What is old is new again

On 22 August 2019, the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Bill) was introduced into Parliament.

The Bill, in part, amends the Workers’ Compensation and Rehabilitation Act 2003 (Act).

The objective of the Bill is to implement 12 of Professor David Peetz’s proposed legislative amendments following the second review of the workers’ compensation scheme in Queensland in June 2018.

Professor Peetz’s review found that the scheme was performing well. It was financially sound. It involved low costs for employers. It provided fair treatment for employers and injured workers. Professor Peetz made 57 recommendations in his review, which included 15 proposed legislative amendments (of which the Bill seeks to implement 12).

A change to the definition of ‘injury’

The most significant proposed amendment is in terms of the definition of ‘injury’ in s32(1) of the Act to bring the definition for psychological injury in line with physical injury.

As the law currently stands, for a worker to be entitled to compensation for a physical injury, the worker must prove employment was ‘a‘ significant contributing factor to injury, whereas for a psychological injury, employment must be ‘the major‘ significant contributing factor to injury. This distinction was introduced on 15 October 2013 (the ‘Newman amendments’).

After reviewing the situation in other jurisdictions, Professor Peetz noted ‘there seemed no good reason for Queensland to be out of step with the other jurisdictions in Australia, none of which appear to require work to be ‘the major’ contributory factor‘.

The proposed amendment to the statutory test for a psychological injury will be of benefit to workers in the pursuit of a claim for compensation, as the ‘a’ significant contributory factor test is less stringent then ‘the major’ contributory factor test and allows for more than one cause of injury, work related or otherwise.

Though, for employers, the proposed Bill does not seek to amend s32(5) of the Act. Should a worker’s psychological injury arise out of, or in the course of, reasonable management action taken by the employer in a reasonable way, the worker’s claim for compensation is still one for rejection.

What else?

Relying on Professor Peetz’s recommendations, some of the other proposed amendments to the Act, are as follows:

1. An amendment to the Act to require insurers to take all reasonable steps to provide, on a ‘without prejudice’ basis, reasonable services to support workers with a psychological injury during the claim determination process, excluding hospital costs. This amendment is proposed to take into account the fact that the average time for an insurer to determine an application for compensation for a psychological injury is usually longer than the time it takes to determine an application for compensation for a physical injury and, in that period, workers often wait a significant period of time before being able to access compensation benefits;
2. An amendment to s131 of the Act to provide a further circumstance for an insurer to waive the six-month time limit for a worker to lodge an application for compensation. The proposed position is that an insurer will also be able to waive that time limit if it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work and the worker lodges his/her application for compensation within 20 business days of that certification. Professor Peetz’s review found that Martin J’s decision in Toward’s case ‘negatively impacts workers with chronic, insidious or psychiatric injuries who attempt to manage their injury at work before deteriorating, and do not lodge a claim when they are assessed by the doctor, but at a later time when they become incapacitated for work’. The proposed amendment to s131 of the Act is designed to resolve that negative impact;
3. In an effort to align the Act with the Civil Liability Act 2003, the Bill proposes to amend the Act to allow expressions of regret or apologies by an employer following a workplace injury that will, hopefully, provide ‘numerous positive outcomes for both workers and employers’, but at the same time, exempting those expressions of regret and apologies from being considered in any assessment of liability in a claim for damages against the employer;
4. An amendment to the definition of a terminal condition in s39A of the Act ‘by removing the reference to two years’ in that definition ‘and replacing it with an assessment that the insurer is satisfied that the worker has a latent onset condition that is terminal’. This proposed change will allow workers diagnosed with a terminal work related condition with a life expectancy greater than two years to still avail themselves of the significant compensation available (up to $743,041.00). Insofar as latent onset conditions are concerned, changes to the Public Health Act 2005 were also recently passed by the Queensland Parliament to introduce the nation’s first Notifiable Dust Lung Disease Register. From 1 July 2019, all instances of notifiable lung diseases must now be recorded on the Register. That includes the following respiratory diseases when caused by occupational exposure, namely cancer, including mesothelioma, chronic obstructive pulmonary disease, bronchitis and emphysema, asbestosis, pneumoconiosis and silicosis;
5. Replacing s220 of the Act to expand an insurer’s responsibility for rehabilitation and return to work. In its current form, s220 of the Act obliges an insurer to refer a worker to an accredited return to work program when he/she lodges a claim for damages. The new, proposed s220 will remove that obligation and replace it with a mandatory requirement that an insurer refer a worker to an accredited rehabilitation and return to work program if the worker’s entitlement to compensation has ceased and he/she has not returned to work because of the injury; and
6. Amend the Act and associated Regulation to replace, where applicable and practicable, relevant dollar amounts for lump sums and other entitlements with percentages or multiples of QOTE.

This article was written by Tony Scott, Partner, Graeme Traves, Partner, Brooke Jacobs, Special Counsel, Kyle Norton, Special Counsel and Rowan McDonald, Solicitor.