General / overarching principles

The Personal Injury Commission Act 2020 (PIC Act) establishes the Personal Injury Commission of New South Wales from 1 March 2021.

The Personal Injury Commission is a single, independent tribunal which will replace the Workers Compensation Commission and SIRAs Dispute Resolution Services that manage disputes involving injured workers and road users on and from 1 March 2021.

The PIC Act also establishes the Independent Review Officer (IRO). On and from 1 March 2021, the IRO replaces the Workers Compensation Independent Review Officer (WIRO) and also assumes functions in the motor accident scheme. The functions of the IRO are set out in Schedule 5 to the PIC Act.

The Personal Injury Commission Rules 2021 commenced from 1 March 2021 and will apply to all proceedings commenced in the PIC on or after 1 March 2021.

SIRA has amended its workers compensation Standards of practice to include a new Standard S33. Managing psychological injury claims for the management of psychological injury claims. Standard 33 will take effect from 1 March 2021.

Standard 33 is based on the principle that psychological injury claims are to be managed with empathy and a strong focus on early treatment, tailored communication, and timely recovery and return to work. It has been designed to:

• support and set expectations for insurers in their management of psychological injury claims
• include expectations for insurers to develop procedures to identify and provide early support for workers who may develop a secondary psychological injury
• promote the management of claims in accordance with legislative requirements, while tailoring services to workers’ needs, providing transparent communication about the process, establishing trust with the worker and focusing on early treatment and return to work
• support the insurer to adopt practices across four key evidence-based domains including; a person-centred approach, collaboration, early identification of support needs and outcome focused decision-making

Certificates of capacity

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 commenced on 24 March 2020 and introduced changes to section 44B of the Workers Compensation Act 1987, intending to relieve pressure on general practitioners and the overall health system during the COVID-19 (Coronavirus) pandemic.

As detailed in the Workers Compensation Amendment (COVID-19) Regulation 2020, the time-limited provisions allow second and subsequent certificates of capacity to be issued by the worker's treating physiotherapist and psychologist. Broadening the range of health practitioners that can certify a worker's capacity will improve accessibility to certificates and limit interruption to the payment of weekly payments during the COVID-19 pandemic.

Presumptive legislation for COVID-19

The COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 commenced on 14 May 2020. It enabled workers in prescribed employment who are diagnosed with COVID-19 to automatically be presumed to have contracted the disease in the course of their employment. The supporting Workers Compensation Amendment (Consequential COVID-19 Matters) Regulation 2020 commenced on 24 July 2020.

The changes mean that:

• workers that work in the list of prescribed employment are entitled to the presumption that COVID-19 is work-related
• eligible workers who contract COVID-19 are presumed to be incapable of work until 21 days from the date of injury, or until the date on the workers' certificate of capacity
• an employer can dispute the presumption by proving that the claimant's contraction of COVID-19 is not related to their work or employment.

The presumption is designed to make it quicker and easier for workers to claim and access workers compensation entitlements. Refer to Insurer guidance GN 2.2A Disease injury for further information.

Changes to PIAWE and weekly payments for JobKeeper

The Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 commenced on 23 October 2020.

The economic downturn resulting from the COVID-19 pandemic resulted in loss of employment and a reduction in earnings for many NSW workers. Commonwealth government financial incentives served to support worker’s earnings during the pandemic, by providing financial support to qualifying employers. This support in the form of the JobKeeper Scheme payment was passed on in full to their eligible workers to ensure those workers remained connected to their employment.

The amendments to the calculation of PIAWE and weekly payments were necessary to accommodate the payment of subsidies to workers and the disrupted working arrangements for workers during the pandemic.

The amendments provide clarity about how JobKeeper payments should be treated for PIAWE and weekly payment calculation purposes. The changes also allow for the adjustment of the relevant earning period under certain circumstances.

