Workers’ compensation amendments still wreaking havoc

As many workers in New South Wales have just settled into the New Year, it is a timely reminder that many will be spending 2017 preparing themselves for the full impact of the 2012 changes to workers’ compensation law, which will have effect from 1 January 2018.

Those changes, introduced by the O’Farrell Government, included a restriction on an injured worker’s entitlements to weekly payments to no more than five years, and applied irrespective of their age, education or their level of transferrable employment skills.

Workers who were already injured when these changes were introduced were transitioned to the new system on 1 January 2013. The five-year limitation for those workers expires on 31 December 2017. It is estimated that a small army of upwards of 6,000 people are now facing the end of their weekly payments at the end of the year under this arrangement.

Even more concerning, these unfortunate people will lose their entitlement to weekly compensation benefits even though in most instances their insurer has conceded they have no capacity for work.

The main exception to these draconian changes relates to the level of permanent impairment sustained by an injured worker. This is a significant change and now makes an injured worker’s level of impairment critical as it defines the period of their entitlement to weekly payments and coverage for medical treatment expenses.

In response, insurers are now organising assessments to attempt to determine an injured worker’s level of permanent impairment.

The criteria used for assessing permanent impairment is far from perfect and places particular weight on objective evidence such as imaging studies, whilst placing little or insufficient weight on an individual’s specific symptoms or their personal circumstances.

The criteria for assessing a worker’s level of permanent impairment was never designed to be used as a central determination of an injured worker’s entitlement to weekly compensation payments or medical treatment expenses

The purpose of the workers’ compensation system is to provide for the compensation and rehabilitation of workers for work-related injuries. The five year limitation creates a dangerous presumption that injured workers can adequately recover from serious injuries within a set timeframe, even though this is clearly not the case.

The system as it currently operates is fundamentally flawed and provides ample opportunity for seriously injured workers to be unfairly precluded from extended coverage for lost earnings and medical treatment needs.

Unless the system is fixed before the end of 2017 there will be many thousands of injured people excluded from the workers’ compensation system through no fault of their own.

Bob Hayden

Loco Division Secretary

Note: Information for this article was provided by our legal firm.