Q & A on 2GB discussing Compensation Law 04/07/13

Thursday, 4 July 2013

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CS       Better late than never.  We finally got our legal matters segment on air this afternoon.  131873 is the telephone number. We’re going to talk compensation law today and, of course, Turner Freeman sponsor this segment. They are quite willing to take your calls on aspects of compensation law and Gaius Whiffin is in the studio once again. There are a stack of changes when it comes to workers compensation rights and some we haven’t got to in previous compensation law segments so we thought we’d take it on today. Gaius, terrific to see you in the studio again.

GW     Thanks Chris.

CS       Thanks for coming in. Now, workers compensation rights in general. Tell us about weekly payments, medical expenses, lump sums for impairment, pain and suffering and some of the changes that I think our listeners should be aware of.

GW     Yeah, well Chris, the Workers’ Compensation Act has been in place since 1926, changed in 1987, major changes last year. It’s always allowed for three basic rights. One is, to be some compensation, not necessarily your wage but compensation while you’re off work because of a work injury, secondly, to be paid your medical treatment expenses, some sort of care expenses if need and, thirdly, to be paid a lump sum for what they currently call whole person impairment so if you’ve had a knee operation or if you’ve had a back operation and you’ve got an impairment that’s going to go on and permanent then you get a lump sum, not a very big lump sum but you do get a lump sum. Now the changes that were made last year affect all three rights and basically, in terms of the weekly compensation, there is now a cap on those payments of five years unless someone has a very very significant injury.

CS       Which is a major contentious point.

GW     I think that’s probably the major point with these changes. It’s not just a cap of five years. In a lot of people’s cases, they will actually lose weekly payments after two and a half years because they don’t reach a threshold of injury and they’re not actually working, they haven’t been able to find a job that earns them $155 a week or working 15 hours a week. That’s a threshold, after two and a half years to be able to continue to get your payments for another two and a half years to the five years, you have to work…

CS       They make it tough for people who are looking for a little bit of a hand-up.

GW     Look, it is tough, it’s very tough and it’s certainly a change that has never been envisaged before in the history of this Act. This Act was initially enacted all those years ago as beneficial legislation, it’s to benefit the workers and, unfortunately, some of these changes are really going to affect some people.

CS       Who pays this kind of money? Is it part employer/part Government? Who pays?

GW     Well, when someone has an injury, they claim against their employees insurer. The insurer is, in fact, an agent of the Work Cover Fund so, in effect, its Work Cover money. The insurers are managing the claims for Work Cover so that’s…the premium rates are set for employers, premium rates are set by a formula that’s in the Act and the Regulations and the employer, to some extent, chooses the insurer. The insurer has to be licensed by Work Cover. I think there’s only about…there’s maybe 5-7, I can’t remember the exact number but there’s a very small number of insurers that will do workers compensation insurance.

CS       Most people who have been through this process would probably jump on the open line and say that, for a long time, insurers have made it difficult anyway. So, what’s wrong with the system…is it the insurers saying, once again, we can’t afford to run systems like this, we can’t afford the payouts, we can’t afford the continual drip-feed, are they the ones crying poor?

GW     No, I don’t think so. I mean, at the end of the day, the premiums that were in force, prior to these changes, were made 19th June last year so they’ve been around for a year and a bit. The premiums prior to that date were certainly greater than most states and territories. There’s all sorts of arguments as to what the reasons for that were but what has happened is that the Government has decided in making these changes to change the benefit structure rather than necessarily the structure. For example, work cover or some of the other inefficiencies in the scheme. So, there’s certainly an argument that the injured worker is suffering rather than to make other changes to the nature of the scheme

CS       And what about if you claimed for your injury prior to the changeover in July last year but the court case to reconcile that occurred maybe at the beginning of this year. Where do you stand?

GW     Well, the Government made these changes retrospective so the changes will apply to everyone who was injured before 19th July last year.

CS       Right, so it doesn’t matter whether the Court decision was done last month?

GW     Well, there’s a court decision that was made…that court decision is in relation to one of the rights which is a right to claim the lump sum.  Now, that court decision is currently on an appeal but it only deals with the permanent impairment right and what the court decision says is that, even though the Government tried to make that part of the law retrospective, if you were actually injured before 19th June 2012, you still claim your permanent impairment lump sum under the old law rather than the new law and the difference is, under the old law, if you had an injury that was under 11% whole person impairment, you got some lump sum. The new law, you have to be over 11%.

