Australia: Further analysis of proposed amendments to Queensland workers compensation legislation

As anticipated, on 15 July 2015 the Queensland Government introduced into the Legislative Assembly the Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015, which amends the Workers' Compensation and Rehabilitation Act 2003 (WCRA).

The proposed amendments partially restore the legislative provisions in place prior to the significant amendments passed in October 2013 by the previous Newman Government.

Headline changes include:

  • the restoration of common law rights for all injured workers
  • the removal of the common law threshold of greater than 5% degree of permanent impairment (DPI) which was introduced for injuries on or after 15 October 2013, and
  • some degree of retrospectivity for injuries between 31 January 2015 (the day of the State election result) and the day of assent.


On 15 October 2013, the Newman Government introduced significant changes to the WCRA, which included the introduction of:

  • the concept of "degree of permanent impairment" (DPI), which replaced "work related injury" (WRI)
  • the introduction of a common law threshold of greater than 5% DPI for injuries on or after 15 October 2013
  • a new process by which a worker who has not made an application for compensation could apply for and receive a notice of assessment (s 132A)
  • an amended definition of injury for psychiatric or psychological injuries, requiring that work be the most significant contributing factor for those injuries (s 32), and
  • the ability for prospective employers to request details of a worker's pre-existing injuries or medical conditions and to request a copy of the prospective worker's claims history from the Workers' Compensation Regulator (ss 571A to 571D).

According to the WorkCover Queensland Annual Report 2013-2014:

  • claim numbers generally decreased during that period, in 2013 there were 88,775 statutory claims and in 2014 there were 82,573of those claims, more than half were classified as musculoskeletal injuries
  • mental disorders comprised 4.9% of claims in 2014, up from 4.7% in 2013
  • common law claims for 2014 totalled 3,729, down slightly from 2013
  • claims for mental disorders totalled 8.9% of common law claims for 2014, up from 8.3% the previous year, and
  • common law damages paid are stable.

In the reading speech for the new Bill, Queensland Treasurer Curtis Pitt referred to the 2013 findings of the Parliament's Finance and Administration Committee, which:

  • recommended against the imposition of a common law threshold
  • acknowledged that the full impact of the 2010 amendments to the WCRA, including the introduction of an ISV scale for general damages, had not yet been fully realised, and
  • noted that there had been a general reduction in claims costs since the 2010 amendments.

The Treasurer stated that the full impact of the 2010 amendments on the cost of common law claims is now clear, with a reduction of 15% in common law claims lodged between 2009 and 2014 and a 10% reduction in the average annual cost of a common law claim.

In terms of the financial viability of the scheme, Mr Pitt highlighted that current workers' compensation premiums in Queensland will be able to be maintained at $1.20 per $100 of wages paid, which is the lowest in the country.

Headline changes under the Bill

Retrospective amendments for injuries on or after 31 January 2015

The following amendments will be retrospective for injuries on or after 31 January 2015:

  • The role of s 132A (Applying for Assessment of DPI if no application made) has been retained and expanded to include a timeframe for the decision and to provide for an appeal against the insurer's decision. Section 132A will also apply to "common law only" claims where the claimant has not previously made application for compensation.
  • A new section, s 132B, has been introduced to allow for a Certificate of Dependency to issue for persons seeking damages for dependency if there is no previous application for compensation.
  • Section 237 has been significantly amended to remove the common law threshold and to partially reinstate the previous s 237 gateway provisions applicable before the 2013 amendments.
  • A new section, s 239A has been introduced to provide for workers who wish to add injuries to a notice of claim for damages that have not previously been assessed for DPI.
  • Changes have been made to the limitation provisions in s 302, with the introduction of a new Schedule 5, which simplifies the extension of time when a Notice of Assessment is requested within six months of the expiry of the limitation period.

Section 132A was introduced in the 2013 amendments and provided a means by which a worker could apply to an insurer to have their injury assessed under s 179 to decide if it had resulted in a DPI. Section 132A was intended to apply to workers who had not made an application for compensation under s 132.

However, difficulties arose with the practical implementation of the provision, as there was no mechanism for an insurer to decide the issues of "worker" or "injury" and no avenue of appeal for a worker who was aggrieved with the decision, other than perhaps to appeal to the Industrial Magistrates Court from a non-reviewable decision.

The proposed amendments to s 132A will overcome those difficulties. The amended provision provides for:

  • an insurer to make a decision to allow or reject the application under s 132A within 40 business days
  • an insurer may reject the application only if satisfied that the worker:
    • was not a worker when the injury was sustained, or
    • has not sustained an injury
  • an insurer to provide notification to the worker of its decision and to provide written reasons if the application is rejected
  • a right of review for an aggrieved worker pursuant to chapter 13, and
  • confirmation that a decision of an insurer to allow the application does not entitle the worker to compensation for the injury.

The role of s 132A has therefore been both defined and expanded to allow for workers to access the gateway provisions in circumstances where they do not yet have a notice of assessment for the injury.

Similarly, the introduction of s 132B will allow dependants to apply for a certificate of dependency in circumstances where an application for compensation has not previously been made.

The proposed amendments to s 237(1)(a) provided that the following persons can seek damages for an injury sustained by a worker:

  • a worker who has received a notice of assessment from the insurer for the injury, or
  • a worker who has not received a notice of assessment for the injury but:
    • has received a notice of assessment for any injury resulting from the same event and
    • for the assessed injury, the worker has a DPI of 20% or more or has made an election under s 239 to seek damages, or
  • has a terminal condition, or
  • a dependant of a deceased worker, if the injury resulted in the worker's death and either compensation for the worker's death has been paid to or for the benefit of the dependant under chapter 3, part 11 or a certificate has been issued by the insurer to the dependant under s 132B.

