ACCIDENT COMPENSATION ACT REVIEW A GUIDE. Peter Hanks QC

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1 ACCIDENT COMPENSATION ACT REVIEW Peter Hanks QC AUGUST 2008

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3 ACCIDENT COMPENSATION ACT REVIEW 1 This guide is designed to provide an overview of the final report of the Review of the Accident Compensation Act (the Review). I appreciate that reading the final report, which is over 500 pages, is a daunting task for even the most committed reader, and I have therefore developed this separate guide to the report. By following the basic structure of the final report, the guide provides a summary of the report s more significant recommendations plus an overview of all the benefit improvements. The purpose of the Review On 10 December 2007, I was commissioned by the Minister for Finance, WorkCover and the Transport Accident Commission, the Hon Tim Holding, to conduct an independent review of the Accident Compensation Act 1985 (the AC Act) and associated legislation. My terms of reference were to provide advice and recommendations in relation to: the need to provide fair and effective benefit and premium regimes, having regard to workers compensation schemes in other jurisdictions and the need to secure long-term positive outcomes for injured workers; the fundamental need to protect the operational and financial viability of the scheme; identifying and resolving anomalies in the AC Act and in the operation of the scheme; improving employer and employee understanding of the AC Act; reducing the regulatory and administrative burden on employers, including through improved alignment, where appropriate, with related administrative arrangements both within the State of Victoria and with other jurisdictions; and improving the usability of the legislation through the removal of inoperative, irrelevant or superfluous provisions. The Victorian WorkCover scheme The Victorian WorkCover scheme provides compulsory insurance, administered by the Victorian WorkCover Authority (the VWA), to indemnify employers against the impact of injuries suffered by workers. The scheme provides a range of benefits to injured workers, including: weekly benefits (periodic payments intended to replace income); lump sum benefits (for workers who suffer a permanent impairment to a body part or function); reasonable costs associated with treatment, rehabilitation and hospitalisation; benefits provided to dependants following a work-related death (if a worker suffers an injury in the workplace causing death, the worker s spouse or dependants have access to lump sum, weekly and other benefits); and common law damages (access is limited to workers who have suffered a serious injury ). The VWA also acts as the regulator of Victoria s occupational health and safety (OHS) and return to work requirements. It administers the WorkCover scheme through private service providers, referred to as claims agents and premium agents. Agents are authorised by the VWA to provide services to employers and injured workers in accordance with the legislation, and the standards and procedures set by the VWA. Broadly, the responsibilities of the VWA are to: help prevent workplace injuries; enforce Victoria s OHS laws (including selected Commonwealth laws); provide reasonably priced insurance for employers against liability for workplace injuries and disease; help injured workers back into the workforce; and manage the workers compensation scheme by ensuring the prompt delivery of appropriate services and adopting prudent financial practices. The Accident Compensation (WorkCover Insurance) Act 1993 (the ACWI Act) requires employers to obtain and maintain an insurance policy with an authorised agent. The VWA is the sole insurer and underwriter of the scheme, and has appointed agents to determine and collect premiums for individual employers based on a set formula.

4 2 ACCIDENT COMPENSATION ACT REVIEW Better rehabilitation and return to work outcomes Fair and accessible benefits Areas for reform My proposed package of recommendations seeks to address four areas of reform: better rehabilitation and return to work outcomes; fair and accessible benefits; greater accountability and transparency; and improved understanding and usability of the legislation. Improving return to work is the central objective All stakeholders are united in supporting the importance of improving return to work for injured workers; and this has been a central consideration for me in assessing proposals for reform. An injured worker s return to work after workplace injury is much influenced by the worker s relationship with her or his employer and workplace, as well as by the worker s recovery from injury. Although that relationship is a workplace matter, it can be enhanced by the rights and responsibilities established by the legislation, and can be compromised by the compensation system. My recommendations for recasting the return to work provisions in the AC Act aim to support return to work outcomes by setting clear expectations for all parties involved in the return to work process, without prescribing a one-size-fits-all approach, and supporting the development of comprehensive guidance material tailored to the needs of participants in different industries and sectors of the economy. My recommendation for the introduction of provisional liability aims to ensure that workers receive short-term income support and work with their employers on return to work, without the divisive issue of establishing liability being the initial focus of a compensation claim, potentially damaging an employer s relationship with a worker. Priorities for benefit reform My recommendations for benefit enhancement reflect a number of principles and priorities. I have ranked my proposals for enhanced benefits in order of priority in Appendix A to this guide. First, the fair, adequate and efficient compensation of families of deceased workers should be our top priority. For that reason, I have made a number of recommendations to increase benefits to families of deceased workers, to cut red tape and delays in the delivery of those benefits and to remove anomalies, which could deprive family members of benefits in some cases. Secondly, increasing benefits for injured workers who suffer a permanent impairment is a high priority. Currently, many of those workers have to instigate court proceedings in order to access adequate compensation, but that is a time-consuming and costly process. My recommendations will give permanently impaired workers quicker access to higher benefits, without the daunting prospect of going to court. Finally, a key priority should be income support for long-term injured workers. For that reason, I have recommended that Victoria become the first Australian jurisdiction to compensate long-term injured workers for the superannuation they would have accrued if they had been able to continue working. It is also the reason that I have recommended the level of compensation for injured workers be increased from 75% to 80% of pre-injury average weekly earnings after the first 13 weeks of incapacity. My recommendations for benefit reform reflect my preference for increasing benefits paid through the statutory benefit scheme, rather than through the common law system. The statutory benefits scheme provides no-fault compensation and therefore treats all injured workers equally, and delivers benefits more quickly and at lower cost than common law.

