On 17 September 2015 the Queensland Parliament passed a Bill to amend theWorkers’ Compensation and Rehabilitation Act 2003 (WCRA). The amendment saw significant changes to the WCRA and took effect from 9 October 2015.
There are five key changes to the legislation, which will see some immediate impact on the workers’ compensation scheme and management of claims.
1. Entitlement to damages
The amendment of section 237 has resulted in the removal of the Degree of Permanent Impairment threshold of greater than 5%, which was introduced from 15 October 2013 for injuries sustained on or after 31 January 2015.
This means that, for injuries occurring between 15 October 2013 and 30 January 2015, there must still be greater than 5% Degree of Permanent Impairment to have an entitlement to seek damages.
2. Lump sum payments – statutory adjustment scheme
There is an anticipated large cohort of injured workers who have sustained injuries between 15 October 2013 and 30 January 2015 who have a 5% or less Degree of Permanent Impairment. Those workers remain precluded from establishing an entitlement to seek damages (although there may be a proportion of injured workers who are yet to be assessed).
The inclusion of a new section 193A provides for the payment of an additional lump sum amount to that cohort of injured workers. However an injured worker must satisfy certain conditions required by their insurer prior to an assessment of any entitlement to additional payment being made, including:
(a) the injury must have occurred between 15 October 2013 and 30 January 2015;
(b) the Degree of Permanent Impairment must be 5% or less;
(c) the injury must not be a terminal condition; and
(d) the injured worker must not have already accepted, or rejected, an offer of lump sum compensation (i.e. the statutory lump offer accompanying a notice of assessment).
The additional lump sum amount is determined with reference to the Regulations.
The Regulations provide that an injured worker can only be entitled to an additional lump sum payment on the basis that the insurer is satisfied, on the balance of probabilities, that the worker’s employer is, or would have been, liable to pay damages to the worker. That is, the insurer must be satisfied that there are circumstances confirming or indicating that the employer was negligent in the circumstances of injury.
The insurer may determine entitlement without consultation to the injured worker if the insurer considers that it has enough information available to make a decision. If it does not, then a request for information can be made to the injured worker, in which case the injured worker has 60 business days to provide the information. Injured workers are also given a right of appearance prior to a decision being made and following the delivery of further information, if so required.
Importantly, if the insurer determines that an injured worker does not qualify for an additional payment, then, following the issuing of written reasons for decision, an injured worker has a right to apply to a panel to review the decision. The decision of the panel is final.
3. Changes to the limitation period
The Limitation of Actions Act 1974 states that proceedings for workers’ compensation damages claims must be commenced within three years. The superseded WCRA created some confusion in relation to the purported extension of that usual time limit to commence proceedings and when an ability to obtain what was, in effect, a deemed extension of the limitation.
Schedule 5 seeks to clarify the position and provides that the usual three year time limit can be altered depending on:
- the timing of a request for, and issuing of, a notice of assessment;
- whether an application for compensation is the subject of review of appeal; and
- when a Certificate of Dependence was issued.
The amendments do not permit the commencement of proceedings outside the usual three year time limit without some crucial steps having been taken by the injured worker before the expiration of that time limit. There remains an ability to commence urgent proceedings.
4. Time to apply for review and to appeal from statutory decisions
An applicant is now permitted, by the amendment of section 542, to seek an extension of the time to seek a review of an insurer’s decision despite the lapsing of the three month time limit. The condition to this, however, is that such a request for an extension outside the three month time limit can only be made once.
The amendment of section 550(3) sees a similar result for appeals (although the period to appeal is 20 business days).
5. Ability of prospective employers to obtain claims history statements
The superseded Act enabled employers to obtain a prospective employee’s claims history statement from the Workers’ Compensation Regulator. Section 571D has been omitted and therefore prospective employers can no longer obtain claims history statements.
However, the WCRA retains provisions relating to the disclosure of previous claims to prospective employers as set out in section 571B.
The full effects of the amendments are still being reviewed by stakeholders. As the scheme adapts and the amendments are fully implemented, we will provide further updates.