REVIEW OF (NT) WORKERS REHABILITATION AND COMPENSATION ACT

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1 REVIEW OF (NT) WORKERS REHABILITATION AND COMPENSATION ACT Preliminary Report November 2013

2 REVIEW OF (NT) WORKERS REHABILITATION AND COMPENSATION ACT COPYRIGHT 2013 ROUSSOS LEGAL ADVISORY AND CROSSINNOVATE CONSULTING PREPARED BY George Roussos Partner, Roussos Legal Advisory Mark Crossin Managing Partner, CrossInnovate Consulting

3 TABLE OF CONTENTS 1. Introduction and Acknowledgments Summary of Preliminary Recommendations Overview of the scheme Historical context Review of legislation Insurance and self-insurance Summary of Benefit Structure Rehabilitation and return to work Scheme data and information Territory population, business and industry Nature and extent of workers compensation claims Rising cost of claims Scheme actuaries report and premiums Guiding Principles Terms of Reference (a) The definition of worker and the relationship with PAYG withholding tax provisions Definition of worker Fishermen... 24

4 1 (b) Achieving the objectives of providing an equitable and cost-effective compensation system, with a particular emphasis on the improved rehabilitation of injured workers and return to work Interpretation of the legislation Rehabilitation Return to work programs Suitable employment The 104-week rule Mitigation of loss Rehabilitation costs for counselling Medical panels and resolving medical issues Medical treatment and costs Clinical Framework Medical certificates Household and attendant care services Permanent impairment Provisional liability Insurer and employer toolkit Death claims Recurrence claims The role of Independent Medical Assessments Fraud Mental Stress claims... 45

5 Disease claims Medical and rehabilitation treatment: reasonable and necessary costs, reasonably incurred (c) Weekly and other entitlements to compensation (d) The assessment and level of income maintenance Normal Weekly Earnings Non-cash benefits Maximum weekly benefit rate Step downs A three tiered approach? (e) portability of benefits outside of the jurisdiction (f) journey claims (g) dispute resolution and a framework to resolve disputes quickly, fairly and at a low cost. 63 Dispute resolution process Mediations...64 Sanctions Judicial review (h) the occupational diseases covered by deeming provisions Take into account the relationship between the Scheme and the National Injury Insurance Scheme Taking into account incentives and disincentives for the rehabilitation of injured workers and return to work, consider recommendations regarding the payment of lump sums in view of the rehabilitation and return to work focus of the Scheme by:...68 Lump sums under the WRCA...68

6 Commutation Lump sums and scheme performance Hopkins Agreement Common law Identify and resolve anomalies in the legislation and in the operation of the scheme NT WorkSafe schedule Setting of Premiums Recovery of incapacity payments Legal costs Regular review of the Scheme Actuarial assessment Attachments... 77

7 List of Abbreviations and Terms Allianz AMA AWE Clinical Framework Commonwealth Act Allianz Australia Insurance Ltd Australian Medical Association Average Weekly Earnings Clinical Framework for the delivery of Health Services (Cth) Safety, Rehabilitation and Compensation Act Hanks Safety, Rehabilitation and Compensation Act Review Report February 2013 HWCA ICA IME NWE Heads of Workers Compensation Authorities Insurance Council of Australia Independent Medical Examination; Independent Medical Examiner Normal Weekly Earnings Queensland Act (Qld) Worker Compensation and Rehabilitation Act 2003 RTW WHC WRCA WRCAC Return to work Work Health Court (NT) Workers Rehabilitation and Compensation Act Workers Rehabilitation and Compensation Advisory Council WRC Regulations (NT) Workers Rehabilitation and Compensation Regulations MACA (NT) Motor Accidents (Compensation) Act. Page 4

