In the early hours on 22 June 2012, the New South Wales Parliament passed the Workers Compensation Legislation Amendment Bill. The Bill had only been introduced into the Parliament on 19 June 2012. The Bill makes substantial amendments to the workers compensation scheme, and these amendments are retrospective. They will apply to workers injured before 19 June 2012.
Weekly payments of compensation for total and partial incapacity for work are now paid as follows:
- First 13 weeks – 95% of pre – injury average weekly earnings.
- Weeks 14 to 130 – 80% of pre – injury average weekly earnings (or 95% of pre – injury average weekly earnings if the worker is able to work at least 15 hours per week in suitable employment).
- Weeks 130 to 260 – 80% of pre – injury average weekly earnings if totally incapacitated; otherwise there is no entitlement unless the worker has specifically applied to the insurer for a continuation of weekly payments, he / she is working at least 15 hours per week, he / she is receiving at least $155.00 per week for that work, and he / she is likely to continue indefinitely to be incapable of undertaking any further work.
- After 5 years – there is only an entitlement to ongoing weekly payments if the worker is assessed as having greater than 20% whole person impairment in accordance with WorkCover guidelines.
In relation to a worker injured prior to 19 June 2012 who is currently receiving weekly payments of compensation, the insurer is required to conduct a work capacity assessment no later than 19 June 2013. Then on the expiration of a period of 3 months after this assessment, the worker is to be paid weekly payments of compensation in accordance with the above formulae.
The work capacity assessments of insurers (whether in relation to workers injured before 19 June 2012 or after that date) are final, and can only be reviewed through a bureaucratic process. They cannot be reviewed by an independent Court or Tribunal, and workers are not entitled to legal representation during the bureaucratic review process.
There are also now caps on the period during which injured workers are entitled to have their medical costs paid by insurers:
- If no weekly payments of compensation have been made, the cap is 12 months after the claim for compensation.
- If weekly payments of compensation have been paid, the cap is 12 months after the worker ceased to be entitled to weekly payments of compensation in accordance with the above formulae.
- There is no cap in relation to a seriously injured worker (a worker with more than 30% whole person impairment in accordance with WorkCover guidelines).
It is also now the case that medical treatment costs are not payable at all unless pre – approved by insurers.
The Bill further abolishes the right of an injured worker to claim any pain and suffering compensation, as well as abolishing the right of an injured worker to claim any permanent impairment lump sum compensation unless the impairment is assessed at 11% or more whole person impairment in accordance with WorkCover guidelines.
The Bill only allows one claim to be made for permanent impairment lump sum compensation in respect of an injury. Once that claim is made, any deterioration in the injury would not be compensable in lump sum compensation, even if the deterioration was as a result of significant surgery.