On 15 July 2015 the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 (Qld) (2015 Bill) was introduced into the Queensland Parliament.
The Bill follows speculation that the Queensland government would make changes to the workers’ compensation scheme after this year’s State election and effectively remove certain requirements introduced by the previous government in October 2013.
By way of background, on 21 October 2013 we released an article about the major reforms in workers’ compensation under the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 (Qld) (2013 Bill) which included a threshold for access to common law damages for injured workers. As a result of the introduction of the 2013 Bill, workers were required to be assessed as having either a degree of permanent impairment (DPI) greater than 5% (5% threshold) or a terminal condition in order to access common law damages.
The 2015 Bill amends the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) by removing the 5% threshold and as well as removing a prospective employer’s entitlement to obtain particular documents. It also seeks to amend some of the procedural aspects of the workers’ compensation application and review processes.
Removal of the 5% threshold for access to common law damages
If the 2015 Bill is passed unchanged, a worker will no longer be required to have an assessed DPI of more than 5% in order to access common law damages. This amendment will be taken to have commenced retrospectively from 31 January 2015 (the date of the Queensland State election).
Further, additional compensation will be paid to ‘particular’ workers impacted by the 5% threshold between its inception date on 15 October 2013 and 31 January 2015. The Government is continuing to take advice from the stakeholder reference groups, consisting of employer representatives, on how to mitigate the impact on workers affected during this period.
Removal of prospective employer’s entitlement to obtain particular documents
Under the 2015 Bill prospective employers will no longer have the entitlement to apply to the Workers’ Compensation Regulator for a copy of a prospective worker’s claims history summary. This amendment will not be retrospective.
Importantly, the obligation of a worker to disclose pre-existing injuries or medication, if requested by a prospective employer, remains unchanged in accordance with section 571B of the WCRA.
- There will be an increase in common law claims under the WCRA with the removal of the 5% threshold.
- Respondents to personal injuries claims under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) will once again be able to make third party contribution claims against WCRA Respondents where previously they were prohibited from doing so in claims where the Claimant was a worker who did not meet the 5% threshold.
- The Government considers that the removal of the 5% threshold can be achieved without the need to increase Queensland’s average premium rate of 1.2%.
What's next and issues to consider
The 2015 Bill has been referred to the Finance and Administration Committee to report by 15 January 2016.
Importantly, finalised statutory claims involving injuries with a DPI of 5% or below which occurred post 31 January 2015 may be re-opened as a result of the retrospective application of the 5% threshold removal.
The 2015 Bill also does not contemplate the impact associated with paying lump sum compensation to ‘particular’ workers impacted by the 5% threshold between its inception date on 15 October 2013 and 31 January 2015. Injured workers within that date range will potentially be ‘double dipping’ in circumstances where they have already received compensation from a PIPA claim that would have included a potential contribution from the employer towards that claim, but such a contribution was prohibited by the 5% threshold. How this proposed lump sum compensation will be dealt with remains to be seen.