5 ACCIDENT COMPENSATION ACT REVIEW 3 Greater accountability and transparency Improved understanding and usability of the legislation Greater accountability and transparency Stakeholders have sought greater accountability and transparency of decisions made by the VWA and its agents, and also of the conduct of other participants in the WorkCover system, namely employers and medical providers. As a result, I have recommended a modified model for the resolution of disputes about WorkCover claims and premiums, among other recommendations. Improved understanding and usability of the legislation The AC Act has been amended on 80 occasions since 1985, and it now prescribes a series of separate accident compensation schemes for different periods since then. I make a number of recommendations for improving the usability of the legislation, enhance understanding of the obligations in the AC Act and clarify the scope of key definitions. The changes will also remove obsolete provisions and anomalies. Overall, my review has found that the accident compensation legislation is generally working well. However, the Review has identified many reform opportunities that will cut red tape for employers and improve compensation for the most disadvantaged the families of deceased workers, workers with a permanent impairment and long-term injured workers. There is a considerable consensus among stakeholders in support of many of the reforms although others remain contentious. I encourage the Government having taken the brave step of commissioning the first independent review of the AC Act in 20 years to seize this opportunity to improve outcomes for injured workers and employers. A full list of the recommendations in my Final Report is at Appendix B. PETER HANKS QC

6 4 ACCIDENT COMPENSATION ACT REVIEW Improving understanding and clarity of the legislation 1.1. One of the key frustrations with the current workers compensation system is the overly complex legislation that sets out the rules that govern the scheme. Two significant features of the legislation make it particularly difficult to understand and use: the many amendments to the legislation and the absence of a hierarchy of scheme legislation. KEY RECOMMENDATIONS A new AC Act in plain English 1.2. The AC Act has been amended on 80 occasions and now prescribes a series of separate accident compensation schemes for different periods since 1985, which operate from a variety of dates. This makes the AC Act quite difficult to navigate, particularly for those who are unfamiliar with the history of the legislation There is an overwhelming case for rewriting the AC Act and the ACWI Act, with the objective of developing legislation that is arranged in a logical, intelligible and functional structure and that eliminates obsolete or contradictory provisions I accept that my package of recommendations represents a substantial program of reform, and that the task of moving to a new AC Act will be very demanding. For that reason, I have recommended a staged approach to legislative change, with significant policy and benefit changes to be legislated as soon as possible, and the transformation to an entirely new AC Act occurring within three years.

7 ACCIDENT COMPENSATION ACT REVIEW 5 Workers entitlement to compensation 2.1. My recommendations aim to improve the clarity of the provisions governing entitlement to compensation. That will enable workers and employers to understand their entitlements and responsibilities under the AC Act more clearly Two issues are central to determining whether there is an entitlement to compensation, namely, whether: the injured person fits within the definition of a worker under the AC Act; and the person s injury is sufficiently work-related In considering who should be entitled to compensation and in what circumstances, two goals must be balanced against each other ensuring injured workers receive the assistance and support they need, and maintaining a stable and competitive workers compensation scheme. KEY RECOMMENDATIONS Key definitions clarified 2.4. The following changes to key definitions in the AC Act are recommended: Streamline and consolidate the provisions that affect the definition of worker and employer in order to make the definitions easier to understand. Simplify the deeming provisions relating to contractors. The provisions relating to contractors are quite complex and can create difficulties for employers, possibly leading to accidental non-compliance. Further detail to assist in determining issues affecting contractors could be included in regulations or in a schedule to the AC Act, rather than forming part of the main body of the legislation. In addition, amend the principal and independent contractor provisions so that: only the deemed employer would declare rateable remuneration for the calculation of premium, ensuring that scheme coverage of the deemed worker is maintained; and the deemed worker would only be entitled to make an injury claim against the deemed employer s injury insurance policy. Clarify the operation of the provisions relating to outworkers, together with the deeming provisions, by deeming all outworkers to be workers. The definition of outworkers should include only natural persons, sole employee companies and persons employed in family companies, who are engaged by a principal to perform clothing work. Improved information should be provided by the VWA about the obligations and responsibilities of employers in those situations.

