Attwood Marshall Lawyers welcomes the joint investigation by The Age, The Sydney Morning Herald and ABC TV’s Four Corners which uncovered mismanagement of the state government-run Workers’ Compensation schemes in New South Wales and unethical conduct in the Victorian Scheme.
The report notes what we already know – problems in these schemes are “leading to delays and to denials of medical treatment, making some workers sicker and delaying their return to their jobs”.
One email from the NSW Treasury notes that the regulator is “increasingly concerned about the financial viability of the workers’ insurance scheme” and that “the fund’s solvency is at risk”.
The stories from injured workers noted in The Sydney Morning Herald article are of no surprise to Attwood Marshall Lawyers. We see similar events occurring on a daily basis to our clients. It is very distressing to our clients to have to deal with these issues on top of the serious interruption to their lives brought about by workplace injuries. This also makes it difficult to act for injured clients as they cop a ‘double whammy’ with the injury itself and battling the insurance system.
The NSW Workers’ Compensation Scheme
The State Insurance Regulatory Authority (SIRA) is the government agency responsible for overseeing the NSW workers’ compensation scheme There are three workers’ compensation insurers in NSW – icare, self-insurers and specialised insurers. icare provides workers’ compensation for an estimated 3.5 million NSW employees.
icare is meant to support the long-term needs of those injured in the workplace to improve quality of life, and help people return to work.
The chief executive of workers’ compensation regulator State Insurance Regulatory Authority, Carmel Donnelly, told the joint media investigation she had “grave concerns” about icare and was deeply disappointed in its performance.
Carmel Donnelly, along with CEO of icare, John Nagle, appeared before a NSW upper house inquiry on Monday 3rd August, to give evidence to the committee. After being grilled for almost three hours about alleged mismanagement and under-performance, John Nagle resigned from his position.
Mr Nagle was asked about his failure to declare, in the agency’s annual report, business-class flights to Las Vegas to speak at a conference organised by software company Guidewire in October 2018. This was the same software company that has received millions of dollars in contracts from icare to provide claims management software.
Mr Nagle told the parliamentary inquiry that he initially considered resigning from icare after he was formally sanctioned by the board in June 2019.
The troubled workers’ compensation scheme is facing an annual loss of at least $850 million and the NSW Treasury calls for news laws to deal with the sharp rise in medical fees paid by injured workers. The significant loss is expected to worsen as a result of COVID-19.
Concerns about the insurance scheme include ongoing losses, problems with icare’s policy system, and service charges which the regulator says are high relative to other jurisdictions. Despite all the issues with the compensation scheme, icare’s executive team continue to have soaring remuneration. They are likely to be the highest paid executives in the NSW government sector. They have also been queried about conflicts of interest, mismanagement, and collusion with employers to deny claims.
A spokesperson for the Australian Lawyers Alliance (ALA), Mr Shane Butcher, will also tell the inquiry that elements of the Scheme are inherently unfair.
“A person who is injured at work should be entitled to have the costs of their medical expenses covered as long as it is reasonably necessary.”
“Unfortunately, the way the current system operates locks injured workers out of benefits for arbitrary and capricious reasons,” said Mr Butcher.
A System That Does Not Work
In 2018, icare implemented a new claims model which was intended to make claims management more efficient through automation. The new system cost hundreds of millions of dollars. It failed to achieve any level of efficiency as workers struggled to get treatment. This led to a decline in return to work rates, which is a crucial indicator of just how well a workers’ compensation scheme is performing.
Since the new claims model started, there are now estimated to be 20,000 more people off work long-term than before the new claims model was introduced two years ago.
NSW Treasury documents reveal icare has underpaid tens of thousands of sick and injured workers up to a total of $80 million in claims benefits. icare delayed informing regulators of the underpayment scandal for three months and failed to tell the NSW Treasury at all.
icare have refuted the claim that they have underpaid workers up to a total of $80 million, and revised this estimate as closer to $10 million, with 5000 to 10,000 workers being underpaid.