The changes provide that:

• In calculating PIAWE, the relevant earning period may be adjusted to take into account a financially material reduction in total earnings due to changes in a worker’s employment arrangements.
• In calculating weekly payments, JobKeeper payments are included in the ‘current weekly earnings’ of a worker.

Refer to GN 5.1A Calculating PIAWE for more information on the changes to PIAWE.

Other minor amendments

Minor amendments to the Workers compensation guidelines also commenced on 17 April 2020, and include:

• Removing the requirement to obtain pre-approval for certain telehealth consultations by the nominated treating doctor and medical specialists
• Requiring an insurer to consider relevant laws or public health orders made in relation to COVID-19 when requiring workers to attend appointments, and ensuring workers are informed about seeking assistance from WIRO
• Clarifying that a pandemic, such as COVID-19 in Australia, would be considered a special circumstance for examination by independent medical examiners via video consultation.

On 26 June 2020, a new Standard of practice S32. Managing claims during the COVID-19 pandemic was introduced. It is aimed at ensuring a flexible and adaptable approach to claims during the COVID-19 pandemic and applies to all workers compensation claims and insurers from 26 June 2020.

The Statute Law (Miscellaneous Provisions) Act (No 2) 2019 increased the maximum amount payable for funeral expenses from $9,000 to $15,000 in respect of the death of a worker resulting from a dust disease (as defined in the Workers Compensation (Dust Diseases) Act 1942). This applies to deaths occurring on or after 5 August 2015.

These changes are consistent with the recommendations of the Law and Justice Committee’s 2018 Final Report on the 2018 review of the Dust Diseases Scheme, which recommended an increase in funeral expenses in the Dust Diseases Scheme to bring it in line with the maximum funeral expenses in the principal workers compensation scheme and Coal Mines Insurance.

Legislative amendments to simplify and improve the way in which pre-injury average weekly earnings (PIAWE) are calculated were passed by Parliament in October 2018 as part of the Workers Compensation Legislation Amendment Act 2018.

The changes to the legislation are supported by amendments to both the regulations and guidelines, and apply to workers injured on or after 21 October 2019.

The Workers Compensation Amendment (Pre-injury Average Weekly Earnings) Regulation 2019 makes provision with respect to the calculation of a worker’s PIAWE for the purposes of determining the worker’s entitlement to weekly compensation of payments.

This includes:

• the circumstances in which the 52-week relevant earning period may be adjusted
• matters which may be considered for workers employed for less than 4 weeks (short-term workers)
• the calculation of PIAWE for certain apprentices, trainees and young people
• preparing and approving PIAWE agreements
• excluding certain payments made by the employer from a worker’s PIAWE
• adjustment payments to workers following any increase in weekly payment compensation resulting from a PIAWE work capacity decision

The Workers compensation guidelines (the Guidelines) were amended by the addition of Part 10: Pre-injury average weekly earnings. The Guidelines contain provisions with respect to PIAWE for apprentices, trainees and young people, as well as non-monetary benefits.

The Workers Compensation Amendment (Minimum Pre-injury Average Weekly Earnings) Regulation 2019 was published on 13 December 2019. Clause 8AB of the 2016 Regulation prescribes the minimum PIAWE amount of $155 for injuries received on or after 21 October 2019.

The Workers Compensation Legislation Amendment Act 2018 introduced changes to simplify workers compensation dispute resolution processes and restored the Commission exclusive jurisdiction for all disputes under the Acts.

The changes to workers compensation dispute resolution commenced on 1 January 2019 and apply to all decisions made by insurers on or after that date.

Other changes included provisions to reduce or prevent disputes, modernising the operation of the workers compensation legislation and allowing SIRA to more effectively undertake its regulatory and oversight functions.

The Act was passed by NSW Parliament on 17 October 2018 and assented to on 26 October 2018.