8 1. INTRODUCTION AND ACKNOWLEDGMENTS The objective of this review is to consider reforms to the WRCA in accordance with the Terms of Reference (Appendix A). Our review team comprises George Roussos and Mark Crossin supported by Melanie Blackman and resources provided by NT WorkSafe, guided by the WRCAC. The project team thanks a range of representatives of organizational and scheme stakeholders including employers, unions, medical, legal, insurers, rehabilitation providers, mediators and expert consultants in the field of workers compensation and rehabilitation for their engagement with the review and for their considered feedback and input into the preliminary report. Authors of various reports and presentations considered as part of the review are also acknowledged for their efforts to inform and assist both the necessary research and the development of this report. Particular thanks are extended to the Department of Business and to NT WorkSafe s Rehabilitation, Compensation and Information team for their cooperation and support throughout this stage of the review process. The current pension based, privately underwritten workers compensation scheme in the Northern Territory has been, for a variety of reasons, including a lack of premium adequacy to cover scheme risk, marginally financially viable for almost the past decade. The Northern Territory government, after direct advocacy and advice from a range of representatives of business, industry, unions, medical, insurance, legal, mediators, the scheme actuary, individuals and the Workers Rehabilitation and Compensation Advisory Council initiated this review of the scheme s operation, flexibility, viability, sustainability and operation during Page 5

9 2. SUMMARY OF PRELIMINARY RECOMMENDATIONS Note: These recommendations are set out on a preliminary basis and are subject to modification and change. There are several requests for stakeholder feedback through the Report. 1. We recommend codifying the principle in Pengilly that the interpretation of the WRCA by the Court be objective and balanced. 2. In addition to the other initiatives by NT WorkSafe in relation to injury management, and any codes of practice, the rehabilitation provisions could be enhanced by providing rehabilitation plans that take into account work is generally good for health and wellbeing; and a bio-psychosocial approach to injury management. 3. Where a worker is required to participate in rehabilitation training or, as appropriate, in workplace based return to work programs, that could be clarified to include: vocational assessments; guidance or vocational counselling; functional capacity assessments; assessment of work requirements and potential suitable duties for return to work; work experience and training; and job-seeking assistance. 4. Suitable employment could be defined in a way similar to the definition of most profitable employment ; or consideration be given to a definition similar to that recommended by Hanks (taking into account the employee s age, experience, training, language and other skills; the employee s suitability for rehabilitation or vocational retraining; where employment is available in a place that would require the employee to change her or his place of residence, whether it is reasonable to expect the employee to change her or his place of residence; and any other relevant matter). 5. Clarify the intent of the 104-week rule. 6. The WRCA to recognise the common law duty of mitigation of loss, assessed on an objective basis. 7. Medical Panels should not be re-introduced. 8. NT WorkSafe to examine formation of a Medical Advisory Committee to develop treatment guidelines for common workers' compensation injuries. 9. The WRCA to require that medical treatment must meet objective standards such as those in the Clinical Framework. 10. Medical certificates should be revised to focus on the workers capacity, rather than incapacity; and import from the Clinical Framework, the appropriate matters that should be reported on. Page 6

10 11. The deferral of liability provision in section 85 could be clarified to confirm an employer can, in addition, incur costs for medical treatment. 12. There should be a right of recovery of payments made during the period of deferral where an injured employee has acted dishonestly; the claim is fraudulent; or an injured employee has obstructed or delayed the determination of the claim, and liability is subsequently determined not to exist. 13. Different claims mechanisms should be in place to manage the particular needs of dependants in respect of the making of death claims. 14. A mechanism should be introduced to allow for recurrence claims to be managed. 15. Section 90 and the penalties should be reviewed. 16. In relation to psychological or psychiatric claims, we recommend: (a) (b) (c) the WRCA should make clear employment must be the real, proximate or effective cause or the the major significant contributing factor for psychological or psychiatric claims. the exclusionary part of the definition of injury be examined to ensure the issues in Wiegand are managed and negated. consideration of a defence of management action taken in good faith ; defining reasonable administrative action, for example, to include appraisal of the employee s performance; defining reasonable disciplinary action, for example, to include formal or informal counselling action; suspension action; formal or informal disciplinary action. 17. The WRCA should be amended so that incidents that are a manifestation of an underlying disease (such as heart attacks, strokes, spinal disc ruptures caused by degenerative disease and similar phenomena) will be covered for workers compensation purposes on the same basis as a disease that is, where employment was the substantial contributing factor or the real, proximate or effective cause of the incident. 18. In relation to NWE, consideration should be given to: (a) (b) (c) revising the definition of NWE in accordance with contemporary industrial practice. reforming the definition of NWE to average remuneration over a defined period. defining the non-cash benefit amounts; or place an upper limit on them. Page 7

