SUBMITTED TO MR. ALAN CLAYTON 2nd SEPTEMBER 2007
SOUTH AUSTRALIA’S WORKERS COMPENSATION SCHEME SPECIFIC TO WORKPLACE FATALITY ENTITLEMENTS
VOID (Voice Of Industrial Death) is a group formed in May 2006 as a means to give the issue of workplace death representation with legislators and as a support mechanism for family dealing with the loss of a loved one.
It became highly evident in the first instance of this group’s initial meeting in May 2006, a substantial number of these families were feeling overwhelmed and insulted by the very institution they believed was set up to counterbalance their trauma and loss. This submission will attempt to outline the primary issues faced specifically by those families.
THE SUBJECT OF COMPENSATION
First of all, it should be said that one of the most delicate issues that arises from this claims process is the overwhelming feeling of shame that comes with confronting the idea of compensation.
Financial matters are not an immediate priority, because the ability to focus on such matters is over shadowed by pain. When the realisation begins to dawn and the questions ‘how will we live” begin to arise, there is a vile sense of ‘wrong’ associated with the whole dramatic process of compensation. The truth is, every single member in this group would give up everything they had in a single heartbeat in order to have that much loved person back in their lives.
What these people are asked to deal with goes well beyond grief and loss. There is a gamut of system procedures they must understand and navigate. The investigation into the death, the long court process (so they may actually one day learn why this happened) and of course in and amongst all of that is the WC organisation. Far from being a lifeline, in many cases the organisation has become the straw that broke the camel’s back. There is a huge misconception within the general public that compensation is on hand to the next of kin for a workplace death. This is one of the catalysts that cause further heartache within these families as the question of who will be compensated creates further friction.
· It has been the experience of a high number of the members of this group that, irrespective of negligence, their loved one’s death has come cheap or without any acknowledgment. · A high proportion of our group did not qualify at all through failure to meet legislative criteria – OR - have had to fight for their rightful entitlement through a lawyer – at a cost.
The misconception out there in the world of workers compensation in South Australia is astounding. It is these mistaken beliefs that give rise to much confusion and contrived materialism.
It is worth noting that this is not reserved or restricted to amateurish persons; even the employees of WC appear to be unsure of the legislation.
Perhaps the answer here – if our legislators insist on non-compensating so many fatality injured workers in this state, and dragging the rest through the system for years, then perhaps this is something the public needs to be more aware of?
There is currently no legislation or formal direction to ensure the people who are impacted the most by these deaths have access to quality trauma counselling.
· The employer has an obligation to ensure the co-workers at the place of employment receive quality support to help them deal with the effects of the accident.
· The employer has no obligation to ensure immediate family members receive support – this offer relies purely on goodwill.
· Emergency services and the investigation teams have systems in place to ensure their employees have access to trauma counselling after attending these often-horrific workplace accidents.
It has been the experience of the VOID group members that very few were offered any help. Some were offered a once only ‘chat’ immediately after the death with any follow up being at the cost of the family.
Within our group we have children exhibiting social problems – they are unable to grasp what has happened. The surviving parent is struggling to understand it too – they are also in need of support and don’t have the expertise or knowledge as to how to deal with their children’s problems. When VOID questioned the various entities (SafeWork SA and WorkCover) as to why there is no mechanism in place for family - and what suggestions they have for these families? The best suggestion appeared to be the ‘free’ services. While these free services offer a valuable service to the community:
· These services are already over burdened with lengthy delays and waiting times
· We also question the expertise and knowledge of such groups to deal with this type of trauma and their issues beyond grief.
· Another point to make is that it may not be that immediate family has the need for this kind of assistance immediately.
· Generally, immediately after the death, immediate family are surrounded with friends and relatives and so the support comes from those close
· It is when everyone returns to their normal lives (and they do) that the real struggle begins
· There is evidence in many medical journals that refer to the body’s natural cortisone, which effectively dulls the senses for a period of time immediately after a trauma.
· The members of this group found that the highest time of need came some time after the accident – several weeks and even months later. There are also the effects of discovering that the death was avoidable as information begins to filter through from various sources.
· Employers often close off contact with family as a means to protect their position in legal matters and this adds to the emotional burden.
· The effect of a potential wrongdoing has enormous impact.
