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21 Oct 13
Major reforms in workers’ compensation

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Last week the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 (Qld) was introduced into Queensland’s parliament. 

The Bill follows speculation that the Queensland government would make further changes to the workers’ compensation scheme, beyond those recommended by the Finance and Administration Committee (FAC) in May 2013.

Here is a snapshot of the Bill:

A threshold for access to common law damages 
Once passed, the legislation will require workers to be assessed as having a degree of permanent impairment greater than 5% or a terminal condition in order to access common law damages. 

Workers with minor injuries may still access statutory compensation but the introduction of the threshold is expected to reduce the number of common law claims in the state by up to 50%.

The introduction of a threshold is not a new concept and has been considered on a number of prior occasions when the legislation has been amended.  However, with a rise in premiums of 20% since 2009, Attorney-General Jarrod Bleijie submitted it was appropriate to introduce a threshold (among other changes) for the scheme to maintain its competitiveness with other states.

The FAC recommended against the introduction of a threshold to regulate access to common law damages.  However a number of groups (both in favour and against a threshold) have continued to lobby the government on the issue since the FAC’s report was released.  The Australian Capital Territory and Queensland were the only jurisdictions with unfettered access to common law damages.

Job applicants to disclose past medical history
Job applicants will be required to disclose to prospective employers, their pre-existing injuries or medical conditions.  This is provided that a request from the prospective employer to the job
applicant is: 

  • in writing, and
  • contains information about the nature of the duties of the employment, and
  • the job applicant is allowed a reasonable opportunity to comply with the request before being engaged by the employer.

If the job applicant makes false or misleading disclosure in relation to the injury or medical condition, they will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing medical condition. 

Although the prospective employer is required to provide information about the nature of the duties of the employment, job applicants should not limit their disclosure to only injuries or medical conditions they consider relevant to the employment.  To do so may see those persons disentitled under the legislation.

The Bill goes even further on this point, allowing prospective employers to apply to the Workers’ Compensation Regulator for a copy of a job applicant’s claims history. 

Return to work rehabilitation in common law stage
Under the Bill, WorkCover or the self-insurer will be required to refer a worker who has lodged a notice of claim, to an accredited return to work program of the insurer.  Return to work programs may include vocational assessments, reskilling, retraining, job placement and host employment. 

WorkCover or the self-insurer must also take steps it considers practicable to coordinate the development and maintenance of a rehabilitation and return to work plan in consultation with the injured worker, the worker’s employer and treating healthcare providers.

Changes to damages which may be recovered for services
The Bill tightens up access to damages for services a worker may require after their injury. 

Workers who provided the services themselves prior to the injury, will not be able to access damages for the cost of services provided by friends and family. 

There is an exception where a worker can demonstrate that those services are usually provided as paid services and only provided gratuitously in exceptional circumstances.

Employer or contractor to keep documents about workers
Businesses will be required to keep documents about workers, and contracts for the performance of work, for the purposes of the legislation, for at least three financial years.  Businesses will be required to produce those documents for WorkCover on request.  This is to allow proper investigation of new claims. 

Details of the exact documents employers will be required to keep are unknown at this stage but will be set out in regulations once the Bill is passed.

The Bill did not include removal of journey claims from the scheme as previously speculated, with the Attorney-General concluding that all workers should be protected when travelling to and from work.

However, the changes this brings about will have drastic implications for the scheme and all of its stakeholders.  With the introduction of a threshold to access common law damages, workers’ compensation premiums should fall, as common law claim numbers inevitably decrease.

Likely outcomes

  • Greater assistance from WorkCover and self-insurers must be provided to get injured workers back to work.
  • An increase in interlocutory applications concerning workers who are non-compliant with return to work attempts by insurers.
  • Improved investigation of claims.

Focus covers legal and technical issues in a general way.  It is not designed to express opinions on specific cases.  Focus is intended for information purposes only and should not be regarded as legal advice.  Further advice should be obtained before taking action on any issue dealt with in this publication.

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