PREMIER ANNASTACIA PALASZCZUK UNWINDS MANY OF CAMPBELL NEWMAN’S CHANGES TO THE QUEENSLAND WORKERS’ COMPENSATION SCHEME
The Queensland State Government has recently passed further amendments to the worker’s compensation scheme that claw back many of the significant and swift changes made to the scheme during Campbell Newman’s reign as Queensland premier. The amended legislation was passed by Parliament on 9 October 2015 and applies retrospectively for injuries occurring on or after 31 January 2015.
The amendments include the following:
The removal of the “more than 5%” degree of permanent impairment (“DPI”) threshold for injuries occurring on or after 31 January 2015. There was much angst from workers, unions, personal injury lawyers and other interested bodies about the application of this threshold for workers who:
were injured on or after 15 October 2013
received statutory benefits under the workers’ compensation scheme; and
were considering a claim for additional compensation through common law.
The “more than 5%” threshold will still continue to apply to those workers who sustained injuries between 15 October 2013 and 30 January 2015 (“the Newman period”) and wish to claim damages at common law (e.g. future loss of income, etc).
However, for those workers’ whose injury occurred in the Newman period, if their DPI falls under the threshold and provided they have not yet accepted a statutory lump sum, they have the option of accessing a further lump sum benefit if they can demonstrate, on the balance of probabilities, that their employer would have been liable to pay damages (i.e. through common law). In order to access this additional compensation, a worker may need to lodge submissions and evidence to support their allegation that their employer’s negligence caused or contributed to their injury.
Employers are no longer entitled to request a prospective or current employee’s workers’ compensation history, however a prospective employee (e.g. job applicant) is still obligated to disclose to a prospective employer any relevant pre-existing injuries if requested to do so in writing. If a claimant’s failure to disclose a previous injury in such circumstances is proven to be false or misleading, no compensation is then payable for any work-related aggravation of that pre-existing condition/injury.
Further provisions apply to extend the 3 year limitation period for commencing a common law claim for damages by up to a 6 months in certain circumstances where:
a Notice of Assessment has not yet been issued prior to the limitation period expiry date, but the worker has requested their injury be assessed for a DPI rating.
a Notice of Assessment has been issued less than 6 months prior to the expiration of the limitation period and the worker has advised the workers’ compensation insurer of their disagreement with the DPI rating, such that the matter is referred to the Medical Assessment Tribunal for a reassessment; or
an injury claim is the subject of a review (i.e. workers’ compensation regulator) or appeal (e.g. Qld Industrial Relations /Commission). For example, where an injury claim is denied at the outset or where a claimant has not previously lodged a statutory claim for compensation but wishes to proceed with a common law claim and their injury claim has been rejected.
Changes to the treatment of additional injuries not originally assessed for the degree of permanent impairment (“unassessed injury”) at the time of issuing a Notice of Assessment arising out of the same incident in circumstances where the injured worker wishes to pursue common law damages for all injuries. The workers’ compensation insurer now has 40 days to determine the unassessed injury and will not have to assess the DPI rating or determine whether the claimant was a “worker” when they sustained the injury.
Changes to dependency claims (eg. claim by spouse or children of deceased worker) where the claimant (i.e. dependant) will need to apply for a Certificate of Dependency if they wish to seek damages at common law in circumstances where they have not previously lodged a statutory workers’ compensation claim.
New provisions to cover volunteer fire fighters and fire wardens whilst attending at a fire, or practising, or performing any other duty, as a volunteer.