Employers and Insurance Providers Caught Colluding
Insurance giant QBE manages the workers’ compensation claims for corrective services staff, on behalf of icare, in New South Wales.
In a recent report by The Sydney Morning Herald, three prison guards employed by NSW Corrective Services had workers’ compensation claims for bullying and harassment declined by QBE.
A report obtained during the investigation gave a glimpse into strategies used by the insurance company to knock back claims, including doctor-shopping, which is a practice where the insurer or employer use doctors who have a track record of toeing the line. The report also referred to the altering of statements.
This investigation shows just how far insurance companies are willing to go to deny claims of workers who have been significantly impacted or injured at work.
The report cites a disturbing conversation between the employer (NSW Correctional Services) and QBE who were colluding on the best way to decline the claim so that the employee had no choice but to return to work without compensation or treatment.
The Corrective Services employee, who is still on the payroll, tells QBE: “Sometimes it’s cruel to be kind and hit them in the pocket. And when he’s not getting any money and he’s married with kids and most probably his own home, he’s most probably got to think well f— sake I’ve got to do this.”
QBE replies: “Yeah … I think he’s close to that now.”
How does Queensland’s Compensation Scheme Compare?
Attwood Marshall Lawyers is in the unique position of straddling the QLD-NSW border. Our expert lawyers act for those injured at work in both states. We regularly encounter the many disparities between each state’s compensation schemes and frequently call out the self-serving pleas by insurers for QLD to change its compensation schemes to that of NSW’s.
As one of the only law firms to practice both NSW and QLD workers compensation claims, we are well placed to analyse the primary differences between the two schemes. The information contained below comprises opinion formed over many years working on behalf of the injured worker (and not insurers):
|Workers Compensation Statutory Benefits||QLD workers almost immediately access weekly benefits, medical treatment and return to work assistance.
Workers are occasionally denied reasonable treatment or cut short on their claims but claims generally run smoothly. Problems are usually rectified efficiently.
|NSW insurers usually fight tooth and nail to prevent workers accessing benefits, deny workers access to required treatment and weekly payments for inordinate periods, and/or cut workers off benefits far too early. Rectifying the insurer’s decision then takes considerable time, during which injured workers are often left without support or benefits in place.|
|Attitude to Workers Compensation Benefits||QLD workers’ compensation insurers generally allow injured workers to go through treatment programs as recommended by their treatment providers.
The QLD system is more collaborative between insurer and injured worker to ensure optimum outcomes. Appeals of incorrect decisions by workers’ compensation insurers are usually addressed readily.
Return to work numbers are higher.
|NSW workers’ compensation insurers often contact a worker’s treatment provider to talk them out of recommending treatment, reduce the amount of treatment required, or to certify a worker as fit for work or suitable duties when the treater has already certified that worker is unfit for work.
Despite what NSW insurers say, the system is more adversarial between insurer and injured worker. Appeals of incorrect decisions by workers’ compensation insurers usually take unreasonably protracted lengths of time.
|Access to statutory benefit lump sums||QLD workers who have an impairment of 1% or more (i.e. any permanent injury) will receive access to a lump sum commensurate with its severity.||NSW workers will not receive a lump sum unless they have an impairment of 10% or more (which precludes many claims).|
|Access to Common Law Compensation for Negligence||QLD workers injured at work due to the employer’s negligence are entitled to make a common law compensation claim for negligence – without an impairment threshold.
Access to a common law claim is readily available.
In NSW, you need at least 15% whole person impairment to claim compensation for negligence (which precludes all but the most seriously injured workers from even claiming compensation). The threshold is disastrously high and grossly unfair.
E.g. A 45-year-old labourer injures his back at work due to dangerous/faulty machinery, suffers a 12% impairment, has surgery, and can never work in manual employment again. In NSW, he is not entitled to claim common law compensation (lump sum for past and future losses for his injuries) despite the injuries being caused by someone else’s negligence. After receiving a temporary period of statutory benefits, he simply must put up with his impairment for life.
|Is the Compensation Awarded fair?||In QLD, common law compensation for negligence includes a lump sum payment for damages for each of the following:
1. General Damages (pain and suffering);
2. Past and future treatment and rehabilitation costs;
3. Past and future paid care costs (e.g. cleaners, gardeners, taxis etc);
4. Past and future income loss (including interest and super); and
5. Other/lesser types of compensation.
In NSW, most workers are precluded from making a compensation claim for their losses in the first place.
