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Home | Legislation | Act amendment summaries > Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2010

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.