8 6 ACCIDENT COMPENSATION ACT REVIEW Stress-related illnesses and reasonable management actions 2.5. The nature of stress-related and psychiatric injury claims makes them difficult for all workers compensation schemes to administer. The difficulty arises predominantly from the problems involved in diagnosing psychological and emotional illnesses, and the multiplicity of factors that can contribute to those conditions Legislative amendments are needed to provide protection for employers when undertaking appropriate and fair management actions, as intended by the exclusionary provisions set out in section 82(2A) of the AC Act I recommend that those provisions be amended to exclude psychiatric injuries that arise from the reasonable or appropriate management actions of an employer in relation to a worker; and that management actions are defined to include actions carried out by employers for performance appraisal, disciplinary action, demotions, counselling of employees and the like. Mediation or workplace counselling 2.9. Stress-related and psychiatric injury claims often involve complex issues between workers and employers, and other elements that make decision-making more difficult than for many physical injury claims. Those factors contribute to the high level of disputes arising out of stress-related and psychiatric injury claims An informal mediation or workplace counselling procedure, available at the request of any party before the determination of liability for the claim, is therefore recommended. The mediation or counselling process should in many instances be accompanied by provisional liability payments, so that workers do not experience delays in receiving appropriate treatment Reducing the adversarial nature of dispute resolution is particularly important for stress-related and psychiatric injury claims, considering the nature of the worker s injury and the more frequent presence of interpersonal elements in those claims The requirement, that management action must have been reasonable before liability for the consequent psychiatric injury is excluded, should continue to provide protection to workers from employers harsh or unjust management decisions.

9 ACCIDENT COMPENSATION ACT REVIEW 7 Ensuring timely access to benefits and support 3.1. The effectiveness of the scheme could be enhanced through a simpler, fairer and more efficient system to enable injured workers to access support and benefits Currently, an injured worker must notify her or his employer within 30 days of becoming aware of an injury. 1 Notification of an injury does not entitle a worker to receive compensation. To claim weekly benefits and/or medical treatment because of a workplace injury, a worker must follow a prescriptive claims lodgement process. It is then up to the VWA to accept or reject a claim within a set time limit Currently, workers and employers experience delays in injury notification and the determination of claims. For example, the median time for completion of the process from the time of injury to a decision on liability is around 49 days Delays in claims reporting can lead to increased claims costs and delays in treatment for workers and, ultimately, delays in return to work In addition, around 14% of claims received are disputed. Disputes about claims create additional delays in accessing benefits. Those disputes are also likely to create an early unfavourable impression for the worker involved and adversely affect the worker s recovery and return to work My recommendations are designed to ensure prompt commencement of compensation payments following injury by reducing the formalities involved in notifying injuries and making claims. Providing greater protection for workers against discrimination arising from making or pursuing workers compensation claims is also a key to supporting workers rights to compensation for workplace injury. KEY RECOMMENDATIONS Improved notification of an injury and claims lodgement 3.7. Electronic or telephone notification of injury or lodgement of a claim form would reduce the delay between the date of the injury and commencement of injury management. It would also make the notification process more efficient, and reduce red tape for employers My proposal should be accompanied by safeguards, including a requirement that agents contact the employer within 48 hours from receipt of a notice of injury or receipt of a claim. That requirement would ensure that the agent notifies the employer of the injury, confirms details and gathers information. Introduction of provisional liability in conjunction with injury notification 3.9. I recommend that provisional liability be introduced into the Victorian scheme. In practical terms, provisional liability involves giving injured workers prompt compensation for lost income and/or medical treatment without the need to wait for liability for the claim to be determined, The potential benefits of provisional liability include: providing workers with prompt income support while they are incapacitated by work injuries; enabling workers to access appropriate treatment earlier; a focus by all parties on return to work from the start; maintaining a positive employer and worker relationship; improved worker satisfaction; earlier injury or claim notification; improved liability decision-making by agents; and improved return to work outcomes. 1 AC Act, s 102(1). 2 Source: VWA.

