Review of the Accident Compensation Act

In December 2007 Mr Peter Hanks, QC, was engaged by the Minister for Finance, WorkCover and the TAC, the Hon Tim Holding, to conduct an independent review into the Accident Compensation Act 1985. This is the Act that governs the entire WorkCover scheme and it has been amended 80 times since its introduction in 1985.

The review looked at various problems with the legislation such as the fact that it is too long and confusing and also looked at submissions for change made by various bodies, before releasing a report on 26 September 2008. The report makes 151 recommendations to the Minister. These include recommendations that some areas be changed, some retained, and some clarified.

The majority of the recommendations are good for workers. Some of these are:

• re-write the Act to make it clearer
• introduce provisional weekly payments and medical expenses – that is, pay while deciding whether to accept the claim
• increase weekly payments from 75% to 80% PIAWE after 13 weeks
• require the VWA to pay superannuation contributions - for those receiving weekly payments after 52 weeks
• remove the notional earnings provisions
• provide weekly payments after the 130 week cut-off to workers who require surgery
• allow for payment of weekly payments between the date of settlement of a common law claim and receipt of the settlement payment by the worker
• not offset weekly payments when a super lump sum, redundancy or termination package is received
• increase the maximum permanent impairment benefit to the same as the maximum damages for common law
• increase the impairment benefit awarded for spinal injuries by 10%
• increase the impairment benefits awarded for a 30% and above psychiatric impairment to the same as for physical
• review the method of assessing permanent impairment
• calculate impairment benefits at the date of determination of the claim rather than the date of injury
• define the date of gradual process injuries as the last day of work or date of the claim
• lower the common law Serious Injury deeming threshold to 20% - for physical injuries only
• disregard all weekly payments received after a statutory counter-offer is made for the purposes of determining the amount to beat in court
• allow a Serious Injury Application to proceed after the claimant dies if for an unrelated reason
• review the impact of the 20% reduction to legal costs paid to a worker's solicitor
• increase the maximum death benefit to the same as the maximum lump sum benefit together with other increases to death benefits
• make internal review mandatory within 14 days where conciliation is lodged
• provide for reimbursement of the workers cost of attending at conciliation and time off work
• establish an exception to the rule that a matter has to be conciliated before proceedings can be issued

Of concern is the retention and extension of section 82(2A). This is the section that allows claims for stress or psychiatric injuries to be rejected where they arose through, amongst other things, reasonable disciplinary action. The recommendation is that this section not only be retained, but extended to ‘reasonable or appropriate management actions' that would include performance appraisals, demotions, disciplinary action and the like. This is completely contradictory with the supposed provision of a scheme where insurance cover is provided to workers without having to establish that their injury was caused through anyone's fault.

Other disappointing recommendations include:

• allowing the VWA or self-insurer to access medical information without the consent of the worker
• no change to the requirement that only 12 months of alternate duties be provided to injured workers
• maintain the 30% threshold for psychiatric injuries to either receive a lump sum or Serious Injury Certificate
• remove the powers of conciliation officers to make directions
• confirm that lawyers are not allowed to attend at conciliations

What the Government decides to do with these recommendations remains to be seen.

Damages for paraplegic mother

Michael Schaefer successfully represented a mother of four who was left a paraplegic after a shingles misdiagnosis.

In May 1999 the client awoke with numbness and tingling down one side of her body. This developed into pain over the next few days. She attended her GP who was concerned that she may be suffering a serious inflammation of the spinal cord and sent her to the Emergency Department of the Epworth hospital.

It was at first thought that she may be suffering a recurrence of shingles. Neurological causes were considered but not investigated at that point. The client was sent home to rest with medication.

She re-attended a few days later with ongoing pain but was again discharged. She eventually was seen by a neurologist who ordered an MRI scan. This was ordered urgently but not performed until the next day. By the following day, she was completely paralysed.

The case started before a judge and jury before ultimately settling out of Court. The settlement represents compensation for past and future medical expenses, costs of attendant care, lost earnings and pain and suffering.