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Compensation crackdown squeezes lawyers along with injured workers

Compensation crackdown squeezes lawyers along with injured workers

Date September 28, 2012

An old legal acquaintance of mine got in touch by email.

”I have read your articles on somewhat esoteric subjects … however I wonder if you might care to write something about an issue of real significance to the average person” – i.e. recent amendments to the Workers Compensation Act.

The message was pretty clear. Forget Julian Assange and all those bleeding heart issues and wake-up to yourself.

Amid myriad world shattering issues jostling for attention, it is now the turn of workers compensation to get its place on the opinion page.

These changes in NSW were inevitable as soon as Barry O’Farrell and his crew got their ample backsides on the Treasury leather.

There were a couple of driving forces, one of which is that the Coalition ideologically prefers employers to workers, the other being a $4 billion black hole in the scheme administered by WorkCover.

One way of fixing the hole would have been to jack up the premiums payable by employers to their insurers. That looked unattractive because employer lobby outfits started screaming about the thousands of people who would be sacked if the cost of workers compensation coverage went up.

Obviously, the far more attractive approach was to conjure a variety of ways to squeeze injured workers until the pips squeaked.

The genesis of today’s problems goes back to Bob Carr’s era in 2001. The agency, WorkCover, against the advice of other ”stakeholders” in the system, decided to cut off lump sum payments to the injured and impaired.

Instead, everyone would have to take weekly compo payments.

Fast forward 11 years and WorkCover insists the scheme is in dire need of changing because, shock horror, weekly payments are out of control.

The remedy, therefore, is to make claiming for weekly benefits arising out of workplace injuries as unattractive as possible. But the ways of achieving this outcome are brutal.

A system is invented of non-appealable assessments by the insurers of injured workers’ capacity. In other words, the people who hold the money decide whether an injured worker is entitled to receive the money.

The decision by the insurer about capacity to earn is final and binding. The Workers Compensation Commission, which used to arbitrate on these things, is expressly excluded.

About 40 per cent of the work of the commission used to be deciding entitlements to continuing weekly payments.

That process has been transferred to the insurance companies, so no prizes for guessing who has the upper hand.

Procedural processes are reviewable but not the merits of a decision, which sounds a bit like the Ruddock-era refugee laws.

For the great number of workers there will be no entitlement after 21/2 years of weekly payments and no medical expenses after 12 months from then.

Workers suffering permanent impairment as a result of injury are now retrospectively denied any compo unless their level of impairment is at least 11 per cent.

That’s a massive leap from the previous requirement of 1 per cent impairment and of itself will deny 60 to 70 per cent of the injured from receiving any payment for pain and suffering and continuing treatment.

An insurer does not have to pay medical expenses if the treatment has not been approved in advance, unless the treatment is provided within 48 hours of the injury occurring. There are a whole lot of other get-out clauses, but essentially it means you’ll probably have to ring the claims manager before you ring the ambulance.

There’s no room to have these expenses covered when the injury manifests some time after the accident occurred.

Eligibility for payments arising from heart attacks and strokes, diseases contracted at work and journey-related injuries have all been put beyond reach, except in the starkest of cases.

Then there’s the daddy of them all, legal costs. As a result of an amendment conjured by the Christian Democrats and the Shooters in the upper house, and supported by the government,workers instead of insurers will have to pay their own legal costs in connection with work capacity reviews.

Further, in making a claim for compensation in the first place, each party is to bear their own costs.

Again, this transfers the balance of power to the insurers and makes a nonsense of the right to review of an insurer’s decision.

Unsurprisingly, lawyers were up in arms about being cut out of the game as a way of creating disincentives for claimants.

It’s why one lawyer with 40 years experience in the workers compensation business tells me, ”this is the most vicious, nasty and unjust piece of legislation I have ever seen”.

Certainly, the Nile amendment still stands and it makes accessing the system more difficult.

In the good old days, Sydney workers compensation lawyers used to make a feast of the process by stacking up multiple claims in the court, earning generous fees for each case, most of which shared similar facts, and then retired to lunch for the rest of the day.

It was one of the great doozies of the law and in part is responsible for the venal mindset of some personal injury lawyers – that the system is there to be easily milked.

As a last-minute repair job, this week the government announced it would create a panel of ”independent” lawyers to provide a free service in reviewing insurance company decisions.

The legal profession was not quite sure how to respond. The bar association said it was an ”incomplete solution” and wanted to know how much money would be funneled from insurers into this legal assistance scheme.

Greens MP David Shoebridge put his finger on the problem, saying the system would reward lawyers chosen by the government who served the interests of WorkCover.

Put another way, there’s nothing like free lawyers to stir the anxiety of expensive lawyers.

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