Workers compensation regulation bulletin - Issue 94

New regulations to support the presumptive legislation

Today, the Workers Compensation Amendment (Consequential COVID-19 Matters) Regulation 2020 commenced to support recent legislation that introduced a presumption for some COVID-19 affected workers.

The presumption means that workers in prescribed employment who are diagnosed with COVID-19 are automatically presumed to have contracted the disease in the course of their employment. These workers have a presumptive right to workers compensation.

The Regulation sets out the medical tests and results required for workers to be taken to have contracted COVID-19 for the purposes of the presumption. The Regulation also provides further detail about these workers’ presumptive right to weekly payments and clarifies the categories of prescribed employment.

SIRA’s Claims management guide has further information about the COVID-19 presumption that is tailored to workers and other stakeholders and insurers.

SIRA open data April 2020 now available

The latest workers compensation system open data as at April 2020 is now available through the SIRA Open Data webpage. System performance data also includes daily COVID-19 claim and notification statistics.

SIRA invites your feedback

SIRA is seeking feedback on the Health outcomes and reporting framework for the NSW workers compensation and CTP schemes and how it can be most effectively used by SIRA and scheme participants to improve health outcomes and the value of health care expenditure.

NSW Workers Compensation System Regulatory Activity 2019-20

During the 2019-20 financial year SIRA maintained targeted compliance and enforcement activity in order to deliver on our strategic goals of improving customer experience and results, maintaining scheme and policy affordability, and building public trust.

Our regulatory activity over the last few months was affected by the need to respond to the issues arising from the COVID-19 pandemic. SIRA adapted the way we engage with insurers, providers and stakeholders in the scheme in order to comply with the COVID-19 restrictions established by Government.

SIRA’s regulatory activities continue to be focused on areas of highest risk to injured people, policy holders and the workers compensation scheme. SIRA takes firm and fair enforcement action as needed, based on the severity of harm or potential harm, the degree of negligence, and/or the need for deterrence.

Previous Regulatory Activity Bulletins have included some figures for the pilot phases of compliance and enforcement programs which were undertaken in 2018-19. This has meant that some figures from the previous financial year were included in those Bulletins which reported on later phases of those programs. Any variances have now been accounted for and verified key compliance and enforcement activity for 2019-20 is summarised below:

Employers:

10,190 businesses purchased a workers compensation policy after SIRA commenced non-insurance investigations. This reflects $13.33 million in additional premium raised and 30,288 more employees now being covered by a workers compensation policy.
$408,000 in penalty notices issued under s155 of the Workers Compensation Act 1987 to businesses who were not insured.
26 referrals were made to Revenue NSW to commence recovery action for $1,043,716 of avoided premiums under s156 of the Workers Compensation Act 1987.
103 notices were issued to employers who had failed to establish a return to work program, failed to appoint a return to work coordinator, or not provided suitable work pursuant to the Workplace Injury Management and Workers Compensation Act 1998.
425 visits were made by inspectors to employers with injured workers at risk of not returning to work (as identified through predictive modelling).
152 complaints regarding employers not providing suitable work were referred for investigation.

Insurers:

SIRA issued 24 civil penalties of $5,500 each (totalling $132,000) against the Nominal Insurer, managed by icare, for failure to commence weekly payments in line with s267 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
SIRA issued five civil penalties of $5,500 each (totalling $27,500) and five civil penalties of $11,000 (totalling $55,000) on the Nominal Insurer for failure to apply the 30 per cent cap to premium rate increases for employers, as required by the Market Practice and Premium Guidelines.
A compliance and performance review of the Nominal Insurer was finalised in December 2019. The review found that the deterioration in the performance of the Nominal Insurer is largely attributable to the new claims model implemented by icare in January 2018. SIRA released a 21-Point Action Plan which addresses the key issues identified in the review.
SIRA issued a letter of censure to icare following failure to comply with a direction requiring compliance with the provision of scheme data related to return to work data items.
SIRA required the provision of information/data from the Nominal Insurer under s40C of the Workplace Injury Management and Workers Compensation Act 1998 in order to review PIAWE risk, as detailed in issue 87 4/2020 of the workers compensation regulation bulletin.
A self and specialised insurer self-assessment for weekly payments of compensation was undertaken. The self-assessment reviewed actions taken by 10 insurers in response to a claim for weekly payment to ensure the appropriateness of actions taken to gather information to determine PIAWE – including considering accuracy, timeliness and governance.
Three performance audits were conducted on self and specialised insurers.
Two audits were conducted with selected insurers to assist in testing a new claims management audit tool, which was recently updated to align with the current workers compensation guidelines and standards of practice.
SIRA issued 86 notices under the Workplace Injury Management and Workers Compensation Act 1998 to obtain information for suspected breaches of the 1998 Act.
SIRA issued 204 notices under s238AA of the Workplace Injury Management and Workers Compensation Act 1998 to require insurers to provide claims information.
SIRA issued formal warnings to 10 self and specialised insurers for claims information licence breaches.
Special licence conditions were imposed on renewed licences for two self-insurers as a result of SafeWork NSW investigations.
One self-insurer was notified of SIRA’s intent to impose new licence conditions due to claims information provision licence breaches.
One self-insurer had special licence conditions imposed on their renewed licence as a result of financial concerns.
One specialised insurer was issued with two penalty notices in the amount of $500 each due to legislative breaches. The same specialised insurer had a shorter 12-month licence extension granted and two special licence conditions imposed due to claims performance issues.
One self-insurer had a shorter 12-month licence extension granted and special licence conditions imposed due to financial concerns and claims data performance issues
One self-insurer’s licensing tier was downgraded from top tier to mid-tier.
Two self-insurers had their tier moved to ‘Under review’ due to ongoing wage underpayments concerns.
SIRA granted six new self-insurer licences.
SIRA extended 16 self-insurer licences due for renewal in 2020 for a 12-month period to reduce regulatory burden during the COVID-19 crisis.

Providers:

SIRA issued 49 caution letters to medical practitioners/providers regarding compliance obligations.
Two practitioners/provider compliance visits were made to obtain information under powers.
Investigations were conducted into two providers due to suspected duplicate invoicing, overcharging and over-servicing.
Investigations were conducted into one provider for failing to comply with SIRA inspectors. The same provider was also suspended from operating in the NSW workers compensation system as it no longer meets SIRA’s approval criteria for allied health practitioners.
SIRA suspension or revoked approval for 116 allied health providers.
Warning letters were issued to three medical practitioners and specialists regarding non-compliance with Fees Orders.
SIRA conducted meetings with two medical practitioners to address billing non-compliance.
Article published in AMA members publication regarding SIRA’s increased provider supervision focus.
SIRA made a referral to the Legal Services Commissioner regarding the business practices of a legal firm in relation to industrial deafness claims.
SIRA made two referrals to the Health Professional Councils Authority regarding conduct of health practitioners in the workers compensation system.
SIRA sent 83 letters to allied health practitioners for anomalous billing of duplicate and over-payments above maximum fee orders.

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