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Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?
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Scott Falvey - McInnes Wilson Lawyers - What are the changes to the Workers Compensation Scheme in Queensland and how will the changes impact on insurers, employers and workers?

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Scott Falvey, Principal, McInnes Wilson Lawyers presented this at the National Workers' Compensation Summit 2014. The Summit focused on minimising workplace injury claims through establishing a …

Scott Falvey, Principal, McInnes Wilson Lawyers presented this at the National Workers' Compensation Summit 2014. The Summit focused on minimising workplace injury claims through establishing a successful safety culture and embrace working towards successful outcomes should a workers compensation claim arise.

Find out more at http://www.informa.com.au/nwc14

Published in: News & Politics
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  • 1. Changes to the Queensland Workers’ Compensation Scheme – What you need to know! 1 By Scott Falvey• Principal• T 07 5443 9612• E sfalvey@mcw.com.au ABSTRACT - The key changes caused by the amendments to the Workers’ Compensation and Rehabilitation Act 2003 in Queensland are: 1. The Workers’ Compensation Regulatory Authority (Q-COMP) has been replaced by the Workers’ Compensation Regulator (the Regulator). 2. The requirements to appoint a rehabilitation and return to work coordinator have been changed. Insurers must now refer injured workers to an accredited return to work program. (Rehabilitation). 3. Workers must disclose previous injuries, if requested. compensation claim history (Claim Histories). 4. There is a change in the measure for determining statutory lump sum compensation from work related impairment (WRI) to a degree of permanent impairment (DPI) (Impairment). 5. The scope to claim gratuitous care and services as allowed by the decision in Foster and Anor –v2 Cameron has been ‘closed’ (Gratuitous Assistance). 6. A threshold to access damages at common law requiring a degree of impairment of more than 5% has been introduced (Threshold to Common Law). 7. The onus of proof for psychiatric or psychological injuries to be compensable has been increased (Pure Psychiatric Injuries). 8. All allegations of fraud related offences are to be referred to the Regulator for investigation and if necessary - prosecution. Penalties for persons who defraud or attempt to defraud insurers have been increased (Fraud). 1 Scott Falvey LLB (Bond) LLM (Health and Medical) (Melb.) [2011] QCA 48. 2 © McInnes Wilson Lawyers 2013 Page 1 of 8 Employers can obtain prospective workers’ www.mcw.com.au
  • 2. How? The Finance and Administration Committee of the Queensland Parliament was tasked to undertake a review of Queensland’s Workers’ Compensation Scheme. The Finance and Administration Committee (the Committee) invited public submissions. That Committee received a total 246 written submission from all relevant stakeholders including employer associations, unions, professional bodies, insurers, lawyers, interest groups and individuals. The Committee held 18 public hearings, there were five ‘in camera’ hearings and five briefings. The Committee produced a report in May 2013 making 32 recommendations. The Government supported 18 of the recommendations and a further two (with amendment) but did not support 12 of the recommendations. Among the recommendations that were supported was ongoing cover for injuries suffered to and from work (Journey Claims). Notwithstanding this report – the Government pursued further aspects of legislative change. This resulted by the amendments reflected in the Workers’ Compensation and Rehabilitation Act and of the Legislation Amendment Act 2013. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 (the Bill) sought to amend Queensland’s Workers’ Compensation and Rehabilitation Act 2003. The Bill was passed on 17 October 2013. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 received assent on 29 October 2013 (the amendments). When? The amendments regarding the assessment of permanent impairment and access to damages commence from the 3 day the Bill was introduced in the Legislative Assembly (15 October 2013). The Government specifically considered that the only effective and least disruptive method of introducing such amendments to the Workers’ Compensation Scheme and to avoid a ‘run’ on claims, was by making the amendments to the Scheme effective as of the date that the amendments were introduced to the Legislative 4 Assembly. The changes as reflected by the amendments apply to injuries happening after introduction of the Bill, but does not extend to injuries before introduction, for which a person may have formed a legitimate expectation of his or her 5 entitlement to compensation and damages under the old Act. Why? The Government says it is committed to delivering Australia’s best workers compensation scheme. 3 4 5 See section 2. See Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 – Explanatory Notes (the Explanatory Notes) at page 3. See Explanatory Notes at page 3. © McInnes Wilson Lawyers 2013 Page 2 of 8 www.mcw.com.au