New pathways for inquiries, complaints and disputes

From 1 January 2019, changes have been made to the way inquiries and complaints are dealt with. In summary:

• workers who have an enquiry, or a complaint about the insurer, which they have been unable to resolve with the insurer in the first instance, should contact WIRO
• workers who have a complaint about their employer or a provider (ie treatment provider), which they have been unable to resolve with the insurer in the first instance, should contact SIRA
• employers and other stakeholders who have an enquiry or a complaint related to workers compensation, should contact SIRA.

Jurisdiction of the Workers Compensation Commission

From 1 January 2019, the Commission has exclusive jurisdiction to hear and determine all workers compensation disputes under the Acts, including work capacity decision disputes.

This means the workers compensation dispute resolution functions of SIRA (in relation to merit review), and WIRO (in relation to procedural review regarding work capacity decisions), have been removed.

Changes to workers compensation dispute resolution processes

Several other changes were made to dispute resolution, including:

• the introduction of a single decision notice to be provided to workers where an insurer decides to dispute liability or make a work capacity decision
• enabling a worker to seek an optional internal review by the insurer for both a work capacity decision and a decision to dispute liability
• changes to the way that the stay of a work capacity decision operates, meaning that the stay will apply only to a work capacity decision if an application for dispute is lodged with the Commission before the period of notice expires

changes to legal costs in relation to work capacity decisions, which are now payable in accordance with Schedule 6 of the 2016 Regulation for both the worker (paid by ILARS administered by WIRO) and the insurer

• allowing the Commission to determine disputes relating to permanent impairment (instead of by an approved medical specialist).

Miscellaneous amendments

Other miscellaneous amendments introduced in the Workers Compensation Legislation Amendment Act 2018 include:

• amendments relating to indexation, which allow SIRA to approve and issue indexation adjustments, rather than the Minister, or by regulation
• amendments to the Motor Accident Scheme which apply retrospectively from 1 December 2017, to ensure that recoveries are limited to entitlements payable under each scheme. The changes mean that a worker injured in a motor accident will receive the lifetime medical benefits that they are entitled to under the CTP scheme
• an increase in the number of ‘other SIRA Board members’ from ‘up to three’ to ‘up to five’
• changes to the commutation provisions to ensure workers with ‘catastrophic injuries’ (as defined) have access to lifetime compensation for medical, hospital and rehabilitation
• enabling all workplaces to use electronic methods to display and provide information regarding return to work programs
• allowing workplaces to use electronic methods to display and provide information regarding the summary of the Act (the ‘If you are injured at work’ poster).

The Workers Compensation Legislation Amendment (Firefighters) Act 2018 was passed by the NSW Parliament on 22 November 2018 and assented to on 28 November 2018.

The changes enable 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:

• 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 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.

Two transitional provisions were introduced into the 2016 Regulation (see Part 2A, Schedule 8), which allow eligible workers to access ongoing entitlement to weekly payments beyond five years (260 weeks).

These provisions provide that certain workers:

• may be excluded from the five-year cap on weekly payments
• are able to undertake a further assessment of the level of permanent impairment.

These provisions took effect from 1 October 2012 and apply to workers who were in receipt of weekly payments immediately before 1 October 2012 (“existing recipients”).

Certain workers may be excluded from the five-year cap on weekly payments

Part 2A, Schedule 8 of the 2016 Regulation provides that section 39 does not apply to an ‘existing recipient’ if the injury has resulted in permanent impairment and:

• an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment (on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable), or
• the insurer is satisfied that the degree of permanent impairment is likely to be more than 20 per cent (whether or not the degree of permanent impairment has previously been assessed).

Further assessment

Part 2A, Schedule 8 of the 2016 Regulation permits one further assessment of the degree of permanent impairment in respect of ‘existing recipients’. The further permanent impairment assessment is for the purposes of Part 3 of the 1987 Act.

Accordingly, if a further assessment takes place under this provision, and identifies the worker to have a particular degree of permanent impairment, then this assessment will also be relevant when determining, for example, the worker’s access to reasonably necessary medical treatment and services.

The State Insurance and Care Governance Act 2015 and cognate Workers Compensation Amendment Act 2015 (the 2015 amending Act) introduced reforms to government insurance services and workers compensation benefits.

