Amendments have been made to the Workers' Compensation
and Rehabilitation Act 2003 (the Act), the Workers'
Compensation and Rehabilitation Regulation 2003 (the
Regulation) and the Workplace Health and Safety Act 1995
which come into effect from 1 July 2010. Below is a summary of the
key amendments.
For more information about the amendments refer to the
Workers' Compensation and Rehabilitation and Other Legislation
Amendment Act 2010 (the Amendment Act).
Background to the amendments
Amendments to the above legislation were made in response
to a review of WorkCover Queensland's financial position in
November 2009. In February 2010, the Attorney-General and Minister
for Industrial Relations released a discussion paper inviting
public submissions in response to recommendations made by the
WorkCover Board and other stakeholders for maintaining the solvency
of Queensland's workers' compensation scheme. Submissions received
were reviewed by a stakeholder reference group chaired by the
Attorney-General and Minister for Industrial Relations and
including employer associations, unions and the legal
professions.
Amendments to the Workers' Compensation and
Rehabilitation Act 2003 and the Workers' Compensation and
Rehabilitation Regulation 2003
Section 54 of the Act has been amended to
allow WorkCover to impose an additional premium on an employer's
policy of insurance due to sustained poor claims experience which
has resulted in the employer's premium rate repeatedly exceeding
the relevant industry rate.
Section 67 of the Act has been amended to
remove the ability of employers to insure with WorkCover against
the liability to pay for the excess period.
(Section 16 of the Regulation has been
amended to provide that the employer excess amount is the lesser of
100% of QOTE or the amount of weekly compensation payable to a
worker. Excess provisions in force prior to 1 July 2010 remain in
force for injuries sustained before that date.)
Section 86 of the Act has been amended to
allow the Q-COMP Board to approve reinsurance excess limits for
self-insurers for amounts greater than $1 million. This amendment
applies to any reinsurance entered into on or after 1 July
2010.
Section 202 of the Act has been amended
to allow compensation payments to the parents of deceased workers
under 21 who left no dependants, where the parents ordinarily
reside in Australia. This amendment applies where death results
from an injury sustained on or after 1 July 2010.
Section 220 of the Act has been amended
to place an obligation on insurers to notify Q-COMP if an injured
worker is unable to return to work with their former employer when
their entitlement to weekly payments has stopped.
Section 221 of the Act has been amended
to provide that where an insurer notifies Q-COMP under section 220,
Q-COMP must, with the worker's consent, refer the worker to
programs that may help the worker return to work, including
vocational assessment, re-skilling or retraining, job placement or
host employment.
Section 231 of the Act has been amended
to provide that a worker must satisfactorily participate in return
to work programs or suitable duties arranged by an insurer or
Q-COMP.Several amendments have been made to Chapter 5 of the Act
dealing with common law damages claims.
Section 235A has been amended to include
a definition of 'relevant health professional' which includes a
nurse practitioner or dentist authorised under section 132 to issue
a medical certificate, to ensure equal treatment of workers who
first consulted a nurse practitioner or dentist in relation to the
time limit on actions. This provision will commence at a
later date.
Section 267 has been amended to provide
that a worker must satisfactorily participate in return to work
programs or suitable duties arranged by an insurer or Q-COMP in
addition to the worker's common law duty to mitigate their loss
because of the injury.
Section 290A has been amended to increase
the pre-trial obligations on third party contributors to exchange
relevant documents and certify readiness for conference.
Section 292 now provides that where a
contribution claim is not settled at compulsory conference, each
party must ensure that it makes a written final offer that would
dispose of the contribution claim if accepted.
Chapter 5 Part 8 and Part 9 introduce
provisions closely modelled on provisions in the Civil
Liability Act 2003. Part 8 addresses the civil liability of
persons or parties against whom a worker is seeking damages for
injury, including general standard of care, causation and
contributory negligence. Part 9 regulates the assessment of damages
paid to a worker, including loss of earnings, general damages
determined by assigning an injury scale value, structured
settlements, and indexation. These provisions apply to injuries
arising after 1 July 2010 or if the date of diagnosis of a latent
onset injury is on or after 1 July 2010.
Part 7A and Schedules 8 to
12 of the Regulation address the
assessment of damages, including the rules for assessing injury
scale values (ISV) and calculating general damages, and prescribed
amounts for loss of consortium or loss of servitum and future
loss.)
Section 311, section 313
and section 316 have been amended to expand the
instances where a court must make orders as to costs to include
situations where a court dismisses a worker's claim, makes no award
of damages, or makes an award of damages that is equal to or less
than the insurer's final written offer.
Chapter 5 Part 12 Division 2A contains
provisions that introduce costs consequences for contributors if
the contributor is required to make a mandatory final
offer.
Sections 318A to 318E address the
awarding of costs by a court so that a court may make an order for
costs other than as prescribed in the Act if certain conditions
apply.
Amendments to the Workplace Health and Safety
Act 1995
Section 37A now provides that no
provision of this Act creates a civil cause of action based on a
contravention of the provision. This provision is intended to
address the decision of Bourk v Power Serve Pty Ltd &
Anor [2008] QCA 225.
Section 197 provides that section 37A
applies retrospectively to extinguish without compensation any
right to take action based on a civil cause of action arising from
a contravention of a provision of this Act. Therefore, the
amendment in section 37A applies to current claims and proceedings
for damages if the proceedings commenced after 8 August 2008. This
amendment will not apply to a proceeding for damages if the trial
started before 1 July 2010.