Debbie Brennan is an injured worker, her injury resulting from appalling working conditions existing throughout the under-funded, super-exploitative community sector industry. She examines this major assault on workers by Victoria’s reactionary government, commanded by Jeff Kennett.
“WorkCover — a fair way to get Victorians working again.” So says the propaganda for the Kennett government’s “reformed” workers compensation scheme. These words are meant to allay the fears and outrage of workers injured by the increasing workloads and diminishing safety conditions at the jobsite as occupational health and safety standards are undermined. But Victorian workers aren’t stupid. We know how savage wage slavery can be, especially when it literally make us sick. For those of us who are injured, there’s no confusion about capitalism’s determination to work until we drop.
The Kennett government’s WorkCover legislation strips away any lingering illusions about how far capitalism will go to secure profit by sacrificing the workers who produce it. It’s a crucial part of the overall industrial legislation steamrolled through Parliament in the wake of the Coalition’s electoral victory last October.
WorkCover replaced WorkCare on December 1, 1992. The legislation is so convoluted that lawyers are still scratching their heads as they try to divine its legal meanings. What jumps out from each page is that the new law constitutes the most ruthless worker-bashing to date. Its single unregressive element is that the principle of compensating workers for being injured at the workplace is left intact — even if compensation itself is negated in material terms by the severe restrictions on entitlements and overturning of numerous rights.
The government doesn’t even try to disguise its intention in its publicity blurbs:
“WorkCover is fair to:
- Injured workers, by focusing on return to work and rehabilitation rather than compensation;
- Employers, who, in return for providing rehabilitation and suitable employment to which injured workers can return, will ultimately reduce their workers’ compensation costs and improve their productivity.” (my emphasis)
Overseeing this “fair play” is the Victorian WorkCover Authority Board, comprised of company directors and a commercial lawyer.
The burden of proof is at all times on the injured worker. To establish entitlement to benefits, s/he must show that the job — not lifestyle, hereditary conditions or activities outside the workplace — is the significant contributor to the injury. Workers with degenerative conditions, heart conditions, strokes and stress can easily be declared ineligible. Anxiety and stress claims resulting from the boss’s actions — such as dismissal, forced transfer, retrenchment, demotion or refusal to transfer, promote etc — aren’t allowed. The legislation no longer covers injuries that occur on the way to or from work.
Consigned to the scrap heap
It’s no wonder that the Kennett government could announce in May that there had been a 39.4% reduction of claims since WorkCover began, “reflecting the fall in the numbers of the new claims being reported” and the dumping of 1,051 longterm claimants. Slashing the scheme’s “unfunded liabilities” (the government’s share) by two-thirds, from $2.1 billion to $690 million, has allowed the Kennett regime to cut emploers’ premiums by $200 million, from 3% to 2.5% of the payroll. The Minister for WorkCover has declared that the scheme is “now in the black” and that its unfunded liabilities will be down to zero in three to five years. In the world of business, that’s a successful workers compensation scheme.
Anyone still believing that capital and labor share a common interest just needs to look at WorkCover. The days of attempting to juggle these irreconcilable interests, as Labor did with WorkCare, are over. WorkCover enters onto the stage of open class war in Victoria. Those with the capital can no longer concede anything to the laboring class they prey off. The secret lurking behind WorkCover’s “success” is its persecution of workers who are injured on the job, and whose numbers are increasing.
Justice torn limb from limb
Besides making it extremely difficult to get a claim accepted, the government has constructed a pit of quicksand for those injured workers who get through its protective barbed wire. Injuries are classified according to a mysterious and ghoulish formula, which decides how little the victim gets paid. Parts of the body are valued in relation to the quality of labor that the boss can still eke out of the disabled worker.
Impairment is quantified accordingly. “Seriously injured” workers are those who are at least 30% impaired — which is somewhere in between losing a head, probably scoring close to 100% on the impairment scale, and loss of a leg below the knee, which is somehow measured as less than 30%. Loss of certain body parts like an eye, a finger, a foot or an ear aren’t “serious,” because the worker has another one of each and can therefore still work. “Totally incapacitated” workers are less than 30% impaired, but deemed unable to work. “Partially incapacitated” workers are considered able to work.
For the first 26 weeks (6 months), injured workers get compensation payments at 95% of their pre-injury weekly earnings (the highest calculable income being $603 per week). After 26 weeks, all payments are reduced according to the worker’s classification of impairment: to 90% of pre-injury earnings for “serious injury,” to 70% for “total incapacity,” and to 60% for “partial incapacity.”