10 8 ACCIDENT COMPENSATION ACT REVIEW The introduction of provisional liability would mean that the scheme was designed for the majority of claims, rather than the minority of claims. By withholding payments from an injured worker until liability is accepted, the scheme is imposing significant costs on the 91% of workers whose claims are ultimately accepted (and on their employers), apparently in the interest of avoiding costs associated with the 9% of claims that are ultimately rejected Experience in other jurisdictions that have introduced provisional liability, namely New South Wales and Tasmania, has shown a low risk of increased scheme costs associated with more claims, workers submitting fraudulent or speculative claims and the costs incurred on claims that are subsequently rejected. Providing greater protection against discrimination and dismissal for workers Under the AC Act, workers are currently protected from dismissal or discrimination when they notify their employer of an injury or pursue a compensation claim. Victoria s Occupational Health and Safety Act 2004 (the OHS Act) also protects workers from discrimination for raising health and safety concerns with their employers or with the VWA. There are a number of key differences in the protections in the AC Act and the OHS Act Research suggests that discrimination by employers against workers exercising their rights under the AC Act continues to occur. The current provisions in the AC Act are aimed at a narrow category of conduct; are very difficult to prosecute; provide inadequate remedies; and may only be enforced by the VWA. Further protections are needed to address the small number of employers who engage in discriminatory conduct and to provide a general deterrent against that conduct For those reasons, the anti-discrimination provisions in the AC Act should be expanded to align them with the OHS Act. The Equal Opportunity Act 1995 should also be amended so that workers who suffer such discrimination can make complaints to the Equal Opportunity and Human Rights Commission as the first step in seeking redress.

11 ACCIDENT COMPENSATION ACT REVIEW 9 Supporting workers in rehabilitation and getting back to work following injury 4.1. The importance of early, safe and lasting return to work outcomes in workers compensation schemes cannot be overstated There are obvious benefits for workers in returning to work as soon as possible after an injury or illness. It is well established that getting back to work can assist rehabilitation and improve a worker s long-term health and wellbeing. With the appropriate treatment and support, most injured workers can continue working or get back to work relatively quickly Early and sustained return to work also benefits the workers compensation scheme because the longer workers are off work, the greater the drain on the scheme s financial resources The challenge for any workers compensation scheme is to create appropriate incentives for employers and workers to participate in the return to work process, while providing adequate income and medical support following work-related injury The AC Act has a specific focus on returning injured workers to work. The objectives of the AC Act include providing injured workers with effective occupational rehabilitation and suitable employment to enable them to return to work as soon as possible The AC Act seeks to achieve those objectives by imposing specific obligations on employers and workers. This prescriptive approach affords workplaces little flexibility in choosing how they meet their return to work obligations. KEY RECOMMENDATIONS Completely recast the return to work provisions in the AC Act 4.8. The AC Act imposes a number of obligations on employers in relation to return to work, including the requirement that employers offer employment to injured workers in particular situations The AC Act requires employers to prepare return to work plans, nominate return to work coordinators and establish and maintain risk management and occupational rehabilitation programs The AC Act also imposes a number of obligations on workers to ensure that they actively participate in the return to work process Although the policy behind the current return to work provisions is generally clear, the provisions themselves are often confusing. As far as possible, the operation of the return to work provisions must be spelt out clearly and must be capable of being understood by those who are expected to comply A statement of principles similar to those contained in the OHS Act would help guide employers, injured workers and other stakeholders in interpreting the legislative requirements, and foster the type of partnership between the various parties that is essential to a successful return to work process I do not believe that the detailed prescription in the AC Act assists employers to focus on the need to return the injured worker to work as soon as it is safe and possible to do so. Nor does it encourage a focus on building a workplace culture that will enable the worker s return to work to be durable.