· The process of Industrial Court and Crown charges can take years and so will inhibit the process of healing.
· All of this impacts the mental welfare of immediate family members.
Within the scope of legislation, access for family to qualify for immediate, high quality counselling must be included by means of:
· Suitably trained psychologists to deal with trauma and the mountainous issues associated with this specific kind of death
· Fully qualified Psychiatrists need to be accessible if required
· Specialised youth help is an absolute must for those families who have children
Further to this – that support should be available immediately and / or
· When it is required
· For as long as it is required
A LACK OF INFORMATION AND UNDERSTANDING BY WORKCOVER ON THE ISSUE OF DEATH CLAIMS
As has been already outlined, immediate family and next of kin are not emotionally equipped to navigate complex matters for some time.
In some cases, an assertive family friend or relative may begin to look at what entitlements are there / available on their behalf. This is when things get really complicated.
· There is almost no information available on the WC website to assist people in understanding the claims process.
· Several members reported being advised incorrectly as to death claims entitlements when they contacted WC.
· Other reports outline the WC employees that field calls / enquiries appear unwilling to elaborate or unclear on the legislation and so take the approach of “you need a lawyer”. Does the legislation need to be so complex that it requires the mind of a lawyer to answer basic questions as to who qualifies for compensation?
· Through a lawyer, the cost of having these questions clarified will be born by the family
· Lawyers do not come cheap and these people are already often scared to spend money because they are already trying to cope with the loss of an income
The topic of workplace death requires more information that is easy to understand for normal lay people.
Employees of WC need to polish their understanding of the terms and definitions so as not to misguide and confuse enquiries.
Note: VOID met with WC in early August 2007 to discuss this issue. The organisation concedes it could have done more to assist people needing information on the administering of workplace death entitlement.
Shortly after this meeting WC did email a proof of a fact sheet that goes some way into defining some of the definitions of entitlements. Our members have raised further questions into this, which clearly shows that the task of unscrambling the legislation can in itself lead to further confusion.
A QUESTION OF COMPENSATION – THE NO FAULT SYSTEM
By far the vast majority of the general public in this State would be unaware that in many cases, a death in the workplace can result in no compensation to family, even though the worker was clearly going about his work – and even though there is evidence of neglect where the death could have been avoided. It appears to not matter how little regard the employer had to OHS - the point is mute. The employer has no obligation to compensate irrespective of the seriousness of the neglect.
Some examples of non-entitled cases affecting this group include:
· Young workers (apprentices / trainees) without dependents
· Workers who live in a defacto relationship not yet having reached the minimum time period required by legislation to recognise the ‘union’
· Unmarried / divorced workers whose children are over the age of 18
· Single / unmarried workers
The compensation funds for these deceased workers will go back into the scheme because there is no clear financial dependency.
At sentencing negligent employers through the Industrial Court, there is precious little recognition of the damage incurred by family.
Therefore, the death of the workers in the above examples resulting from the careless actions of an employer will:
· Benefit WC - no entitlement = no payment
· Benefit the Government – Court fines = Government revenue
· Benefit the Company – No fault = No liability THE INVESTIGATION PROCESS INTO ENTITLEMENT – SHOW NO MERCY Even in cases where there appears to be a fairly clear sense of entitlement, often times it is seen that WC claims investigators are actively ceasing on any weakness in the claim in order to save paying out.
Spouses within our group have been questioned without any thought to their fragile state about the quality of their relationship with the deceased.
· One claim assessor expressed to a defacto spouse of 14 years that her relationship with her deceased partner is considered “a bit of a joke”. This relationship had experienced some ups and downs in the 14 years but the grieving spouse was given ‘gossip’ information, which remains to be substantiated, that her deceased partner wanted to leave her at around the time he died. The impact of this has been nothing short of debilitating.
· A defacto spouse of 2 years lodged a claim for compensation through a lawyer but was advised her claim was rejected on the grounds that WC did not consider the union between the couple to be much more than boyfriend / girlfriend. The couple had been together for 7 years and had been living together for the last 2 years prior to his death. They lived as any defacto couple, sharing costs and planning for the future.
