NSW Workers Compensation changes restrict workers' rights

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The NSW Government has proven that the focus of their Workers Compensation changes, was to cut the rights of workers, in favour of a premium saving to businesses, writes Joshua Dale.

The current State Government continues to mislead the people of New South Wales in producing statistics that provide no reflection of the real day-to-day circumstances of injured and disabled workers in New South Wales and the workers compensation scheme level of funding.

The NSW Liberal Government proposed these wide-reaching reforms to the workers compensation scheme on the basis that the scheme was “broken” and in deficit.

However, actuary advice that has now come to light, suggests a very different picture. In fact, had the changes never been brought in by the current government, the deficit would have been reduced by $2 billion at the present time and a further $500 million by 2018.

The question that is begging to be asked is:

Why go to the trouble of changing the scheme at all? Why put some of the states most vulnerable people, in an even more compromised position?

The answers to these questions are, to my mind, unresolvable in view of the current changes, or the proposed amendments to 'wind back' these harsh changes. However, the fact remains that changes were brought in and that it is this Liberal Government who must be held responsible

The Government reports rises in workers returning to work. The sad fact about the rise in the return to work, is that is because the injured workers of New South Wales have no choice.

Workers who have battled debilitating injuries for many years are now being, or have been, transitioned onto the new laws created by the Liberals. The result is, many workers will be cut off from any level of payments due to their inability to work and will receive no medical expenses soon thereafter as a consequence.

These are everyday Australians with families, with mortgages, who are being forced to return to work, where they are exposed to the risk of exacerbating the injury and causing further or more serious injuries.

For many, the prospect of returning to work is not possible and, unless they reach a very high injury threshold to be classified as “seriously injured” of 30% whole person impairment, they will have no choice but to apply for unemployment or disability pension benefits from Centrelink.

This means that the labourer* who suffers a back injury which results in surgery potentially never reaches the 30% whole person impairment threshold. According to the NSW Government, this labourer is not “seriously injured”, despite the fact that he or she will never be able to return to labouring duties and the prospect of retraining may prove impossible if that person has been a labourer for many years, without any other experience or training.

This worker, at best, will be cut off from wage payments after three years — or potentially five, depending on their level of impairment. With no source of income, and the prospect of ongoing medical payments being cut off, the future remains bleak for them. [Division 2 and Divison 3 of the Workers Compensation Act 1987.]

To make matters worse, the Coalition fails to acknowledge the fact that they have left the workers of NSW to fend for themselves against the might of big insurance companies without any legal advice. Under the current scheme, these insurance companies are able to perform assessments based on function and capacity to work, without any restriction as to a workers location or ability to find work.

And even if the worker has the money to obtain legal advice and is successful in challenging an arbitrary decision by an insurance company, they cannot claim the fees incurred in this challenge from the insurer retrospectively, no matter how unfair, or inaccurate, their assessment might have been. [Division 2, subdivision 3 of the Workers Compensation Act 1987]

Phil is a truck driver of many years who suffered loss of his left leg below the knee during the course of his employment. Phil does not reach the 30% whole person impairment threshold and is not a “seriously injured worker” according to the Baird Government.

Phil has not been able to find any employer willing to take him on as a driver due to the loss of leg, despite him undertaking the relevant driving and safety tests that would allow him to continue his work. He is forced to pursue self-employment, due to his inability to obtain work on the open labour market. Phil can’t earn as much as other truck drivers in a self employed role because of his injury and the costs of running a business.

Phil has a wife and children and a mortgage and was in receipt of makeup pay of $200 a week to supplement his loss of income.

For many Australians, this $200 is the difference between paying the mortgage and losing their home. However, Phil was the subject of a decision by his insurance company that says, if he were to pursue work as an employed truck driver, he would earn more money. As a result, the insurance company has cut off Phil ‘s payments.

Phil cannot seek legal advice, unless he can afford to pay for the out of pocket expenses to challenge this decision, however, given his financial position, he can’t afford this. There is no pro bono or legal aid assistance available to Phil when a decision is made about his work capacity in this way. Phil is then left to take on the insurance company, who have firms of solicitors at their disposal.

To make matters worse, in 2005, Phil was offered a settlement to “buy out" his compensation rights for $120,000, which, in hindsight, Phil would have been better off accepting.

But when he turned that offer down and Phil elected to remain on the workers compensation scheme, receiving ongoing payments for his required medical treatment and make up pay, he had in excess of $300,000 in potential entitlements that would have covered him up until the date of retirement.

The reality is that workers who have made a decision based on sound legal advice at the time are now hung out to dry and there is nothing they can do about it.

The Government has now announced they might have got it wrong and that Phil might be a “seriously injured worker” after all. The problem is, Phil has now lost his home after he defaulted on loan payments, his marriage is under severe strain and his credit rating is now defunct.

If the new announcements are true and the law is wound back, a 'seriously injured worker' will now have to meet the 21% whole person impairment threshold.

The problem is, this doesn’t even begin to scrape the surface of the injustice and rights lost for the workers of New South Wales.

Indeed anyone assessed at under 21% whole person impairment who suffer injury (like the example given of the labourer above) that prevents them from ever returning to their pre-injury employment still remain unprotected.

The Government might have gained an even balance sheet but, in the process, the workers of NSW have lost their right to be looked after if the worst should happen to them in the course of their employment. And if they can’t recover in three years, they have largely lost their right to receive ongoing wages, medical treatment and rehabilitation, and the hope of returning to some form of meaningful employment.

Their plight may not be a burden on the NSW Liberal Government, who can now tick the box for their next election campaign, but the injured workers of NSW remain a burden to the NSW taxpayer, whose cost now simply appears on the Federal Government’s balance sheet, rather than that of the NSW state.

One way or another, the taxpayers and people of NSW will continue to support the injured workers of New South Wales. The difference is, that these injured workers will not receive rehabilitation, or medical and financial support, that a workers compensation system should provide and that has been provided for workers in NSW for the better part of the last century.

The stark reality is that these changes, whether they are superficially wound back or not, have robbed the workers of NSW of their dignity and ability to make informed decisions of their rights.

The new scheme has done more than take away compensation rights — it has effectively handed all effective power to the bureaucrats and insurers who operate within the NSW scheme, compromising the individual workers' rights to independent legal advice, funding and the hope of a better future for themselves and their families.

*All case studies and examples are based on true factual scenarios of real workers in NSW. Their names and identities have not been disclosed.

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