12 10 ACCIDENT COMPENSATION ACT REVIEW Performance-based return to work provisions The current return to work regime can be confusing and overly complex, and emphasises paper compliance instead of actual return to work outcomes for the injured worker I recommend that the return to work provisions in the AC Act are removed and replaced with performance-based provisions, reducing the level of prescription and providing clear expectations of outcomes. This will ensure more flexibility to suit the circumstances of the parties involved in the return to work process The new core requirements should be that an employer: takes all reasonable steps to return an injured worker to work as soon as possible; and consult as far as reasonably practicable with the injured worker and treating practitioner in relation to the injured worker s return to work The core duties will need to be supported by additional obligations under the AC Act, including obligations on workers. Performance-based duties will also need to be supported by appropriate subordinate instruments; and the AC Act should be amended to enable the making of regulations and compliance codes Because of its similarity to the framework for OHS in Victoria, the proposed approach will be familiar to the parties who are involved with return to work in Victorian workplaces. Worker Representatives (HSRs) To assist workers to participate actively in the return to work process and understand their rights and responsibilities, workers should have access to representation and assistance from a worker advocate. An elected Health and Safety Representative (HSR) is in a good position to provide that kind of support given the HSR s familiarity with the workplace and likely knowledge of the suitable employment opportunities that might be available to an injured worker Clear and open communication between the employer and the injured worker is essential to good return to work outcomes. Given the shift to performance-based return to work obligations, HSRs could make a constructive contribution to the worker s return to work by providing support and information to assist workers to better understand the process The AC Act and the OHS Act should be amended to extend the role of HSRs so that they can also represent workers in the return to work process. The formal recognition of the HSRs role should not limit a worker s right to seek support from other parties, as is currently permitted. An HSR should only act as a worker s representative where the worker consents The requirements to train HSRs would need to be expanded to cover their new role. This would impose additional costs on employers. However, the benefits to employers of having more injured workers return to work would outweigh the additional costs of training. Role of other workplace parties in return to work Although the key return to work obligations are placed on employers, the cooperation of all workplace parties (including injured workers, occupational rehabilitation providers, healthcare providers, the VWA and its authorised agents) is crucial. 3 Section 36(1) of the OHS Act sets out a process for consultation, which may be a model. It may be appropriate to define consultation similarly in the AC Act.

13 ACCIDENT COMPENSATION ACT REVIEW 11 Improve incentives for healthcare providers to be involved in return to work Return to work outcomes are not possible without cooperation and commitment from all parties involved in the process, including healthcare providers, insurance agents and employers The VWA should pay treating practitioners for their time in facilitating return to work. For example, the VWA should pay for telephone consultations between a healthcare professional and an injured worker or other related parties, including the agent, employer or occupational rehabilitation provider An independent review of the fees payable by the VWA for medical and like services should also be carried out as soon as possible Compensable patients represent a very small proportion of treating practitioners caseload, with injured workers making up approximately 2% of the patients seen by general practitioners. 5 It is therefore not appropriate to impose statutory duties on treating practitioners in this area. The imposition of duties may discourage practitioners from treating injured workers. Nevertheless, additional guidance material should be developed to support healthcare professionals in their treatment of injured workers. 4 P Foreman, G Murphy and H Swerissen, Facilitators and Barriers to Return to Work: A Literature Review, Australian Institute for Primary Care, La Trobe University, 2006, p 5. 5 Source: VWA.

14 12 ACCIDENT COMPENSATION ACT REVIEW Better income replacement benefits 5.1. My recommendations on income replacement, or weekly benefits as they are commonly known, are the most significant from the perspective of scheme viability, because the payments make up a large proportion of scheme costs. In 2006/2007, the VWA paid almost $460 million in weekly benefits All Australian workers compensation schemes link compensation for lost income to a worker s pre-injury earnings and impose limits on eligibility for, and the level and duration of, weekly benefits Weekly benefits are calculated and paid to an injured worker based on the worker s pre-injury average weekly earnings (PIAWE) and the worker s level of capacity. Weekly benefits reduce ( step-down ) over time and do not fully compensate injured workers for lost income Ultimately, my recommendations on weekly benefits balance the need to ensure injured workers have adequate support while recovering from injury, as well as ensuring the financial viability of the scheme to meet the needs of all injured workers, now and in the future. KEY RECOMMENDATIONS Improve the level of income replacement after the first 13 weeks of PIAWE 5.5. During the first 13 weeks of a claim, if the worker has no capacity for work, the worker receives 95% of her or his PIAWE or $1250, whichever is less. 7 Between the 14th and 130th week of a claim, if the worker has no capacity for work, the worker receives 75% of her or his PIAWE, or $1250, whichever is less. Weekly benefits are also available after the 130th week of incapacity, in limited circumstances, and are paid at 75% of PIAWE or $1250, whichever is less. The reduction in weekly benefits from 95% to 75% after the first 13 weeks is referred to as the second step-down I recommend that the second step-down be increased from 75% to 80% of PIAWE. The new step-down rate will also apply to workers who continue to be eligible for weekly benefits after 130 weeks. The adjustment represents an immediate modest increase in weekly benefits for lower and middle income earners. The increase is warranted, because the current step-down results in a 25% decrease in injured workers income after 13 weeks The proposal should not have an adverse impact on return to work. The recommended increase will occur only after the first 13 weeks and a payment of 80% of PIAWE is unlikely to be seen by injured workers as more attractive than employment and a full wage The definition of PIAWE is central to the level of compensation received by injured workers, and the current definition leads to the under-compensation of some injured workers. There is also a pressing need to explore whether the definition should be broadened to encompass the variety of remuneration practices now in place. 6 VWA Annual Report 2006/2007, p AC Act, s 93CA(2)(a). 8 AC Act, s 93CB(2)(a).

