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Harsh proposal could force injured workers in New South Wales to pay gap medical expenses

A harsh proposal from iCare, the largest statutory workers’ compensation insurance provider in New South Wales, could result in injured workers being unfairly forced to foot the bill for gap payments for medical treatment they require due to their work-related injuries.

The proposal is being considered by the State Insurance Regulatory Authority (“SIRA”) which is the body responsible for undertaking the current review of the workers’ compensation scheme.

iCare is accountable for roughly 75% of all workers’ compensation claims in NSW.  To put this in perspective, between 1 January 2018 and 30 November 2019, iCare was responsible for the assessment and management of an approximate average of 38,000 to 40,000 active claims each month, with 46,807 active claims in November 2019.

In addition to iCare’s submission that injured workers should be forced to pay their own gap fees for medical treatment, it has also been suggested that the fees payable to the medical providers be reduced.

The Chief Medical Officer of iCare, Chris Colqhuon, cites the impact on tax payers and the rise of average claim management costs as the principal reasoning behind their submissions.

Dr Colqhuon believes injured workers are less likely to claim for procedures they don’t strictly require if there is an associated fee.  However, he fails to mention the detrimental impact these proposed changes will have on the hard-working individuals, who as a result of an unfortunate work related injury, are unable to return to work and are already suffering financially as a consequence.

This financial burden is compounded by the fact that injured individuals in NSW are not entitled to receive the entirety of their pre-injury average income while they are totally incapacitated for work, but rather a percentage of what they were earning before their work related injury (95% for 13 weeks and then 80% for a maximum of 140 weeks).

Accordingly, not only will injured NSW workers be living on a reduced income, but iCare will also expect them to foot the bill for the medical treatment they require as a direct result of simply going to work.

This proposal will place extra financial strain and pressure on injured workers and their families during an already distressing and difficult time in their lives.  It will also likely result in injured workers’ not being able to afford or undergo all necessary medical treatment and rehabilitation they require to return to work.

Dr Colquhon attempts to justify the proposal by citing the need to reduce unnecessary procedures.  However, he remains silent on the negative impact this will have on injured individuals who will be forced to forgo necessary medical procedures due to an inability to afford the proposed gap payments.

It is important to consider that potentially limiting an injured workers’ access to medical treatment will likely compound the issue iCare seeks to eliminate.  Without adequate medical treatment these statutory claims may be extended or in extreme cases perhaps even result in injured workers’ not being able to return to their former occupation at all.  This will certainly place extra strain on the scheme.

While improving the efficiency of workers’ compensation schemes is in the public’s interest, further disadvantaging injured workers is not and should not be the answer.  Instead, consideration should be given to investigating iCare’s current rehabilitation and return to work program alongside their educational efforts to provide injured workers with the best possibility of returning to work once they have received all necessary medical and rehabilitation treatment.

This situation is in stark contrast to the workers’ compensation scheme in Queensland.  WorkCover Queensland, the largest workers’ compensation insurer in Queensland, maintains a strong financial position as reported by Professor David Peetz in his five year review of the scheme published in May 2018.

Although both the Queensland and NSW statutory schemes are ‘no-fault’ and similar in nature and objective, there are significant differences in the claims process and entitlements available for injured workers to consider.

Claims submitted by injured workers in Queensland are covered under the Workers Compensation and Rehabilitation Act 2003 (“WCRA”).  Injured workers’ in Queensland are entitled to:

  • Weekly compensation payments (85% of pre-injury income for 26 weeks and then 75% thereafter);
  • Medical expenses;
  • Rehabilitation expenses;
  • Travel expenses;
  • Pharmaceutical expenses;
  • Vocational assistance/retraining expenses; and
  • Lump sum compensation for permanent impairment.

However, history indicates that workers’ compensation insurers are always taking steps to change the workers’ compensation landscape as evidenced by iCare’s recent submissions.  The Queensland scheme has also undergone its own various overhauls over the past 10 years.  Some of these changes aimed to curtail the rights of injured workers while others proactively aimed to assist them.

It is therefore vital for injured workers to obtain expert legal advice if they have suffered an injury at work to ensure they are completely informed and proactive in the management and investigation of their statutory rights and entitlements and particularly given the everchanging legislative environment that surrounds injured workers and their rights.

Charlton is an Associate at our Gold Coast office and holds degrees in Business and Law from Griffith University.
Senior Associate
Zach has represented many clients throughout Queensland, interstate and overseas and has successfully negotiated many significant and complex cases and has extensive experience in various types of compensation claims.

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