Recent changes to Queensland s Workers Compensation Scheme EVERYTHING OLD IS NEW AGAIN almost Presentation on 1 October 2015 Robert Tidbury, Partner The previous position for workers entitlement to seek common law damages in Queensland Pre 15 October 2013 workers could seek damages at common law so long as they fall within one of the categories contained in section 237 of the WCRA. No statutory threshold was imposed on the degree of permanent impairment a worker must have in order to claim damages. Post 15 October 2013 to 30 January 2015 the only persons entitled to claim common law damages: a worker who had received a notice of assessment containing a degree of permanent impairment of more than 5%; a worker who had a terminal condition; and a dependent of a deceased worker. 1
The Legislation imparted by the amendments The Workers Compensation & Rehabilitation & Other Legislation Amendment Act was passed on 17 September 2015 and it received ascent on 24 September 2015. Results in significant changes to the Workers Compensation & Rehabilitation Act 2003 (WCRA). Results in minor amendments to: Electrical Safety Act 2002; The Work Health & Safety Act 2011; The Industrial Relations Act 1999; The Industrial Relations (Tribunals) Rules 2011; and The Trading (Allowable Hours) Act 1990. The objectives of the legislative amendments The objectives of the legislative amendments are: remove the common law threshold on damages that requires a worker to have a degree of permanent impairment for the injury higher than 5%; provide additional compensation entitlements for workers affected by the common law threshold between 15 October 2013 and 31January 2015; provide greater certainty of entitlement and accessibility to compensation for fire fighters diagnosed d with one of 12 specified diseases; remove the entitlement for prospective employers to obtain a copy of a prospective worker s compensation claims history; and clarify certain procedural aspects of the claim s process. 2
Section 132A applying for assessment of DPI before applying for compensation This section applies to a worker who has not previously made an application for compensation under section 132. It has been retitled section 132A applying for assessment of DPI if no application made for compensation. This provision is amended to: provide that the insurer must make a decision to allow or reject the application; the application may be rejected only if the insurer is satisfied the worker: was not a worker when the injury was sustained; or Section 132A applying for assessment of DPI before applying for compensation (continued) has not sustained an injury; this decision must be made within 40 days after the application is lodged; the insurer s decision is reviewable under chapter 13. Section 132A clarifies that a decision of the insurer to accept a worker s application to assess his/her permanent impairment does not entitle the worker to compensation for the injury. 3
Section 132B Applying for certificate of dependency This is a new section in the Act. Makes provision for a dependent of the deceased worker to apply for a certificate of dependency. Section 237 General limitation persons entitled to seek damages Section 237 of the WCRA has been amended to remove the requirement that a worker must have an assessed degree of permanent impairment of more than 5% arising from an injury to claim damages. With the exception of an added subcategory for a worker who has a terminal condition, the new version of section 237(1)(a) is identical to the pre 15 October 2013 version. The only persons entitled to seek damages for an injury sustained by a worker under the new version of section 237(1) are: 4
Section 237 General limitation persons entitled to seek damages (continued) a worker who has received a notice of assessment from the insurer for the injury; a worker who has not received a notice of assessment for the injury but: has received a notice of assessment for any injury resulting from the same event (the assessed injury); and for the assessed injury, the worker has a DPI of 20% or more or, under section 239, has elected to seek damages; or a worker who has a terminal condition. Section 237 General limitation persons entitled to seek damages (continued) The only other category of persons entitled to seek damages contained in section 237 is that found in section 237(1)(b), namely a dependent of the deceased worker, if the injury results in the worker s death; and: compensation for the worker s death has been paid to, or for the benefit of, the dependent under chapter 3 part 11 of the Act; or f a certificate has been issued by the insurer to the dependent under section 132B. 5
Section 237 General limitation persons entitled to seek damages (continued) The pre 15 October 2013 version of section 237 contained the following additional categories of persons entitled to seek damages: the worker, if the worker s application for compensation was allowed and the injury has not been assessed for permanent impairment; the worker, if he or she 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 the application has not been decided in or following the review or appeal; the worker, if the worker has not lodged an application for compensation for the injury. The new version of section 237 omits the above categories. No more common law only claims The impact of the new version of section 237 and the amended section 132A is that the Parliament has deliberately done away with common law only claims. The new provisions provide that by the time a notice of claim is served on the employer and the insurer, the worker must have either: previously lodged a statutory claim and received a notice of assessment; or if no statutory claim is lodged, made application for his injuries to be assessed under section 132A. 6
No more common law only claims (continued) Therefore, decisions previously made in a common law only claim regarding whether a claimant was a worker who suffered an injury will now be made pre common law, at statutory level. S239 Worker with more than one injury from an event There is a new section 239A in the WCRA. Provides the requirements to be satisfied for a worker to add injuries to a claim for damages that have not been previously assessed for impairment. It applies to workers mentioned in section 237(1)(a)(ii). Section 239A is very similar to the pre 15 October 2013 version of section 245 except for: the decision by the insurer is limited to determining if the claimant has sustained an injury. No scope for a decision in respect of whether the claimant is a worker. the insurer s decision must be made within 40 days after the claimant provides a compliant notice of claim or the insurer waives compliance or if the court makes a declaration under section 297. 7