15 ACCIDENT COMPENSATION ACT REVIEW The timeframe set for the completion of my Review has not allowed for completion of the work necessary to review PIAWE. A comprehensive review of PIAWE should therefore be conducted as a matter of priority once the Government considers its response to my Review. Expanding access to weekly benefits after 130 weeks Weekly benefits after 130 weeks for partially incapacitated workers Currently, the AC Act provides for the payment of weekly benefits after 130 weeks for workers who have a partial capacity to work in limited circumstances. Further, the AC Act is silent on several important aspects relating to the administration of such weekly benefits for partially incapacitated workers after 130 weeks The ongoing entitlement for workers with a partial incapacity recognises that some injured workers, even after treatment and rehabilitation, may have a residual level of incapacity that prevents them returning to pre-injury employment but they may be able to engage in some employment and should be encouraged to do so To address that situation, the AC Act should be amended to clarify: that benefits under section 93CD can be accessed at any time that the worker returns to work; where a worker is receiving the benefit and the worker s suitable employment is withdrawn, the worker is given 13 weeks notice of termination of the benefit; and temporary fluctuations in capacity or the availability of work do not impact on the worker s entitlement Clarifying the benefit regime will assist workers who have partial capacity for work (under section 93CD) and make that regime less harsh where a worker returns to work. My recommendations should deliver significant benefits to one of the most disadvantaged groups of injured workers in the scheme workers whose injury impacts on their ability to work long term. Weekly benefits for workers who undergo medical procedures after 130 weeks A worker who has ceased to receive weekly benefits at the end of 130 weeks may not receive subsequent weekly benefit payments, even if the worker is required to cease work while recovering from surgical treatment for a work-related injury Workers who have returned to work should be supported through temporary periods of incapacity when they require medical treatment, even where that treatment is required outside the existing entitlement period. Claims agents should have the discretion to determine whether payment of weekly benefits during recovery is reasonable in the circumstances. Accordingly, it is recommended that weekly benefits be provided for workers who have returned to work, but who must take time off for surgical treatment for a work-related injury.

16 14 ACCIDENT COMPENSATION ACT REVIEW Superannuation Consistent with other Australian schemes, superannuation contributions that are lost because of work-related injury or illness are not compensated under the AC Act. The national superannuation guarantee scheme does not require employers to make superannuation contributions during periods of incapacity caused by work-related injury or illness Some injured workers continue to receive superannuation because of the make-up pay provisions in their industrial awards or agreements. However, the most generous of those provisions do not extend beyond 52 weeks, affecting long-term injured workers in particular I recommend that the VWA make superannuation contributions directly into a worker s superannuation fund for injured workers who continue to receive weekly benefits after 52 weeks of payments. The contributions will increase benefits for the most disadvantaged in the scheme workers off work for long periods. Superannuation contributions should be based on the superannuation guarantee rate (currently 9%) and paid while workers remain entitled to weekly benefits. Impact of other income sources on weekly benefits An injured worker is not entitled to receive weekly benefits in conjunction with other income sources that relate to ceasing the employment in which the injury arose. Other benefits include: disability, retirement or superannuation pensions, redundancy or severance payments and superannuation lump sums. If workers receive those payments, they will either have their weekly payments reduced or those payments suspended for a specified period Weekly benefits do not fully compensate injured workers for lost income; and workers should be able to access income from other sources to make up the shortfall. It also seems reasonable that, where workers are in a dire financial situation, they should be able to access their own assets without affecting their weekly benefits I recommend that workers be allowed to access their superannuation without penalty. Workers should also be able to access sickness or disability insurance without penalty, as long as their combined income from workers compensation and disability insurance does not exceed their pre-injury earnings Because superannuation is a benefit that workers receive in retirement, this proposal should not reduce workers incentives to return to work. 9 Australian Taxation Office, Superannuation Guarantee Ruling 94/5. 10 AC Act, s 96(2). Again, the payment must relate to the employment out of which or in the course of which the work-related injury arose.