Notably, the pre-2013 amendment provisions in s 237(1)(b), (c), (d) have not been re-introduced in s 237. Those provisions enabled the following persons to seek damages:

  • a worker, if the worker's application for compensation was allowed and the injury has not been assessed for permanent impairment
  • a worker who had lodged an application for compensation that was the subject of a review or appeal under chapter 13 and the application had not been decided in or following the review or appeal, and
  • a worker if the worker had not lodged an application for compensation for the injury.

Instead, Schedule 5 has been introduced in conjunction with amendments to s 302 (alteration of period of limitation). The effect of those amendments is that a claimant may bring a proceeding for common law damages for personal injury either:

  • within the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 (generally three years), or
  • within the period mentioned in Schedule 5 for a worker who requests or is given a notice of assessment, namely:
    • if less than six months before the end of the general limitation period, an insurer gives a worker a notice of assessment for an injury, a proceeding for damages may be brought:
      • within six months after the insurer gives the notice of assessment, or
      • if within six months after the notice of assessment issues the worker advises the insurer that the worker does not agree with the DPI, within six months after a tribunal decides the DPI
    • if before the end of the limitation period, a worker asks an insurer to have their injury assessed to decide if the injury has resulted in a DPI and the insurer has not given the worker a notice of assessment for the injury:
      • within six months after the insurer gives the notice of assessment, or
      • if within six months after the notice of assessment issues the worker advises the insurer that the worker does not agree with the DPI, within six months after a tribunal decides the DPI
  • within the period mentioned in Schedule 5 where an application for compensation is subject to review or appeal (namely, within six months after the application is accepted or, if before the limitation period expires the claimant asks the insurer to have the injury assessed to decide if it has resulted in a DPI under s 132A, within six months after a notice of assessment issues or a tribunal decides the DPI):
    • if before the end of the limitation period a claimant lodged an application for compensation for an injury
    • the application is or has been the subject of a review or appeal, and
    • the application has not been accepted, and
  • within the period mentioned in Schedule 5 if, before the end of the limitation period, a claimant applies for a certificate of dependency under s 132B.

The amendments also introduce a new s 239A, which allows a worker who has received a notice of assessment for any injury, to seek damages for additional injuries. Section 239A essentially re-introduces the previous s 245 of the pre-2013 legislation and provides that:

  • the claimant can not have, and the insurer cannot decide to have, the injury assessed to decide if the claimant has sustained a DPI
  • the insurer can not decide the claimant's notice of claim does not comply with s 275 only because the claimant has not received a notice of assessment for the injury
  • the claimant may seek damages for the injury only if the insurer decides the claimant has sustained an injury
  • a decision as to whether the claimant has sustained an injury must be made within 40 business days after the notice of claim is compliant
  • the insurer must provide written reasons for a decision to reject the injury, and
  • the claimant has a right of review under chapter 13.

Changes on assent

On the date of assent, the following provisions will come into force:

  • the requirements for rehabilitation in ss 43 and 44 will be relaxed, with the removal of the requirement that the rehabilitation program needs to be accredited by the Regulator
  • the Regulator has been granted an increased discretion to allow an extension of time for review applications (s 542), and
  • s 571D, which allows prospective employers to request a copy of a worker's claims history summary from the Regulator, will be repealed on privacy grounds. However, any employers who have previously requested or obtained the claims history will be bound by the previous positions about the use of that information.

Unchanged or retained

The following provisions have been retained in the draft legislation:

  • the DPI assessment process
  • the amended definition of "injury" in s 32 introduced in 2013, with employment required to be "the major significant contributing factor" for psychiatric injuries
  • the 2013 amendments to s 186 allowing a worker to request to have their injuries assessed again by a practitioner agreed to by the worker and the insurer, and
  • the ability of employers to request details of a prospective worker's pre-existing injuries or medical conditions under ss 571A to C, including the provisions disentitling the worker to compensation or damages for any event that aggravates a pre-existing injury or condition about which the worker has made false or misleading disclosures.

Transitional provisions

Something to note in the transitional provisions is that, despite the stated retrospectivity of the amendments, any decision made by a worker during the transition period (from 31 January 2015 to the date of assent) to defer, accept or reject an offer of lump sum compensation pursuant to s 189 will be unaffected by the amendments. As a result, a worker may be precluded from seeking damages in circumstances where a lump sum offer has been accepted.

Additionally, in the reading speech, the Treasurer indicated that the Government was still consulting with interest groups and the steering committee about the treatment of workers who have sustained an injury between 15 October 2013 and 30 January 2015 and who were assessed with a DPI of 5% or less. Proposals to compensate these workers are being considered.

Other Amendments

The Bill also seeks to introduce provisions to provide a greater degree of coverage for Queensland fire fighters by introducing deemed disease provisions for latent onset diseases. Fire fighters who have served a specified number of years and who are diagnosed with one of the 12 cancers specified in Schedule 4A from 15 July 2015 will not have to establish that work was a significant contributing factor to their disease—rather the cancer will be deemed to be work related.

Next steps

The Bill has been referred to the Finance and Administration Committee, which has called for submissions by 6 August 2015. A public hearing date (yet to be confirmed) is scheduled for 13 August 2015 and the committee is due to report by 4 September 2015.

The next scheduled sitting dates are in mid-September and October 2015. It is anticipated that various groups and committees will now consider the draft legislation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.