The two Acts were passed by Parliament on 13 August 2015 and were assented to on 21 August 2015.

Structural reforms

The 2015 amending Act reformed the governance and regulatory arrangements for statutory insurance and compensation schemes in NSW.

The legislative reforms created three new agencies which replaced the functions of WorkCover Authority of NSW and enabled the structural separation of the insurance and regulatory functions.

As of 1 September 2015, the three new agencies were:

• State Insurance Regulatory Authority (SIRA): an independent insurance regulator. SIRA has assumed the regulatory functions of WorkCover in relation to workers compensation insurance and the Motor Accidents Authority in relation to Compulsory Third Party (CTP) insurance, and the regulatory functions relating to home building compensation.
• Insurance & Care NSW (icare): a single claimant-focused insurance and care service provider. icare acts for the Nominal Insurer. icare provides services to  the Workers Compensation Nominal Insurer, Lifetime Care and Support Authority, Dust Diseases Authority, SICorp and Sporting Injuries Compensation Authority.
• SafeWork NSW: the independent workplace safety regulator. SafeWork NSW is the state’s workplace health and safety regulator.

Workers compensation benefit reforms

The 2015 amending Act introduced benefit reforms that focused on three key objectives:

• helping workers with the highest needs
• supporting workers with a work-related injury to recover and return to work
• ensuring the financial sustainability of the scheme.

Some provisions of the 2015 amending Act commenced on assent to the Act. The remaining provisions commenced over time, starting from 16 October 2015.

Reforms that commenced on 16 October 2015

Weekly payments and retiring age: Weekly payments would now be available for up to 12 months after reaching retiring age for all claims for weekly payments made on or after 1 October 2012.

The dependants of a worker who dies in a work-related accident or because of a work-related injury on or after 5 August 2015 are entitled to an increased maximum lump sum death benefit of $750,000. Reasonable funeral expenses of up to $15,000 are also payable where a worker dies in a work-related accident or because of a work-related injury on or after 5 August 2015.

Entitlement to the increased lump sum death benefit also applies to volunteer bush fire, emergency and rescue services workers and coal miners.

Indexation of the new lump sum death benefit amount commenced on 1 April 2016.

For injuries received on or after 5 August 2015, the compensation payable for permanent impairment increased to a maximum of $577,050 for workers with a permanent impairment of 75 per cent or more.

The compensation payable for each percentage of permanent impairment of more than 10 per cent also increased. Further, from 1 July 2016, permanent impairment payments are indexed annually.

Reforms that commenced on 4 December 2015

Medical, hospital and rehabilitation expenses

All workers are entitled to reasonably necessary medical expenses for up to two years from the date the claim was made, or two years from when the worker’s entitlement to weekly payments ceased.

However, for workers with a permanent impairment of 11 to 20 per cent, the entitlement period for reasonably necessary medical expenses is extended to up to five years from the date the claim was made, or five years from when the worker’s entitlement to weekly payments ceased.

Workers with a permanent impairment of more than 20 per cent have an entitlement to reasonably necessary medical expenses for life.

All workers are able to make a claim for secondary surgery and make a claim for artificial aids, and home and vehicle modifications for life.

Weekly payments

Workers with high needs (more than 20 per cent permanent impairment) who have been assessed by an insurer as having current work capacity, will no longer be required to work at least 15 hours per week to receive weekly payments after the end of the second entitlement period (130 weeks or 2.5 years).

Workers with more than 30 per cent permanent impairment now have access to a minimum weekly amount of $788.32 per week. If the worker’s income (made up of weekly payments and any earnings) falls below $788.32, the insurer will increase the weekly payments to this amount.

The change applies to all weekly payments on or after 17 September 2012. This amount is indexed in April and October each year. The first indexed adjustment review date was 1 April 2016.

