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Workers compensation dispute resolution reforms

An improved workers compensation dispute resolution system for NSW commenced on 1 January 2019 and applies to all decisions made by the insurer on or after that date.

It follows the passing of the Workers Compensation Legislation Amendment Act 2018 by the NSW Parliament.

The streamlined system is designed to make the dispute resolution process simpler and clearer, with more consistent outcomes for workers, employers, insurers and other providers.

When disputes do occur, the improved system positions the Workers Compensation Commission (WCC) as the central body for workers compensation dispute resolution.

The changes seek to:

1. Prevent disputes

  • There are new pathways for anyone who has been unable to resolve their workers compensation issue with the insurer in the first instance.

    The Workers Compensation Independent Review Office (WIRO) manages all enquiries from (or on behalf of) injured workers, as well as complaints about the conduct of the insurer regarding the handling of their claim.

    SIRA assists injured workers who have a complaint about their employer or a provider (for example, a treatment provider). SIRA also manages enquiries and complaints from employers and other stakeholders related to workers compensation.

Workers with an unresolved enquiry, or a complaint about an insurer contact WIRO on 13 94 76 or email complaints@wiro.nsw.gov.au. Employers or other stakeholders with an unresolved enquiry or complaint; or workers with a complaint about their employer or provider contact SIRA on 13 10 50 or email contact@sira.nsw.gov.au. The Workers Compensation Commission (WCC) is now the central body for resolving all workers compensation disputes.

For more information about the new pathways read the factsheet.

  • A new simplified and transparent calculation of pre-injury average weekly earnings (PIAWE) enables insurers, employers and workers to understand and explain the process more clearly.

    Note: The new PIAWE calculation is expected to commence later in 2019 after further consultation with stakeholders.

2. Improve dispute processes

  • The WCC is the central body for resolving disputes related to work capacity decisions, medical, liability and permanent impairment. An injured worker can choose to:
    • ask for an optional review of their work capacity decision by the insurer (by a different person within the insurer), or
    • lodge a dispute directly with the WCC.

      Legal assistance:
      Workers can contact a lawyer if they are unsure about what the insurers decision notice means or if they would like to challenge (dispute) their work capacity decision. WIRO has a list of approved lawyers who can give advice which may be at no cost to the worker. The list is available on the WIRO website www.wiro.nsw.gov.au. Workers can also call WIRO on 13 94 76 or email: ilarscontact@wiro.nsw.gov.au

  • Insurers must issue a decision notice which clearly outlines the reasons for the decision and the impacts on the injured worker’s entitlements.
  • Permanent impairment compensation can be awarded by the WCC without an approved medical specialist, in some circumstances, allowing disputes to be resolved faster.

3. Improve regulation

  • Employers have the flexibility to digitally display legally required information about workers compensation and return to work programs on their websites and intranets.
  • Amended commutation provisions mean that workers who meet the criteria of a catastrophic injury, entitling them to medical and related treatment and services under the National Injury Insurance Scheme (NIIS), cannot commute their compensation for medical, hospital and rehabilitation under the workers compensation legislation. However, these workers still retain the right to commute their entitlements to weekly payments thereby aligning the NSW workers compensation system with the NIIS.

From 26 October 2018:

  • The expansion of the SIRA board from three to five members further enhances the regulator’s governance of the improved workers compensation dispute resolution system.
  • SIRA has more ability to gather and share information on workers compensation to improve oversight of the sector.
  • Fairer insurance provisions for workers who are injured in a motor vehicle while at work, by addressing legislative inconsistencies between the Motor Accident Injuries Act 2017 and the Workers Compensation Act 1987.

Commencement dates for workers compensation dispute resolution amendments

The following schedules have been proclaimed and are available on the NSW Legislation website.

