When Does the 5% Threshold Apply in Queensland?

12 February 2018

On 29 October 2013, the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act was passed.  That Amendment Act amended the Queensland Workers’ Compensation and Rehabilitation Act 2003 (Act).

One of those amendments was to s237 of the Act.  The amendment imposed a threshold that a worker needed to satisfy to be entitled to claim damages for injuries sustained in the period 15 October 2013 to 30 January 2015 (inclusive).  He/she needed to receive a Notice of Assessment for the injury and the degree of permanent impairment (DPI) for the assessed injury had to be more than 5%.

The amendment was recently considered in a matter of Trumino v Coles Group Ltd [2017] QSC 211.


Mr Trumino injured his back on 12 May 2014.  He suffered physical and psychological injuries.  All injuries were assessed.  His DPI for his various physical injuries was assessed at 35%.  His DPI for his psychological injury was assessed at 1%.

He brought a claim for damages against Coles seeking damages for all of his injuries.  Coles defended Mr Trumino’s claim for his psychological injury on the basis he was not entitled to claim damages for that injury where he did not exceed the 5% threshold.

Mr Trumino filed an application in the Court, seeking a declaration that he was entitled to claim damages for his secondary psychological injury in addition to his physical injuries.  The application came on for hearing before his Honour Judge Henry on 1 September 2017.

His Honour rejected Coles’ argument Mr Trumino was not entitled to claim damages for his secondary psychological injury because his DPI for that injury did not exceed 5%.  His Honour held Coles’ argument was misconceived.  It erroneously assumed the words of s237 imposed a future constraint on the injuries for which a worker who crosses the s237 threshold can claim.  In his Honour’s view, s237 contained no such constraint.

His Honour further found Mr Trumino was a person mentioned in s237(1) of the Act given his assessment for his physical injuries was above the 5% threshold.  Once he was past that threshold, he was allowed to seek damages.  Section 237 of the Act did not control the future conduct or limits of his claim.


His Honour’s decision has far reaching consequences, especially the case of a worker who has suffered physical and psychological injuries arising from the one event. Whilst WorkCover Queensland (WorkCover) has a policy that provides that if a worker exceeds the threshold for either his/her physical or psychological injury, he/she could claim for all injuries, on a strict reading of the Act, a worker had to exceed the 5% threshold for both his/her physical and psychological injuries to be entitled to claim damages for both injuries.

His Honour’s decision, in effect, ‘confirms’ WorkCover’s position.  His Honour has effectively found that provided a worker exceeds the necessary threshold for either his/her physical or psychological injury, he/she is entitled to claim damages for all injuries.

This article was written by Graeme Traves, Partner and Kyle Norton, Special Counsel.

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