We refer to our recent article “Workcover NSW and VIC scheme Profits at the expense of much needed benefits?!“, and discovered that workcover QLD annual report also reveals a 518 million profit, whilst for example deeming it necessary to putting a cap on common law damages claims!
Needless to say that workcovervictimsdiary.com is horrified that workcover QLD (and VIC and NSW) are extracting profits of such a magnitude, rather than improving benefit delivery to injured workers!
Changes to workcover QLD legislation – also driven by profits
WorkCover’s annual report reveals $518m profit
The report shows the average employer premium is still the second lowest in Australia, but revenue from premiums grew by over 11 per cent.
The report says the operating result is due to higher-than-expected wages growth, lower-than-expected claims, and a strong investment return.
The Queensland Government is looking at increasing the penalty for fraudulent workers compensation claims.
It says it wants to increase the current penalty from 18 months in jail to up to five years.
The Government says the scheme will put the focus back on injury management, rehabilitation and return to work, while providing a competitive premium for employers.(WTF)
While significant changes have been made, key processes and obligations under the Workers’ Compensation and Rehabilitation Act QLD have not changed
Following the release in May 2013 of the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme, the Workers Compensation Rehabilitation & Other Legislation Amendment Bill 2013 was passed on 17 October 2013.
The Attorney-General has outlined that the purpose of the changes is to “strike a better balance between providing appropriate benefits for injured workers and ensuring the costs incurred by employers are reasonable”.
Whether that goal will be achieved and whether the number of claims will decrease is yet to be seen.
The key changes to the Act include:
- Replacing Q-Comp with the “Workers Compensation Regulator” and merging it into the Office of Fair & Safe Work Queensland. The explanatory notes regarding the change identify that the Workers Compensation Regulator will operate in a similar manner to the regulator under the Work Health & Safety Act 2011.
- In order to make a common law claim a worker must now have a 5% Degree of Permanent Impairment (DPI) arising from the injury, which replaces the concept of whole person impairment.
- The table of injuries has been removed from the Workers Compensation and Rehabilitation Regulation 2003 and replaced with a new calculation for lump sum compensation under the relevant DPI.
- Amending the definition of “injury” under section 32 of the Act.
- Allowing employers to seek disclosures from prospective workers about prior injuries / conditions and obtain their workers’ compensation claims history.
Who can make a common law claim for work related injuries?
The Act now contains a threshold that must be met in order for the worker to make a common law personal injuries claim in relation to a work related injury sustained on or after 15 October 2013. The concept of “work related impairment” has been replaced with a method of assessment of Degree of Permanent Impairment (DPI).
Workers are now only able to file a common law damages claim for a work-related injury where a worker’s DPI is assessed as being greater than 5% or who have a terminal condition. Dependents retain their ability to seek damages if the work-related injury resulted in the worker’s death.
Workers who sustain an injury prior to 15 October 2013 will have their workers’ compensation claims processed and dealt with under the old provisions of the Act. At least the Act is not retrospective!
What is an “injury”?
The definition of “injury” in relation to physical injuries remains unchanged. For physical injuries, employment still needs to be “a significant contributing factor” to the injury.
However, in response to the Committee’s recommendation, the definition of injury in relation to psychiatric or psychological injuries has changed to require that employment be “the major significant contributing factor to the injury”. This changes will commence on assent of the amended Act and represent a higher threshold to be met by claimants seeking compensation for psychological injuries.
The exemption of psychiatric/psychological injuries arising from reasonable management action taken reasonably in relation to the worker’s employment has not been changed.
Workers also remain able to make journey claims (ie. claim in relation to injuries that occur during certain journeys).
Access to workers’ compensation histories
From 29 October 2013, prospective workers, upon receiving a written request by a prospective employer, are required to disclose all pre-existing injuries of which they are aware could reasonably be aggravated by performing the duties of the position they applied for.
A prospective employer must advise the prospective worker:
- of the nature of the duties the subject of the position he prospective worker has applied for; and
- that if they do not comply with the request, or they supply false or misleading information, the worker will not be entitled to compensation or damages under the Act for any event that aggravates the non-disclosed pre-existing injury.
Where the prospective worker fails to disclose relevant pre-existing injuries, or provides false or misleading information, and aggravates the non-disclosed pre-existing injury, the worker will lose their entitlement to compensation and damages.
For employees who were engaged before being requested to make the disclosure, their ability to make claims for pre-existing / non-disclosed injuries remain unchanged.
In addition to this, with the consent of the worker and payment of a fee to the Regulator, a prospective employer is now able access a prospective worker’s claims history summary. The amended Act provides that the prospective employer must maintain confidentiality of the summary and not disclose the contents to anybody else. The summary can only be used for considering and selecting the prospective worker for employment.
While this information can be accessed and used by prospective employers, the prohibition in the Act on obtaining and using “workers’ compensation documents” (as defined in the Act) for selecting a person for employment or determining whether a worker’s employment is to continue still exists. Similarly, other laws, including discrimination laws and the Fair Work Act 2009 will continue to apply. As a result, access to information about a prospective employee’s workers’ compensation history and pre-existing conditions will need to be carefully managed and considered to ensure legal compliance.
[Post by Co-Author Trinny and WCV]