No lump sums for 16,000 hurt employees

Joan Lemaire
Senior Vice President

About 16,000 injured workers who expected lump sum payments for their injuries which occurred before 2012 will not receive their entitlements.

This follows a recent High Court decision that confirmed the NSW Government’s cuts to workers compensation in 2012 are retrospective.

The High Court decision will save WorkCover around $350 million on lump sum payments to these workers. These savings come on top of the savage cuts to workers’ entitlements which the NSW Government introduced in 2012. These cuts have turned WorkCover’s $4 billion deficit in 2012 into a surplus of $1.6 billion this year. It is estimated that this surplus will continue to grow by around $500 million every six months, all at the expense of injured workers.

The 2012 changes have:

  • reduced weekly compensation payments to injured workers
  • stopped weekly payments after two and a half years for the majority of workers who have not recovered from their injuries and are unable to return to work
  • prevented workers claiming lump sum payments for pain and suffering unless they are assessed as having at least 10 percent whole person impairment. This sets a very high threshold. A worker with a crushed foot and ankle as a result of a forklift accident was only assessed as 6 per cent of whole person impairment which meant he could not receive any lump sum payment
  • limited payment of medical expenses to one year even when the initial injury deteriorates over time
  • cut journey claims for workers injured on their way to and from work
  • restricted cover on injuries where work may exacerbate the injury but is not the only contributing factor.

In addition, WorkCover Independent Review Officer Kim Garling has noted that workers are restricted from getting legal advice about work capacity, which is one of the main tests for eligibility for compensation, and may not be aware of their right to appeal to his Office. Insurers on the other hand can use lawyers and are not required to tell injured workers about their appeal rights.

As a result of the combined union campaign against the workers compensation cuts an amendment was passed in 2012 requiring the Government to review workers compensation legislation in 2014 and determine “whether the policy objectives of the amendments remain valid”. It is clear that WorkCover is not in deficit and that workers are suffering as a result of these changes. However, the Government has undermined the review process by announcing it on the Government’s Have your Say website and limiting the timeframe to May 8–31. This will limit the ability of workers, unions and communities to effectively engage in the consultation process. These limitations in the face of WorkCover’s surplus and the WorkCover Independent Review Office’s acknowledgement of the barriers faced by workers in claiming their entitlement suggests the Government is not committed to a genuine review.

Federation, other unions and Unions NSW have responded to the review, but are sceptical of the process. Unions NSW and affiliated unions have determined that the campaign to restore a fair workers compensation system must continue beyond the review and up to the state election. The unions have endorsed “12 Guiding Principles” to restore a fair workers compensation system which will support injured workers, restore lost entitlements and encourage employers to meet their responsibilities under the Work Health and Safety Act.

Unions NSW is coordinating a survey of injured workers in NSW to assess the ongoing impact of the 2012 changes. The survey results will be presented to the NSW Parliament on June 19, the second anniversary of the passage of this unjust legislation. Injured workers’ stories will form the basis of the continuing campaign to restore a fair and equitable workers compensation system.