Australia: Changes to Queensland's workers' compensation legislation in effect

Last Updated: 7 October 2015
Article by Hedy Cray and Laura Hillman

Most Read Contributor in Australia, August 2016

Key Points:

Changes to Queensland's Workers' Compensation and Rehabilitation Act have been assented to. While not all changes made in October 2013 have been reversed, it remains important that employers understand the changes and their rights and obligations.

The Queensland Government's promised amendments to the Queensland Workers' Compensation and Rehabilitation Act 2003 to roll back the changes introduced in 2013 were passed on 17 September 2015 and assented to on 24 September 2015.

The key changes include:

  • removing the greater-than-5% degree of permanent injury (DPI) threshold for access to common law that was introduced in October 2013;
  • allowing injured workers who were affected by the 5% common law threshold (between 15 October 2013 and 31 January this 2015) to obtain additional compensation;
  • removing the ability of employers to apply to the Workers' Compensation Regulator for a copy of the claim histories of prospective workers;
  • and amending procedural aspects of the claims process, including extending the time in which claimants can seek an extension of time to apply to the Workers' Compensation Regulator for a review of WorkCover's/Self Insured Employer's decision.

Repeal of the 5% impairment threshold from 31 January 2015

In October 2013, a threshold was introduced to restrict injured workers' access to common law compensation. To make a common law claim, a worker had to be assessed as having a greater than 5% DPI or a terminal condition arising from the injury. While this was new for Queensland, most Australian states already had thresholds in place restricting workers' access to pursuing common law claims (for example, New South Wales and Tasmania are currently 15% and 20% respectively). While Queensland was one of the lowest, introduction of the threshold was contentious and submissions were made that it was unfair, unnecessary and arbitrary.

The 5% threshold has been removed retrospectively from 31 January 2015. Accordingly, workers who were injured after 31 January 2015 (even if their DPI is assessed as 0%) will be able to pursue a common law claim in relation to their injury.

While the threshold has been removed, the concept of DPI has not been removed or changed.

As with the October 2013 changes to the WCR Act, the right of workers who were injured before 15 October 2013 to make a common law claim is not impacted.

For workers who were injured between 15 October 2013 and 31 January 2015 with a DPI of 5% or below, additional lump sum compensation is available, up to the amount prescribed by regulation. Industrial Relations Minister Curtis Pitt stated that this is to mitigate the impact on workers who are unable to access common law damages. While the regulation has not been released, Mr Pitt has told Parliament that the draft regulation provides these workers with twice their lump sum entitlement.

Access to workers' compensation histories no longer available

From 29 October 2013, the WCR Act allowed a prospective employer, with the consent of the worker and payment of a fee to the Workers' Compensation Regulator, the ability to access a prospective worker's claims history summary. The ability to access prospective workers' claims history was controversial with concerns expressed about privacy and how the claims histories may impact prospective workers.

With the amendments to the WCR Act, access to claims histories is abolished as of 24 September 2015. Applications that have been lodged but not decided by that date will be denied.

Extension of time requests for reviews and appeals

Timeframes have been amended for parties wanting an extension of time to:

  • apply for review by the Regulator of WorkCover's/a Self-Insured Employer's decision; or
  • appeal a decision of the Regulator to the Queensland Industrial Relations Commission (QIRC).

From 15 July 2015, applicants seeking an extension of time to lodge a review application are able to make an extension request of the Regulator at any time, but no more than once.

In relation to appeals to the QIRC, prospective appellants can "ask [the Workers' Compensation Regulator] to allow further time to appeal".

The review or appeal timeframes themselves have not changed. Applications for review will still need to be lodged with the Workers' Compensation Regulator within three months of receiving written notice of WorkCover's/the Self Insured Employer's decision. Appeals to the QIRC still need to be filed within 20 business days of being provided the Workers' Compensation Regulator's decision.

Similarly, even if an extension request is made, this does not guarantee that it will be granted. In particular, for an application for review, the Workers' Compensation Regulator will still need to be satisfied that "special circumstances exist".

October 2013 changes to workers compensation that are still in place

While a number of the changes made to the Workers' Compensation and Rehabilitation Act in October 2013 have been removed, other important changes remain.

Significantly, the increased requirement that a worker's employment be "the major significant contributing factor" for a psychiatric or psychological injury to be compensable under the Act has not changed.

In addition, while workers' compensation histories can no longer be accessed, other information/document access and use provisions remain unchanged in the Act, including:

  • an employer's ability to request (in writing) that prospective employees disclose all pre-existing injuries of which they are aware could reasonably be aggravated by performing the duties of the position they applied for; and
  • the prohibition on using "workers' compensation documents" (as defined in the Act) for selecting a person for employment or determining whether a workers' employment is to continue.

Impact of the changes

In some ways it is unclear whether these changes will have much impact upon Queensland employers.

As the 5% threshold had been in place for less than two years, and it has been retrospectively removed and additional lump sum payments made available, we are not likely to ever know what, if any, impact the threshold made, including on workers' compensation premiums.

The loss of access to workers' compensation histories is unlikely to have a great impact as many employers did not use it, given that workers did not have to consent to their requests, the limited information that could be provided and the legislative prohibitions on using the information (both in the Workers' Compensation and Rehabilitation Act and other legislation, such as anti-discrimination legislation.

Nonetheless, it remains important for employers to understand not only the impacts of these changes but also their rights and obligations under the Workers' Compensation and Rehabilitation Act to defend against and manage any claims, and to comply with other legislation that impacts this area, such as the Fair Work Act 2009 and anti-discrimination legislation.

Even if a worker does not make a common law claim (or is not able to pursue a common law claim), the impact of a statutory claim can still be significant for employers, including as a result of lost work days, impact on the business' workers' compensation insurance premium, time and cost involved defending against the claim and, if the claim is for a stress-related psychological injury, impacts the workforce's morale as well as increased risk of copycat claims.

It is therefore important that employers manage their risk of claims by:

  • engaging and participate in the workers' compensation process from the outset;
  • ensuring that policies and procedures meet workplace health and safety requirements to minimise injuries and address access to medical and workers compensation documents and use of those documents (such as via pre-employment medical assessments);
  • having good pre-employment processes and employment agreements;
  • ensuring managers and employees understand and follow policies and procedures;
  • maintaining reasonable management action;
  • complying with workplace health and safety requirements.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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