 1300 claims, at an average cost of nearly $43,000, for work-related diseases of the respiratory system, including asthma, hypersensitivity to organic dusts and conditions related to breathing in chemicals, gases, fumes and vapours.
WorkCover NSW said that, in order to “reduce the number of claims and their costs over the next few years” WorkCover would provide employers with “expert technical advice for complaints, investigations, verifications, technical standards, risk assessment and workplace assessment”. [How interesting!]
WorkCoverNSW also states it would also develop protocols to investigate occupational diseases and focus on high-risk groups such as women performing hazardous tasks, young workers as well as ageing workers, new migrant workers and also illiterate workers or those with poor literacy skills.
What’s more, WorkCover NSW states they would also develop and coordinate compliance programs such as the Bullying Prevention Compliance Strategy, which aimed to prevent bullying in high-risk sectors of government, retail, cafes, clubs and manufacturing. [Perhaps on a more sarcastic note, we note that WorkCover NSW and WorkSafe Victoria failed to address their own sector, which has been the recent media and even parliamentary focus of rather frequent internal bullying! ]
click to enlarge
Oh, and they also plan of “changing workplace culture”….
WORKCOVER STAFF BULLYING ALLEGATIONS
The Hon. CHARLIE LYNN [5.18 p.m.]: I raised in this House on 28 October 2008 a Public Service Association survey that revealed a significant number of WorkCover staff had had suicidal thoughts due to bullying and harassment. On 23 November 2007 the Daily Telegraph published an article “Watch Dog Bites its own Staff”, documenting that 86 per cent of WorkCover staff surveyed nominated their own boss as the culprit. In a recent WorkCover corporate survey, 20 per cent of staff indicated “it is almost always true that the organisation is a psychologically and emotionally healthy place to work”, only 29 per cent agreed that management is honest and ethical in its business dealings and only 24 per cent believe management is competent at running the business.
I understand staff will not report bullying and harassment to WorkCover’s Human Resources Branch, headed by Miss Moira Heath, because they will be persecuted. When one considers the vicious and unethical way Miss Heath and Mr David Clark, Manager of WorkCover’s Employee Relations, have treated whistleblowers and other employees, is it any wonder? Serious allegations of misconduct against the Chief Executive Officer of WorkCover, Mr Jon Blackwell, continue to arise, including allegedly committing perjury at a budget estimates committee hearing, failing to comply with government directives on senior executive service cuts, victimising whistleblowers and approaching insurance companies tendering for WorkCover agent contracts to contribute funds to fulfil his desire to travel to Nepal.
I have outlined previously how WorkCover General Manager Miss Vicki Telfer was terrorising workers, and regularly swearing and intimidating officers. Such conduct brings WorkCover into disrepute and undermines the public’s confidence in the organisation. Minister Joe Tripodi has done nothing to address these matters. Unless he acts to address the continuing trouble at WorkCover, this House should consider intervening and holding a committee inquiry into its operations.
An Industrial Relations Commission statement of decision in Public Service Association v WorkCover NSW dated 19 December 2008 documents more disturbing conduct by Mr Blackwell and his cohorts. The case involved a member of WorkCover’s Public Service Association departmental committee whom I shall refer to as Mr M, a young family man with a wife and children to support. Mr Blackwell and a “close friend” of his, Miss Melayne Williamson, spitefully pursued Mr M. Several years ago Mr M beat Miss Williamson for the presidency of WorkCover’s social club. When he subsequently became treasurer of the club Mr M was subjected to a campaign of vilification.
The statement indicates that Miss Williamson approached Mr Blackwell and the director of WorkCover’s internal audit unit, Mr Greg Byrne. Despite WorkCover having no jurisdiction over the social club, Mr Blackwell proceeded to order a disciplinary investigation into Mr M’s management of the club’s funds. Mr M was immediately demoted from an acting grade 8 position to a grade 1/2 position, resulting in the loss of a significant amount of money. The commission notes that on 8 April 2008 Mr Byrne and Miss Williamson went to Mr M’s desk and without his permission removed all financial records of the social club. The commission naturally found that Miss Williamson was “not authorised” to access Mr M’s desk drawer, nor was she authorised to confiscate the records and give them to others. The commission subsequently ordered WorkCover to cease its investigation.
Mr Blackwell used thousands of dollars of taxpayers’ money to pursue his vendetta against Mr M. His decision against Mr M was based on improper grounds. Mr Blackwell’s conduct is shameful in the extreme and amounts to serious maladministration. I understand that WorkCover is currently defending a case before the Industrial Relations Commission involving “victimisation” of another officer. It will be interesting to see whether Mr Blackwell and his cohorts continue with the persecution of this officer and waste more public funds. I will watch the case with interest.
I am astounded at the power Miss Williamson wielded over Mr Blackwell. Despite having limited qualifications, she is now the executive officer of Mr Blackwell’s office. WorkCover has regularly breached its own and New South Wales Government’s recruitment policies, and the evidence shows that there is little regard to merit selection principles at WorkCover. Only 16 per cent of staff surveyed believe promotions go to those who most deserve them. I call upon Minister Tripodi to act to end the continued disgraceful conduct of WorkCover’s executive and others who are clearly unfit to hold office in the public service.
It would be interesting to obtain, under the Freedom of Information Act, the number of workers compensation claims submitted by WorkCover NSW staff… and see whether there would be scope “to contain THOSE claim associated costs”.