Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

At the request of Senator Wong, I move:

That the Guide to the Assessment of the Degree of Permanent Impairment [second edition], made under subsection 28(1) of the Safety, Rehabilitation and Compensation Act 1988, be disallowed.

The Comcare guide is in the form of a disallowable instrument and was tabled on 10 October 2005 in both the House and the Senate. The guide is an updated guide prepared by Comcare, a department under the responsibility of the Minister for Employment and Workplace Relations. The guide was approved by the minister.

The existing guideline is based on a United States model. In light of medical science advances, the US guide was updated. These changes led Comcare to take the view that the Australian version should also be reviewed and updated. The guidelines are in extremely technical language. The review process took approximately two years. There are three general areas where the new guide will affect employees: (1) the musculoskeletal tables under the new guide; (2) the commencement of the new guide and its impact on third party claims; and (3) the distinction between non-military and military personnel.

The amended guide provides for new parameters for an injured employee to satisfy the threshold requirement of 10 per cent whole person impairment to enable an injured employee to receive compensation for non-economic loss. There is a concern that the reduction of entitlements is primarily due to the changes made to the musculoskeletal table, the most commonly used table for injured employees. Not only are the criteria much more difficult to satisfy but there are a number of tables which have sought to reduce workers’ rights without legislative authority.

For example, section 24(7) currently provides that, subject to section 25, if (a) the employee has a permanent impairment other than hearing loss and (b) Comcare determines that the degree of permanent impairment is less than 10 per cent, an amount of compensation is not payable to the employee under this section. But looking closely at the guide it becomes clear that there is no specification for a 10 per cent criterion. Tables 9.15, regarding the cervical spine, 9.16, regarding the thoracic spine, and 9.17, regarding the lumbar spine, do not specify a 10 per cent criterion. Instead, an eight per cent criterion is specified followed by a 13 per cent criterion in the case of the lumbar spine and an 18 per cent criterion in respect of the cervical and thoracic spines. In doing so, the new guide has raised the percentage required of a permanent impairment from 10 per cent to 18 per cent. This has the effect of excluding a large number of employees from compensation.

Another area worth mentioning briefly is part 4: the restriction of compensation to 10 per cent for a whole person impairment. To put it more plainly, permanent impairment is to be assessed on the basis of the employee as a whole person, not on the permanent impairment of any body part system or function of the employee. The new guide goes on to require that the employee suffers from 10 per cent whole person impairment before being entitled to compensation.

Section 24(1) clearly provides that Comcare is liable to pay compensation where an injury results in permanent impairment. Section 24(7) provides that compensation is not payable where Comcare determines that the degree of permanent impairment is less than 10 per cent. This is despite the fact that the Safety, Rehabilitation and Compensation Act defines ‘impairment’ to mean the loss of use of any part of the body system or function or any part of a system or function. So, in effect, the new guide appears to seek to further restrict the meaning of this section—a restriction that an employee is required to suffer not a 10 per cent permanent impairment to part of his or her body function or system but a 10 per cent whole person impairment. This will risk leaving, for example, an employee who may suffer from limitations in the movement of their cervical spine without any significant assistance because, while this would be a permanent impairment of the cervical spine greater than 10 per cent, under the new guide it would not satisfy the 10 per cent whole person threshold.

The new guide also impacts on third party claims. There is a concern that the commencement of the guide from 1 March places many employees at a disadvantage. It is well known that employees permanently impaired through work often base their decision to not make a third party claim on the basis that a lump sum payment for permanent impairment will be made. Under the old guide, employees had five months to lodge a third party claim. This will not assist those people whose conditions are not yet permanent or those who are not aware of the changes. As a result, many workers will lose the entitlement to lodge a claim as they have failed to adhere to limitation periods.

We remain concerned that the new guide, as drafted, potentially introduces a discriminatory system for the assessment and treatment of workers compensation. The government’s decision, for instance, to exempt the military from application of the new guide is problematic. Setting up a two-tier system which treats more favourably injured military employees as against other Commonwealth employees is unjust and unfair. A work related injury, particularly one that results in permanent impairment, should not be compensated differently because they have a different employer. All work related injuries are to be deplored and, as a matter of principle, victims deserve appropriate compensation from a scheme and benefit structure which is equitable and transparent. We remain concerned that this principle has been lost under the new guide. I use these examples to illustrate how this new guide does not serve the interests of all employees well. Labor cannot accept that the guide in its current form is in the best interests of all applicable employees. Labor seeks to disallow this guide.