This twenty-six weeks turns out to be very elastic. The insurance company can calculate 26 weeks back to the acceptance of a claim, not necessarily to the beginning of payment. In my case, through an apparently legal sleight of hand, the insurance company escaped 3 months’ payment in the first 26 weeks. While trying to close my claim, it paid me nothing for the initial three months. My compensation at 95% therefore lasted only 3 months before being slashed to 70%. Such a clever dealing of the deck must be commonplace, and the injured worker is generally defenceless when it happens.
Compensation cuts out after 104 weeks (2 years), unless the worker can prove serious injury or total and permanent incapacitation. How a worker can do this is anyone’s guess, particularly when the arbiters are insurance company doctors and a Medical Panel, which exists to serve only the bosses. Keeping one’s head above the quicksand for this long means defying all the odds.
“Notional Earnings” = Actual Destitution
The WorkCover legislation introduced “notional earnings” as a means of reducing the injured worker’s payments to nothing. If the worker is considered capable of doing some sort of work, then s/he is hit with this drastic compensation cut. For example, after 26 weeks, a “partially incapacitated” machine operator with an injured thumb could have her/his weekly payment sliced to $28.
This is how it’s done. WorkCover Authority bureaucrats and medical toadies can decide that although this injured worker isn’t capable of resuming work as a machinist, s/he is capable of working as a night security guard at $200 per week (ie the national earnings). WorkCover then pays the worker the difference between 60% of the pre-injury weekly earnings (60% of a pre-injury weekly wage of $380 is $228) and the notional earnings ($200) — that is, $28! — whether or not the worker can find or perform the work, or even wants it. A worker in this situation is under enormous pressure to return to work or find another job, risking termination of payments if WorkCover judges that s/he isn’t getting back to work fast enough. Trapped between coping with an injury and being shoved back into an industrial hellhole where jobs are scarce and discrimination is rife, the worker can’t win. Any worker on WorkCover can be tossed into this desperate situation at any time. This is where the medical assessment come in.
The injured worker learns all about being disempowered when the insurance doctor circuit starts. These socially useless “specialists in their fields,” as the Victorian WorkCover Authority describes them, give their “independent” verdicts to the insurance companies who hire them. Among this firing squad of experts are psychiatrists (even if the injury isn’t a psychiatric one), who will judge “how you feel about your injury.” These bouncers with stethoscopes decide if the injury is work-related and assess the nature of the medical condition, the degree of incapacity and the duration of incapacity. The injured worker must be “cooperative” or else be thrown off compensation. Being “cooperative” means attending all appointments and being on time (insurmountable problems like childcare aren’t acceptable reasons for failing this part of the obstacle course) and answering their questions (no matter how loaded or invasive).
With no control over the scheduling or frequency of appointments, the worker’s life is put on hold. Locations can be inconvenient or inaccessible, and appointments can be cancelled by the doctor without notice. (I punctually attended an appointment, feeling particularly bad that day, only to be told that doctor had to cancel his appointments, because he had been called to court to give evidence.) Challenging a doctor who is intrusive and hostile risks a damaging report. The worker no longer has the right to take along a friend. Interpreters — chosen by the insurance company — are still allowed.
Hostile insurance doctors can be especially vicious. I recently went to a re-scheduled appointment with the one who had stood me up previously. In a particularly nasty psychological game, he grilled me about my entire life — my medical history, my schooling, previous work (including the subjects I used to teach), how I get on with my family and if I “have men friends.” My punishment didn’t end with the interrogation. He then sent me for a battery of X-Rays. The radiologist took between 20 and 24! When I challenged him on the radiation exposure, he said “I do what I’m told.” WorkCover is a gold mine for these “specialists” who can also play out their hatred of workers, women and other phobias.
WorkCover law makes occupational rehabilitation compulsory. Every injured worker has the right to a rehabilitation program, and the employer is obliged to provide it. But what should be working in the injured worker’s interest becomes another brutal blow. The government’s $1.4 billion “turnaround” is partially the result of 5,500 injured workers being thrown out of their rehabilitation programs. In December, the Kennett government handed over all of the files of the now-disbanded Victorian Accident Rehabilitation Council (VARC) to the insurance companies for “review.” In an all-out purge, these brokers of big capital cut their lists of claimants undergoing rehabilitation from 8,500 to 3,000 — leaving another trail of broken lives. Besides cutting off payments to rehabilitation providers — like chiropractors, neurologists and other specialists whose services aren’t covered by Medicare — the Kennett government is gutting its funding to community health centres and all other public healthcare. Injured workers’ access to treatment is drying up.
