Supporting our injured firefighters and emergency service workers – Potential changes to the NSW workers compensation scheme 2021

Key Points:

  • Injured firefighters, emergency service workers, and rescue association workers may soon be entitled to provisional weekly and medical benefits, and up to $8,000 in return to work assistance, education, or training.
  • Employers may soon be liable to pay for funeral and body transportation expenses for the death of the above emergency workers. Additional compensation may be payable for any death benefit going to a dependent child in the case of all eligible, deceased workers.
  • Additional changes are expected to occur to the definition of medical or related treatment, and rights for workers who reside outside Australia.
The NSW government has recently introduced the Motor Accidents and Workers Compensation Legislation Amendment Bill 2021 to make changes to the workers compensation legislation largely in response to the catastrophic bush fire season of 2019. It has since passed the Legislative Assembly and awaits scrutiny in the Legislative Council.

The Bill has four objectives:

  1. Improving customer experience, scheme efficiency, fairness, and equity.​​
  2. Improving access to compensation entitlements for injured workers and certain volunteers.​
  3. Expanding and clarifying existing regulation-making powers.
  4. Establishing new powers for the State Insurance Regulatory Authority (SIRA) to enable better regulation for providers of treatment and other services in the WCC insurance scheme.​​ ​

Should the Bill pass, paid or volunteer firefighters, emergency service workers, and rescue association workers who are injured performing authorised activities (such as firefighting) or whilst on an associated journey may obtain workers compensation entitlements similar to other workers in the current scheme.

Under a new Part 3A of the Workers Compensation (Bush Fire, Emergency and Rescue Services) 1987 Act these emergency workers would be entitled to provisional weekly benefits and medical treatment expenses, rather than face unnecessary delays to compensation. Much like other workers under the workers compensation scheme, this would see weekly benefits paid up to 12 weeks and medical expenses up to $10,000.

Under new sections 14A and 28C, a worker who is unable to return to their pre-injury employment but has received a new job offer (outside of their pre-injury occupation) is entitled to up to $1,000 in return to work assistance such as education, training, transport, child care, clothing or equipment.

Under new sections 14B and 28D, a worker who has sustained at least 20% whole person impairment and had weekly benefits payable for an aggregate of over 78 weeks, will be entitled to up to $8,000 in education or training to assist a return to work.

All of the above additions would apply to injuries received on or after the day the changes commence.

In the tragic event of their death, new sections 10(a) and 26(a) mean their employer is also liable to pay for their funeral and body transportation expenses. This applies to a death occurring on or after 1 October 2019 as a result of an injury received on or after that day.

Additional changes

Another change comes with death benefits under section 25 of the 1987 Act. It is proposed that if a death benefit is to be paid (partially or otherwise) to a dependent child, then the employer will be liable to cover the costs incurred by the NSW Trustee and Guardian managing the trust. This is intended to prevent the value of the benefit lowering before the dependent can access the funds.

Section 53 of the 1987 Act is being re-worked to make it easier for injured workers to obtain statutory benefits if they reside outside Australia. Currently, such a worker is only entitled to weekly benefits if they have a medical assessor certify or the Personal Injury Commission determines that their injury is of a permanent nature. They are then paid their benefits in quarterly arrears.

The proposed changes allow the worker and insurer/employer to agree that their injuries are of a permanent nature, skipping the need to proceed to the Commission. The worker is then entitled to be paid according to the employer’s usual pay periods, or as otherwise agreed between the parties. This will also apply to workers entitled to weekly benefits and already residing outside Australia at the time of the changes.

Finally, and perhaps most importantly, the definition of ‘medical or related treatment’ under section 59 of the 1987 Act is being changed. Presently the definition specifies a long list of treatment types such as physiotherapy, speech therapy, artificial aids, curative apparatus, and home or vehicle modifications. The new definition would be as follows:

Medical or related treatment means a treatment, care, assistance, service or other thing of a kind prescribed by the regulations, but does not include –

(a) an ambulance service, or

(b) a hospital treatment, or

(c) a workplace rehabilitation program, or

(d) a treatment, care, assistance, service or other thing of a kind prescribed by the regulations not to be medical or related treatment.

With the proposed changes the regulations may instead specify what is or is not medical or related treatment. This will allow for a more relevant list to account for new and emerging technology. Considering the substantial caselaw in interpreting this section it will be interesting to see what will be included (or excluded) in the regulations. 

Overall, it is important for employers and insurers to understand that with these proposed changes, additional worker’s compensation liabilities may be incurred, particularly with respect to an injury or death of a firefighter, emergency service worker, or rescue association worker.

Post by Hicksons Special Counsel, Belinda Brown, Solicitors, Sandra Aziz, Thomas Ryan, and Paralegal Ninorta Gabriel.

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