Following the release in May 2013 of the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme, the Workers Compensation Rehabilitation & Other Legislation Amendment Bill 2013 was passed on 17 October 2013. Significant changes were made to the Queensland Workers’ Compensation and Rehabilitation Act 2003.
The Act was assented to on 29 October 2013 and the changes are now in effect.
The Attorney-General has outlined that the purpose of the changes is to “strike a better balance between providing appropriate benefits for injured workers and ensuring the costs incurred by employers are reasonable”. Whether that goal will be achieved and whether the number of claims will decrease is yet to be seen. Nonetheless, it remains crucial that employers are engaged with the workers’ compensation process and understand their rights and obligations to deal with the changes and defend against claims.
The key changes to the Act include:
- Replacing Q-Comp with the “Workers Compensation Regulator” and merging it into the Office of Fair & Safe Work Queensland. The explanatory notes regarding the change identify that the Workers Compensation Regulator will operate in a similar manner to the regulator under the Work Health & Safety Act 2011.
- In order to make a common law claim a worker must now have a 5% Degree of Permanent Impairment (DPI) arising from the injury, which replaces the concept of whole person impairment.
- The table of injuries has been removed from the Workers Compensation and Rehabilitation Regulation 2003 and replaced with a new calculation for lump sum compensation under the relevant DPI.
- Amending the definition of “injury” under section 32 of the Act.
- Allowing employers to seek disclosures from prospective workers about prior injuries/conditions and obtain their workers compensation claims history.
Who can make a common law claim for work related injuries?
The Act now contains a threshold that must be met in order for the worker to make a common law personal injuries claim in relation to a work related injury sustained on or after 15 October 2013. The concept of “work related impairment” has been replaced with a method of assessment of Degree of Permanent Impairment (DPI).
Workers are now only able to file a common law damages claim for a work related injury where a worker’s DPI is assessed as being greater than 5% or who have a terminal condition. Dependents retain their ability to seek damages if the work related injury resulted in the worker’s death.
Workers who sustain an injury prior to 15 October 2013 will have their workers compensation claims processed and dealt with under the old provisions of the Act.
What is an “injury”?
The definition of “injury” in relation to physical injuries remains unchanged. For physical injuries, employment still needs to be “a significant contributing factor” to the injury.
However, in response to the Committee’s recommendation, the definition of injury in relation to psychiatric or psychological injuries has changed to require that employment be “the major significant contributing factor to the injury”. This changes will commence on assent of the amended Act and represent a higher threshold to be met by claimants seeking compensation for psychological injuries.
The exemption of psychiatric/psychological injuries arising from reasonable management action taken reasonably in relation to the worker’s employment has not been changed.
Workers also remain able to make journey claims (i.e. claim in relation to injuries that occur during certain journeys).
Access to workers compensation histories
From 29 October 2013, prospective workers, upon receiving a written request by a prospective employer, are required to disclose all pre-existing injuries of which they are aware could reasonably be aggravated by performing the duties of the position they applied for.
A prospective employer must advise the prospective worker:
(a) Of the nature of the duties the subject of the position he prospective worker has applied for; and
(b) that if they do not comply with the request, or they supply false or misleading information, the worker will not be entitled to compensation or damages under the Act for any event that aggravates the non-disclosed pre-existing injury.
Where the prospective worker fails to disclose relevant pre-existing injuries or provides false or misleading information and aggravates the non-disclosed pre-existing injury, the worker will lose their entitlement to compensation and damages.
Instituting a Claim
If you are injured while at work, or suffer a work related injury, you are legally entitled to make a workers’ compensation claim or WorkCover claim. It is compulsory for Queensland employers to hold suitable workers compensation insurance for their employees.
A workers compensation claim or WorkCover claim covers injuries and accidents caused by the negligence of an employer or co-worker or any other third parties that you deal with at work.
What Injuries can be claimed?
Workplace injuries can range from serious illness, injury or damage (including amputations, fractures and brain injuries) through to strains and sprains (including repetitive strain injury or RSI). It also covers psychiatric injuries that may arise from witnessing a traumatic event at work as well as things like bullying and harassment.
Work injuries that are covered by WorkCover include injuries;
That occurred at or as a result of work and during work hours (e.g. while on a lunch break)
Such as a disease caused by work or diseases or pre-existing conditions that have been made worse by work
Suffered whilst travelling as part of work (not usually to and from work) or whilst receiving medical treatment for a separate work injury
What compensation can I expect for a workers compensation claim?
If you have suffered an injury during the course of your employment you may be entitled to a range of compensation benefits through a workers compensation claim. There are a number of different factors that can affect the compensation you may be entitled to, our work injury lawyers will work on your behalf to get the best outcome for your situation.
You may be able to claim compensation for:
- pain and suffering, including loss of quality of life
- immediate and future medical expenses, and
- loss of earnings and future earnings.
Should I accept the lump sum offer from WorkCover and how can AMK Lawyers Help
Always get expert legal advice from our compensation lawyers before accepting any offer from WorkCover, or before signing any documentation from your employer or your employer’s insurance company (including WorkCover’s Notice of Assessment) as the lump sum compensation offered by WorkCover may not adequately compensate you for the long term consequences that arise from your injuries.
AMK Lawyers will make sure your claim covers everything that you are entitled to. Our lawyers can also help with advice about:
- lump sum compensation entitlements
- rejected WorkCover claims.
Call us now for a no obligation free initial consultation as strict time limits apply.