Commencing from 1 January 2019:

  • dispute resolution provisions (including notification of claims)
  • referral of matters to approved medical specialists at the Workers Compensation Commission
  • mandatory reporting
  • restriction of commutation for medical expenses compensation for workers eligible under the National Insurance Injury Scheme
  • the notification of workers compensation information by employers.

The following changes to the Regulation will also take effect on 1 January 2019:

  • changes to notification of insurer decisions
  • procedures for internal reviews following a work capacity decision
  • mobile devices as a method to notify workers of return to work programs
  • other minor related matters.

Scheduled previously commenced as at 1 December 2018 include:

  • Schedule 5 (indexation provisions)

Schedules previously commenced as at 26 October 2018 include:

  • Schedule 4 (information sharing provisions apart from mandatory reporting)
  • Schedule 6 (motor accident provisions)
  • Schedule 7.1 (SIRA board provision)
  • Schedule 8 (savings and transitional provisions)

The following scheduled have not yet commenced:

  • Schedule 3 (PIAWE provisions)
  • Schedule 1.3 [1] to [4]

Consultation and implementation

SIRA consulted widely with stakeholders on the implementation of the improved workers compensation dispute resolution system and the development of supporting regulations and guidelines.

On Thursday 1 November 2018, more than 120 people attended the SIRA stakeholder forum in Sydney to hear about and share their thoughts on the implementation phase of the Workers Compensation Legislation Amendment Act 2018.

Watch the video recording or view the PowerPoint presentation from the forum.

You can provide feedback or receive information on the improved dispute resolution system, including the upcoming PIAWE changes, by sending an email to disputereforms@sira.nsw.gov.au.

Background

The amendments follow extensive consultation with key stakeholders, including industry representatives and the public. You can read further background on the reforms, including the consultation discussion paper and public submissions, on the consultation site.

New law makes it easier for firefighters to claim compensation

The law has changed to simplify the process for eligible NSW firefighters to make claims for workers compensation entitlements and support, if diagnosed with a specified primary cancer.

The Workers Compensation Legislation Amendment (Firefighters) Bill 2018 was passed by the NSW Parliament on 22 November 2018 and enables eligible firefighters diagnosed with any of 12 specified primary cancers, and who meet the corresponding minimum qualifying periods of service, to automatically be presumed to have developed the cancer because of their firefighting work or volunteer service.

The law change means that:

  • eligible firefighters diagnosed with any of the 12 specified primary cancers, and who meet the corresponding qualifying periods of employment or service, on or after 27 September 2018 are entitled to the presumption
  • there is no time limit on when a diagnosis must be made after stopping work or volunteer service as a firefighter, for the presumption to apply
  • eligible firefighters diagnosed before 27 September 2018 may be able to access the presumption retrospectively when specific circumstances are met
  • an employer can dispute the presumption by proving that the claimant’s cancer is not related to their work or service as a firefighter.

The presumption applies to paid, volunteer, current and former firefighters from the following organisations:

  • Fire and Rescue NSW
  • NSW Rural Fire Service
  • Office of Environment and Heritage (NSW National Parks and Wildlife Service)
  • Forestry Corporation of NSW
  • Sydney Trains.

The presumption does not apply to volunteers in a NSW Fire and Rescue Community Fire Unit.

The 12 specified primary cancers and the corresponding qualifying periods of service are:

DiseaseQualifying service period
Primary site brain cancer 5 years
Primary leukaemia 5 years
Primary site breast cancer 10 years
Primary site testicular cancer 10 years
Primary site bladder cancer 15 years
Primary site kidney cancer 15 years
Primary non-Hodgkin lymphoma 15 years
Multiple myeloma 15 years
Primary site prostate cancer 15 years
Primary site ureter cancer 15 years
Primary site colorectal cancer 15 years
Primary site oesophageal cancer 25 years

The presumptive legislation has not created any new workers compensation benefits and entitlements for eligible firefighters, rather it is designed to make it quicker and easier for eligible firefighters to claim and access existing workers compensation entitlements.