Effective for injuries occurring on or after 15 October 2013 (the date on which the bill was first introduced to parliament):
- There is a threshold of greater than 5% whole person impairment for Claimants seeking common law damages;
- The impairment is to be assessed by reference to AMA5, excluding Chapter 18 (Pain), under the new (to Queensland, but not new to southern states) Guidelines to the Evaluation of Permanent Impairment (GEPI);
- Unlike some southern states, there is no narrative test, which is in effect an entitling provision for injuries that would not otherwise satisfy the threshold;
- Like the former WRI, physical injuries and psychiatric injuries cannot be added together for the purpose of achieving the threshold, however different physical injuries from the same event can be;
- What was called the WRI or Work Related Impairment, is now the DPI, or Degree of Permanent Impairment;
- A new s.132A WCRA allows workers who have not applied for statutory compensation to apply to the insurer to have the injury assessed under s.179 to decide if the injury has resulted in a DPI;
- S.237 entitlement provisions has been simplified from this:
(1) The following are the only persons entitled to seek damages for an injury sustained by a worker-
(a) the worker, if the worker –
(i) has received a notice of assessment from the insurer for the injury; or
(ii) has not received a notice of assessment for the injury, but –
(A) has received a notice of assessment for any injury resulting from the same event (the assessed injury); and
(B) for the assessed injury, the worker has a WRI of 20% or more or, under section 239, the worker has elected to seek damages;
(b) the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment;
(c) the worker, if-
(i) the worker has lodged an application, for compensation for the injury, that is or has been the subject of a review or appeal under chapter 13; and
(ii) the application has not been decided in or following the review or appeal;
(d) the worker, if the worker has not lodged an application for compensation for the injury;
(e) a dependent of the deceased worker, if the injury results in the worker’s death.
To this;
(1) The following are the only persons entitled to seek damages for an injury sustained by a worker-
(a) the worker, if the worker –
(i) has received a notice of assessment from the insurer for the injury and the DPI for the assessed injury is more than 5%; or
(ii) has a terminal condition;
(b) a dependent of the deceased worker, if the injury results in the worker’s death.
- Consistent with the amendments to s.237 WCRA, ss.243 to 264 inclusive have been repealed;
- S.179(4) now deals with a worker sustaining permanent impairment from multiple injuries sustained in one event;
- The insurer, must within 10 business days after receiving the assessment of impairment, give a notice of assessment under s.185;
- S.186 has become important:
186 Worker’s disagreement with assessment of permanent impairment
(1) This section applies if—
(a) the worker’s degree of permanent impairment has not been assessed by a medical assessment tribunal; and
(b) the worker does not agree with the degree of permanent impairment stated in the notice of assessment (the original notice).
(2) The worker must advise the insurer within 20 business days after the original notice is given (the decision period) that the worker—
(a) does not agree with the degree of permanent impairment; and
(b) requests—
(i) that the insurer has the worker’s injury assessed again under section 179 by an entity mentioned in section 179(2) and agreed to by the worker and the insurer, (other than the entity that gave the report to the insurer under section 179(3)); or
(ii) that the insurer refer the question of degree of permanent impairment to a tribunal for decision.
(3) If the worker makes a request mentioned in subsection (2)(b)(i), the insurer must decide, within 10 business days after receiving the request, whether to have the worker’s injury assessed again under section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment.
(4) If, under subsection (3), the insurer decides to have the worker’s injury assessed again under section 179, the original notice is taken to have never been given.
(5) If the insurer has the worker’s injury assessed again under section 179, the worker cannot make a further request mentioned in subsection (2)(b)(i).
(6) If—
(a) under subsection (3), the insurer decides not to have the worker’s injury assessed again under section 179; or
(b) the worker makes a request mentioned in subsection (2)(b)(ii);
the insurer must refer the question of degree of permanent impairment to a medical assessment for decision.
(7) The degree of permanent impairment may then be decided only by a medical assessment tribunal.
- Under s.186, if the impairment was not assessed by a MAT and the worker disagrees, the worker must advise the insurer within 20 business days, and request the injury be assessed again under s.179, or be assessed by a MAT;
- The insurer must then decide whether to have the injury assessed again under s.179 within 10 business days;
- The worker cannot make a further request to have the injury assessed. Alternatively, the injury gets assessed by a MAT;
- From the date of assent of the amending act, being 29 October 2013, s.32 is amended to provide that employment is “the major significant contributing factor” for psychological claims;
- Amendments have been made to s.306H to address the Cameron v Foster type claims for future paid services. According to the explanatory memorandum, it prevents a court awarding damages for the value of any domestic services gratuitously provided to a worker who did not usually require or was not usually provided with those domestic services before sustaining the injury, and that those services cannot be converted to paid services in the future;
- In certain circumstances, employers can seek pre-employment disclosure from workers of pre-existing injuries or medical conditions that would be aggravated by the duties the subject of the employment and obtain their claims history. The effect of non-disclosure of such injuries or conditions can be significant, including the abolition of any common law entitlement;
- Q-Comp has been absorbed into the Office of Fair and Safe Work Queensland, an office of the Department of Justice and Attorney-General, and replaced by the Workers’ Compensation Regulator (the Regulator);
- The General Medical Assessment Tribunal – Psychiatric, has been replaced by a Psychiatric Medical Assessment Tribunal, which will have three psychiatrists as a panel;
- Insurers must ensure common law Claimants have access to return to work programs;
- S.678 WCRA provides that, for injuries sustained before the commencement of the amending act, the pre-Amended Act continues to apply as if the amending act had not been enacted;
- S.235A WCRA will continue to determine the date of injury for OPT claims, and so determine whether the amended act applies.
Some of the things that the amending act did not do:
- It did not adopt the recommendations made by the bipartisan committee in February/March;
- It was not available for deliberation or consideration prior to its introduction;
- It does not address the issue of “super profits” of Plaintiff law firms, raised as a concern in the committee report.
Warning to Consumers of Labour Hire Services
The reforms will also affect consumers of labour hire services and their insurers, because they will now be required to carry 100% of the liability for claims that do not meet the WCRA threshold. Further, by operation of 2.5 of the Civil Liability Act, these claims will remain unlimited by any civil liability legislation. This means general damages will be assessed under the common law and there is no threshold to claim care.
