On 15 July 2015, the Queensland Government tabled the Workers’ Compensation & Rehabilitation and Other Legislation Amendment Bill 2015 as part of its election commitment to ‘wind back’ amendments introduced by the previous government on 15 October 2013.
Most significantly, the proposed Bill removes the 5% permanent impairment threshold for common law claims. Significantly, this change in the threshold has been backdated to 31 January 2015.
Any injuries between 15 October 2013 and 31 January 2015 will remain covered by the previous version of the Act and therefore subject to the threshold, although the Bill proposes a regime for additional compensation to be paid to workers who were assessed with 5% or less permanent impairment during this period and had not accepted the lump sum payment. The amount of that additional compensation is to be determined by Regulation.
If a decision was made under the previous version of the Act between 31 January 2015 and the date of assent of the amending Bill, the decision stands but an aggrieved party can now apply for review of that decision using the new provisions. If a worker made an election to accept a lump sum under a notice of assessment between 31 January 2015 and the date of assent of the amending Bill, that election will remain binding on the worker to preclude them from pursuing common law damages. The workers in the best position will be those with a nil percent impairment as they could not make an election to accept any lump sum.
From an employment law aspect, the amending Bill also removes the entitlement of prospective employers to request workers’ compensation claims histories of potential employees from WorkCover Queensland. Interestingly, the amending Bill did not touch the provisions introduced by the last government which empowered prospective employers to ask new employees to disclose any pre-existing injuries or medical conditions, although there has been commentary that these provisions are problematic in the face of antidiscrimination legislation.
For employers, these amendments will mean a significant increase of claims as pre-October 2013 statistics indicate more than 50% of common law claims were 5% or less permanent impairment. However, the 2010 amendments were producing a downward trend of claims before the October 2013 so that the number of new claims should settle down after a short term spike.
For insurers, there will again be an opportunity to apportion liability to WorkCover Queensland in cases where the previous Act denied the plaintiff the chance to pursue a common law claim and left them with the only option of going after any public liability insurers. The principle of Bonser v Melnacis will still apply that the injured worker must still claim against WorkCover Queensland before the insurer can claim contribution but the amendments at least reopen a door which was firmly closed under the previous version.