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.

Context

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.

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