Changes to the Workers Compensation and Rehabilitation Act
In response to the report made by the Finance and Administration Parliamentary Committee which inquired into the operations of Queensland’s Workers’ Compensation Scheme, Queensland Parliament passed the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013.
The bill took effect on the 29th of October 2013. The law amended the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and introduces important provisions for both employees and employers.
According to the Queensland Attorney-General, the purpose of the law is to “strike a better balance between providing appropriate benefits for injured workers and ensuring the costs incurred by employers are reasonable.” The government believed that changes were necessary to simplify the procedure in work related injury claims, prevent duplicity and reduced premiums for employers that include the government ‘s departments and agencies.
Important changes in the Act include the introduction of a minimum Degree of Permanent Impairment (DPI) threshold (formerly referred to as “work related impairment” or WRI) of more than 5 percent permanent impairment for injuries sustained after 15 October 2013 so that employees can claim common law damages against the employer. The DPI will limit the workers access to common law damages
Despite the changes, all injured workers will remain covered for lost wages, medical treatment and have access to lump sum compensation while employers will remain compliant with their obligations towards their employees.
Some of the major amendments include the following:
- Definition of Injury. The original definition of injury (Section 32 of the Act) remains with the exception of psychological injuries. For purposes of injury compensation, physical injuries must be proven as “a significant contributing factor” to the injury.
- Psychological injury. The requirement of proof has increased in order to become compensable. For psychiatric or psychological disorder, it is necessary that the employment be the major significant contributing factor to the injury.
Proof must be provided that the aggravation of an existing disorder arose out of or happened during the course of employment and that the employment is the major significant contributing factor to the injury or its aggravation. However, the present exclusions for reasonable management action will still apply.
- Changes to Q-Comp. The Workers’ Compensation Regulatory Authority (QCOMP) is now merged with the Office of Fair and Safe Work Queensland (OFSWQ) in the Department of Justice and Attorney General and renamed the ‘Workers’ Compensation Regulator’ or the Regulator which will operate in a similar manner to the regulator under the Work Health and Safety Act 2011.
- Impairment thresholds. The method of assessing permanent impairment from ‘work related impairment’ is now changed to ‘degree of permanent impairment’ (DPI).
The law also introduces a minimum DPI threshold of over 5 per cent before an employee can seek common law damages from its employer for workers sustaining injuries after the 15th of October 2013. For those workers who sustained an injury prior to the 15th of October 2013, they can process their workers compensation claims under the old provisions.
The changes replaced the concept of whole person impairment from the Workers Compensation and Rehabilitation Regulation 2003. A new calculation table is now available for lump sum compensation under the new DPI threshold system. However, dependents of the worker are still able to seek damages where the work related injury resulted in the worker’s death.
- Disclosure of previous injuries. This is the requirement where prospective employees are required to disclose pre-existing injuries to prospective employers when requested in writing allowing the latter to obtain a worker’s claim history.
Failure to disclose relevant pre-existing injuries will allow the employer will not be required to compensate the worker for the aggravation of the previous injury.
Generally, the records shall be held confidential and shall be used only for pre-selecting prospective workers for employment purposes. For a fee, an employer can request a copy of the prospective worker’s claim history summary with the Workers’ Compensation Regulator, provided the request is in the prescribed form and with the consent of the prospective worker.
In view of this requirement, the government also ensures that the workers are protected against employers’ discriminatory actions. Relevant laws including discrimination laws and the Fair Work Act 2009 will continue to govern the relationship between employees and employers.
Any employee engaged prior to the requirement to disclose previous injuries remains exempt to disclosure.