  • 3. The Government says that access to common law damages will remain a feature of the amended scheme but only for the more ‘serious injuries’. The Government says since 2010 the number of ‘low end’ common law claims has remained constant or increased in certain bands of ‘work related impairment’. The Government says these claims accounted for around half of the common law payouts for 2011/2012. The Government says that left unchecked this would increase pressure on the long term viability of the scheme. The Regulator The Government was of the view that the previous workers’ compensation scheme was ‘the most complex in Australia’ specifically highlighting ‘three separate agencies’ resulting in duplication and overlap which increased 6 scheme costs. The amendments merge Q-COMP into the Office of Fair and Safe Work Queensland (OFSWQ) into the Department of Justice and Attorney-General (DJAG). Q-COMP has been replaced by the Workers’ Compensation Regulator which will operate in a way similar to the regulator under the Work Health and Safety Act 2011. It is 7 anticipated integration of the OFSWQ will ‘absorb’ the staff previously employed by the Authority. Rehabilitation 8 The responsibility for a worker’s rehabilitation now rests with Insurers. Insurers must take all ‘practicable’ steps to secure the rehabilitation and early return to ‘suitable duties’ of workers 9 who have an entitlement to compensation. An Insurer must refer a worker who has lodged a Notice of Claim for Damages to an ‘accredited return to work program’ of the insurer unless the insurer is satisfied that as a result of the injury the worker will not be able to 10 participate in the program. An insurer must take the 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 11 registered persons. Accordingly, there will no longer be referrals by insurers to the ‘return to work assist’ program under the auspices of the previous regulator authority (Q-COMP). This amendment was designed, according to the Government, to reduce the regulatory burden on employers. The Regulator will no longer require employers to submit a declaration stating that they have workplace rehabilitation 12 policies and procedures. 6 7 8 9 10 11 12 See Explanatory Notes at page 1. Above; see section 326. See section 220. See section 220(1). See section 220(2). See section 220(3). See Explanatory Notes at page 7. © McInnes Wilson Lawyers 2013 Page 3 of 8 www.mcw.com.au
  • 4. Claim Histories 13 Employers can now request the workers’ compensation claim history of prospective workers. A prospective employer may apply to the Regulator for a copy of a prospective workers’ claims history summary. 14 The application must be: (a) in the approved form; (b) accompanied by the application fee; and (c) endorsed with the prospective workers consent. 15 If the Regulator provides a copy of a workers’ claims history summary to a prospective employer, the prospective employer must not do any of the following: (a) disclose to anyone else the contents of or information contained in the summary; (b) give access to the document to anyone else; (c) use the contents of or information contained in the summary for any purpose other than for the purposes of 16 the employment process. 17 If this section is breached – there is a criminal penalty of up to 100 penalty units. If requested by a prospective employer, a prospective worker must disclose to the prospective employer the 18 prospective workers’ pre-existing injury or medical condition (if any). A request by a prospective employer to a prospective worker must be made in writing and include the following information: (a) the nature of the duties the subject of the employment; and (b) a warning that if the prospective worker knowingly makes a false or misleading disclosure, pursuant to section 571C, the prospective worker or any other Claimant will not be entitled to compensation or to seek 19 damages for any event that aggravates the pre-existing injury or medical condition ; (c) a warning that if a prospective worker has a pre-existing injury or medical condition and knowingly makes a false or misleading disclosure pursuant to section 571B in relation to the injury or medical condition and 20 is subsequently employed under the employment process , then the prospective worker or any other 13 See section 571D. See section 571D(1). See section 571D(2). See section 571D(3). Above. See section 571B(1). See section 571B(2). See section 571C. 14 15 16 17 18 19 20 © McInnes Wilson Lawyers 2013 Page 4 of 8 www.mcw.com.au