· Even a 25-year marriage with a fully dependent spouse can be made to endure connotations of ‘uncertainty’ surrounding the marriage with probing and hurtful inquiries into the quality of the bond. During the claims assessment she was asked to substantiate her relationship with her dead husband. Proof of marriage – proof of ‘relations’ within the marriage. Such treatment on grieving and struggling spouses is completely unacceptable and borderlines on abuse with long term implications to their emotional well being.
Deceased workers cannot return to work - therefore there seems little value in applying this inference that these claims are deceptive.
There seems to be little logic to explain this other than an inability by the scheme to differentiate between injury and death and a sense of confusion as to how to apply the test of entitlement in a manner that does not cause further injury.
The investigations are extremely one sided and actively seeks evidence (irrespective of its validity) to ensure the test fails rather than verifying the accuracy of the evidence.
In that vein we can assume that any sign of a rift between a spouse and the deceased’s family could easily jeopardise her entitlement whether the allegations are correct or not. The problem with this process is the weakest people are being further downtrodden. They just don’t have that much fight in them at times like this.
NOTE: A formal complaint has recently been lodged with WC in relation to one particular claim and the manner in which it has been handled. That incident is now under investigation.
The test to entitlement is tested at any level with as much aggression as required to break the victim. There is a general feel here that the scheme actively looks for a weakness in a death claim - therefore holding up needed compensation (potentially for years) until a decision is made in the Industrial Courts.
We would argue that the emotional price some family’s pay for their legal entitlement far outweighs the benefit. The end result of this mind-set has dire consequences to the family unit.
DELAYS IN PROCESSING CLAIMS
Even in the most straight forward of cases where there appears to be no question of entitlement by WC, it can take more than 12 months for income maintenance payments to start to filter through.
· In these cases Lump Sum Payments tend to come through much faster, however, this necessitates the need to swallow up money that should / could have been used to pay off debt and reduce financial strain.
In cases where claims are rejected and then taken into the Industrial Court, the time frame can surpass several years.
The Workers Compensation system appears to give little thought to how devastating a death in the family is and how these families now also face immediate financial pressure through no fault of their own.
Family members suffer fatigue, mental illness and stress related illness due to the slow and agonising process they are dragged through.
The system needs to be sped up to minimise the financial damage.
NON-ECONOMIC LOSS - LUMP SUM PAYMENTS
If the lump sum payment for non-economic loss is as it states, to compensate for the non-economic or non-pecuniary loss, then these question need to be answered:
1. Why are only those with a financial dependency entitled to be compensated for their pain and suffering?
With the right of common law removed, there are several instances where a next of kin has no right to compensation at all - no avenue to have their case heard and decided - irrespective of the circumstances or impact of that death.
WC does not recognise a non-dependent as eligible for compensation.
Our question is as above – if the lump sum is allocated as non-economic compensation, then why are non-dependent next of kin not entitled to lodge a claim if the impact of that death has caused pain and suffering?
2. The current lump sum amount would not realistically assist in long-term stability.
· The current amount of approx $250K will barely settle a mortgage debt these days.
· NOTE: We noted in the WC Board’s submission that an increase to $360,000 is recommended. · We think this is the very least the amount should be adjusted to but still feel that the amount should surpass that of the maximum payment for any injury because it comes with the ultimate price tag.
The lump sum value must be adjusted to a more realistic value that reflects the effect of that death. We would recommend an amount of $400,000 for the death of a worker.
We argue since the lump sum payment is for non-economic damage; the death of a worker without dependents should not disqualify immediate family or a non-dependent next of kin from entitlement since this amount does relate to economic loss.
In the cases where entitlement is relatively clear-cut and a claim is lodged approved, one would still question the compensation system and just how it aims to rectify the effects of a death by its current means.
· A fully dependent spouse is entitled to only 50% of her deceased partner’s notional income, this means from the outset of his death, she and the family will struggle to make ends meet with 50% of the weekly income gone.
· The day-to-day costs of running the family home will now reflect an immediate burden to the family who are least at fault for the events that occurred in the workplace.
· The rising costs of utilities, food, petrol, and school fees do not magically disappear when the breadwinner is killed at work so the argument that there are less people to support is rather mute.
· The surviving spouse is restricted in being able to make up lost income because if she gets a job to supplement that lost income, her income maintenance will be jeopardised.
· If she has any of the lump sum money left over and thinks to invest it, she is penalised, as any financial gain will affect her income maintenance.
