Workers’ rights in Queensland were significantly changed on 15 October 2013 with the introduction of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (the “Amending Act”).
If you are injured after this date your right to recover compensation for injuries caused by the negligence of your employer has been taken away if you have not been assessed as having sustained a degree of permanent impairment of MORE than 5%.
If you were injured BEFORE 15 October 2013 you still have a right to claim damages against a negligent employer.
On 15 October 2013, Queensland Parliament passed the Amending Act, which included significant changes to the Workers’ Compensation and Rehabilitation Act 2003 (the legislation regulating the workers’ compensation scheme in Queensland) (“2003 Act”), together with other amendments to the Civil Liability Act 2003, the Motor Accident Insurance Act 1994, the Personal Injuries Proceedings Act 2002, and the Workers’ Compensation and Rehabilitation Regulation 2003 (the other legislation in Queensland regulating claims for damages for injury sustained in car accidents, public place incidents, or medical negligence).
The Amending Act makes numerous significant changes to the 2003 Act that change workers’ rights and access to claims for compensation after the completion of their workers’ compensation claim.
The law for injuries sustained before 15 October 2013 allows an injured worker to bring a damages claim against his/her employer IF and ONLY IF the negligence of the employer was the cause of the injury.
The following are important changes for any injured worker to be aware of for injury suffered AFTER 15 October 2013:-
1. Workers’ Access to Common Law Damages
Section 237 of the 2003 Act has been amended to limit a worker’s right to claim damages against his/her negligent employer to the following only:
• a worker who has received a notice of assessment from the insurer for the injury and the Degree of Permanent Impairment (DPI) (assessed under the Guidelines for Evaluation of Permanent Impairment under section 183 of the 2003 Act) is more than 5% (all physical injuries sustained in the subject accident need to be assessed and the total DPI considered from all physical injuries); or
• a worker who has a terminal condition; or
• a dependant of the deceased worker, if the injury results in the worker’s death.
Under section 186 of the 2003 Act, a worker may challenge the DPI stated in their notice of assessment within 20 business days after the original notice is given (the “decision period”). In order to do this, the worker must firstly advise the insurer within the decision period that they do not agree with the degree of permanent impairment and then request that the insurer either has them reassessed for a DPI by an entity (usually a doctor) other than the entity that performed the original assessment, or that the question of DPI be referred to the Medical Assessment Tribunal (MAT). The Insurer must decide whether to have the worker reassessed within 10 business days of the request. If the insurer does decide to have the worker reassessed, the original notice of assessment is taken to have never been given. However, if the insurer decides not to have the worker reassessed by an alternative entity, it must refer the question of DPI to the MAT.
2. Extension of Limitation Period
Under section 11 of the Limitation of Actions Act 1974 (Qld), an injured person must generally bring a claim for common law damages against the person at fault within 3 years of the date that the cause of action arose. Section 302 of the 2003 Act has been amended to provide that the limitation period can be altered depending on when the injury has been “assessed” and a notice of assessment is issued. Specifically:
(a) if the insurer gives the notice of assessment less than 6 months before the end of the 3 year limitation period and the injured worker advises the insurer that they do not agree with the DPI stated in the notice, the worker’s entitlement to claim for common law damages is extended to 6 months after the MAT decides the DPI; or
(b) if the injured worker has not been assessed for DPI and has not received a notice of assessment at least 6 months before the end of the 3 year limitation period, the worker’s entitlement to claim for common law damages is extended to either 6 months after the insurer gives the worker a notice of assessment; or to 6 months after the MAT decides the DPI after the worker advised the insurer that they disagree with the DPI as stated in the notice of assessment.
3. Psychiatric Injuries
For a psychiatric or psychological disorder to be a compensable injury, or for there to be an entitlement to damages for such an injury at common law, employment must be “the major significant contributing factor to the injury” (refer section 32(1)(b) of the 2003 Act).
4. Disclosure of Pre-existing Injuries
There is now an obligation on workers to disclose pre-existing injuries or medical conditions upon the written request of a prospective employer under section 571B of the 2003 Act. If a worker provides false or misleading information about a pre-existing injury then the worker may not be entitled to compensation or damages for any aggravation of that pre-existing injury or condition (see section 571C of the 2003 Act).
5. Transitional Provisions
Parts of the Amending Act have taken effect from 15 October 2013 (including points 1 and 2 above). Importantly, this includes section 678 of the 2003 Act, which is a transitional provision stating that any injury suffered prior to 15 October 2013 will be assessed according to the pre-amendment 2003 Act.
These changes will have significant impact upon workers injured at work after the 15th October 2013.
If you have any questions or would like to discuss the changes to the worker’s compensation legislation and its impact on you or your family, please contact:
Gouldson Legal on (07) 3009 7000.
Article written by: Faran Gouldson and Shane Lawlor – Gouldson Legal.
Read about our fees at: “No Win No Fee”
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