Changes to Qld Workers Compensation Laws
On the 17th October 2013, proposed changes to Queensland’s Workers Compensation Laws were passed in parliament.
Common law damages claims
The biggest change about by the legislation is the introduction of a threshold as a pre-condition to a worker being entitled to take out a common law damages claim. The new changes mean that Queensland workers will only be able to take common law action against their employer in negligence if they have a medically assessed injury of more than 5%.
Injuries that occurred before the 15th October 2013 will not be affected by the new threshold of 5% with respect to access to common law damages.
For example, if a builder or labourer suffers from a 5% impairment which means they are unable to continue to work in their field and thus the end of their working career, they still would not be entitled to receive damages even if the employer is negligent. On the other hand, employees who work in an office environment or clerical occupations and the injury results in very little impact on their earning capacity but have impairment assessed at greater than 5%, would be entitled to pursue damages even if the injury meant relatively little in terms of an impairment of their earning capacity.
Journey claims are still preserved under the legislation. In other words, if you are injured on your way to or from work, you can still receive weekly benefits or your replacement wages, medical expenses (including surgery), travel expenses, pharmaceutical expenses paid by WorkCover.
Another change likely to cause controversy is a plan to give employers access to compensation claim histories of job applicants.
Summary of key amendments
- Q-Comp abolished, instead a Workers’ Compensation Regulator established;
- Threshold of more than 5%;
- Not retrospective – injuries incurred before commencement (15th October 2013) will be dealt with under the old Act, save for referral for rehabilitation as set out below;
- The Authority will now publish guidelines for assessing DPI (degree of permanent impairment) called The Guidelines for the Evaluation of Permanent Impairment;
- Note that Schedule 8 of the Regulations however is to be amended to say that, in assessing an ISV, the Court must give “greater weight” to assessments of DPI under AMA 5;
- A Claimant must now lodge a copy Notice of Assessment with a Notice of Claim for Damages;
- An alteration of the limitation period in some circumstances to allow a claim to be lodged within 6 months of the insurer giving a Notice of Assessment, if the is Notice of Assessment is given in the last 6 months of limitation period;
- For psychological injuries and aggravations, work must now be the significant contributing factor;
- Definition of QOTE amended;
- Rehabilitation – the insurer must take steps it considers ‘reasonably practicable’ to secure rehabilitation and early RTW and refer all workers who have lodged an NOC to an accredited RTW program, regardless of DOI;
- Care provisions amended to deal with the decision in Cameron v Foster however exceptions allowed where paid care is minimal;
- Power to request search warrants for offences under the Act (presumably fraud) and powers of seizure also arising;
- Requirement for workers to disclose to prospective employers any pre-existing injury or medical condition, if the request to do so is made in writing;
- If such a request is made, and false or misleading information given, no compensation from any event that aggravates the condition will be allowed;
- A prospective employer can apply to the Regulator for the claims history of a prospective employee;
- Personal Injuries Proceedings Act, Civil Liability Act and Motor Accident Insurance Act, all amended as to the definition of weekly earnings.
The new changes will have a ruthless effect on working Queenslanders and will no doubt leave the families of the workers distraught in many circumstances.