· Most work fatalities happen to middle class workers who live on a week-to-week pay packet. Reducing that income by 50% punishes the family further and creates more resentment at a system that just does not ‘get’ it.
· Further to this, the ongoing assessments of entitlement are intrusive and ensure these women have no room to move forward.
A partially dependent spouse who may have needed to go to work at the time of death to help pay the bills may not be entitled to any income maintenance (depending on her income) or will at least have her entitlement severely cut back.
The WC Board’s submission suggested compensation to partially dependent spouses is set with a flat rate of 35% of notional income. This 35% could in theory be paid to more than one partially dependent spouse. For example, An ex-wife being paid maintenance for children could qualify for 35% income maintenance even though the children she cares for would receive their own portion of income maintenance.
· This would potentially see the current spouse with whom the deceased lived (and helped to support that family); immediately drop 65% of the family income.
· The ex-partner who once received an agreed amount to raise their children could realistically now not only receive the 12.5% income for their children but also the 35% flat rate she would now be entitled to as a partially dependent spouse. In theory, she could be better off than she was prior to his death.
· Both spouses should have entitlement to compensation but we question, with the complexity of the legislation and its definitions, whether this is a fair direction to take.
Children under the age of 18 are entitled to 12.5% of the deceased workers notional wage until they turn 18 but children over the age of 18 are afforded no compensation even if they are dependents living at home (students).
We concur that these families should not necessarily be showered in wealth and riches as a result of the death but we also believe the idea of compensation should not incur such burden that it depletes the unit of family.
WC will have us believe that this multi-tiered level of lump sum plus income maintenance is quite generous and in fact more liberal than awarded lump sum payments by the common law compensation in other states – although they also admit the matter is rather subjective and hard to compare. We argue that this system not only immediately inhibits the quality of life to these families due to the relatively low lump sum amount and the immediate reduction in income, but will also place these families under more angst and pressure being locked into the scheme for years.
These people feel trapped by the very system that was supposed to ease their burden.
We believe the way to resolve this dilemma is to arbitrate a reasonable lump sum payment and remove income maintenance altogether.
Let the family close the door to the scheme, invest and plan for the future without encumbrances.
· This amount should be indicative of both the non-economic loss and economic loss but should be calculated to relate to the age the worker died and what likely earnings he potentially and realistically could have brought to the family had this tragic event not happened.
It would be our recommendation that the family members of a worker killed at work should not be caused anymore trauma than necessary.
Nor do we think the current scheme compensates adequately and fairly.
We would like to see a choice given to the widow / defacto spouse / domestic partner on the following guidelines:
A lump sum payment of $400,000 being the compensation basis of non-economic loss
payable to the spouse / domestic partner of the deceased worker.
·A dependent spouse with whom the deceased was living, should be entitled to an economic loss LUMP SUM payment of an amount not less than 60% of the deceased workers notional earning from the time of death until that deceased worker would have retired at age 65
·An amount equal to 90% of the deceased workers notional earning until his retiring age of 65 is paid in weekly instalments without impediment or yearly evaluation.
If the deceased worker was contributing to the cost of raising children from a previous relationship, that amount will continue to be paid to the guardian / mother until the children are 18 ensuring that the welfare of these children is not jeopardised.
Dependent children should be awarded their own pain and suffering compensation to go some way to compensating them for a loss they will have to live with for the rest of their lives.
All dependent children under the age of 21
a. Whether living with the deceased worker at the time of death or not,
b. And including non biological children with whom the deceased lived
Receive a lump sum amount of $20,000 to be held in trust until the age 18. This amount is to be reviewed on a 5 yearly basis.
Any disputed claims of entitlement are arbitrated to a non-partial body to deal with specific dynamics that may arise in family arrangements.
There are approximately 20-25 workplace fatalities each year in South Australia. They make up a very small proportion of the total claims – have paid the highest price in terms of loss and yet are treated as frauds and without compassion.We believe a lump sum option to dependent spouses / defacto partners would allow them to rebuild their broken lives without a constant feeling of being harassed and judged by the organisation.
The children of these deceased workers are entitled to be recognised as having lost someone significant in their lives. The lump sum would give them some sense of ‘mattering’ and something to plan for in the future.
President – VOID (Voice of Industrial Death)