S302 Alteration of period of limitation Section 302 of the WCRA which deals with alterations for the statutory limitation period has been amended. In addition to providing that a claimant may bring a proceeding for damages within the three year limitation period allowed under the Limitation of Actions Act 1974, the section now provides for an extension of the period of limitation in specified circumstances set out in a new schedule 5 of the WCRA. Those circumstances include: S302 Alteration of period of limitation(continued) if a worker s application for compensation is the subject of a review pp p j or appeal; for a dependency claim, if the claimant has applied for a certificate of dependency under section 132B. 8
S540 Decisions of the insurer which are reviewable Section 540 of the WCRA has been amended. It contains a list of different types of decisions by the insurer which are reviewable. Section 540 has been enlarged to incorporate in the list of reviewable decisions: a decision by the insurer to allow or reject an application of the DPI where no application for compensation is made under section132a; a decision by the insurer in respect of an application for a certificate of dependency made under section 132B; a decision by the insurer in respect of a previously non assessed injury made under section 239A. Transitional provisions There is a new chapter 32 in the WCRA. It details the transitional provisions for claims where the worker s injury was sustained before 31 January 2015. If the worker sustained an injury before 31 January 2015, the pre-amendment Act continues to apply in relation to the injury. 9
Date the amendments commence The amendments in relation to sections 132A, 132B, 237, 540 and chapter 32 of the WCRA all commence on 31 January 2015. By contrast, the fire fighter provisions take effect from the date of the Bill s introduction 15 July 2015. Enhanced compensation entitlements for fire fighters The new provisions in the WCRA provide that if a current or former fire fighter (including a specified volunteer fire fighter) is diagnosed with one of 12 specified latent onset diseases and has been engaged in the act of fire fighting duties for a specified number of years, then their injury is deemed to be a work related injury for which they are able to claim compensation and common law damages 10
Enhanced compensation entitlements for fire fighters (continued) The previously contemplated amendment requiring a volunteer fire fighter to attend 150 exposure incidents in order for them to qualify for the enhanced entitlements, has been removed. The deeming provisions under which a fire fighter is presumed to have suffered injury, do not apply if: it can be proved there is another cause for the fire fighter s specified disease; or their fire fighting work was not a significant contributing factor to the specified disease. S542 Applying for review of the insurer s decision Section 542A of the WCRA has been amended the regulator now has discretion to grant extensions of time to lodge review applications if the applicant can satisfy the regulator that special circumstances exist. The amendment overrides the decision in Blackwood v Pearce in which the Industrial Court found that if a request to extend time was not made by the applicant within a period of three months after the applicant receives written notice of the insurer s decision, there is no power under the WCRA to enable the regulator to grant the applicant an extension. 11
S542 Applying for review of the insurer s decision(continued) Under the new amended provision, the applicant can only ask the workers compensation regulator once to allow the applicant further time to apply for review. A corresponding change has been made to section 550 of the WCRA so as to permit a respondent the right to allow further time for the appellant to appeal on consent of the parties. The amendments to sections 542 and 550 take effect from the amending legislations assent 24 September 2015. Employers can no longer obtain worker s claims history summaries Section 571D of the Act has been removed. Prospective employers can no longer apply to the regulator for a copy of a prospective worker s claims history summary. In the absence of an employer being able to obtain this information, there is likely to be renewed focus by employers on requesting prospective p employees to complete medical history questionnaires during the job application process and renewed focus on pre-employment medical examinations to determine suitability for a role. 12
Amendments to the Industrial Relations Act 1999 (Qld) The substance of these legislative changes are to: reinstate administrative responsibility for the Industrial Relations Commission and the Registry with the President of the Commission and the Industrial Court of Queensland and to enable the President to delegate functions to the Vice-president and/or one or more Deputy Presidents; and amend the Industrial Relations Act to remove the requirement for a Deputy President (Court) to be a local lawyer, within the meaning of the Legal Profession Act 2007. What hasn t changed? Provisions in the WCRA which remain unchanged by Provisions in the WCRA which remain unchanged by the legislative amendments include: the definition of worker in section 11 and the definition of injury in section 32; the meaning of damages as set out in section 10; entitlements according to jurisdiction for interstate and overseas accidents; the compensation application procedures; the compensation application procedures; the pre-court procedures set out in chapter 5; the provisions in chapter 8 relating to general standard of care, contributory negligence, damages and costs. 13
Thank you Robert Tidbury, Partner Phone +61 7 3024 0320 Email r.tidbury@hopgoodganim.com.au www.hopgoodganim.com.au 14