Select Committee Return to Work Act

Legislative Council May 25, 2016

Return To Work Act

The Hon. T.A. FRANKS ( 15:57 :39 ): I move:

1. That a select committee of the Legislative Council be established to inquire into—

(a) The potential impacts on injured workers and their families as a result of changes to the Return to Work Act including tightening of the eligibility criteria for entry into the Return to Work Scheme;

(b) Alternatives to the overly restrictive 30 per cent WPI threshold for ongoing entitlements to weekly payments;

(c) The current restrictions on medical entitlements for injured workers;

(d) Potentially adverse impacts of the current two year entitlements to weekly payments;

(e) The restriction on accessing common law remedies for injured workers with a less than 30 per cent WPI;

(f) Matters relating to and the impacts of assessing accumulative injuries;

(g) The obligations on employers to provide suitable alternative employment for injured workers;

(h) The impact of transitional provisions under the Return to Work Act 2014;

(i) Workers compensation in other Australian jurisdictions which may be relevant to the inquiry, including examination of the thresholds imposed in other states

(j) The adverse impacts of the injury scale value; and

(k) Any other relevant matters.

2. That standing order 389 be so far suspended as to enable the chairperson of the committee to have a deliberative vote only.

3. That this council permits the select committee to authorise the disclosure or publication, as it sees fit, of any evidence or documents presented to the committee prior to such evidence being presented to the council.

4. That standing order 396 be suspended to enable strangers to be admitted when the select committee is examining witnesses unless the committee otherwise resolves, but they shall be excluded when the committee is deliberating.

I rise today on behalf of the Greens and in conjunction with the Hon. John Darley of the Xenophon Team to move a motion to establish a select committee to inquire into the current workers compensation scheme in South Australia, and the impact that these new laws are having on injured workers and their families.

I believe the new scheme is inappropriately titled 'Return to Work'; it should be titled 'Harder to Return to Work', because it is now effectively the case for many injured workers in this state that it is indeed harder to return to work without the support that they need. Much is made by the government of the positive new reforms under this new act, and I acknowledge there are some positives. But, to borrow a political phrase that is familiar to many in this place: you can put lipstick on a pig but it is still a pig, and this is a pig of an act. It is an offence to the pigs, in fact, to call it such a thing, but I am sure that you understand my meaning.

In 2004, the Greens stood strongly against the retrograde elements of this new act. I also recall the member for Ashford in the other place calling this, 'A draconian piece of legislation.' That member called it for what it was. The member rightly called it out, and indeed she was joined by others, such as the then president of the Law Society, Morry Bailes, who also expressed his grave concerns, particularly with regard to the 30 per cent whole person impairment threshold.

Today, I am proud to stand here as a Greens member of this place, a party that has a solid industrial relations record and a strong record in standing up for workers' rights and particularly for injured workers. I note that, as I stand here today, injured workers, their families and legal representatives can find a voice with the Greens, because over the past 12 months we have been listening to them. My office has received numerous contacts from injured workers across this state who currently have no formal way, no public way, of sharing their frustrations with this new unfair worker's compensation scheme.

I would like to read out a letter from a mother whose son has suffered severe injuries from being assaulted when he was working as a security officer. He was only 20 years of age at that time, and this young man's injuries are so significant that he may never return to work. Still, his injuries are defined as to be 'not serious' under these current state government retrograde laws. The letter reads:

To the Honourable Members,

I am writing to you regarding the devastatingly negative impacts that the Return to Work changes will have on severely injured workers. I am referring in particular to the new criteria stating that an injured worker has to have 30% whole person impairment to continue to have their medical and treatment costs and wage s supplement payments carried on.

In October 2010, my son, who was 20 years old at the time, was working as a security guard at a family restaurant.

There was a robbery involving 4 offenders. My son was doing car park checks at the time, as per his job requirements, and had almost reached the front door when a car raced up and 4 men got out very quickly. One had a gun and another had a metal golf club. This  was at approximately 2.30am.