17 ACCIDENT COMPENSATION ACT REVIEW 15 Treatment expenses 6.1. An injured worker is entitled to compensation for the reasonable costs of medical services, and other services, such as physiotherapy, occupational rehabilitation, and personal services (including attendant care), where those services are received because of the injury. The services are generally known as medical and like services Generally, compensation for the reasonable costs of medical and like services ceases 52 weeks after the entitlement arises, 11 or 52 weeks after the worker stops receiving weekly benefits Treatment expenses are an essential element of the benefits available to an injured worker to assist in treatment, recovery, and ultimately, return to work. Therefore, my recommendations are designed to ensure injured workers have prompt access to the treatment required to assist them in returning to work, and at the same time, ensuring healthcare providers treat injured workers appropriately. KEY RECOMMENDATIONS Timeframes for determining liability 6.4. The AC Act requires that a claim for compensation for medical and like services be lodged within six months after the date of the relevant service. 13 The AC Act prescribes no time limit within which the VWA and its claims agents must make a decision on liability on a claim for medical and like services. Current VWA policy requires those decisions to be made within 60 days. 14 The policy is not binding on self-insurers The prospects for an injured worker returning to work are improved if any necessary treatment is commenced without delay. For treatment to commence there needs to be certainty about payment for the cost of treatment On average, claims for weekly benefits are determined within 14 days and claims for medical and like expenses are determined within 26 days. 15 It is unlikely that the majority of claims for medical and like services are more complex than claims for weekly benefits. I therefore recommend that the time for deciding claims for medical and like services should be fixed in line with the time for determining weekly benefits claims (28 days) Apart from giving certainty to all parties, a legislated timeline will ensure that the same time limits apply to the claims of all injured workers, whether they are covered by the scheme or by self-insurers. 11 AC Act, s 99(12). 12 AC Act, s 99(11). 13 AC Act, s 103(7)(d). 14 VWA, Claims Manual, paragraph Source: VWA.

18 16 ACCIDENT COMPENSATION ACT REVIEW Regulation of healthcare providers 6.8. Healthcare providers can treat injured workers and be paid for the provision of a medical service, 16 provided that those professionals are registered under the Health Professions Registration Act In addition to those registered healthcare providers, the VWA can also approve payments to providers of other health services (as long as those other health services are provided at the request of a medical practitioner). 18 The other health services include, for example, remedial massage and acupuncture Where the VWA is concerned about the adequacy, appropriateness or frequency of services provided to an injured worker, 19 and there is a professional body regulating the conduct of persons in the service provider s trade or profession, the VWA may: 20 refer the provider s conduct to that professional body for review 21 ; and suspend payments to the provider The referral process to professional bodies should be maintained. However, the sanctions available to the VWA should be strengthened, so that the VWA can retain some control over payments to those providers who depart from appropriate standards of behaviour. In particular, the VWA should have the power to suspend future payments to any service provider who is found to have engaged in unprofessional conduct by the provider s professional body or who is found by Medicare Australia to have engaged in inappropriate practice. This would give the VWA improved regulatory and protective powers Where there is no professional body regulating the conduct of persons in the provider s trade or profession, the VWA can review the provider s conduct and determine whether the provider has acted properly. 16 Defined in s 5(1) of the AC Act. 17 Those healthcare professionals are medical practitioners, physiotherapists, chiropractors, osteopaths, psychologists, podiatrists and pharmacists: see the definitions of those terms in s 5(1) of the AC Act. Apart from psychology, any attendance, examination or treatment of any kind by those providers is defined as a medical service. 18 Paragraph (d) of the definition of medical service in s 5(1) of the AC Act. 19 This can include healthcare professionals. 20 AC Act, s 249B(2). 21 AC Act, s 249B(2)(a). 22 AC Act, s 249B(2)(b).

