Consultation summary: Public consultation draft workers compensation regulation 2016 (July 2016)

Clause 6

Minimum amount of PIAWE

Recommended increasing the prescribed amount of $155.

Clause 7

Minimum number of hours each week

Expressed concern that the proposed change of title from ‘Prescribed number of hours – calculation of PIAWE’ to 'Minimum number of hours each week’ may create confusion if it is not linked to the calculation of PIAWE.

Questioned whether this is the best mechanism for employment contracts with alternate ordinary contract hours contained in industrial instrument instruments.

Part 5

Return-to-work programs under the 1998 Act

Suggested amendment to ensure that return to work coordinators are required to:

• undertake initial and regular training
• abide by a code of practice.

Clause 36

Notice of dispute about liability

Suggested that clause 43(3) of the 2010 Regulation should be retained in the draft 2016 Regulation to provide a defence to prosecution for an offence of failing to comply with section 74 of the 1998 Act where it is established the notice issued by the insurer complied with guidelines issued by the Authority as to the form and substance of the notice.

Opposed any attempt to generalise the information provided by the Authority. For example, if specialist advice currently provided by SafeWork NSW/SIRA, including the customer service centre, was moved to ServiceFirst.

Commented that:

• there is considerable confusion about whether a Notice is in relation to a liability decision or a work capacity decision.
• Clause 36(d) should refer to all reports not just those that are 'relevant'.
• Clause 36(g) must refer to WIRO and the ILARS Scheme.

Clause 38

Form of register of injuries to be kept at workplace

Noted there is an interpretation question as to whether the Regulation may insist on further information beyond the legislation (1998 Act).

Clause 40

Interim payment direction not presumed to be warranted

Recommended amending the clause so that the issuing of a section 74 notice disputing liability negates the presumption in favour of granting an IPD order for medical treatment (under section 297(4)(d) of the 1998 Act) and weekly payments of compensation (under section 297(3) (e) of the 1998 Act).

Part 8

Restrictions on obtaining medical reports

Proposed a new clause be inserted to allow injured workers to have a support person at medical appointments

Noted receiving complaints from workers that insurers ‘doctor shop’ to obtain medico legal opinions that favour denial of liability or lower assessed degrees of permanent impairment.

Clause 41

Definitions

Noted it is not clear that a 'threshold dispute' continues to have effect since the one assessment provisions were introduced in the 2012 reforms.

Clause 42(3)

Restrictions on number of medical reports that can be admitted

Recommended amending cl 42(3) to read ‘in that speciality or a similar speciality’ in lieu of ‘in that speciality’.

This would ameliorate the ‘practical problems that arise when the actual qualifications of similar specialist are different – and one report cannot be admitted even though the two specialists are both expressing opinions about the same symptoms’.

Clauses 42 & 44

Commented that the definition of medical report should refer to an independent medical report as referred to in the Fees Orders issued by SIRA.

Clause 45

Restrictions on recovery of cost of medical reports

Recommended removal of this clause as the WCC no longer has power to award costs and section 341 obliges each party to pay their own costs.

Part 15

Marketing of work injury agent services

Commented on breaches under Part 15 ’if the application extended to insurers and employers’ and attempts to advertise through social media.

Part 16

Costs

Noted that clause 86 refers to section 337(3) of the 1998 Act. This section still refers to the defunct nomenclature, ‘legal practitioner’ rather than the term utilised in the Legal Profession Uniform Law (NSW) – namely, ‘a law practice’.

Also noted the definitive article ‘the’ should be placed before the multi-word noun ‘law practice’ in clauses 87(3) and 91(3).

Recommended removing the current scale costs regime and replacing with a more detailed and flexible costs regime.

Commented that Part 16 Division 2 be removed as ILARS funds most applications for compensation which may require determination in the Workers Compensation Commission.

Also suggested that the subsequent sections relating to assessment of costs should be deleted as the Supreme Court maintains the Costs Assessment Service and this would simply duplicate that Service.

Clause 132

Costs orders in respect of certain matters

Suggested this clause is no longer applicable as the Registrar does not have that power.

Clause 143 (7)

Cost of an individual claim

Queried whether Clause 143 (d) is still applicable.

Clause 144 (1)

Cost of provisional payments of comp

Noted that the clause Incorrectly refers to paragraphs (a) and (b) – should refer to paragraphs (a) and (c).

Clause 171

Cost of medical assessment: sec 330 of 1998 Act

Commented that this clause appears to contradict section 341 in respect to costs.

Insert cl 176

Noted that the draft 2016 Regulation does not include a clause equivalent to clause 185 of the 2010 Regulation which repeals the Workers Compensation Regulation 2003.

Schedule 2

Medical tests and results brucellosis, Q fever & leptospirosis

Recommended amending Schedule 2 to include procedures for diagnosis of Lyme Disease.

Schedule 3

Clause 20

Employer must tell insurer if unable to give suitable work requested by injured worker

Recommended this provision should specifically address facilitation of early intervention and recovery and that this information be made available to the employer and employee at the time of injury.

Schedule 5

Penalty Notice Offences

Questioned why the penalty amounts in Schedule 5 have not been reviewed and adjusted.

Schedule 8

Savings and transitional provisions

Noted a concern with the ‘no disadvantage’ test in clause 2.  The submission noted that ’some seriously injured workers, now workers with highest needs, have moved into employment post injury; but in some circumstances, the worker’s weekly payments cannot be adjusted to take into account their earnings. This is because the no disadvantage test still applies and in some cases, the worker’s weekly payments would fall below the amount they were entitled to receive had they not transitioned to the new weekly payments’.

Commented that  ‘It is not apparent whether the purpose of clause 38 is limited to retaining the 2010 regulations for exempt workers only or, alternatively, whether the 2010 regulations are taken to exist concurrently with the 2016 regulations’.

Suggested the removal of:

• restrictions on the payment of medical expenses
• the retirement age provision in clause 27(1).

Also suggested amending clause 27(1)(b) to encompass all required aids and devices and their servicing and replacement over time.

Questioned if the provisions in Clause 38 of Part 5 are the only provisions that require exemption. It suggested a statement retaining all benefits of the 2010 Regulation for exempted employees would provide greater reassurance.

General comments

Requested SIRA to provide an update as to what changes will be made to the Regulation and when these changes will occur.

One submission generally addressed matters beyond scope of the remake. The submission questioned the ‘legality of Regulation in its entirety’.

One submission registered an ‘objection to the existing 2010 and draft 2016 Regulation’ and addressed matters beyond the scope of the remake.