Workers would also have the benefit of a work capacity decision stayed by the insurer while it is under review (eg weekly payments cannot be reduced during this time providing the decision has not taken effect).

Return to work assistance benefits

The return to work assistance benefits, introduced as part of the 2015 benefit reforms, commenced on 29 April 2016. These benefits provide:

• new employment assistance of up to $1,000 for workers with a work-related injury who accept work with new employers
• education or training assistance of up to $8,000 for workers assessed with greater than 20 per cent permanent impairment, who have received weekly payments for more than 78 weeks.

The pre-conditions for accessing the return to work assistance benefits are prescribed in the 2016 Regulation.

Legal costs for the review of a work capacity decision

Workers could obtain legal advice, payable by the insurer, in connection with an application for a merit review of a work capacity decision. A worker would be eligible to access legal advice:

• after an internal review of a work capacity decision by the insurer has been conducted and the worker notified of the decision, or
• if the insurer has not completed the internal review of the work capacity decision within 30 days after the worker made an application for internal review.

If the application was made and resulted in a favourable finding or recommendation, costs are payable up to $1,800.00 plus GST, or in any other case up to $1,200.00 plus GST.

The Workers Compensation Amendment (Existing Claims) Regulation 2014 introduced a number of changes to workers compensation benefits.

These changes apply to workers who sustained a work-related injury and who had made a claim for compensation for that injury before 1 October 2012. These changes do not apply to workers who made a claim after that date.

The changes allow:

• workers to continue to receive certain medical and related expenses until retiring age
• workers with whole person impairment of 21 per cent to 30 per cent to have access to medical and related expenses until retiring age
• for the insurer to meet the cost of any secondary surgery
• that workers may receive weekly payments while a work capacity decision is being reviewed
• entitlement to weekly payments for up to one year after retiring age.

Medical and related expenses

As a result of the changes, a worker may have continued access to certain medical and related expenses until retiring age.

Workers with a permanent impairment of between 21 and 30 per cent will have continued access to ongoing reasonably necessary medical and related expenses until retiring age.

For all other claims made before 1 October 2012, workers requiring the following types of medical and related treatment will have continued access until retiring age regardless of their degree of permanent impairment:

• home and vehicle modifications
• crutches
• artificial members, eyes or teeth
• spectacles or other artificial aids (including hearing aids and hearing aid batteries).

The insurer is still required to pre-approve any such treatment or service.

If a worker disputes the insurer’s decision, an unresolved matter may be referred to the Workers Compensation Commission (the Commission). ILARS can provide access to funding to pay for costs incurred by workers when disputing decisions made by the insurer (other than exempt workers).

Secondary surgery

Workers who require secondary surgery are entitled to receive it, as long as the secondary surgery:

• is directly consequential to an earlier surgery
• affects a part of the body affected by the earlier surgery
• is approved by the insurer within two years of approval of the earlier surgery.

The insurer is still required to pre-approve any such treatment or service.

If a worker disputes the insurer’s decision, an unresolved matter may be referred to the Commission. ILARS can provide access to funding to pay for costs incurred by workers when disputing decisions made by the insurer (other than exempt workers).

Eligibility for weekly payments until a review of a work capacity decision has been completed

In 2012, ‘work capacity’ was introduced into the NSW workers compensation system. At certain points during a worker’s claim, the insurer makes a work capacity decision which can affect a worker’s entitlement to weekly payments.

Work capacity decisions could be reviewed through a three-step review process:

1. After a worker receives a work capacity decision notice, they may request an internal review by the insurer.
2. If a worker is not satisfied with the outcome of an insurer’s internal review, or if the review is not completed within 30 days, the worker may lodge an application to the State Insurance Regulatory Authority (SIRA) to carry out a merit review of the insurer’s internal review decision.
3. If a worker is not satisfied with the outcome of a SIRA merit review, the worker may lodge an application for procedural review by WIRO within 30 days of receiving the merit review decision.

