“IF you don’t think you can afford to live on the dole, then you can’t afford to get injured at work.”
So says Bernard Fitzsimon, co-chairman of Central West Union Alliance, the peak union and community body in this region that advocates for the collective interests of trade unions from the police association through to nurses, teachers, construction workers and government department employees.
The most recent changes to the law concerning workers’ compensation in NSW are revolutionary, radical and repulsive according to Mr Fitzsimon.
“What O’Farrell has done is trash over 100 years of hard won rights for ordinary, decent working people,” he said.
Fitzsimon is incensed in particular by the abolition of the right to compensation for injury on the way to work, a so called journey claim.
“The scrapping of a worker’s right to benefits for injury on the way to work is obviously aimed at country people,” he said.
Fitzsimon is right. Plainly a person who lives in Sydney with access to public transport, better roads and fewer hazards such as animals on the road in the early morning and late night is less likely to be injured on the way to work than a country person.
Following the changes to the law if a country worker is injured while travelling to work they have to prove that the injury had a real and substantial connection with their employment. What the hell does that mean?
Likely it means that many people who deserve to receive the benefit of the ever growing pot of money that WorkCover sits on, money collected from compulsory employer paid premiums, gets no assistance.
Read the case study adapted from a real-life situation in the insert concerning a journey claim. Does this person suddenly deserve to miss out?
I’ve seen online commentary suggesting that the cure to this journey claim mischief is for workers to take out income protection insurance. What a joke!
Let's put more money into the insurance company pockets. Its not like the employer has a choice to pay workers’ compensation premiums - it’s compulsory. The government should use the money for what it is intended, and not to increase the WorkCover pot.
The changes mean that injured workers have to pay their own legal costs of fighting an insurer’s decision, even if they win the case. That proposition may have some instinctive attraction but a closer analysis of how it will play out is very concerning.
Prior to now if the insurer chopped you off, your solicitor could act for you and if you ultimately succeeded in having the insurer’s decision overturned, the insurer had to pay your legal fees - fees fixed by regulations mind.
The insurers are now denying all new claims, and they are looking at existing and old claims - all denied. No benefits.
We as solicitors who act for the people who are affected are seeing the effects. People who have good arguable claims to compensation, in many cases are not receiving their legislated benefits. And there’s nothing that can be done unless solicitors are going to become registered charities and act for no fee.
See the inset for the poor man who is now fighting the insurer. How is this fair?
As Mr Fitzsimon points out the government has in reality kicked an own goal with these changes to the law.
With private law firms unable to act for workers, unions will be forced to step in and fix the problem, employing their own legally qualified advocates to appear for and fight the claims of injured workers who belong to a union.
Fitzsimon urges people who are not members of their union to at least inquire as to the available benefits.
This government does not realise what it has done.
Insurance claims officers can now, sitting at their desk, decide the rights of an injured worker by performing their own workplace capacity assessment. What a delightful euphemism for chopping someone off.
The worker has no access to any fair and independent review of that assessment to fight their claim if the insurer chops them.
The government has announced a new system involving an independent review process in which the worker can be legally represented. Details are to be provided but is this not just yet another layer of bureaucracy? The harshness rolls on.
Before Bob Carr took the axe to the system workers received a lump sum for permanent damage.
So if you fell out of a truck while loading it and smashed your elbow you received a set amount for the permanent damage to your arm. These rights were restricted by reforms introduced by Carr about 10 years ago.
Now a worker gets no lump sum compensation unless they are over an extremely high level.
Entitlements to medical expenses and payments of a weekly benefit have been slashed for work injury except in the most severe cases.
If you cannot get back to work within two years following your injury you get chopped. It is grotesque. And it will affect all workers.
Mr Fitzsimon again: “People will not understand the drastic nature of what has been done by the government until they are unlucky enough to receive an injury at work, through no fault of their own. And it is all going to be too late. This is Work Choices all over again and the government has picked a fight it will not win.”
The disgrace of all this is that it is based on a fraud.
Successive governments have peddled the deception that WorkCover is broke. This is false. WorkCover has money in the bank.
The WorkCover deficit is based on the estimated future cost of existing claims. For example, the cost of a claim by a 25-year-old council worker who breaks his ankle at work is estimated by WorkCover to be a cost to the scheme of about $300,000, based on an assumption that the worker will not ever return to work.
This is ridiculous and the books are cooked, or as Mr Fitzsimon so delicately states, “Its an actuary’s wet dream.”
Sooner, hopefully rather than later, we will get some people back in Macquarie Street who understand real life.
Case study one
IN 1990 a 22-year-old health professional was injured in a car accident travelling between regional towns on their way to work at a hospital. Severe multiple broken bones and brain injury were suffered in the accident. The worker has since required operations, regular neurological review, medication to control seizures, pain control, physiotherapy, and weekly payments to cover a shortfall in earnings. The worker has managed to remain in part time employment. These benefits would all be denied under the new changes.
Case study two
IN April 2012 a young man working as a labourer falls down stairs at work and suffers a prolapsed disc in his lower back. This man has three young children, one of whom has autism. He owns a modest home and has a mortgage. His young wife does not work, her time busy looking after the children. The insurer denies the claim outright and this family now has no income, the man has to wait for surgery on his back in the public system, is in constant crippling pain, and has developed severe depression. The bank wants its loan repaid. Under the new scheme he has few options unless a solicitor acts for no fee.
- Toby Tancred
Whiteley Ironside & Shillington