Following on from our recent newsletter we now know that the threshold regime applicable in Queensland WorkCover claims is time limited – workers who sustained injury between 15 October 2013 and 31 January 2015 need to overcome the 5% permanent impairment threshold before they can pursue common law rights against their Employer.

It follows that:

  • For all injuries sustained after 31 January 2015 there is no threshold applicable, although the usual entitlement provisions apply.
  • The limited duration of this threshold regime (15 months) means that we will never know to what extent common law claims would have reduced as a consequence of the application of the threshold, although, predictably, over this period there was some reduction.
  • Before the Government introduced legislation removing the threshold provision there was significant policy debate within the corridors of power and the industry generally as to whether legislation removing thresholds should be made retrospective.
  • Rather then make the legislation apply retrospectively, it was decided to simply provide that the threshold regime does not apply for all injuries sustained after the State election, that is after 31 January 2015.
  • Nonetheless in an attempt to provide some compensation for workers who 'missed out' within the application of the threshold regime a statutory adjustment scheme has been put in place.
  • It is intended that the statutory adjustment scheme will be an efficient administrative process which allows workers who did not meet the 5% DPI threshold to still obtain some additional lump sum compensation.
  • The statutory adjustment scheme will not apply to workers who were assessed with a permanent impairment of less than 5%, although accepted the lump sum compensation made in the Notice of Assessment. The statutory adjustment scheme only applies to workers who deferred the lump sum offer and did not otherwise meet the DPI threshold.
  • From the perspective of the insurer the statutory adjustment scheme provides an onerous obligation to locate workers who may be eligible for additional lump sum compensation and advise them of this entitlement.
  • Belinda Hughes, Special Counsel of Kaden Boriss Legal, sets out in some detail below the statutory adjustment regime, in particular the qualifying conditions that are required to be met and the process generally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.