Will Comcare overhaul help ease premium costs for agencies?

By Stephen Easton

March 26, 2015

Legislative amendments hit federal Parliament yesterday with the aim to get injured Commonwealth public servants back to work sooner, reduce compensation for non-work related injuries, improve treatment outcomes and bring expensive Comcare premiums back under control.

Informed by a string of reviews in recent years and changes in other jurisdictions, the amendments to the Safety, Rehabilitation and Compensation Act would cut a combined $50 million from premiums paid to Comcare each year by other federal agencies, according to Employment Minister Eric Abetz.

The changes aim to limit claims for injuries and ailments that the employment did not significantly contribute to. The scope of “reasonable administrative action” — under which claims can be excluded — would be widened to align it with the legal definition of workplace bullying, and rehabilitation requirements modified to emphasise “vocational” rather than medical goals. New eligibility criteria would apply to “designated injuries” like heart attacks, strokes and spinal disc ruptures, and the threshold for acceptance of “perception-based disease claims” is to be increased.

There are provisions to speed up claims and enhance information gathering powers of both relevant authorities and Comcare. Provisional payments of up to $5000 would be possible before a claim is made. Lump sum payments would be increased for severe or multiple injuries but also reduced for some minor injuries.

Obligations on employers and employees in relation to rehabilitation and return-to-work pathways have been strengthened, and income support payments restructured to step down below full pay earlier and in more increments, with the aim of incentivising federal public servants to get back to work sooner.

Public servants currently take longer to return to work than employees of large nationwide corporations that self-insure under the Comcare scheme, according to regulatory impact statement attached to the bill’s explanatory memorandum, which details the amendments and the problems they purport to fix. It says that the legislative framework has become out of step with recent changes to regulations for health practitioners and prevents Comcare from having “appropriate oversight and control over the treatment it is funding”. And currently, injured employees do not get the best chance of recovery because:

“…no formal training is required for the provision of in-home care … and care is not linked to the level of impairment which can result in less injured employees being provided services that are not commensurate with the level of injury.”

Disputes tend to drag on for a long time in the Comcare scheme, where only 13.7% are resolved within three months compared to 85.1% in Queensland, 81.9% in Western Australia and 70.1% in Tasmania. The type of claims has changed over time, with an increase in mental health claims in particular contributing to their total cost rising by 37% in the five years to 2012-13. Premiums have risen by over 50% in the last four years and:

“Comcare’s asset to liability ratio, that is, the adequacy of the scheme to meet future claim payments, was quite low at 66 per cent in 2012-13.  This compares unfavourably with Queensland at 156 per cent, Victoria at 125 per cent and New South Wales at 118 per cent.”

Abetz accompanied the bill’s introduction with an opinion article arguing Comcare was a “good scheme” that just needed to be updated. He focused on public servants spending too long off the job on workers’ compensation, and said there were too many “spurious” claims relying on “loopholes”. He retold the tale of the disputed “hotel room sex case” which cost the government $600 million to eventually win in the High Court, and said such cases would “simply encourage rorting and malingering”. The minister said he believed “preventing injuries, ensuring support where injuries occur, and getting workers back to work as soon as possible” in the workplace was a “mutual obligation” for workers and employers.

Lawyers concerned changes make a bad system worse

The amendments were not well received by some in the legal profession. In a media statement last night, Australian Lawyers Alliance national president Andrew Stone said the scheme was “already poorly functioning” and the changes would “further weaken” the rights of injured employees:

“It is well known that the Comcare scheme has long been a poorly functioning scheme. It is burdensome for both workers and employers, with no meaningful and effective workplace health and safety regime.”

Stone said Abetz was using “isolated examples” to hide the fact that “the vast majority of workers … will lose benefits due to the unfair changes he is proposing”. Stone also linked the bill to another that is now before the Senate and also amends the SRC Act, to allow more private companies to join the scheme:

“If that Bill passes, it will allow more employers to push their workers into the highly ineffective Comcare scheme. This will not only disadvantage workers and lead to a reduction in workplace health and safety standards, but will also significantly impact state-based workers’ compensation schemes, and in doing so, put smaller businesses and rural businesses not covered by Comcare at risk of increased premiums.

“It also has to be expected that authorities such as Centrelink, Medicare and the NDIS will come under increased fiscal pressure if these changes go through, with these agencies likely to have to shoulder the cost of assisting injured workers and their families left wanting as a result of being forced into the ineffective Comcare scheme.”

The personal injury and insurance lawyer disputed that the amendments would improve return-to-work and health outcomes for injured workers, as promised, and said the value of entitlements for the “vast majority” of injured workers would be significantly reduced, in some cases by two-thirds. He argued:

“The reality is that the changes proposed will make it more difficult for employees to get the care and rehabilitation they need, compounded by injured workers also facing greater pressure to re-enter the workforce prematurely. This includes through proposed harsher rehabilitation requirements, a reduction in the current weekly wage loss payments, and the introduction of a harsher test workers will have to go through in proving work was a significant contributing factor to their injury.”

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