  • 5. Claimant is not entitled to compensation or to seek damages for any event that aggravates the pre-existing 21 injury or medical condition. It is important to note however, that section 571B and section 571C will not apply if a prospective worker is engaged, as a result of the employment process, by the prospective employer before the prospective worker has had ‘a reasonable opportunity to comply with section 571B(1) (that is a reasonable opportunity to disclose the 22 prospective workers pre-existing injury or medical condition)’. There are some specific definitions that are relevant to the sections. A ‘prospective employer’ is defined by the amendments to being a person conducting an ‘employment process’ to select a prospective worker for employment. A ‘prospective worker’ is defined by the amendments to be a person subject to an employment process for selection for employment. The ‘claims history summary’ is specifically defined to be a document issued by the Regulator that states the number and nature of a prospective workers’ current or previous applications for compensation or claims for 23 damages under the amendments or any former Act. An ‘employment process’ is defined by the amendments to be any process for considering and selecting a person for employment. ‘False or misleading disclosure is defined by the amendments to be any disclosure that would lead a prospective employment to ‘reasonably believe that the duties the subject of the employment would not aggravated the prospective worker’s pre-existing injury or condition’. ‘Pre-existing injury or medical condition, for an employment process, is defined by the amendments to mean an injury or medical condition existing during the period of the employment process that a person suspects or, ought 24 reasonably to suspect, would be aggravated by performing the duties the subject of the employment’. Section 571C provides that if a prospective worker, on request, fails to disclose relevant pre-existing injuries or provides false or misleading information, the prospective worker’s entitlement to compensation and damages for an aggravation of the non–disclose pre-existing injury ends. However, if a worker is engaged before making the disclosure (or before being requested to make the disclosure) his or her rights to compensation or damages are 25 ‘unaffected’. Notwithstanding an initial perception as to the utility these amendments might add to an employment process, or recruitment generally, in my respectful view, employers need to be very careful in the way that they use this information about a prospective workers’ claim history. While the amendments allows for access to the information, the amendments do not ‘forgive’ or ‘relieve’ a prospective employer from compliance with the Fair Work Act 2009 (CTH), the Disability Discrimination Act 1992 (CTH) or the Anti-Discrimination Act 1991 (QLD). This legislation prohibits employers taking discriminatory action against prospective workers because of a disability or impairment. If a prospective worker can establish that a prospective employer has taken ‘adverse action’ against a prospective worker because of a disclosed pre-existing injury or condition the prospective employer may be required to 21 22 23 24 25 See section 571C(2). See section 571B(3). See section 571D(4). See section 571A. See Explanatory Notes at page 11. © McInnes Wilson Lawyers 2013 Page 5 of 8 www.mcw.com.au
  • 6. establish that it did not take adverse action against the prospective worker because of the disclosed injury or condition. It will be critical that prospective employers ensure that any requests relating to the disclosure of information about claim histories or pre-existing injuries and medical conditions strictly comply with the amendments and do not offend discrimination legislation that also operates in this area. Impairment Section 179 of the amendments introduces a method of assessment of ‘degree of impairment’ (DPI) using the ‘Guide for Evaluation of Permanent Impairment’ (GEPI). If a worker sustains multiple impairments resulting from a single event, the impairments must be ‘assessed together’. A DPI resulting from a psychiatric or psychological injury must not be combined with a DPI from a physical injury. 26 The GEPI was gazetted on 8 November 2013. All references to a ‘work related impairment’ as that term was used under the old regime now refers to a ‘degree of 27 permanent impairment’ (DPI) . Worker Disputes Assessed Degree of Impairment If a workers’ degree of impairment has not been assessed by the Medical Assessment Tribunal and the worker does not agree with the degree of permanent impairment stated in the Notice of Assessment then a worker has 20 business days after the ‘original notice’ is given (the decision period) to advise an insurer that the worker: (a) does not agree with the degree of impairment; and (b) requests: (i) that the insurer has the workers’ injury ‘assessed again’ pursuant to section 179 of the 28 amendments by an entity mentioned in section 179(2) of the amendments to be agreed by the worker and the insurer (this must be an entity that did not give the report to the insurer under section 179(3) of the amendments); (ii) that the insurer refer the question of degree of permanent impairment to a Tribunal for decision. 29 If the worker makes such a request pursuant to section 186(2)(b) of the amendments, then an insurer must decide within ten business days after receiving the request, whether to have the worker’s injury assessed again pursuant 30 to section 179 to decide if the worker’s injury has resulted in a degree of permanent impairment. If pursuant to section 186(3) of the amendments, the insurer decides to have the worker’s injury assessed again 31 pursuant to section 179, the ‘original Notice of Assessment’ is taken to have never been given. 26 27 28 29 30 31 See Explanatory Notes at page 5. See section 185; see section 189; see section 239; see section 240; see section 265. For industrial deafness – an audiologist; for a psychiatric injury – a Medical Assessment Tribunal; for any other injury – a doctor. See section 186(2)(b). See section 186(3). See section 186(4). © McInnes Wilson Lawyers 2013 Page 6 of 8 www.mcw.com.au