My son did what he had been trained to do and that was to comply with the offenders—and he also put his hands up in a submissive way above his head.

They surrounded him and the one with the metal golf club proceeded to hit my son over the head several times, yelling at him not to call for help.

My son then put his hands over his head to try to protect himself and they continued to b ash him over the head and hands/ wrists with the metal golf club until he passed out. Amongst other injuries, they shattered the nerves in both of my son's hands/ wrists and squashed my son's carpal tunnels in both hands/wrists.

Tw o of the offenders then picked my unconscious son up and dragged him into the ' pokies ' section of the family restaurant and held him up in front of staff and patrons of the venue.

The one with the golf club just kept hitting my son over the head with the metal golf club and when that one bent he went to the stolen car and got another one and returned to continue his horrific assault on my son, who was at this time still unconscious and being held up by two of the other offenders. My son's employer informed me that the video shows the offender with the golf club walking to the door that was behind him and then running up and hitting my son over the head continually until one of the offenders said, 'Aren't we were to rob the place?'

The one with the golf club yelled at the staff and patrons that they had better do as they were told unless they wanted what they were doing to my son to happen to them.

The offenders eventually took money trays and dropped my son, who collapsed on the floor and partially came to enough to crawl to a wall and then collapse against it with blood pouring down his head. The offenders left and then an ambulance was called for my son. As you may be able to imagine, my son has some horrific injuries.

Some of the injuries from this brutal and totally unnecessary assault include:

1. He suffers from severe constant headaches caused by the offender permanently damaging, squashing and splitting the ' occipital nerve ' in his head;

2. He suffers severe memory loss. Things that he could easily remember before the assault he can't remember now at all. He has major problems remembering simple things;

3. Both of his hands/wrists are almost useless and anything he tries to do causes him severe pain. He does try to do things but the pain can become too much for him. He is in constant severe pain. He has had several operations on both wrists/hands to try to repair some of the damage, but this has not helped;

4. He now has to wear glasses, which he didn't have to before the assault at work; and

5. He suffers from dizziness and balance problems caused by the assault at work.

My son also suffers from severe anxiety, especially if he has to leave his bedroom. In the 3 months following the assault at work, my son used a bottle to urinate in so that he didn't have to leave his bedroom and even now he still barricades himself in his bedroom at night or during the day and tries not to go to sleep during the night.

Some of the things I now have to do for him because he has trouble doing them for himself and if he attempts them he ends up in bad pain are:

1. He has major problems writing and this causes bad pain;

2. Showering: he has major difficulties doing this, so I have to do it for him. He can't shave or clean his teeth or wash his hair. I also have to help him in the toilet at least once a week, as when he attempts this his hands become too painful to continue and do this himself;

3. We have had to purchase a liquid soap dispenser for washing his hands which he has major trouble doing;

4. We have had to have the taps changed in our home, as my son has trouble turning the taps on and off and often leaves them running. We have also had to install hand rails in the toilet and bathroom.

All these changes have been paid for by this familynot WorkCover;

5. He has major difficulty in doing up his shoe laces or putting his socks and shoes on. We have purchased shoes that have Velcro rather than laces, but he still has difficulties doing them up due to the pain this causes;

6. Changing the sheets on his bed is or doing any household chores is extremely painful and he has major difficulties opening bottles or cans, milk cartons, packets or tissues;

7. We have had to install a "Pura tap" so that he can flip the handle with his arm to get himself a drink and he has to use light cups or glasses that mostly have handles as he has almost no grip;

8. He can only drive for short distances without causing major pain in an automatic car with power steering and uses a ball on the steering wheel as he has difficulties using his left hand. We do a lot of driving for him.