If a worker requested a review of a work capacity decision within 30 days after the day of receiving notification of the decision (whether the decision is an initial work capacity decision, an internal review decision or a merit review decision), an insurer may be prevented from taking action (such as reducing or ceasing weekly payments) while the work capacity decision is being reviewed, or until the worker withdraws the application for review.

Weekly payments on retiring age

Under the changes, a worker was entitled to receive weekly payments for a maximum of 12 months after reaching retiring age.

The Workers Compensation Legislation Amendment Act 2012 introduced a number of changes to workers compensation benefits. The Act was passed by Parliament on 22 June 2012 and assented to on 27 June 2012.

The laws changed the way workers compensation benefits claims are assessed and paid. The changes affected all new and existing workers compensation claims, except claims from:

• police officers, paramedics and fire fighters
• workers injured while working in or around a coal mine
• bush fire fighter and emergency service volunteers (Rural Fire Service, Surf Life Savers, SES volunteers)
• people with a dust disease claim under the Workers' Compensation (Dust Diseases) Act 1942.

Changes with effect on and after 19 June 2012

For permanent impairment lump sum compensation claims made on or after 19 June 2012:

• payments for pain and suffering under section 67 of the 1987 Act are no longer available
• a threshold of more than 10 per cent permanent impairment for physical injury (including hearing loss) must be reached to access permanent impairment lump sum compensation. The threshold for a primary psychological injury lump sum payment remains at 15 per cent permanent impairment.

Workers are no longer entitled to make multiple permanent impairment claims. Only one claim can be made for permanent impairment compensation in respect of an injury.

Journey claims for an injury received on or after 19 June 2012 can only be made if there is a real and substantial connection between the employment and the incident out of which the injury arose.

No compensation is payable for heart attack and stroke injuries received on and after 19 June 2012 unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.

The definition of ‘injury’ was amended to define a ‘disease injury’ as a disease that is contracted in the course of employment only if the employment was the main contributing factor. ‘Disease injury’ also encompasses the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease provided the employment was the main contributing factor. This applies to all injuries received on and from 19 June 2012.

The amendments prevent a claim for damages for nervous shock where the nervous shock is not a work injury (that is, prevent a claim for damages by relatives of an injured or deceased worker because the relative’s injuries are not work injuries). The amendments do not apply where court proceedings for nervous shock claims commenced before 19 June 2012.

Seriously injured workers

The following reforms for seriously injured workers (injured workers with a permanent impairment of more than 30 per cent) came into effect on 17 September 2012:

• the minimum amount used to calculate the weekly payment was increased to $736.72 gross
• there is no time cap on weekly payments, except for the Commonwealth retirement age
• there is no time limit on payments for reasonably necessary medical and related expenses
• seriously injured workers will not have to undergo a work capacity assessment every two years, unless the worker requests one to explore return to work options.

Weekly payments

The changes to weekly payments/benefits came into effect on 1 October 2012 (for new claims) and from 1 January 2013 (for existing claims).

The changes to weekly benefits included:

• a method for calculating worker entitlements based on the worker’s pre-injury average weekly earnings (PIAWE), incorporating overtime and shift allowance in the initial 52 weeks of weekly payments
• up to 95 per cent of PIAWE for the first 13 entitlement weeks of a claim
• for entitlement weeks 14 to 130, weekly payments will be 80 per cent of PIAWE. If a worker returns to work for at least 15 hours per week, weekly payments will be made up to 95 per cent of PIAWE.
• 130-week limit – for all workers except where they meet specified requirements:
  • workers who are fit to do some work and are not performing at least 15 hours of paid work per week by the end of the 130th week of incapacity will not be entitled to payments after that time.
  • workers who achieve an actual return to work of more than 15 hours, or have no capacity for work, or have whole person permanent impairment of more than 30 per cent are not subject to this time limit.
• five-year limit:
  • workers with a whole person impairment of 20 per cent or less may only receive up to 260 weeks (five years) of weekly payments
  • workers with permanent impairment of more than 20 per cent are not subject to this time limit.
• weekly payments and retirement:
  • if an injury occurs before retiring age, a worker may be entitled to weekly payments until they reach retiring age
  • if an injury occurs after reaching retiring age, a worker may be entitled to weekly payments in the period up to 12 months after the first date of incapacity.