WorkCover law says that an injured worker can take a dispute to conciliation and then to an appeal. The WorkCover spiel says that “conciliation is the quick and effective way to ensure the right WorkCover decisions are made.” A gun at the head usually is.
The conciliation process is controlled by Conciliation Officers appointed by the WorkCover Authority. Like insurance doctors, these officers are “impartial.” They make recommendations and give directions in the matter. The injured worker no longer has the right to legal representation. The worker is responsible for obtaining medical reports and paying for them. WorkCover-appointed Medical Panels “of highly qualified doctors” are used extensively in the new system: they decide on all medical issues, including the relationship of the worker’s injury to the job.
In all forums of this so-called dispute resolution — which include conciliation, the Administrative Appeals Tribunal and the Magistrates and County Courts — the word of the Medical Panel is final and binding. The opinion and evidence of the worker’s doctors have no formal status. Although denied paid legal advice and assistance, the worker is liable for costs if s/her loses to appeal.
So, sue me!
A worker’s common law right to damages for the boss’s negligence has been severely restricted. A few days before the December 1st deadline, injured workers, who follow the media, learned that in order to take a common law action for injuries pre-dating September 1st 1992, they must file by that date. For injuries between September 1st and December 1st, a worker had to slap together an action by March 1st 1993. If that didn’t reduce cases to a trickle, the right to sue an employer for injuries after December 1st is limited to “serious injury” — ie 30% + impairment. Even then, the thresholds set for settlement payouts show the depth of contempt the Kennett government and its marketplace moguls hold for workers: a minimum of $29,860/maximum of $671,960 for loss of income and minimum of $29,860/maximum of $185,740 for pain and suffering.
Workers who have received compensation payments for a year can apply for a lump sum of up to a dizzying $10,000, forfeiting all future compensation entitlements. To do this is another gamble for the injured worker. The insurance company and WorkCover Authority can offer any amount or refuse to make one at all. Their decision can’t be challenged. Late last year, injured workers who had been on compensation for 52 weeks by December 1st were harassed by WorkCover agencies to apply for the lump sum, threatened with loss of their compensation if they didn’t. Those who did apply received miniscule amounts, or nothing at all. They make up another huge sum subtracted from the bosses’ and insurance companies’ compensation bill.
Privacy Jeffed and workers terrorised
As if workers weren’t brutalised enough by WorkCover, the government had to strike one more blow with its new lethal weapon. An injured worker must permit her/his medical records to be handed over to the WorkCover Authority, the insurance agent or a Conciliation Officer. There is nothing stopping these snoops from demanding that a doctor surrender all medical records or getting them through a subpoena. Already, WorkCover’s Certificate of Continuing Incapacity, which the injured worker must submit to the insurance company every 28 days, is far more detailed than that of WorkCover.
The worker’s right to privacy is about to be overturned. It has effectively been liquidated already by the spy network, which the Kennett government is funding to ensnare injured workers.
WorkCover terrorises injured workers. One consequence is that injured workers who still have jobs choose to use up their sick leave (thus aggravating their injuries), just to delay their subjection to WorkCover. By its own admission, WorkCover is not about compensating workers for work-caused injuries. Instead it’s a stud in the cat-o-nine-tails being used by the Kennett regime to beat the working class into submission. It is designed to stabilise profit for the boss and the insurance industry at a debilitating cost — physical, emotional and financial — to the injured worker. Its purpose is to offload all economic and moral responsibility for workplace injury onto the victim and get that unit of labor working again. And if that’s not possible, discarding it onto the dole heap and replacing it with another one.
Down with pro-WorkCover union leaders!
What has the union movement leadership done? Our union leaders have stated many times how “unfair and uncaring” this assault is. They are definitely indignant, and they’ve said so to Kennett. While puffing hot air and crying crocodile tears over WorkCover, the Victorian Trades Hall Council and the ACTU are tying and gagging workers on all fronts of the class war. They tell us to wait for Labor’s re-election.
Rank-and-file unionists in Victoria know that our union leaders’ pantomime of rage is put on to sidetrack our struggle and kill it off. Within the union movement, the membership will have to throw out these minders for the ALP wing of capitalism and mobilise a counter-assault by workers inside and outside the organised labor movement against Kennett’s business-propelled government. A decisive victory against Kennett would give the signal for working class revolt throughout Australia (a reason for the ferocity of the attack on Victorian workers). Workers’ struggle won’t finish until the ultimate victory: their seizure of political power from the profit-mongers who control Kennett, Keating, Kelty and Halfpenny.