Restoring the the Rights of Injured Queensland Workers

On 17 September 2015, the Queensland Parliament passed the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (No. 13 of 2015) (the 2015 legislation) which is now fully commenced (as at 9 October 2015). The Act implements the new Queensland Government’s election commitments to "Restoring the Rights of Queenslanders Injured at Work" and essentially reverses the changes made by the previous Newman Government in 2013 (see the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (No 52 of 2013) (the 2013 legislation)) See also our previous article at Queensland Workers' Compensation Overhaul on the books).

Changes Effected by the 2015 Legislation

The 2015 legislation amends the Workers’ Compensation and Rehabilitation Act 2003 (the principal Act) by:

• removing the current limitation on the entitlement to seek damages that requires a worker to have a degree of permanent impairment greater than five percent to access common law for all injuries sustained on or after the Queensland State election (namely, 31 January 2015);
• establishing the ability to provide additional compensation to particular workers impacted by the operation of the common law threshold, on or after 15 October 2013 and before 31 January 2015;
• introducing provisions for firefighters diagnosed with one of 12 specified diseases that will deem their injury to be work related
• removing the entitlement prospective employers have to obtain a copy of a prospective worker’s compensation claims history from the Workers’ Compensation Regulator; and
• clarifying certain procedural aspects of the claims process and reduces regulatory burden through a number of minor miscellaneous amendments.

Newman Government Changes Strongly Criticised from the Start

When the Newman government introduced the changes, the then Queensland Attorney-General asserted that the overhauled system would be ". . . the best in the nation" introducing the concept of "whole person impairment" (WPI), limiting a worker's ability to claim compensation through the common law to injuries medically assessed as impairing five percent of their whole person or more - claimants whose WPI fell below this level were limited to compensation under a statutory formula. At the time, five percent being said by the Attorney to compare favourably with thresholds of 15 to 30 percent applying in other states (for example, NSW, VIC and TAS).

Of this change, Mark O’Connor (a director and injury compensation law expert with Bennett & Philp Lawyers) writing in the Lawyers Weekly says:

Another aspect of the now reversed changes, probably the most controversial, were the amendments designed to crack down on fraudulent claims which allowed employers to access the claims history of job applicants, while the regulatory functions of Q-Comp (the independent statutory authority regulating Workers Compensation, established on 1 July 2003 under the Workers' Compensation and Rehabilitation Act 2003 (QLD)) were watered down by its merger into the Attorney-General’s department.

That the changes were always controversial and mostly ideological is also evident from the fact that the 2013 changes were introduced despite the Newman government's own parliamentary committee inquiry into the Queensland WorkCover scheme recommending that no changes be made. To quote Mr O'Connor's article further:

Application of the New 2015 Laws

It is important to note that the Newman government legislation affected workers who were injured from 15 October 2013, whereas the new 2015 legislation applies to anyone injured since 31 January 2015 and workers injured between those dates continue to be affected by the 5 percent threshold. However, the 2015 legislation includes a "reparation scheme" to provide additional compensation to workers injured in the intervening period (namely, 15 October 2013 - 30 January 2015) who would have had a viable common law claim but for the 5 percent threshold.

A New Item - Provision for Firefighters

This new 2015 legislation also makes provision to provide greater certainty of coverage for Queensland firefighters, introducing deemed disease provisions for certain latent onset diseases.

The provisions apply to current or former firefighters who are diagnosed with one of the scheduled cancers on or after the start of the legislation. Under the changes, if a firefighter develops one of 12 specified cancers and meets the qualifying period of active firefighting service, then the cancer will be deemed to be work related.

The effect of the measure is that sick firefighters will not have the burden of proving that their cancer is the result of their firefighting work, thus ensuring they have more timely access to compensation benefits to treat their illness.

Reaction

Generally, reaction to the changes is favourable, although it is reported that the former Queensland Attorney General continues to defend the Newman government WorkCover changes, claiming that none were worse off under the Newman government WorkCover amendments. This, according to Mr O'Connor:

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (No. 13 of 2015) and Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2013 - No 52 of 2013 and supporting materials Bills, Speeches etc as reported in the TimeBase LawOne Service

Queensland Workcover website

Queensland WorkCover revamp a win-win (Lawyers Weekly - 14 October 2015)