On 17 September 2015 Queensland State Parliament passed an Act which sees the abolition of common law thresholds—changes made retrospectively and applying to all injuries which occurred after 31 January 2015.

The Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 passed Parliament on 17 September 2015, the effect of this legislation being:

  • There is no applicable threshold now applying, and common law rights are restored to all injured workers retrospectively from 31 January 2015.
  • This change means that there is now a limited threshold regime- there is no threshold applicable for all injuries sustained before 15 October 2013, that is, before the introduction of the previous legislation.
  • From 15 October 2013 to 31 January 2015 a common law threshold of greater than 5% permanent impairment is applicable for all injuries that occurred in that 15 month period.
  • As well as removing the threshold, the legislation allows workers who are injured between 15 October 2013 and 31 January 2015 and who did not otherwise overcome the 5% threshold to be awarded additional lump sum compensation pursuant to relevant Regulations. This short term arrangement only applies for injuries which occurred between 15 October 2013 and 31 January 2015.
  • Although injured workers who did not overcome the threshold are not entitled to a full restoration of common law rights, this lump sum arrangement is intended to provide some additional compensation to workers who were otherwise disadvantaged by the threshold regime.
  • The relevant lump sump entitlement is approximately twice as much as the lump sum already for injuries in the statutory claims process.
  • It is intended that a streamlined process will be put in place for the assessment of this additional lump sum entitlement. An insurer is required to determine whether a worker who otherwise did not overcome the threshold is eligible to the additional lump sum. If it is considered by the insurer that the worker is not eligible, the worker is then issued with reasons for the insurer's decision and will be able to have the decision administratively reviewed by an independent panel of legal experts.
  • As previously flagged there are also amendments to sections providing presumptive compensation to firefighters who contract one of twelve types of cancer, that is, it is presumed that the cancers are effectively employment-related.
  • An employer can no longer request the WorkCover claims history of a prospective employee from the Regulator in the pre-employment process. Nonetheless, employers can still ask detailed questions of a worker relevant to job capacity and otherwise direct prospective employees to undertake a pre-employment medical examination aimed at assessing work capacity.

It will be interesting to see whether there will now be a significant (and some say, predicted) increase in common law claims following this legislative change.

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