The Attorney-General, Jarrod Bleijie, today announced that
contrary to the recommendation of the Inquiry into the Operation of
Queensland's Workers' Compensation Scheme, the Government
would introduce a 5% degree of permanent impairment
(DPI) threshold, below which an injured worker is
unable to make a common law damages claim in Queensland. The
Workers' Compensation and Rehabilitation Act and other
Legislation Amendment Bill 2013 was immediately introduced
This is the first occasion on which thresholds have been
introduced in Queensland.
Based on the 2013 Q-Comp Annual Report, the new threshold would
eliminate more than 46% of all common law claims lodged in
Queensland in the 2013 financial year. While this figure may be
illusory for reasons we discuss below, the impact on the scheme
will nonetheless be significant.
The pros and cons of thresholds have been covered exhaustively
in both the submissions to the Parliamentary Inquiry and the
subsequent report. However, now that a decision has been made,
there are a few key things that insurers and employers should
When will the changes take effect?
The changes take effect from today, 15 October 2013. The
threshold applies to injuries sustained on or after that date (or,
in the case of injuries sustained over a period of time, the first
consultations with medical practitioners on or after that
The changes are not retrospective. As a consequence, employers
and insurers can expect a significant short-term spike in the
number of common law lodgements.
How is the degree of permanent impairment
A new concept of DPI has been introduced. A worker must have a
DPI of more than 5% to satisfy the threshold. The newly created
office of the Workers' Compensation Regulator, which replaces
Q-Comp, must make guidelines for assessing a worker's DPI.
These guidelines will play a crucial role in the new scheme.
How will the threshold be applied?
Queensland already has a unique "access to damages"
gateway which, in the ordinary course, requires an injured worker
to obtain a notice of assessment (including an assessment of
permanent impairment) before being entitled to seek common law
The new threshold will be applied at this stage of the process,
meaning that the assessment of DPI by the insurer, which was
previously largely ignored in the common law process, will now be
What does this mean for insurers and
Insurers and employers can, as a result of the proposed changes,
The proactive involvement of claimant's solicitors in the
statutory claim phase, including the commissioning of specialist
medical evidence leading up to the Insurer's assessment of DPI.
Assessments of impairment by External Medical Officers are likely
to become less common.
Increasing numbers of claims including multiple injuries,
although it appears secondary psychiatric injuries will not be able
to be added to physical injuries to overcome the threshold.
A significant increase in the number of referrals to the
Medical Assessment Tribunal (MAT) over
disagreements with insurers' assessments of DPI. This is likely
to lead to significant delays in the finalisation of claims, due to
capacity constraints within the MAT itself.
As noted above, just over 46% of the 4292 lodgements in the 2013
financial year were assessed to have a work-related impairment of
less than 5%. In our view, it would be overly simplistic to expect
that the amendments will reduce common law lodgements by nearly
2000 claims per year.
The actual proportion of claims excluded by the proposed
threshold will not be known until the amendments have been
operational for a reasonable period. Only then will it be possible
to meaningfully assess whether, on a cost / benefit basis, the
amendments have resulted in any material savings to the scheme.
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.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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