Tayler, Adam --- "Restoring the balance in QLD" [2015] PrecedentAULA 78; (2015) 131 Precedent 47

In September 2015, Queensland saw a significant restoration of rights in its workers’ compensation scheme following the change of government in January 2015.

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The Queensland Parliament currently has a Bill before it, the Workers Compensation and Rehabilitation and Other Legislation Amendment Act 2015. The Bill was passed by parliament with some amendment on 17 September 2015 and was assented to on 24th September. The commencement date for most amendments of significance will be 31 January 2015 (retrospective, to the date of the election).

The Bill was referred to the parliamentary Finance and Administration Committee for detailed consideration in accordance with parliamentary standing orders. Hearings were conducted by the committee and written submissions received from various stakeholders and interested parties. The committee reported back to parliament on 8 September 2015 and commended the Bill, with some recommended amendments.

In introducing the Bill the Treasurer, the Honourable Curtis Pitt, told Parliament:

‘Since the Beattie government was first elected in 1998, the scheme has been monitored, adjusted and finetuned in response to the prevailing economic conditions, but that all changed when the ideological extremity of the former government overruled the findings of its own LNP dominated Finance and Administration Committee's inquiry into the operation of Queensland's workers’ compensation scheme.’^[1]

The amending Act is designed to roll back a number of amendments, effective from 15 October 2013 (the date on which the previous government passed the changes that the amending Act has reversed). These amendments placed a threshold on common law access, provided for pre-employment disclosure of injuries and workers’ compensation histories, among other minor amendments.

The Newman government amendments in October 2013^[2] introduced a greater than 5 per cent whole person impairment (WPI) threshold for common law access to damages regulated by the scheme. The amending Act removes that threshold, effective from the Queensland state government election date on 31 January 2015.

The removal of the threshold is contained in the new s237(1), which sets out the entitlement to seek damages for an injury sustained by a worker. The new section reads as follows:

‘(1) the following are the only persons entitled to seek damages for an injury sustained by a worker-

Essentially, these changes revert the entitlement to access common law back to what it was before the Newman government changes. There are, however, some differences referred to below.

Workers who suffer a serious injury resulting in impairment of 20 per cent WPI or more can both pursue damages and receive statutory lump sum compensation under the Queensland Workers Compensation and Rehabilitation Act 2003. Those workers who suffer impairment of less than 20 per cent must make an election between receiving lump sum compensation under the Act or pursuing a damages claim.

Prior to the Newman amendments, the following workers were entitled to pursue damages subject to the requirement for an election, if applicable:^[3]

In the amending legislation, those workers who have either not been assessed for permanent impairment or, having lodged an application which was rejected are pursuing a review or appeal, are not specifically contemplated by s327.

Workers whose application is subject to review or appeal have their period of limitation under the Limitation of Actions Act 1974 extended by schedule 5 to the Act. So a damages claim cannot be pursued until the review and appeal have been decided.

In those circumstances, a common law claim can be pursued within six months after the application is ultimately accepted, or a further extended period if within that six-month period the claimant asks the insurer to have the injury assessed for DPI.

Those workers who have not lodged an application for compensation under the Act must have received a notice of assessment in order to seek damages for the injury.

Resort must be had to s132A which is also amended by the most recent Act. That section applies where no prior application has been made for compensation.

In those circumstances, a worker may seek assessment of an injury to see if it has resulted in a DPI by lodging an approved form under the legislation.

The section has now been strengthened to provide for a legislated timeframe within which the insurer must make a decision to allow or reject the application. Review and appeal rights are provided under chapter 13 for a worker who is aggrieved by the insurer's decision.

It is made clear that a decision to allow an application to assess DPI does not entitle the worker to compensation for the injury under the Act. All that will follow is an entitlement to pursue damages.

The amendments also introduce a new enhanced scheme for firefighters in Queensland.

Firefighters who have attended an exposure incident during the course of their careers now have a positive presumption that specified diseases have been caused by their work, subject to rebuttal evidence. Specified diseases include several cancers, non-Hodgkin's lymphoma and leukaemia.

As part of the parliamentary process, the Finance and Administration Committee recommended amendments to this aspect of the Bill.^[4]

There had been an arbitrary threshold of 150 exposure incidents for rural volunteers, which has been omitted from the final amending Act.

The specified diseases under the provisions will be reviewed by the workers’ compensation regulator on a regular basis to ensure that they remain current.

Another controversial aspect of the Newman amendments was the ability of prospective employers to access particular documents in relation to a prospective employee's injury and workers’ compensation history.^[5] That entitlement has been removed under the amendment legislation.

What remains, however, are sections 571A and 571B, which put a positive obligation on a prospective worker to disclose pre-existing injuries or medical conditions, when requested in writing as required by the Act.

Another significant amendment in the Act is the addition of s193A. This section allows for additional lump sum compensation for workers who sustain an injury on or after the Newman amendments commenced, but before 31 January 2015, being the date of repeal of the thresholds for common law access.

If the worker had an injury resulting in a DPI of 5 per cent or less and they have not accepted or rejected an offer of lump sum compensation, they are entitled to additional lump sum compensation up to an amount prescribed by regulations, which were tabled on 17 September 2015 (see Table 1 below).