CS       Ok, Gaius Whiffin from Turner Freeman is here to take your calls on 131873 focusing on compensation law today, a stack of changes. We’ll talk about earning capacity decisions as well in just a short moment 131873.

I’ve got Gaius Whiffin from Turner Freeman in our legal matters segment in the studio to take your calls.  Joe, you’ve got a question for Gaius, go right ahead.

C1       Well, yes, thanks Chris. I’ve got two questions. One is, you know when they give you a percentage whole body impairment. Let’s say the insurance gives you 20% and your own doctors give you 22% for arguments sake, then you have that continuously and the insurance company’s pushing you to get back to work, you haven’t recovered. In your own mind, you think you haven’t recovered, your own doctors tell you haven’t recovered but they sort of crumble under the insurance with the pressure and they send you back to work, you can’t work and the cycle becomes again. And, the other question I had was, can you still succeed under a common law claim given what the legislation is at the moment?

GW     Well, Joe, the first question is a bit difficult for me to answer without knowing a bit more and, if I know a bit more, unfortunately I breach certain regulations. In relation to your second question about the common law, the common law was amended in 2001 when they made some changes. They’re now called what they call work injury damages claims. To make such a claim, you need to prove two things. Firstly, that your employer was negligent, secondly, that you have over 15% whole person impairment. There has been no change to those thresholds under the changes that were made last year. The problem with a work injury damages claim is that you can only claim your economic loss, you can’t claim anything for pain and suffering.

C1       Because I noticed that they cut down the wages eventually. It’s really cut to the bone, you only get virtually half of the money and you’ve got to survive on that money, while you’ve been there three years and you’re waiting for compensation. I don’t know about the common law one but workers compensation…at the moment, I think it could be pittance because it doesn’t cover you fully.

GW     Yeah, look, it doesn’t. The changes that have been made, there’s two sections that deal with this. You can get 95% of your wages during the first 13 weeks you’re off work. The next, up to two and a half years, you can 95% as long as you’re working over 15 hours a week. If you’re not, you get 80% and after two and a half to five years, you only get 80% and that’s it.

CS       Alright Joe, let’s leave it there. Michael, you’ve got a question, go right ahead.

C2       Yeah, g’day guys, thanks very much. Hearing loss, just wondering what the percentages are. I had a hearing test last year. I have 13.9% hearing loss, unable to claim…it was after June last year. I was just wondering where I stand with retesting and re-submitting a claim?

GW     Yes, look, Michael I think it was. I can’t, again, sorry I can’t give you specific advice. I can say…I believe I can say this and that is, you need to get over 11% whole person impairment but make a claim for any lump sum, whether it be a hearing loss claim or a back injury or whatever. In terms of hearing loss, 11% whole person impairment is 20.5% by an oral, that’s overall hearing loss.

C2       Ok then, no worries so I can retest annually and if the problem persists, then try and make another claim?

GW     I can’t answer that question unfortunately. There are various regulations that I can’t give specific advice. I can give general advice but not specific advice unfortunately.

CS       Alright Michael, thank you very much for your call. Now, earning capacity decisions. Explain to us where that’s at.

GW     Well, the earning capacity decision is a decision made by an insurer so when someone’s on weekly payments of compensation. They’re off work, they’re either not working at all or they’re not working as they used to be, the insurer makes a decision as to how much to pay them. The insurer can deem that they’re fit to do more work than they’re actually doing. Those decisions under the changes that were made are no longer appealable to any tribunal or court. Where they go is a three step process and this is one of the major inefficiencies in my opinion with the scheme is, you firstly appeal to someone within the insurer, you secondly appeal to work cover itself and, effectively, you’re going through the same process there and, thirdly, there’s what they call an Independent Review Officer but you can only appeal to him on merits.

CS       Gee there are some bars to jump over.

GW     There’s bars to jump over. Previously, when you didn’t like what an insurer was paying you in terms of weekly payments, you did one thing.  You appealed that case to the Workers’ Compensation Commission, which is still in existence and could still hear those claims and there’s a one step process, the earning capacity decision process is a three step process for which the worker is not entitled to legal representation, the insurer though has all their in-house lawyers so it’s a very very one-sided process.

CS       And if you’re an accountant, you’ll be right on top of it. Fantastic, Gaius, thank you very much for your time, thank you for answering those questions and we’ll see you again.

GW     Thanks Chris.

CS       Gaius Whiffin from Turner Freeman in our legal matters segment on compensation law.