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 Bill's provisions:
- reinstate common law rights for all injured workers
- remove the common law threshold of greater than 5% DPI (Degree of Permanent Impairment) introduced for injuries on or after 15 October 2013, and
- are partially retrospective for injuries between 31 January 2015 (the day after the State election result) and the date of assent.
The proposed amendments to the WCRA can be broken down into three groups.
Retrospective amendments 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 (40 business days) and allowing 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.
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.
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which allows prospective employers to request a copy of a worker's claims history summary from the Regulator, will be repealed on privacy grounds.
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.
Something to note in the transitional provisions is that, despite the stated retrospectivity of the amendments, any decision by a worker 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.
The Bill has been referred to the Finance and Administration Committee.
A more detailed analysis of the impact of the amendments will follow next week.