IRO makes submissions to various inquiries and consultations conducted by external stakeholders. The following submissions have been made by IRO.
SCLJ Reviews
Pursuant to section 27 of the State Insurance and Care Governance Act 2015 the Standing Committee on Law and Justice (SCLJ) exercises a supervisory role over the workers compensation and compulsory third party schemes (including both the CTP scheme and the Lifetime Care and Support Scheme (LCSS)). Every two years the Committee conducts separate reviews of both schemes, taking submissions and evidence from selected stakeholders.
SCLJ Review of the Workers Compensation Scheme
The theme of the 2023 review was the increase in psychological injury claims. The IRO lodged a submission with the SCLJ and the Independent Review Officer, Simon Cohen, gave evidence to the Committee on 8 September 2022.
The IRO’s submission identified case management of psychological injury claims as a major factor in delayed payment of benefits, delayed treatment and return to work, increased disputes, greater distress for injured workers and the development of secondary psychological injuries. This was reflected in data from the Independent Legal Assistance Service (ILARS) which showed injured workers with psychological injuries were likely to seek the assistance of approved lawyers at rates greater than the proportion of psychological injury claims would suggest and far earlier in the life of a claim than for other types of injury.
The IRO submission concluded that, whilst much was currently being done to improve case management of workers with psychological injuries, there are opportunities to make further improvements.
The 2022 review of the CTP scheme did not have a theme but the SCLJ indicated that it intended to consider, as part of the review, whether the ILARS should be extended to claimants in the CTP scheme. IRO made a submission to the review and the Independent Review Officer gave evidence to the Committee on 18 November 2022.
The IRO complaints and enquiries data provided the basis to demonstrate that gaps in the legislation could be addressed to improve decision times and the content of decision notices, which may lead to greater efficiency, consistency and fairness in the scheme.
The IRO submission also noted that previous reviews of the scheme found it to be complex and difficult to navigate for injured persons. Those reviews emphasised the need for injured persons to have access to appropriate, expert and paid legal assistance from an early stage, which is currently not available, or only available to a very limited extent. The IRO advanced the view that ILARS is a model for the provision of legal assistance which can address unmet needs for legal assistance in the CTP scheme in an effective manner.
The SCLJ 2022 review of the LCSS ran in tandem with the review of the CTP scheme, also hearing evidence on 18 November 2022.
In its submission the IRO noted it had assumed responsibility for dealing with complaints and enquiries about CTP Care, which is administered by the Lifetime Care and Support Authority (LCSA), in June 2022. It further noted its power to do so is disputed by SIRA and would benefit from legislative clarification.
The complaints received by the IRO, albeit small in number, tended to raise issues common to other CTP complaints handled by the IRO – including delays in decision-making and case management.
SIRA Reviews
The State Insurance Regulatory Authority (SIRA) regulates workers compensation, motor accidents compulsory third party (CTP) insurance and home building compensation insurance in NSW. As a result, SIRA regularly conducts reviews of legislation, Guidelines and Standards.
Statutory Review of the Personal Injury Commission Act 2020
SIRA was appointed to conduct a review of the Personal Injury Commission Act 2020 (PIC Act) required by section 68 of the legislation. The purpose of the review was to determine whether the policy objectives of the PIC Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
The IRO lodged a submission focused on Schedule 5 of the PIC Act, which established the Office of the Independent Review Officer. In particular, the submission noted that the PIC Act did not contain specific policy objectives relating to the IRO and recommended the Act be amended to do so.
In addition, IRO’s submission recommended clarifying the IRO’s role with respect to dealing with complaints about the acts and omissions of the Lifetime Care and Support Authority, as well as improving arrangements to protect people who complain to us, to protect workers who are assisted through ILARS, to protect IRO staff and to support information sharing.
Amendments to the Workers Compensation Regulation 2016
In 2022, the Government passed amendments to the Workers Compensation Act 1987, creating a new entitlement for the children of deceased workers who receive a lump sum death benefit. SIRA sought feedback on the proposed amendments to prescribe the methodology to calculate additional compensation for the costs of investing or otherwise managing the dependent child’s lump sum death benefit paid to the NSW Trustee (funds management).
In its submission, IRO strongly supported the provision of an additional compensation payment for funds management costs as they significantly diminish the value of compensation awarded to infants pursuant to section 25 of the Workers Compensation Act 1987. IRO proposed that an award for payment of fund management fees as and when charged by the NSW Trustee and Guardian would have the advantage of simplicity, accuracy, flexibility and certainty for the award beneficiary and insurers.
Guidelines for the Provisions of Relevant Services (Health & Related Services)
SIRA sought feedback on the draft Guidelines, which specified SIRA’s service and billing expectations for the relevant services delivered by health and health-related service providers in workers compensation and compulsory third party schemes.
IRO’s submission primarily focused on ensuring the Guidelines could be applied in a practical manner and were reflective of the objects of the State Insurance and Care Governance Regulation 2021.
In its submission, IRO noted the possibility that a number of the requirements might restrict relevant service providers from providing services in certain circumstances. IRO recommended that SIRA should consider amending or expanding the scope of those requirements.