11 19. Consideration should be given during the first 26 week period to the weekly benefit being paid at loss of earning capacity (in place of NWE less amounts actually earned). 20. It is possible section 86 could be reformed to allow for a Court to vary NWE depending on the changes in the workplace. 21. Depending on the nature and extent of steps downs, maximum weekly benefit and maximum duration, an entitlement to a lump sum calculated in an agreed manner should be considered. 22. In relation to Mediations: (a) workers should be able to be legally advised prior to and during mediation. (b) mediation Protocols could be developed to enable matters to resolve in a speedier manner. 23. Consideration could be given to investing a Supreme Court judge with the powers of a Tribunal to determine workers compensation claims. 24. Providing presumptive legislation for fire-fighters is supported. Consideration could be given to establishing a firefighters fund for this purpose, stand alone to the WRCA. 25. The WRCA should provide for formal machinery enabling negotiated settlements of statutory benefits in the appropriate cases, linked to a tiered approach discussed in this report. 26. Statutory workers compensation should remain the exclusive remedy for an injured worker for a work related injury; and that the scheme maintain the abolition of the common law action by a worker against his or her employer. However, mechanics should be introduced into the WRCA to allow for a worker and employer to negotiate a lump sum in accordance with agreed mechanism taking into account a tiered approach. 27. With preconditions, the WRCA should allow for the finalisation of claims, including of weekly compensation and all other benefits. Provision should also be made for boundaries around recurrences and further claims in current employment or other employment, after the receipt of the lump sum. 28. There should be specific provision in the WRCA to allow for the recovery of compensation where the compensation has been paid because of a false or misleading statement or representation; has been paid because of a failure or omission to comply with a provision of the WRCA; that should not have been paid (for example, overpayments). There should be a set off for sick leave payments that may have been made (to avoid double dipping). The sick leave credits would be restored. 29. We recommend that the WRCAC should review relevant parts of the Scheme annually and the Scheme be reviewed substantively, every 5 years. Page 8

12 3. OVERVIEW OF THE SCHEME 3.1 Historical context Australia has ten workers compensation systems, including one for each State and Territory and two Commonwealth schemes (Comcare and Seacare). The Northern Territory's first legislation was the Workers Compensation Ordinance passed in Under this law, the injured worker was entitled to seek benefits under workers compensation legislation and also sue his employer for negligence. Common law fell out of favour politically in the early 1980's, as inimical to effective rehabilitation. Many viewed the prospect of a lump sum award could act as a disincentive to effective rehabilitation and return to work. In the mid-1980's the Northern Territory Government reviewed workers compensation laws paving the way for the Work Health Act. This law was first introduced in the Northern Territory Legislative Assembly on 19 June It came into force on 1 January Preceding its introduction in Parliament, K Doody, M Elliott and B Manning, at the request of the Government, inquired into workers compensation in the Northern Territory. The board of inquiry's report was completed on 19 November 1984 and became known as "The Doody Report". The Doody Report made a number of recommendations that were followed, such as: the introduction of a compulsory, planned and coordinated rehabilitation program. abolition of the right to sue at common law. introduction of umbrella occupational health and safety legislation to cover all workplaces. On 1 July 2008, Occupational Health and Safety was removed from the Work Health Act. A new Workplace Health and Safety Act came into effect and the Work Health Act was renamed the Workers Rehabilitation and Compensation Act On 1 January 2012, the Workplace Health and Safety Act was replaced when the Northern Territory joined the National occupational health and safety scheme. Since the Inquiry of 1984, there have been other reviews regarding the Northern Territory Scheme, including a: Page 9

