WORKERS REHABILITATION AND COMPENSATION AMENDMENT (VALIDATION) BILL 2012
Mrs ARMITAGE ( Launceston ) - I, too, find this quite difficult legislation to deal with because you can look at both sides. I would also like to read a couple of parts that I do not think have been read into what we have before us. Initially, I received correspondence from the Tasmanian Workers Compensation Insurers (TASWIC) and I thought the points that they made were quite relevant:
The purpose of a workers compensation rehabilitation scheme is to provide proper compensation to injured workers who suffer injuries or disease during the course of their employment.
One of the key principles of any scheme is that it needs to be affordable to the community at large, while still providing adequate compensation to injured workers.
The affordability of the scheme is generally judged by the premium that employers are required to pay to insurers to obtain appropriate cover for their liabilities to their workers.
Insurers, not only in workers compensation matters, but generally, assess premiums on the known state of the benefits that may be obtained and the likely risk that that benefit structure may change during the period of the insurance.
Self evidently then, changes to the scheme which operate "retrospectively" have the strong potential to mean that insurers will not have collected sufficient premiums to cover their liabilities.
In addition, of course, employers and workers almost invariably come to an agreement based upon the state of the law existing at the time of the agreement as to the benefits to be paid to an injured worker. Where those benefits may change retrospectively it has equally the potential to impose a greater burden upon the employer by enabling a worker to have a further assessment given the 'change in law' adding further cost to the scheme.
I was a bit disturbed by one thing that Mr Hilliard said. He said that there would be winners and losers. The insurers can afford to lose more than the workers. Personally, I do not believe that is the case because the insurers will not lose. The insurers will pass it on to their employers who will pass it on to their employees and the people that will lose down the track are still employees; whether they lose their jobs or whether goods and services cost more to the community, at the end of the day, the insurers will not be the ones to lose. I was really taken aback a little by that comment.
There are a couple of little parts I would like to read from the Law Society - it has been stated who they are and where they come from, and the fact that there are 16 members statewide. It says:
The second reading speech makes it clear that the intention of the Bill is for any revised guidelines to apply to all assessments carried out after they were issued by the Board regardless of the date of injury. It is debatable that the Bill as drafted will achieve that outcome. That is because there is a disconnection between the proposed section 164C and the current sections 71 and 72 of the Act.
Under the Bill as drafted, neither workers nor employers will know with certainty what rules are going to apply to the assessment of permanent impairment during the life of a worker's claim. That is because the rules may shift at any time and the obligation on the parties will be to follow the amended rules. Those amended rules may significantly alter, whether a worker qualifies for compensation for permanent impairment and the level of that compensation.
In general the principle followed in the Act is that a worker's rights crystallise at the date of injury. That principle applies otherwise for the purposes of section 71. The 'basic salary' by reference to which the monetary value of the impairment is assessed is the basic salary as at the date of the injury, rather than the date of the assessment. There appears to be no reason to abandon this principle in selecting the guidelines that apply to the assessment. Indeed, to follow that principle will promise certainty in the administration of claims.
I think to be fair I would also like to read into Hansard the statement of the Australian Lawyers Alliance on certainty and conformity with current practice. It reads:
It therefore goes without saying that in our view the bill as drafted ensures a certainty and conformity with current practice rather than causing any uncertainty as is asserted by Mr Moore [of the Tasmanian Law Society] The current legislation envisages that workers may be in receipt of payment pursuant to the Act for up to 25 years. During that period of time there may be some changes to medical knowledge which enabled better assessment of impairment.
I think that cannot be disputed. The difficulty comes in when we are looking at this legislation.
There is no reason why workers should be kept in a time warp in relation to the assessment of permanent impairment.
I can remember at the previous briefing one of the issues that came up was that of two workers who were injured at the same time. If one settled their claim and one did not, under this legislation, there would be vastly different outcomes. Is it fair that a worker who was injured and had their assessment done and not long after received their payout but another worker, with exactly the same injury occurring at exactly the same time, let their assessment drag on, not being sure what they were going to do - under this new legislation one could get a significantly higher payout than the other, which was something I think was brought up to us before by the Tasmanian Workers Compensation Insurers.
I am finding this quite difficult to come to grips with and to work out which way to go. Your heart tells you that you want to look after the employee who has been injured, the worker who is suffering but on the other hand are we not all going to suffer in the long term if some of these changes come now and it is the date of assessment as opposed to the date of injury. The date of injury does give some clarity. People know exactly when they are going to be assessed. I do not see that there is any uncertainty with it. We heard there could be more litigation if we continue with going back to the date of injury. However, doctors should be aware and should be able to go to sections 1, 2 or 3 to work out which one was relevant at the time.
As was mentioned today, they receive a considerable fee for doing this. One of the items brought to our attention today was that many doctors from Victoria come over and it might be difficult for them to work with Tasmanian law after working with Victorian law. I would say if they cannot work out the difference between Victorian law and Tasmanian law then perhaps they should stay in Victoria and be assessing workers over there.
Mrs ARMITAGE - If they are going to come to Tasmania and assess our workers then they need to be across the board with what they are assessing. That should not be an issue.
That really should not be something that should be a concern to us.
Mr Gaffney - That wasn't an issue that they raised, though.
Mrs ARMITAGE - It was raised this morning.
Mr Gaffney - It was the fact that they came from Victoria; they weren't incompetent or unable to do their job.
Mrs ARMITAGE - I am not saying they are incompetent but the comment made this morning was that some doctors coming from Victoria - and we have a lot of people coming over and also from New Zealand to assess workers - might not be quite totally across the legislation because they are coming from Victoria with different laws and they then have to be across our sections 1, 2 and 3. My point is that if they are coming here and taking the money for doing the job then they should be across sections 1, 2 and 3.
Mr Wilkinson - They said they could well be confused as a result of 1, 2 and 3 -
Mrs ARMITAGE - If you are earning that sort of money you should not be confused by 1, 2 and 3.
Mr Wilkinson - If they do the work they should know what they're doing.
Mrs ARMITAGE - Absolutely.
Mr Wilkinson - The same as a Tasmanian driving in Victoria, you have to abide by the Victorian laws.
Mrs ARMITAGE - Whether it be driving or whatever you are doing.
The Tasmanian Workers Compensation Insurers proposed a solution:
First, that legislation is passed to remove doubt as to whether the second edition and third edition of the guidelines were properly issued.
Apparently that has always been a concern - and:
Secondly, that the legislation also provides that the assessment of a whole person impairment is to be undertaken in accordance with the guides existing at the time that an injury occurs or disease is suffered.
I will listen to any further debate because, as I said, I do find it difficult and my heart tells me that I would like to side with the employee. I can see someone that is injured but commonsense tells me that there needs to be fairness and certainty and equity. I am leaning towards the date of injury.