Sheahan Inquiry Report

The report of the Commission of Inquiry into Workers Compensation Common Law Matters ("the Sheahan Inquiry) was published on 12 September 2001.  Copies of the report (totalling 49 pages in addition to annexures) are available from Workcover, ph; 131050, or from the Workcover website, www.workcover.nsw.gov.au.

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A meeting of affiliates was held on 12 September 2001, to discuss the recommendations of the Sheahan Inquiry.  Minister Della Bosca attended the meeting of affiliates and confirmed the Government was keen to have the reforms to the Workers Compensation scheme in place and operating by 1 January 2002.

 

The Minister indicated to the meeting that the report of Justice Sheahan was 'more thorough than the Government had anticipated and was well researched'.  The Minister went on to say it was the hope of Government that the new Workers Compensation Scheme could be brought into effect on 1 January 2002 and that any issues of dispute could be resolved amicably between Government and the unions.

 

The report contains a number of recommendations which, if implemented, will improve benefits to injured workers.  These recommendations include:

 

Ø       "that the requirement of 'election' be repealed, but that the recovery of economic loss damages preclude the receipt of any further statutory benefits."

 

The unions will urge the Government to implement this recommendation.  It will mean an injured worker will no longer be forced to "choose" between a common law action and an action under the statutory scheme.  The danger has been if a worker chooses to pursue a common law action and is ultimately unsuccessful in that action, the worker was then not able to pursue an action under the statutory scheme.  By removing this "election provision" an injured worker will not have to suffer the anxiety of making this choice, knowing if they are unsuccessful in a common law action their right to benefits is extinguished.  This recommendation means a worker can pursue a common law action, and should that action be unsuccessful, they are still able to pursue benefits under the statutory ("no fault")  scheme.  This is a recommendation which will result in a great deal less trauma for an injured worker, which can only be a seen as a bonus.

 

Ø      "that a limited right to claim benefits in respect of the cost of "gratuitous domestic care" (Griffiths v Kerkemyer) be provided for in only the statutory scheme, but on very strict conditions."

 

This recommendation relates to domestic assistance provided to an injured worker by family or friends.  At present, assistance provided by family and friends is not directly compensable.  Justice Sheahan has made a recommendation that such assistance should be compensated under the statutory scheme if the injured worker needs the care of family and friends and the care is directed by the injured worker's medical practitioner.  This recommendation should be implemented as a matter of urgency as it will greatly alleviate levels of anxiety on injured workers and their carers.

 

Whilst there are recommendations contained within Justice Sheahan's report which will benefit injured workers it should be made clear that some of the recommendations contained within the report cause the union movement a great deal of concern.  The recommendations which are of concern include the following:-

 

Ø      "that, as soon as the scheme's financial position permits:

Ø      (i)            the indexation of s66 benefits be reinstated; and

Ø      (ii)            the maximum amount recoverable under the combined operation of sections 66 and 67 be increased gradually to $250,000.00 and indexed thereafter."

 

This recommendation is beneficial, however, it is imperative that indexation of benefits under Section 66 (lump sum for permanent impairment) be reintroduced within a finite period and that the maximum benefit under Sections 66 and 67 (pain and suffering) be increased to $250,000.00 also within a finite period.  The Government have been informed the unions want these increases to commence within a known time frame.  The Unions will continue to push the Government to introduce the increased benefit within a finite time frame.  We believe to do so would be a show of good faith on the part of the Government.

 

A recommendation contained within Justice Sheahan's report which is totally unacceptable is the recommendation relating to threshold for access to common law.  The recommendation reads as follows:-

 

Ø      "that only workers assessed to have a whole person impairment of 20% or more should be entitled to make a claim for economic loss damages."

 

A threshold of 20% whole person impairment is far too high and will be unattainable by the vast majority of injured workers.  Advice provided to Labor Council by leading medical professionals indicates that even a worker who has undergone a mid foot  amputation would fail to reach a threshold of 20%.

 

A threshold of 20% is absolutely unacceptable to Unions and this issue will be pursued with the Government with a view to securing a threshold for access to common law which is fair and which will not result in injured workers' access to benefits being diminished.

 

Workers are urged to continue to lobby their local MP's to support the Labor Council's campaign to ensure injured workers in NSW are not worse off under the Government's proposals.