Recently the State Insurance Regulatory Authority (SIRA) have completed a review into the Treasury Managed Fund (TMF). SIRA explain the intent of the review being
“The review assesses whether workers compensation activities within the TMF agencies are being conducted in accordance with the Workers Compensation legislation and best practice expectations. It also evaluates the interplay between TMF agencies, claims managers and the NSW Self Insurance Corporation /icare in the administration of workers compensation claims.”
Our firm, like many in NSW, represent workers who have sustained injuries in the course of their employment in the public service in NSW. With this experience in mind, we have read the findings of the report of SIRA with great interest.
We recall that in 2020 the head of SIRA at the time, Carmel Donnelly, attended the 2020 REVIEW OF THE WORKERS COMPENSATION SCHEME conducted by the Standing Committee on Law And Justice and with regards NSW State Government employees she said, recorded at Page 55 of the transcript:
“I have seen a culture of service.”
On the basis of our firm’s experience of representing State Government public servants injured at work, we couldn’t be more emphatic in our agreement with Ms Donnelly’s sentiment.
Every nurse, doctor, cleaner, ward person, paramedic, corrective officers, police person, fire fighter, teacher, corrective services officer or administrator that our firm represents in the public service, all convey a similar story of working hard for the good of the people of the great State of New South Wales. It’s obvious in our interactions that they’ve worked their guts out in their line of work before their injury.
We were not surprised to read that SIRA did not have any criticism of the public servants injured in their valuable service of our state, either before their injury or after lodgement.
The review did however make it clear that there is room for improvement concerning the management of TMF workers compensation claims including but not limited to injury management plans (IMP).
What the legislation says about IMPs
Section 42 of the Workplace Injury Management and Workers Compensation Act NSW 1998 defines an IMP this way:
injury management plan means a plan for co-ordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker. An injury management plan can provide for the treatment, rehabilitation and retraining to be given or provided to the injured worker.
Section 45 the Workplace Injury Management and Workers Compensation Act NSW 1998 is lengthy but relevantly provides:
(1) When it appears that a workplace injury is a significant injury, an insurer who is or may be liable to pay compensation to the injured worker must establish an injury management plan for the injured worker.
(2) The injury management plan must be established in consultation with the employer (except when the insurer is a self-insurer), the treating doctor and the worker concerned, to the maximum extent that their co-operation and participation allow…
(4) The information that the insurer must provide to the injured worker includes a statement to the effect that the worker may have no entitlement to weekly payments of compensation if the worker fails unreasonably to comply with the requirements of this Chapter after being requested to do so by the insurer…
What the Standards of Practise include on IMPs
Standard of Practice 12 covers the expectations and benchmarks for insurers concerning an IMP along with the context for the expectations summarised as follows:
- Standard 12.1 setting time frames for issuing an IMP
- Standard 12.2 outlining how an IMP is to be tailored to an injured worker’s situation
- Standard 12.3 creating an expectation on an insurer to review the IMP when new information is received
It is clear from a review of the legislation and the Standards of Practise that an IMP is an important document that is intended to assist the injured worker towards a successful return to work, ideally developed with the injured worker’s involvement and reflecting tailoring to their individual circumstances.
What the TMF review considered about IMPs?
At 5.3 of the TMF Claims File Review appendix one, SIRA outlined that their review of IMPs would focus on the following important criteria:
1. have been developed in a timely manner
2. address risks to delayed recovery
3. involved collaboration
4. were tailored to the worker’s needs
5. drive their return to work goals.
What the review found about IMPs?
SIRA identified at page 9 of the review:
…a significant lack of compliance with legislative requirements and conformance to SIRA’s Standards of practice in what are the basic obligations at the start of the claim, and in the provision of injury management planning, an essential in supporting injured workers in their return to work (RTW).
At page 11 of the review SIRA further stated:
‘…poorest area of conformance in the claims file review was injury management planning, including reviewing and updating plans’ More specifically, the TMF Claims File Review appendix one highlighted concerns about some claims reviewed such as:
IMPs were not evident on the file
IMPs that were evident on file:
- had not been developed with sufficient collaboration
- were not specific to the worker’s needs and consistent with treatment plans and goals identified
- did not have a strong focus on early treatment and a return to safe work.
Other findings in the appendix mentioned some IMPs reviewed:
- were not utilised as a tool to continually drive and improve recovery and return to work outcomes
- did not remain current with worker’s medical and rehabilitation information and goals
What are the reviews recommended next steps?
At suggested outcome number 13, SIRA recommend amongst other things:
SICorp review and enhance claims management strategies where possible to address opportunities to improve customer experience and outcomes identified from the claims file review, with a particular focus on:
- Tailored injury management planning for workers, driving early recovery and return to work…
Why this is all matters?
The IMP is clearly a document intended to capture activities essential to supporting a successful return to work.
Return to work. Has there a more important topic in the workers compensation system in NSW in the last 5 years?
SIRA’s TMF review identified return to work challenges as one of the five key areas of concern in the TMF currently.
Aside from the review, return to work’s importance is emphasised by SIRA’s publication of return to work rates, updated monthly.
Further afield from the TMF, icare have recently announced upcoming premium increases for NSW businesses that are in part influenced by the return to work profile of the icare nominal insurer scheme.
With all this attention indicating a need for improvement in return to work, it is striking that the TMF review indicates that a document as fundamental to the return to work process as an IMP, is not being utilised consistent with its legislative and regulatory intention.
Sadly, our firm’s experience echoes the misuse of the IMP that the TMF review seems to disclose.
We see that the focus of the IMP often seems directed to giving a warning to an injured worker of the potential of their suspension of benefits rather than being a document that is focussed on coordinating a return to work in a collaborative and proactive way.
Alternatively, we see generic IMP’s that seem to have no relation to our clients’ individual circumstances.
Interestingly when IMPs do seem to include some aspect of tailoring they involve considerations or requirements, no doubt well meaning, but nonetheless seem to be out of place on the IMP and not really achieving its intended statutory purpose.
At the Walker Law Group we welcome SIRA’s recommendation about IMPs being tailored for an injured worker promoting strategy that genuinely assists in the return to work of an injured worker. We welcome progress and improvement occurring in the future in this area.
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