For those few that breach the 15% threshold to claim, their claims are then heavily restricted.
Injured workers can claim for the following types of compensation:
1. Income loss.
E.g. if an injured worker in QLD was entitled to $220,000.00 ($50k pain and suffering, $50k paid care, $40k treatment costs, and $80k income loss), the same worker in NSW would only receive $80k for income loss.
|Cost of Workers’ Compensation Insurance for employers||Workers’ compensation insurance in QLD not only provides injured workers with far better benefits and compensation, but the scheme is CHEAPER for employers.
E.g. An Electrical Company which pays an estimated $750,000 in wages each year will expect to pay an approximate annual premium of $10,496*.
NSW workers’ compensation premiums are higher than in QLD – meaning NSW employers pay more for their insurance despite their employees receiving less in benefits and compensation.
E.g. An Electrical Company which pays an estimated $750,000 in wages each year will expect to pay an approximate annual premium of $13,411*.
|Which is the most efficient scheme?||QLD has the most sustainable and efficient scheme in Australia. QLD workers compensation fairly balances the interests of all parties – workers, insurers, employers. Outcomes are typically reached in an average of 1-3 years.||NSW’s workers’ compensation system is more expensive, protracted, difficult, and poorly run. Outcomes are not typically reached in 1-3 years. In fact, claims can go on for as long as a decade or more. The system is not efficient.|
|What do injured workers think?||In QLD, injured workers who resolve their claims tend to be far better off financially and happier with the outcome than their NSW counterparts.
Their claims are resolved sooner, with less frustration of the process.
|In NSW, injured workers are rarely happy with the outcome of their claim. It is far more common for injured workers to complain about inordinate delays, protracted pain and frustration, poor access to treatment/benefits, psychological torment, and ultimately poor outcomes due to the nature of the scheme.|
*Estimate calculated using $750,000 in annual wages, deducting allowance for 2 apprentices receiving $40,000 in wages. Both policies taken out treated as a new policy holder for an electrical services provider.
The QLD workers compensation is a far better scheme than that of NSW. Anyone injured in both states knows first-hand how miserable NSW workers compensation is compared to QLD (or just about anywhere else for that matter). We don’t wish to be too effusive in praising WorkCover QLD. They have their issues with how they handle claims as well and we have commented on these issues previously. However, it is clear that based on a comparison with other states, QLD WorkCover are by far the best of a bad bunch.
The problem is that insurers frequently lobby members of the government to make changes to the scheme that positively affect insurers and negatively affect injured Australians and their families. This is usually by imposing unfair thresholds, reducing access to compensation, and decimating the entitlements of injured people. Insurers and politicians often bring in legislative amendments to the detriment of workers whilst pushing out stories to the media about allegedly frivolous or fraudulent claims, or excessive legal fees being the true cost to workers –both of which are demonstrably untrue.
Recently, NSW changed its CTP scheme to be more like NSW’s terrible workers’ compensation scheme. This means that those injured on the roads in NSW are now far worse off and have less access to common law compensation for their injuries. Meanwhile, NSW industry participants (excluding those injured!) bend over backwards trying to convince you that the NSW schemes are great.
Even now, super profitable insurance companies routinely lobby the QLD government to change its workers’ compensation and CTP motor vehicle schemes to those of NSW – where insurers win, and injured workers lose out.
If NSW is to have a sustainable, fair, workable, long-term workers compensation scheme, then the government needs to do what they consider unthinkable – COPY THE QUEENSLAND SCHEME! What is the harm? Insurers and employers in QLD are far better off (not just the injured claimants) and the scheme is more profitable, efficient and sustainable.