9. He has major difficulties washing or wiping up and isn't even able to use a knife and fork together, so he uses a fork only with a rubber tube on it for easier grip;

10. He has major difficulties and has a lot of pain if he tries to help with dinner preparation, pick up heavier saucepans, do his own washing or hang it or take it off the line;

11. He has major problems doing up buttons and zips, so he only wears T-shirts and elastic waist trousers/shorts, etc;

12. He has problems carrying boxes, bags, bottles, etc and tries to use his arms to do this. When using his hands it causes a lot of pain;

13. He has major problems doing his own car repairs or change a tyre due to the pain this causes so we have paid for RAA just in case;…

14 . We have had to change the door handles to lever action so that he can use his arms to open the doors and had to purchase a foot pedal dustbin to put new toilet rolls into in the toilet. He can't use the toilet brush, as he can't grip it and it is too painful to do so;

15 . He can no longer go to the gym, go kayaking, rock climbing, fishing, camping, etc as he did before he got hurt; Any exercise using his hands/wrists now causes severe pain in his hands/wrists.

16 . He has broken up with his long-term girlfriend, whom he expected to marry, due to his injuries.

WorkCover sent my son to their specialists to be assessed as to his capacity to work and they have all stated in their reports that my son is not capable of working and his prognosis is grim at best.

Yet with all of this and more, my son does not meet the 30% whole person impairment, which would have allowed him to continue to receive money for his treatment and medications and his wage income, which is now only $355.00 per week, due to the actions of his employer, who went into liquidation shortly after my son was injured at work. My son's medications alone cost approximately $18,00 per month and most of them are not covered by the Pharmaceutical Benefits Scheme. This is without taking into account the treatment costs and any future operations my son may need.

It is a daily struggle to look after my son and these changes to the WorkCover scheme, which is so detrimental to severely injured workers like my son, are only putting much more pressure upon us. My son's employer paid in good faith for the WorkCover levy so that if, God forbid, something horrible happened to his employees like the assault that happened on my son whilst he was working, they would be covered. This has now been taken away from injured workers like my son and it is simply not right.

I have been informed by medical professionals of several other severely injured workers who will not meet the 30 per cent whole person impairment. One in particular is a person who was crushed terribly at work. The injured worker had their back operated on several times which included having their back fused. This severely injured worker can't even get themselves out of bed unassisted and has no prospect, like my son, of ever being able to work again and yet has been assessed as having a 29 per cent whole person impairment and therefore also does not meet the 30 per cent WPI.

Others that have been severely injured who will need treatment and medication for years to come and also don't meet the 30 per cent whole person impairment will also be cut off. I am respectfully requesting — no, imploring you — to help to get the 30 per cent WPI, which is way too high down to at least 15 per cent WPI, and I urge you to urgently support any bill that seeks to do so. I can't stress enough how this 30 per cent whole person impairment is and will enormously detrimentally affect injured workers when all they were doing was their job. We need to look after those like my so n who have been devastatingly affected by severe injuries while working.

It is not just security officers who suffer from workplace injuries, of course, and my office has been informed of cases of nurses and ambulance officers who have been subjected to violence and suffered serious injuries in their workplace. Some workers have suffered severe spinal injuries as a result of their work, and nurses who have been spat on, exposed to bodily fluids and sexually assaulted at work, yet their injuries are seen as insignificant under the current laws because the 30 per cent whole person impairment threshold is just too high. I would like to read out another case of a registered nurse, who wishes to remain anonymous:

In 2005, I was working on the ward when a patient I was caring for had a sudden collapse and fell back on to me. We both fell onto the floor. I took all his weight on to me but on the way down I fell against a rail. The patient was okay, he received immediate retreatment and made a good recovery. Unfortunately, because of how I had fallen, I sustained a lumbar spinal injury and was off work for four months. During this time I underwent orthopaedic and neurological reviews and a multitude of investigations which included nerve studies, CT scans and MRIs and X -rays.