13 review of dispute resolution in 1997 review of rehabilitation and accredited rehabilitation providers in 1998 a working group review of the Scheme commencing in 1999 review of medical and associated intervention in December 2001 review of the mediation process in 2004 Out of these followed a number of amendments to the legislation. The Scheme has experienced further development and the Northern Territory industrial base has grown and changed. A review of the WRCA is now relevant to ensure a financially viable, equitable, modern and contemporary scheme. 3.2 Review of legislation In September 2013, Western Australia1 noted the WA legislation requires re-writing as their legislation has been amended on a piecemeal basis since A significant number of successive amendments has resulted in a complex and highly prescriptive statute which is difficult to understand and apply. In February 2013, Hanks mentioned there was a strong case to be made for re-writing the [Commonwealth Act] in order to bring it up to date with current working conditions, to reflect current best practice in rehabilitation and to ensure that it is laid out in a logical and functional structure that is easy to follow and apply. 2 The Northern Territory legislation is not a highly prescriptive statute, although some have described it as a riddle wrapped in a mystery inside an enigma. 3 We do not think the WRCA requires re-writing. In any event, such a task would be beyond the scope allowed for this Review Hanks, paragraph Former Chief Justice Martin of the Northern Territory Supreme Court in Ju Ju Nominees Pty Ltd v Carmichael [1999] NTSC 20 Page 10

14 3.3 Insurance and self-insurance The Work Health Authority is a statutory body responsible to the Minister for Business. The Authority is responsible for a range of matters 4. The Authority approves insurers and self-insurers and issues accreditation to vocational rehabilitation providers. The Northern Territory's workers compensation scheme is a privately underwritten scheme. There are five active Approved Insurers in the Scheme - Allianz, TIO, CGU (IAL), QBE and GIO (Suncorp). The Approved Insurers underwrite workers compensation risk as defined in the workers compensation policy of insurance, set out in Schedule 2 of the WRCA. The Work Health Authority approves insurers to underwrite workers compensation business on the basis of the following criteria the: insurer's ability to provide the necessary insurance service, including its ability to meet time limits imposed by this Act likely market share of the insurer and its likely effect on its cost efficiency in supplying the service financial viability of the insurer insurer's ability to provide the statistical and other information required or likely to be required under this Act Workers compensation insurance is compulsory for employers, save for approved self-insurers 5. There are four self-insurers - Westpac, Catholic Church, Woolworths and Coles Myer. Prospective self-insurers can apply to the Work Health Authority for approval to self-insure. The basic requirements are that the prospective self-insurer can demonstrate the financial capability to meet the cost of claims; and the capacity to adequately manage claims. The Northern Territory government is also a self-insurer. Territory government accounted for 20% of claims. 6 Between , the Northern 4 S6(1) WRCA 5 S126(1) WRCA Page 11

15 3.4 Summary of Benefit Structure Total abolition of common law claims by workers against their employer. Common law claims against third parties (eg the product manufacturer) are permitted. Results test-based definition of worker. Injury includes a mental injury and the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing mental injury. The employer may defend a stress claim on the basis of reasonable disciplinary action taken against the worker; failure by the worker to obtain a promotion, transfer or benefit in connection with the worker's employment; or as a result of reasonable administrative action taken in connection with the worker's employment. Disease claims require employment to be the real, proximate or effective cause of the disease. Weekly payments of compensation continue to age (at 75% after 26 weeks of incapacity) assessed at the workers pre-injury personal income level ( Normal Weekly Earnings (NWE)); indexed in accordance with movements in ABS statistical Average Weekly Earnings. Substantial emphasis on rehabilitation and return to work with duties placed on the employer and the worker. No cap on rehabilitation or medical/surgical expenses. The WRCA and WRC Regulations do not regulate medical, surgical or rehabilitation expenses. After 104 weeks of partial/total incapacity, the test of earning capacity changes to the most profitable employment (having regarding to the factors set out in s68) that could be undertaken by that worker, whether or not such employment is available to him or her. No compensation for non-economic loss; but an entitlement to be assessed for a lump sum for permanent impairment on a whole of person basis in accordance with the American Medical Association Guidelines to the assessment of permanent impairment; cut off 5% whole of person. Motor vehicle accident journey claims are covered by MACA. As it is a pension based scheme, lump sum resolution of long term claims is restricted to commutation of weekly payments of compensation. The maximum commutation is 156 x NWE. The commutation must be approved by the Court. There are specified criteria the Court needs to 6 Wall and Ly (2013) Page 12