The addition of these provisions recognises that many workers were denied appropriate compensation due to the Newman amendments post-15 October 2013 when they did not meet the new common law threshold of more than 5 per cent DPI.

Division 3A of the regulations now sets out the scheme of assessment of this additional lump sum compensation. The compensation is divided into a DPI amount payable under a graduated scale as follows, subject to the satisfaction of a qualifying condition referred to below.

TABLE 1: Graduated scale
DPI	DPI Amount
per cent	$
1	$6,298
2	$12,596
3	$18,894
4	$25,192
5	$31,490

The prescribed amounts are not subject to calculation or any other assessment, and are based simply upon the percentage impairment assessed.

Where multiple injuries have occurred, the amount payable is that payable for the higher of the DPI percentages stated in the notices of assessment.

The circumstance where a worker has received a notice for one injury but not for another arising out of the same event is also covered. If the later assessed injury is for a higher percentage but still less than 6 per cent, the difference between the two assessments is payable as additional lump sum compensation.

‘A worker with a DPI of 3 per cent is paid a DPI amount of $18,894 for a physical injury. The worker later receives a notice of assessment stating a DPI of 5 per cent for a psychological injury. The worker is entitled to be paid an additional DPI amount of $12,596 for the difference of 2 per cent between the DPI percentages.’

‘In considering the reinstatement of common law rights, the majority of stakeholder reference group members raised concerns that restoring access to common law from 31 January 2013 still leaves a group of members adversely affected and impacted by the operation of the threshold. To address this unfairness, the Bill provides for an additional lump sum compensation to workers injured after 15 October 2013 but before 31 January 2015 if you have a degree of permanent impairment assessment below 6 per cent and an open claim.’^[6]

The regulation provides that this additional lump sum compensation is available to workers where they can demonstrate, on the balance of probabilities, that the worker's employer is or would have been liable to pay damages to the worker but they are otherwise excluded by the operation of the Newman amendments.

This necessarily requires some legal input. The government has accordingly provided for the payment of prescribed legal costs in those circumstances.

Circumstance	Legal Cost Amount ($)
Giving information to an insurer under s112I within the period mentioned in the section.	1,700
The worker and the worker's lawyer attending a meeting mentioned in s112K.	2,000
The worker, under s112 M, applying to the panel to review an insurer's decision.	1,000
The worker giving information to the panel under s112N(2)(c).	1,700

The regulation prescribes a procedure for deciding the qualifying condition of liability on behalf of the employer.^[7]

The insurer is required to provide a notice once it has considered the issue. Sufficient reasons must be provided supporting the decision if the decision is to reject liability. There is provision for the insurer to request further information, if needed, in order to make its decision.

A process of procedural fairness is also incorporated in the regulation. Where an insurer has requested additional information and, having considered that, proposes to decline liability, the insurer must give the worker an opportunity to meet with the insurer to discuss the proposed decision. If the worker agrees to a meeting, s/he must be given any relevant information the insurer holds prior to the meeting.

In addition, there is a review process following an adverse insurer decision. A review panel is established under the regulation with power to affirm, set aside and substitute a new decision.^[8]

The panel's decision is final, as is common for appeals and medical assessment tribunal matters under the Act.

The panel is made up of a chairperson and two other members to be appointed by the Minister on terms to be decided. Each person appointed to the panel must be qualified or eligible to qualify as a lawyer and have demonstrated significant experience relevant to the laws of personal injury and negligence.

Of note is that decisions by the insurer as to liability under the regulation do not of themselves impose liability on, or otherwise affect the liability of, the insurer or an employer for any other purpose or proceeding.

For example, if there were related third-party proceedings against the employer, then an admission by the insurer of liability under the regulation will not bind the employer in the other proceedings.

The Queensland government has kept its pre-election commitments to restore the balance in the Queensland workers’ compensation scheme. Prior to the Newman amendments, the scheme was healthy and the best in the country by any number of economic indicators.

These amendments will restore the entitlements of injured workers to an acceptable level commensurate with a nation-leading scheme. It is likely that any impact on employer premiums will be minimal to nil compared with the scheme as it existed prior to the Newman amendments.

Queensland should once again enjoy a nation-leading workers’ compensation scheme with fair benefits for all injured workers, unrestricted common law access for those who have been injured as a result of the negligence of their employer and some of the lowest employer premiums in the country.

The Queensland government has acknowledged the strong contribution by the ALA and its lobbying efforts and assistance with the development of the new scheme of additional lump sum compensation as well as its submissions, both oral and in writing, to the Finance and Administration Committee. The ALA Queensland committee former president Michelle James and current president Rod Hodgson, as well as many other Queensland members, ought to be heartily congratulated on their efforts in restoring balance to the Queensland workers’ compensation scheme.

Adam Tayler is a special counsel at Turner Freeman Lawyers, Brisbane office. PHONE (07) 3025 9008 EMAIL adam.tayler@turnerfreeman.com.au.

^[2] Workers Compensation and Rehabilitation and Other Legislation Amendment Act 2013, No. 52 of 2013.

^[7] Subdivision 3 of Part 4 of the Workers Compensation and Rehabilitation Regulations 2014.

Precedent (Australian Lawyers Alliance)

Tayler, Adam --- "Restoring the balance in QLD" [2015] PrecedentAULA 78; (2015) 131 Precedent 47