I required significant pain and nerve therapy. I was unable to sleep, not able to work and not able to eat. I had to attend the physiotherapist on a daily basis for three months and then weekly for a further three months. As part of my return to work plan, I undertook administrative duties starting at three hours a day and eventually grading up to 8 hours per day. Finally, over six months after my injury, I returned to working on the wards but given the scale of my injuries I could no longer work as a midwife, a career pathway that I had loved for 30 years.

Ten years later, I continue to require ongoing pain management and physiotherapy. I will never fully recover. All I can do is to try to manage the pain as best as I can. To support my own rehabilitation I have personally invested in swimming and water-based exercise and ongoing therapies. I have a recommendation for spinal surgery but have elected not to have it because I know that if I have the surgery it would be the end of my nursing career and that is not financially viable. I have had to reduce my hours and I have great trouble sleeping because of the ongoing pain, not to mention the psychological impacts of having your career cut short and your pathways so limited by workplace injury.

It is cases like these that have compelled the Greens and the Xenophon team to take action and stand up for injured workers, something the Labor Party, you would think, will strongly support.

Today, of course, I am moving this motion alongside my colleague the Hon. John Darley, and we are seeking support not just from the Labor members but from all members of this chamber to establish this inquiry, because these injured workers and their families deserve to have a voice and to be given the same hearing police officers have been afforded. We want them to have the opportunity to front up and share their concerns about how their lives are being impacted by this draconian piece of legislation. That, of course, will be no easy thing for people in this position to do, and they deserve a scheme that will support them.

I would like to put on record my congratulations and acknowledgement of the fight that the Police Association of South Australia took up on this piece of legislation in South Australia, supported and led by Mark Carroll and fronted by injured workers, Brett Gibbons, Alison Coad and Brian Edwards, who stood up not just for their own rights but for all police officers injured at work. They did so bravely in a different way than we see police officers being brave in this state. They did so by telling their personal stories and, in fact, there is often nothing braver than putting your personal story out into the public forum to be tested and scrutinised, and I commend particularly those three members of the Police Association for giving so courageously. We have seen, in that case, the police minister respond, and the championing of that case by Family First's the Hon. Robert Brokenshire.

We have a responsibility as members of parliament not just to stand up for those who protect us in the police force and for the injured workers in the police force but for all injured workers in this state. We have a job to do here and that is to ensure that a workers compensation scheme in South Australia treats all workers fairly and equally. A worker should be entitled to access compensation and rehabilitation depending on the injury they have sustained, not depending on the occupation they work in. Just like police officers, by virtue of the role that they play in the provision of essential front-line services, nurses, midwives, ambulance officers, firefighters and personal care assistants are often exposed to situations that can cause serious injuries and, like police officers, they should be protected.

Construction workers are in the business of building our nation; they deserve the same protection. Teachers are in the business of moulding our children and nurturing our future; they deserve protection. Regardless of your occupation and regardless of your workplace, you should be afforded fair workers compensation if you are injured on the job. We cannot have workers compensation in this state that discriminates based on the occupation that a person works in.

We have seen the stories of the police officers which have highlighted how unjust the new return-to-work scheme is. When we hear stories of other workers in other occupations, I have no doubt that members of this place and the government should be fully convinced that we have made an error of judgement with that 30 per cent whole person impairment definition. Under this Labor government, at this stage, we will have a two-tier system which treats workers in the front line of the police force differently to workers who work in security or in the ambulance services or, indeed, any of the other occupations across our state.

I have highlighted two cases in particular today, but there are many others that will be heard by the passage and rolling out of an inquiry into the workers compensation scheme. I would note that examples of a whole person impairment definition of 15 per cent includes a 35-year-old worker who has had a total hip replacement, walks with a limp, has difficulty putting on shoes and socks, and has difficulty doing activities with their family is only calculated at 15 per cent WPI.