16 examine (eg rehabilitation is complete; the worker is not totally incapacitated). Medical expenses cannot be commuted and must be paid as they arise. Dispute resolution is by mediation by mediators appointed by the Work Health Authority. Lawyers are not permitted to represent parties during mediation. If the mediation is unsuccessful, either party can refer the matter to the Work Health Court, which is part of the NT Magistrates Courts system. The WRCA provides for 3 classes of benefits for work-related injury: Weekly payments 7. Based on a worker s pre-injury earnings and described as Normal Weekly Earnings. NWE can include some defined non-cash benefits 8. For the first 26 weeks of incapacity, 100% of NWE is paid. Thereafter, weekly payments reduce to 75% of NWE (or 90% of NWE for low income earners), to a weekly maximum of 150% of statistical Average Weekly Earnings. Weekly payments are indexed on 1 January each year. Weekly payments continue to age Medical/rehabilitation expenses 9. A worker with a work related injury is entitled all reasonable and necessary medical, surgical and rehabilitation costs. There is no cap. Permanent impairment 10. The maximum benefit is 208 x statistical Average Weekly Earnings. If the work related medical condition is permanent and stable, a worker is entitled to be assessed in accordance with AMA Guidelines to the Evaluation of Permanent Impairment, 4 th Edition. The cut off is 5% whole of person. Between 5% and 14% there is a sliding scale (eg 10% whole of person assessment entitles the work to 3% of the maximum benefit). From 15%, the worker is entitled to that percentage of the maximum benefit. From 85%, the worker is entitled to 100% of the maximum benefit. The initial s71 assessment is carried out by a medical practitioner. Any party aggrieved has 28 days to apply to the Work Health Authority for re-assessment by a panel of 3 doctors. The Court is not involved at any stage of this process. 7 S64 and S65 WRCA 8 S49(4) WRCA (accommodation, meals, electricity) 9 S73 and S76 WRCA 10 S71 WRCA Page 13

17 3.5 Rehabilitation and return to work The focus of workers compensation schemes in Australia, particularly in the Northern Territory, is: rehabilitation early return to work Legislation attempts to promote these objectives by providing incentives to the: worker eg reduced payments after a certain period of time; limited availability of lump sums; rehabilitation obligations. employer eg positive requirement to rehabilitate workers; obligation to take active steps to assist the injured worker in finding suitable employment. Given the entitlement to weekly benefits until age 65-67, the principal cost driver in the NT would be the claimant s duration on weekly benefits. Rehabilitation experts say that the chances of effective return to work after a claimant has been off work for six months is close to nil. Accordingly, the speed with which claims are dealt with has a direct relationship with its eventual cost. As noted by Hanks 11 : No matter how they are funded, the one constant shared by all workers compensation schemes is that they must be financially viable and sustainable. There is a balance to be struck between, on the one hand, supporting injured employees who are recovering from injury and returning to work and, on the other hand, maintaining the affordability of a workers compensation scheme for employers. 4. SCHEME DATA AND INFORMATION 4.1 Territory population, business and industry The Terms of Reference indicate taking into account the impact of the Scheme on the Northern Territory economy, the NT's competitiveness and employment growth in assessing and making recommendations. 11 Paragraph Page 14