  • 7. If the insurer has the worker’s injury assessed again pursuant to section 179, the worker cannot make a further 32 request for the injury to be assessed again. If an insurer decides not to have the worker’s injury assessed again pursuant to section 179, or the worker makes a specific request that the matter be referred to the Medical Assessment Tribunal, then the insurer must refer the 33 question of the degree of permanent impairment to a Medical Assessment Tribunal for decision. Section 179(3) required an assessment of impairment to be made pursuant to GEPI and to decide the DPI. This section contemplates that any report arising in this regard complies with the GEPI and must be given to the 34 insurer. Threshold to Common Law The amendments introduces a minimum DPI threshold in order to claim damages. The only persons entitled to seek damages for an injury sustained by a worker are workers with a Notice of Assessment where the DPI for the assessed injury is more than 5%, or who have a terminal condition. Dependants of deceased workers may seek 35 damages if the injury resulted in the worker’s death. Alteration of Limitation Period If at least six months before the expiration of a limitation period as prescribed by the Limitation of Actions Act 1974, a worker asks an insurer to have the worker’s injury ‘assessed’ to decide if the injury has resulted in a DPI and the 36 insurer has not given a Notice of Assessment for the injury before the end of the limitation period - then the limitation period is altered to: (i) a period of six months after the insurer gives the Notice of Assessment; or (ii) if, before the end of the limitation period, the worker advises the insurer that the worker does not agree with the DPI stated in the Notice of Assessment – then the limitation period is altered to a period of six months 37 after a Medical Assessment Tribunal decides the DPI. Gratuitous Care and Assistance The Government has moved to address concerns about the effect of the decision in Foster and Anor –v38 Cameron (Foster’s case) and now prohibits a Court from awarding damages for the value of any domestic services gratuitously provided to a worker who did not usually require, or was not usually provided, with those 39 domestic services before sustaining the injury. These service cannot be converted to paid services in the future. The interpretation of the previous sections dealing with the recovery of damages for gratuitous assistance, was brought into question by Foster’s case where the worker had paid for some services after the accident and before trial, and had received some gratuitously. The Court of Appeal found in the Foster case that an injured worker could convert gratuitous lawn mowing services into paid services after the trial in certain circumstances. The Court 32 33 34 35 36 37 38 39 See section 186(2(5)). See section 186(6). See section 179(3). See section 237. See section 302(2)(c). See section 302(2)(c). [2011] QCA 48. See Explanatory Notes at page 10; see section 306H. © McInnes Wilson Lawyers 2013 Page 7 of 8 www.mcw.com.au
  • 8. of Appeal remarked that the old regime was not clear on whether damages could not be awarded where services were both paid and gratuitous. The Government wanted to make it clear with the amendments to the amendments that its original policy position was to prevent a Court from awarding damages for domestic services that are provided gratuitously to a worker by their family or household, and to prevent a worker converting gratuitous services received prior to the trial into paid 40 services after the trial. Lump sum statutory compensation is intended to provide for gratuitous care. Pure Psychiatric Injuries The amendments now requires that for an injury resulting in a psychiatric or psychological disorder (or aggravation of an existing disorder), employment must be the ‘major significant contributing factor’ to the injury or aggravation in 41 order to be compensable. Fraud The amendments increases the maximum penalties if a worker is convicted of defrauding an insurer from 400 penalty units or 18 months imprisonment to 500 penalty units or five years imprisonment. The Regulator requires WorkCover to pass on information to the Regulator regarding the defrauding of, or attempt 42 to defraud, WorkCover. The Regulator may now represent WorkCover in any proceedings where persons are to be prosecuted for offences 43 relating to fraud. Scott Falvey Principal McInnes Wilson Lawyers 40 41 42 43 See Explanatory Notes at page 2. See section 32. See section 536. See section 537 of the Act. © McInnes Wilson Lawyers 2013 Page 8 of 8 www.mcw.com.au

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