We have recently reported that the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (‘the Act’) has been passed by Parliament and received assent on 24 September 2015. The Act removes the requirement that a worker meet a 5% ‘degree of permanent impairment’ (DPI) threshold before being entitled to claim common law damages against his or her employer. The changes apply to all injuries sustained since the date of the last State Election (i.e. from 31 January 2015).
Since then, the Workers’ Compensation and Rehabilitation Regulation 2014 has been amended by the Workers’ Compensation and Rehabilitation Amendment Regulation (No.1) 2015 (the ‘Amendment Regulation’) and commenced operation on 9 October 2015.
The amendments to the Regulation establish a mechanism for the provision of additional ‘section 193A’ compensation by way of lump sum payment for workers injured during the period between the introduction of the 5% threshold on 15 October 2013, and 30 January this year, subject to satisfying WorkCover that the worker’s employer would have been liable to pay damages but for the previously imposed threshold (i.e. that the employer would have been liable at common law).
The amendments also establish a panel to review WorkCover’s decisions in relation to the entitlement to additional compensation.
The amount of the payment to be made to the worker is canvassed in Schedule 4A of the Amendment Regulation, and according to a graduated scale based on the worker’s assessed percentage impairment. Schedule 4A also includes provision for the payment of certain legal costs incurred by a worker, where the worker engages a lawyer for the purpose of seeking the additional compensation.