18 Our geography, demography, and economic factors present important differences to Schemes in other jurisdictions. These differences need to be taken into account. Regarding the Territory s population 12 : people, of which 131,938 (56%) live in the greater Darwin area; (17.5%) in Alice Springs; (8.8%) Katherine; and 6659 (2.8%) Barkly region. most (70%) live in the greater Darwin region. Through the year to March 2013, the Territory s population increased by 4111 or 1.8 per cent due to: natural increase, which added 3052 people to the population and contributed 1.3 ppts to annual growth. net overseas migration, which added 2706 people and contributed 1.2 ppts to annual growth; and this was almost twice the ten year average of net interstate migration, which reduced the population by 1647 people and detracted 0.7 ppts from annual growth. Net interstate migration losses have been moderating since the recent trough of in In terms of the number of businesses and industry base, the Department of Business advises 13 : there are businesses in the Territory, of which 21.4% are in construction and 0.6% in mining. the majority of businesses (93.6%) comprises of less than 20 employees per cent of the businesses do not employ anyone. 21% employ 1 4 people. 13.5% employ 5 19 employees. There are 891 medium size employers ( employees) and 49 large employers (200 plus employees) in the Northern Territory. The incidence rate (claims per 1000 employees) was 21.5 for businesses with 1 19 employees; and the lowest (4.0) was for businesses with more than 200 employees Page 15

19 In terms of workers, the Northern Territory labour force was as at September employment growth in the Territory was 1.4 per cent in the year to August 2013, the third highest growth rate behind Western Australia (2.7 per cent) the ABS 2011 Census data reports that there were 5200 people working in the Territory with a usual place of residence interstate. These workers are not included in the Territory s labour force statistics. in addition, there is a large defence force contingent based in the Territory. Members of the Australian Defence Force are not captured in ABS labour force statistics. overseas military personnel working in the Territory such as US Marines and temporary overseas workers employed on major projects across the Territory are also excluded from the Territory s labour force data. the latest employment data by industry is for August In the year to August 2013, employment growth in the Territory was 1.5 per cent. However, this rate of growth was not consistent across all industries. the number of people employed in the construction industry grew strongly in the year to August 2013, with an average increase of 1369 or 10.5 per cent over the year. other industries that experienced a significant decrease in employment levels in the year to August 2013, including professional, scientific and technical services, down by 10.8 per cent (783 people); transport, postal and warehousing, decreased 5.1 per cent (366 people); and financial and insurance services, down by 3.0 per cent (61 people). Aside of the above, we need also to be mindful of economic activity that is unable to be recorded. The Territory Economic Review of October 2013 refers to the non-observed economy, which includes economic activity that is not captured through standard data collection methods, and includes a mixture of legal and illegal activities ; and states the: ABS has published estimates of the size of the non-observed economy by industry sector for , which show that the industry with the largest understatement is the construction industry. This is likely to be due to the effects of owner-builder construction work, as well as a sizeable proportion of the cash economy being based in this industry. Other industries with large percentage increases in gross value added estimates in include accommodation and food services and rental hiring and real estate. In this context we consider the Northern Territory Workers Compensation Scheme. Page 16

20 4.2 Nature and extent of workers compensation claims In the 10 years ( ) 14 : the number of claims has steadily declined from 3,668 in 2002 to 3,066 in 2011, although the workforce grew substantially in that time. 30% of claims were by females. Claimants aged comprised 45.7% of claims and 60% of costs. construction; property and business services; and the retail trade made up of 33% of the claim numbers. Further 15 : in 2011/12, seven in ten (68%) injured workers in the Northern Territory were male, similar to the national average (60% male). the average age of injured workers in the Northern Territory was 44 years, same as the national average (44 years). in 2011/12, the mean number of days compensation paid to injured workers interviewed in the Northern Territory for the RTW Monitor was 48 days, similar to the national mean of 55 days. the mean cost of rehabilitation for the Northern Territory in 2011/12 was $2,446, which was much higher than the national mean of $1,548 (Figure 39). in , 65.8% of claims costs were paid direct to the claimant, 25.3% for services to the claimant, and the rest for administration and costs. This is one of the best performances in Australia. regarding the direct compensation payments, 49% were paid in weekly compensation and 51% in lump sums (Qld 30% and 70%; and Comcare 89% and 11% respectively). in the Seacare, Comcare, South Australian, New South Wales, Victorian, Western Australian and Tasmanian schemes paid out more as weekly benefits while the Northern Territory and Queensland schemes paid out more as lump sum benefits. In terms of duration of incapacity 16 : Comparative Performance Monitoring Report, Fifteenth Edition October 2013 Page 17

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