Work capacity assessments

Work capacity assessments are to be undertaken by the insurer. The assessment involves a review of the worker’s medical, functional and vocational status, and helps inform decisions about the worker’s capacity to return to work in suitable employment and their entitlement to weekly benefits.

A work capacity assessment can occur at any point in the life of the claim. A decision must be made on the worker’s work capacity by 130 weeks, and then will be reviewed at least every two years thereafter.

WorkCover Independent Review Office

The June 2012 reforms also established the WorkCover Independent Review Office (WIRO) (from September 2015 known as the Workers Compensation Independent Review Office). WIRO is responsible for:

• dealing with complaints made by workers about insurers
• encouraging high quality complaint resolution by insurers and employers
• reporting annually to the Minister and the Parliament on their responsibilities
• administering the Independent Legal Assistance and Review Service (ILARS). This service facilitates access to free independent legal advice to workers, in circumstances where there is a disagreement regarding entitlements.

Medical and related expenses

The changes to payments for medical and related treatment came into effect on 1 October 2012 for new claims, and 1 January 2013 for existing claims.

Under the changes, payments for medical and related treatment were to end at whichever occurs last:

• where no weekly payments for compensation are payable, 12 months after the claim for compensation is made, or
• 12 months after the last payment of weekly benefits.

This restriction does not apply to workers with a permanent impairment of over 30 per cent. For these workers, entitlement to medical cover will continue for life.

A number of changes were made to the legislation between 1987 and 2012.

Amendments passed in 1989 restored limited entitlements (retrospective to 30 June 1987), for seriously injured workers to sue their employer for damages at common law. Those provisions included an eligibility threshold related to the seriousness of the worker’s injury.

Amendments effective from 1 February 1992 increased the maximum workers compensation lump sum entitlements for permanent injury (section 66) and pain and suffering (section 67) by 25 per cent and reduced the level of the common law eligibility threshold so that larger numbers of injured workers would qualify for common law claims.

Amendments effective from 1 September 1994 increased lump sum benefits for severe facial and bodily disfigurement to 80 per cent and 50 per cent respectively of the maximum permanent injury lump sum under section 66 of the 1987 Act.

Amendments effective from 1 January 1996 introduced lump sum benefits under sections 66 and 67 for HIV/AIDS and bowel injuries.

Amendments effective from 12 January 1997 reduced the maximum lump sum for permanent impairment under sections 66 and 67 of the 1987 Act by 25 per cent.

The 1998 Act (apart from the injury management provisions) commenced on 1 August 1998 together with changes to the 1987 Act made by the 1998 Act. The injury management provisions commenced on 1 September 1998.

The 1998 legislation continued the benefit provisions of the 1987 Act with some exceptions such as reducing section 38 benefits from a maximum of 104 weeks to 52 weeks for those who first receive section 38 benefits on or after 1 August 1998.

The following amendments, effective from 27 November 2001, affected common law claims:

• where a claim is filed with the court after 9.00 am on 27 November 2001, no damages are awarded unless the degree of permanent impairment of a worker is at least 15 per cent
• the degree of permanent impairment is assessed using the WorkCover guides for the evaluation of permanent impairment
• common law damages for a worker are only awarded in respect of past and future loss of earnings
• all workers compensation benefits (except common law payments) are available even if a common law claim has been lodged. However, once common law damages are recovered, then entitlement to any further workers compensation benefits cease, and any weekly payments that have been made to the worker are deducted from the common law settlement.

