By Ray Fulcher
MELBOURNE — In November, thousands of long-term injured workers will be pushed from Victoria's WorkCover scheme onto Social Security benefits. Before then, thousands more will be encouraged to jump with lump sum pay-outs of up to $15,000 (though most will receive much less than this). This is the result of the most draconian workers compensation legislation in the country, rammed through state parliament last December.
According to lawyers in the state's largest industrial legal firms, the lump sum payments will cover only statutory entitlements to income and medical bills when in fact many workers may be able to claim much more. In order to receive the pay-out injured workers must sign away their right to make future claims on the insurers. If they require surgery directly related to the injury, even Medicare will not pay for it if it is within the following 12 months.
The dilemma faced by many of the 11,000 long term injured workers is that if they don't accept the deal, they may be dumped from WorkCover anyway. The WorkCover Act contains a clause which withdraws weekly income support from people who have been on compensation payments for two years or more as of December 1, unless they fit into the narrowly defined categories of "seriously injured" or "total and permanent incapacity".
The two-year cut-off period will remain a permanent feature of workers compensation in Victoria. Workers can try to remain on the system by contesting through the courts that they fit into one of these categories, but if they lose the case they must pay the legal costs, which could run up to $5000.
The system used to assess levels of incapacity — the American Medical Association's "Guide to the Evaluation of Permanent Impairment" — has come under attack from both the legal and medical professions. It relates simply to medical impairment and does not relate injury to occupational impairment.
The government has also set the level of impairment for serious injury under this system at 30% of the body — 10% higher than that needed to qualify for disability support pension through Social Security. This means a worker could be injured to such an extent that they could no longer perform their job but not qualify for ongoing support.
Paul Mulbaney, former judge of the now abolished Accident Compensation Tribunal, said, "The qualifiers are harsh, oppressive and unjust. To use the 30% level of the American impairment table is an abuse of that table and exclusive of all but the most seriously injured of people."
The table also takes no account of pain, so that a person may have full mobility of a limb but also unbearable pain in movement and be considered by this table as fully fit for work — RSI claims would be virtually impossible.
WorkCover's maximum weekly payments are the lowest in the country at $603 per week for total incapacity and $362 for partial incapacity. Even the conservative Industry Commission has criticised payment methods as "violating the link between compensation and forgone earnings".
One of the most draconian aspects of the legislation is the concept of "notional earnings". A partially incapacitated worker can have their weekly compensation payments reduced by an amount that person can be deemed capable of earning — whether or not they are at work and whether or not there is a job available to them. For instance, an injured steel worker may not be able to return to the factory but could be "deemed" capable of doing a shop assistant's work and therefore have their weekly payments reduced by a shop assistant's wage — whether or not any such jobs existed.
Democratic Socialist Party Melbourne branch secretary Dave Holmes says, "This legislation is about employers abrogating their responsibility to injured workers. People will be driven into poverty, unable to afford the medical and rehabilitation services previously paid for by their employers."