Consultation summary: Public consultation draft workers compensation regulation 2016 (July 2016)
The Workers Compensation Regulation 2010 (2010 Regulation) commenced on 1 February 2011. Under the Subordinate Legislation Act 1989, the 2010 Regulation is scheduled for automatic staged repeal on 1 September 2016. The staged repeal process provides an opportunity to improve the workers compensation regulation, ensuring its provisions appropriately support the workers compensation legislation.
The Government’s proposed approach to the staged repeal of the 2010 Regulation is to remake the regulation with minor amendments. To that end, the State Insurance Regulatory Authority (SIRA) prepared and published a public consultation draft Workers Compensation Regulation 2016 (draft 2016 Regulation) and an associated Regulatory Impact Statement (RIS).
SIRA formally called for public submissions concerning the draft 2016 Regulation and its associated RIS from 13 May to 14 June 2016. During that period SIRA representatives also met with a range of stakeholders to discuss their feedback.
This consultation summary provides a general overview of the main issues and views noted in stakeholder feedback and submissions received during the formal consultation period.
The draft 2016 Regulation and associated RIS were released for public consultation on 13 May 2016.
Public notice of the commencement of consultation appeared in the NSW Government Gazette, the Sydney Morning Herald and The Daily Telegraph. SIRA also wrote to a range of stakeholders noting the consultation and inviting feedback.
Copies of the RIS and the draft 2016 Regulation were published on the NSW Government’s Have Your Say website and the SIRA website.
SIRA received 12 written submissions during the public consultation period, from a range of stakeholders including individuals and advocate groups representing the interests of workers, employers, insurers and providers. All non-confidential submissions have been published on the SIRA website.
Summary of key issues
A number of key issues were noted in the consultation. These included:
- the scope of the remake
- the repeal of option for category 2 employers to establish shared return to work programs
- worker access to certain medical reports and other reports obtained by the insurer
- deemed employment
- deemed diseases
- legal costs
- prudential, pricing and practice matters.
A more comprehensive list of matters noted and proposals made is provided at Table 1 below.
Scope of the remake
A common view expressed in several submissions is that limiting the remake of the regulation to primarily machinery amendments will not address more substantial policy issues, and that the remake should include more substantial policy changes. That noted, the machinery changes that were proposed were generally viewed as necessary and generally supported.
Repeal of shared return to work programs
All but one submission supported (or did not oppose) the proposed repeal of the shared return to work program provisions. The one submission that did oppose the proposed amendment was from an insurer who asserted that the removal of provisions for ‘Category 2’ employers to establish shared return to work programs may limit future employer initiatives that might be undertaken by the insurer.
Worker access to certain medical reports and other reports obtained by the insurer
A majority of submissions expressed opposition to the proposal that the provisions relating to worker access to certain medical reports and other reports obtained by the insurer be remade without change. That is, a majority of submissions expressed views supporting broader access provision more generally, and also supporting the removal of a ‘dispute’ as a precondition for access. Several submissions recommended the regulation be changed to better reflect and or align with related regulatory provisions of the Health Records and Information Privacy Act 2002 and Government Information (Public Access) Act 2009.
Several submissions attached or referenced a discussion paper issued as part of the WIRO Parkes Review, titled "Access to Information by a Worker". The paper provided detailed discussion and recommendations on this issue.
One submission also noted concern with the proposed insertion of a new penalty offence at clause 39 of the draft 2016 Regulation. The RIS noted the insertion of the new penalty offence was to address an apparent anomaly in Schedule 5 of the 2010 Regulation. However, the submission asserted that the introduction of the penalty offence into clause 39 was not appropriate and was not an ‘equivalent replacement penalty to a 20 penalty unit provision...that has not been in place since 2005’.
Two submissions sought amendment to clause 64 of the draft 2016 Regulation to provide protection, clarity and access to workers compensation for workers in the following employment categories:
- Uber drivers
- fast food delivery chain drivers
- sex industry workers.
Several submissions proposed amendments to Schedule 1 (Diseases taken to be work-related) of the draft 2016 Regulation, to better align with the list of deemed diseases contained in ‘Deemed Diseases in Australia’ which was prepared for Safe Work Australia by Professor Tim Driscoll in August 2015. Another submission noted that the wording in column two of Schedule 1 for brucellosis, leptospirosis and Q fever needed to be updated to reflect the full range of occupations, industries and ways these three diseases can be contracted by workers.
Several submissions proposed comprehensive review and/or amendment of Schedules 6 and 7 of the draft 2016 Regulation. Schedule 6 prescribes the maximum payable legal costs for workers compensation claims and disputes that are resolved before proceedings are commenced in the Workers Compensation Commission (WCC) or disputes that are resolved after proceedings have been commenced in the WCC. Schedule 7 prescribes the maximum legal costs payable in work injury damages matters.
The main issues raised in the submissions were:
- the current maximum amounts have not been revised in many years and are not subject to regular adjustment or indexation
- the need for additional items to be inserted into the Schedules
- that Schedule 6 does not account for the anomalies that have arisen following process changes made after it was amended in 2006
- that Schedule 6 does not respond to the current dispute resolution processes that are in place as a result of the 2012 reforms.
- applicability of Schedule 6 is unclear.
Prudential, pricing and practice matters
Several submissions noted a range of matters concerning prudential, pricing and practice matters arising from the 2015 workers compensation legislative reforms that are not addressed in the draft 2016 Regulation.
Table 1 – other matters noted
Minimum amount of PIAWE
Recommended increasing the prescribed amount of $155.
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.
Return-to-work programs under the 1998 Act
Suggested amendment to ensure that return to work coordinators are required to:
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.
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).
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).
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.
Noted it is not clear that a 'threshold dispute' continues to have effect since the one assessment provisions were introduced in the 2012 reforms.
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.
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.
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.
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.
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).
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.
Medical tests and results brucellosis, Q fever & leptospirosis
Recommended amending Schedule 2 to include procedures for diagnosis of Lyme Disease.
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.
Penalty Notice Offences
Questioned why the penalty amounts in Schedule 5 have not been reviewed and adjusted.
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:
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.
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.