The following amendments effective from 1 January 2002 affect workers compensation benefits (other than common law payments):

• the maximum lump sum benefit under section 66 of the 1987 Act was increased to $200,000 for injuries received on or after 1 January 2002. The maximum lump sum benefit for section 67 remains at $50,000
• for injuries received from 1 January 2002, benefits under section 66 of the 1987 Act are determined by the worker’s degree of permanent impairment assessed in accordance with the WorkCover guides for the evaluation of permanent impairment
• primary psychological or psychiatric injuries are eligible for the benefits under section 66 of the 1987 Act (permanent impairment), provided that the degree of permanent impairment is at least 15 per cent (section 65A(3) of the 1987 Act)
• to be eligible for compensation under section 67 of the 1987 Act (pain and suffering), the degree of permanent impairment must be at least 10 per cent for a physical injury or at least 15 per cent for a primary psychological or psychiatric injury
• single and multiple physical injuries that have resulted from the same accident/incident are assessed together to determine the degree of permanent impairment of the injured worker. Permanent impairments arising from primary psychological or psychiatric injuries are assessed separately from physical injuries. In all cases, secondary psychological or psychiatric injuries are disregarded in determining the degree of permanent impairment
• if a worker receives a primary psychological or psychiatric injury and a physical injury arising out of the same incident, the worker is entitled to receive compensation for impairment resulting from only one of these injuries, whichever results in the greater amount of compensation being payable.

For injuries occurring on or after 1 January 2006, amendments to section 66(2A) of the 1987 Act increased the amount of compensation payable for permanent impairment of the spine by an additional five per cent. The maximum amount payable under section 66 of the 1987 Act was increased from $200,000 to $210,000.

For injuries incurred on or after 1 January 2007, the lump sum payable for permanent impairment (under section 66 of the 1987 Act) was increased by 10 per cent, up to a maximum of $231,000. The 10 per cent increase applies to all types of permanent impairment, including spinal impairments.

The Workers Compensation Legislation Amendment (Benefits) Act 2008 introduced a number of amendments to workers compensation death benefits. These amendments:

• increased the lump sum death benefit to $425,000
• allow the lump sum death benefit to be paid to a worker’s estate where the deceased leaves no dependants
• ensure that weekly payments to a dependant are not to be reduced because of partial dependency. However, partial dependency may still be taken into account when apportioning the lump sum between multiple dependants
• are retrospective and apply to deaths that occur on or after 24 October 2007, and are as a result of workplace injuries that occurred on or after 30 June 1987.

A number of amendments to the lump sum death benefit payable under the Workers' Compensation (Dust Diseases) Act 1942 commenced on 7 December 2010, these amendments:

• increased the lump sum death benefit payable to dependants of deceased workers from $245,700 (current amount payable) to $311,050. The increase was implemented in three annual increments:
  • the first increment to $268,375 was payable on commencement of the Workers’ Compensation (Dust Diseases) Amendment Act 2010
    (7 December 2010)
  • the second increment to $291,040 was payable 12 months from the first increment
  • the final increment to $311,050 was payable 24 months from the first increment.
• enabled the Dust Diseases Board to take into account the age of the worker when determining the amount of lump sum compensation to be paid to a dependant of the deceased worker.

The lump sum was not indexed during this period. Indexation of the lump sum recommenced on 1 April 2013.

The Workers Compensation Legislation Amendment Act 2010 introduced a number of amendments to workers compensation legislation. The amendments commenced on 1 February 2011 and included the following changes to benefit-related provisions:

• clarification that the maximum statutory cap for weekly benefits (section 40 of the 1987 Act) is applied to the compensation payment only. This means that the cap applies to the make up pay component of a worker’s weekly income, not the total amount received by the worker, including wages or salary. The amendment applies to periods of incapacity from 1 February 2011 regardless of the date of injury
• removal of restrictions on the maximum amount for which an employer is liable for workplace rehabilitation services provided to an injured worker (repeal of sections 63A(3) and (4) of the 1987 Act)
• commencement of indexation of the maximum amount for an interim payment direction for medical expenses (section 297(2) of the 1998 Act) from 1 April 2011.