Legislative reform is rarely greeted with unanimous praise. In fact, as Victoria’s never-say-die Minister for Finance Tim Holding discovered last year, changes to compensation legislation are more likely to please nobody than everybody. As the push to get the Accident Compensation Amendment Bill 2009 through Parliament begins, perhaps Holding is hoping his tried and true survival skills will stand him in good stead. 

In this, he is unlikely to be disappointed. Michael Simpson of OccCorp, an integrated injury and claims management consultancy based in Melbourne, told RTWMatters that the Bill has a good chance of making it into law relatively unscathed.

This doesn’t mean, however, that the Bill has won the hearts or minds of those it will affect most directly. To date, stakeholder reactions to the reforms are a mixed-to-negative bag.

Victorian Employers’ Chamber of Commerce and Industry CEO Wayne Kayler-Thomson claims that the legislation has little in it for employers, while Victorian Trades Hall Council secretary Brian Boyd believes there are some improvements but also decries “key changes that if finally passed into law, will...negatively impact on many workers injured at work”.

The main sticking point for unions is a change to psychiatric injury entitlements, which will see stressed employees unable to make workers’ compensation claims if their stress results from “reasonable management action”. Other Australian jurisdictions already exclude psych injuries on this basis; nevertheless the move is a cause for concern in some quarters, with Associate Professor Anthony LaMontagne writing in The Age that it will exacerbate a situation in which the workers’ compensation system already “shifts the costs of most job related mental illness on to workers, their families and the health care system.”

Michael Simpson has a ‘same-same but different’ slant on the proposed changes.

“The aim clearly is to reduce costs to the WorkCover scheme. I think ultimately that it is moving in a good direction but for employers it is a lot more stick than carrot, if you like. There will be added costs for employers in complying with the changes. Without a bit of help they’ll end up focusing on compliance, rather than on caring for injured workers.”

According to Michael, the main planks of the reform are:

• Increases to worker’s entitlements to benefits (both lump sum payments and income replacement, as well as a new superannuation entitlement for long term injured workers);
• A strengthening of anti-discrimination protections for claiming workers, including the right to sue their employer;
• Increased penalties for employers who don’t focus on return to work;
• The exclusion of stress claims resulting from “reasonable management action”;
• Increased penalties for premium avoidance;
• An employer obligation to ensure that RTW Coordinators have appropriate levels of authority and skill;
• Inclusion of recoveries under public liability; and
• The introduction of a RTW Inspectorate, with powers to enter workplaces and issue RTW improvement notices and fines. 

“There are a large number of changes,” Michael said. “It amounts to some 340 odd pages of legislation. It will take some adjustment from employers to come to terms with the new situation once the Bill is passed.”

OccCorp, Michael’s organisation, is offering seminars on the key adjustments, including one—conducted by recently retired workers’ compensation solicitor Ewan Walker—that specifically addresses the new stress provisions. Michael’s perspective on the stress exclusions differs from that of unions and Associate Professor LaMontagne. He believes that they will be beneficial for employers and workers both.

“I think the previous section around stress was too grey. I think it tended to disadvantage both the injured worker and the employer and led to quite a lot of legal disputes. After the new legislation is bedded down—obviously there will be some testing of it in the courts—it will make employers more accountable. If they have specific policies in place they will be able to dispute those claims that they think they have to dispute; and if they don’t have them, then we’ll be where we were and the injured worker will be successful whether or not it’s justified. They’ll need those policies and procedures to be able to prove whether or not they’ve been justified in their actions.”

In addition to the seminar about psych injury claims, OccCorp is offering a session that provides a brief overview of the legislative change, a session focused on what the benefit reforms will mean for employers, and a few “around the value of early intervention and sustained injury management. We’ll explain how integrating injury and claims management can deliver a significant premium impact.”

As Michael points out, new legislation shouldn’t mean giving up on old fashioned care. We’ll be watching Victoria to see whether Tim Holding’s good fortune can rub off on the injury management community. Some of the changes look good on paper but as always, the test is in implementation.