Also at 15 per cent, a 35-year-old worker who fell from the second floor of a building while working on a construction project, has a compression fracture of the spine and is unable to walk without crutches or braces, and is now unable to perform most of the activities of daily living. Also a 25-year old worker with disc herniation surgery who, after reaching maximum medical improvement, is diagnosed with low chronic back pain and their symptoms are persistent, with back and thigh pain and numbness of their foot while at rest. That worker is unable even to do their usual recreational activities and some of the household activities that you would typically need to undertake in your home. That person is calculated at only 13 per cent whole person impairment.

Another worker, a man injured in a work-related motor vehicle accident, had his left leg amputated below the knee. He now needs a prosthesis to enable him to walk. He is calculated at 28 per cent whole person impairment. That does not pass the front bar test, it does not pass the sniff test. Somebody who has lost half their leg due to a workplace injury should actually qualify for ongoing support. When we hear these stories, as we heard the stories of those in the police force, I think South Australians will be horrified at what has turned out to be—as I recall the member for Ashford saying when we debated this piece of legislation—a draconian piece of legislation.

The Labor Party comes from a strong tradition of standing up for workers, and they should be standing up for injured workers in this state. Workers united will never be defeated, is a long-held catchcry. Workers injured should never be treated differently, and they will not be divided—the Greens will see to that. With those few words, I commend the motion to the chamber.

The Hon. J.A. DARLEY ( 16:22 :00 ): I am pleased to be co-sponsoring this motion, together with the Hon. Tammy Franks, a fierce advocate for injured workers in this state. Just yesterday we were invited to attend a briefing hosted by the Deputy Premier, looking at the performance of the return-to-work scheme. Unfortunately, due to another commitment, I was unable to attend that briefing, but my adviser did report back to me with the findings. I have to say that I was not in the least bit surprised by what was presented.

There is no question on the face of it that the material produced points to a well-functioning scheme. If you ask the Deputy Premier or the CEO of ReturnToWorkSA, they will report that the new scheme is on target, injured workers have never been treated better and the unfunded liability is no longer a problem for the state government. As with most things in this place, it does not take much to realise that this is far from the full picture. There is absolutely no question that the changes to workers compensation laws in this state have had a devastating impact on injured workers and their families.

It is all well and good to say that the new scheme is operating well for those workers who actually manage to qualify, particularly as seriously injured workers, but what about those who do not? What about those who only manage to have a whole person impairment of 26 or 27 per cent, or, worse still, 29 per cent? What is their long-term outlook? And, what about those injured who have sustained psychiatric injuries as well as physical injuries, but fail to qualify as a seriously injured worker because the act does not allow the two to be considered in combination.

If you do not meet the 30 per cent threshold and are cut off from income maintenance payments but remain unable to work, where does that leave you? It beggars belief that a 35-year old worker who has had a total hip replacement, walks with a limp and has difficulty putting on shoes and socks and doing general activities with their family could be assessed as having a 15 per cent work performance impairment, or that a 35-year old worker involved in a fall from the second floor of a building whilst working on a construction project, which results in a compression fracture of their spine, could also be assessed as having the same 15 per cent whole of body impairment.

These are, I might add, real examples. A 25-year-old worker who underwent disc herniation surgery and was diagnosed with chronic low back pain and suffers from persistent back and thigh pain and numbness of the foot while at rest, leaving him unable to take part in recreational and household activities, was assessed as having a 13 per cent WPI. It beggars belief that a person could sustain the sorts of injuries that the Hon. Tammy Franks has outlined and not be entitled to ongoing support past the two-year mark despite their inability to return to work, and it beggars belief that in assessing the degree of impairment resulting from any of these injuries no regard is to be had to any impairment that results from consequential mental harm.