19 ACCIDENT COMPENSATION ACT REVIEW 17 Lump sum benefits for significantly injured workers 7.1. Lump sum benefits are designed to provide no fault, efficient and fair compensation for workers who sustain permanent significant impairments, including a measure of compensation for the pain and suffering associated with impairment. Lump sum benefits provide much needed 23 funds following a workrelated injury without requiring the worker to pursue costly and lengthy common law proceedings Lump sum benefits are paid in addition to weekly benefits and medical and like benefits. There are two separate schemes for lump sum benefits: impairment benefits and maims payments. The date of injury will determine the type of lump sum benefit for which an injured worker may be eligible. 24 There are also different application and dispute processes for each type of lump sum benefit Access to impairment benefits is assessed using AMA-4 25 or other relevant guidelines required by the AC Act. 26 A medical examiner assesses the injured worker and makes a judgement on the whole person impairment (WPI) of the injured body part and expresses this as a percentage. The percentage is then used to calculate the amount of compensation payable by reference to a scale of payments set out in the AC Act. 27 Payments are available to injured workers subject to the worker s impairment assessment meeting certain thresholds set out in the AC Act Impairment benefits were introduced in 1997 to replace maims payments and an injured worker s right to sue at common law, which was abolished at that time. 28 Access to benefits under the maims regime is assessed using AMA-2 and the concept of loss of use The maintenance of lump sum impairment benefits, after the reintroduction of common law rights in 1999, ensures that a worker can receive a lump sum benefit for her or his permanent injury as soon as is practicable, regardless of whether the worker s employer was negligent Lump sum benefits are designed to compensate those workers who have sustained permanent significant impairments, which mean these payments compensate those workers who are in the most financial need. My recommendations address the need to ensure that those seriously injured workers are compensated adequately given the permanency of the injuries they have sustained; however, given the cost of managing and compensating certain injuries, the impact on scheme viability remains a key consideration. 23 Accident Compensation and Other Legislation (Amendment) Bill, second reading speech, 1 June AC Act, s 98C. 25 AC Act, s 91(1)(a)(i). 26 Psychiatric impairment is assessed in accordance with the Guides to the Evaluation of Psychiatric Impairment for Clinicians. Industrial asthma is assessed in accordance with Impairment Assessment in Workers with Occupational Asthma. Occupational infectious diseases may be assessed in accordance with Clinical Guidelines to the Rating of Impairments arising from Infectious Occupational Diseases. 27 For injuries sustained between 1 July 1997 and 11 November For injuries sustained before 1 July 1997, the maximum amount differs depending on the date of injury, because benefit levels are indexed. For example, for injuries sustained between 1 July 1996 and 30 June 1997 the maximum amount is $102, When the right to sue at common law was reinstated in 1999, impairment benefits were maintained.

20 18 ACCIDENT COMPENSATION ACT REVIEW KEY RECOMMENDATIONS Increase impairment benefits for very seriously injured workers 7.7. Impairment benefits compensate a worker for permanent impairment of a body part or system, and for the pain and suffering resulting from the impairment. Compensation, in the form of common law damages for pain and suffering, is also available for workers who have suffered a serious injury. However, any damages awarded for pain and suffering will be reduced by the amount of compensation paid by way of impairment benefits The impairment benefits system is a faster and more efficient method than the common law system of delivering lump sum compensation. However, the maximum benefit available under the impairment benefit system is more than $85,000 below the maximum common law damages available for pain and suffering In order to compensate seriously injured workers for pain and suffering fully and more efficiently, the maximum benefit awarded for a permanent injury under the impairment benefit regime should be increased to the equivalent of the maximum common law damages payable for pain and suffering that is, from $396,690 to $484,830. The maximum benefit should be indexed annually. Serious spinal injuries To qualify for an impairment benefit, a worker must have a physical WPI of not less than 10%, 29 or a psychiatric WPI of not less than 30% Changes made in 2003 expanded impairment benefits awarded for workers with musculoskeletal injuries (including spinal injuries) who were harshly disadvantaged by the change in assessment tool from AMA-2 to AMA The amendments provided workers with musculoskeletal injuries assessed with a WPI of between 5% and 9% with an entitlement to impairment benefits and an increase in the benefit payable for those injuries assessed between 5% WPI and 29% WPI The 2003 amendments cease to operate on 3 December 2008, five years after the amendments commenced, unless the amendments are extended by legislation. I recommend that the amendments made in 2003 become a permanent feature of the scheme However, there remains considerable concern on the part of various stakeholders that the level of compensation for impairment from a spinal injury does not adequately address the severity of such an injury. Medical research confirms that low back injuries cause a great deal of pain and lost activity. 32 Further, prolonged low back pain can lead to a combination of physical, psychological, occupational and social impairments AC Act, s 98C(2)(a). 30 AC Act, s 98C(3)(a). 31 Victoria, Legislative Assembly, Debates, 16 October 2003, pp A Engers, P Jellema, M Wensing, DAWM van der Windt, R Grol, MW van Tulder, Individual patient education for low back pain, Cochrane Database of Systematic Reviews 2008, Issue 1; Art No: CD K Karjalainen, A Malmivaara, M van Tulder, R Roine, M Jauhiainen, H Hurri, B Koes, Multidisciplinary biopsychosocial rehabilitation for subacute low-back pain among working age adults, Cochrane Database of Systematic Reviews 2000, Issue 3; Art No: CD

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