Introduction

In the July 2015 Insurance newsletter,1 the range of amendments to be introduced into the Workers’ Compensation & Rehabilitation Act 2003 (Qld) (WCRA) was discussed following the introduction of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 (Qld) into parliament in July this year.

These changes have now been introduced in the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld), which was assented to on 24 September 2015.

As foreshadowed, the proposed changes significantly wind back some of the amendments which were introduced in 2013.

Changes

The key changes are:

  1. The removal of the 5% degree of permanent impairment (DPI) threshold for access to common law damages.
  2. An injured worker needing only to have a notice of assessment in respect of one injury arising out of a particular event in order to commence a claim for common law damages.
  3. Employers no longer being permitted to apply to the regulator to obtain a copy of a prospective worker’s claims history summary.
  4. Workers injured between 15 October 2013 and 31 January 2015 who have an injury which has caused a DPI of 5% or less and have not accepted a lump sum award of compensation being able to apply to obtain additional lump sum compensation.
  5. Workers injured after 31 January 2015 who have applied for compensation but have not accepted a lump sum may apply for a review of any notice of assessment if they are aggrieved by the decision. However, if lump sum compensation has been accepted, there is no right of review.
  6. The pre-amendment WCRA applying to claims for damages for injuries occurring before 31 January 2015.

Implications

The most significant change is that workers with a DPI of 5% or less will no longer have their access to common law damages restricted. This has retrospective effect, applying to workers injured after 31 January 2015, provided the worker has not already accepted a lump sum offer. Injuries occurring before that date will still be regulated by the pre-amended WCRA although, in certain circumstance, workers may be entitled to additional lump sum compensation.

The removal of these restrictions will also benefit co-tortfeasors, who will once again be entitled to claim tortfeasor contribution from an employer, provided that the injured worker is also entitled to sue the employer for common law damages.

The legislature has left the definition of ‘worker’ unchanged, meaning that those engaged as contractors or at piecework rates do not have access to the workers’ compensation scheme.

Finally, the legislature has not introduced changes which would alter the effect of the Supreme Court decision in Byrne v People Resourcing,2 which arguably has the effect of requiring WorkCover and self-insurers to indemnify employers in respect of contractually assumed liability.