Of course, the scheme is going to look healthy if injured workers are being thrown off because of unattainable thresholds and tests. Yesterday's overview by the government and by ReturnToWorkSA is an appropriate reminder of why this inquiry is necessary. It is absolutely critical that we examine the impacts that the changes themselves have had on injured workers. We need to consider the ramifications of those changes in the context of the effects they are having on those persons who no longer qualify for entry into the scheme, and we need to consider the fairness of such a scheme. In closing, once again I am pleased to be co-sponsoring this motion. Like the Hon. Tammy Franks, I urge all honourable members to support it.

Debate adjourned on motion of Hon. J.M. Gazzola.

 

Legislative Council July 6, 2016

 


 


Return To Work Act


Adjourned debate on motion of Hon. T.A. Franks:


1. That a select committee of the Legislative Council be established to inquire into—


(a) The potential impacts on injured workers and their families as a result of changes to the Return to Work Act including tightening of the eligibility criteria for entry into the Return to Work Scheme;


(b) Alternatives to the overly restrictive 30 per cent WPI threshold for ongoing entitlements to weekly payments;


(c) The current restrictions on medical entitlements for injured workers;


(d) Potentially adverse impacts of the current two year entitlements to weekly payments;


(e) The restriction on accessing common law remedies for injured workers with a less than 30 per cent WPI;


(f) Matters relating to and the impacts of assessing accumulative injuries;


(g) The obligations on employers to provide suitable alternative employment for injured workers;


(h) The impact of transitional provisions under the Return to Work Act 2014;


(i) Workers compensation in other Australian jurisdictions which may be relevant to the inquiry, including examination of the thresholds imposed in other states; (j) The adverse impacts of the injury scale value; and


(k) Any other relevant matters.


2. That standing order 389 be so far suspended as to enable the chairperson of the committee to have a deliberative vote only.


3. That this council permits the select committee to authorise the disclosure or publication, as it sees fit, of any evidence or documents presented to the committee prior to such evidence being presented to the council.


4. That standing order 396 be suspended to enable strangers to be admitted when the select committee is examining witnesses unless the committee otherwise resolves, but they shall be excluded when the committee is deliberating.


(Continued from 25 May 2016.)


 


The Hon. T.A. FRANKS ( 17:24 :20 ): I rise to very briefly thank members for their contributions—both today and previously: the Hon. Tung Ngo, the Hon. Mark Parnell, the Hon. Rob Lucas and the Hon. Kelly Vincent today for their indications of support. I want to particularly thank the Hon. John Darley for moving this motion with me. We did it as a team because we were similarly receiving reports and hearing about cases of injured workers with, for example, disc herniation surgery, total hip replacement, compression fracture of spine and even a leg amputation below the knee, and all of these life-altering injuries not being defined as serious under the current laws.


What has changed in recent months has been the success of the Protect Our Cops campaign, where the police officers of this state showed to the public and then to the Weatherill Labor government that these new changes were unfair, they were too harsh and they had gone too far. The Police Association ran a successful campaign and the voices of those injured workers were heard loud and clear by Labor. I hope that the voices of the workers will be heard loud and clear by Labor through the processes of this committee, and supporting those injured workers to tell those stories through the parliamentary processes sooner rather than later. We need to protect our cops but, do you know what, we need to protect our ambos, our nurses, our teachers, our tradies, any workers. A worker who is injured on the job should be treated in the same way as any other worker who is injured on the job, regardless of whether they are a cop or a construction worker.


I thank those members for their contributions and the conversation that happened outside this chamber, and I am certainly very supportive of the select committee being replaced with a standing committee. I thank members who were instrumental in facilitating that pathway. These people who we want to hear from are the most vulnerable in our community and they need our support, and they need a strong and supportive workers compensation scheme. I am hopeful that we can look at what is happening sooner rather than later and not waiting for that review that comes after the next state election, but hearing from these workers who have similar stories to tell as the police officers of this state told to the community. I think, when the community hears these stories, they will be shocked and surprised and perhaps we will see further legislation in this place to correct the errors that have been made. With those few words, I commend the motion.


Amendment carried; motion as amended carried.


 


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