A Q&A on QLD workers compensation changes
8th May 2014
Australian Lawyers Alliance Queensland President Michelle James answers questions on the changes to workers compensation in Queensland.
1. What do you see as the biggest problem with workers compensation in Queensland?
The injustice created by the QLD government’s amendments to the Workers’ Compensation and Rehabilitation Act 2003 (the Act).
The Workers Compensation and Rehabilitation and Other Legislation Amendment Bill 2013 was introduced on October 15 2013 and passed into law as 'urgent legislation'.
Prior to this, the Finance and Administration Committee began the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme in 2012. ALA QLD’s submission can be found here. In May 2013, the Committee, dominated by members of the LNP, released their report which recommended no major changes.
The resulting legislation is a fundamental attack on the rights of Queensland workers to sue their negligent employer when they have been injured in unsafe workplaces, by the introduction of a threshold of medical impairment that must be met prior to being entitled to seek damages.
2. What are the thresholds that are required to be met for a worker to be able to seek compensation in Queensland?
There are no thresholds on the right to seek compensation in the form of weekly benefits or medical expenses – so long as the worker's employment was a significant contributing factor to their injury (there are some exclusions for psychiatric injury).
Following the 15 October 2013 amendments, a greater than 5% threshold has been imposed for a worker to seek damages. Damages attempt to account for the loss suffered by the individual as a result of their injury or impairment. This compensation can be awarded for future medical expenses, loss of earning, pain and suffering and disfigurement.
Under the new legislation, individuals whose impairment has been assessed at below 5% will not have access to common law damages. Although this number may sound small, on WorkCover’s own figures over half of all people injured in unsafe workplaces will now have no right to damages.
While people in this situation will still be able to access statutory compensation under WorkCover, WorkCover’s compensation will not account for the losses normally covered by damages such as future medical expenses, loss of earning etc.
3. What are the caps on payments to workers, including length of time that they can be on the payments?
An individual’s entitlement to weekly compensation and payment of medical expenses ceases on the earlier of their injuries either being deemed ‘stable and stationary’ or five years have passed following the injury. In practice, the latter will be the earlier. Both weekly compensation payments and lump sum amounts are capped at $200,000.
An injury will not be ‘stable and stationary’ if functioning is likely to improve with further medical treatment or hospitalisation. If the worker sustains an injury which can be improved through rehabilitation, their entitlement to compensation is conditional on satisfactory participation in rehabilitation.
When a worker's injuries stabilise, they are assessed for permanent impairment. For workers injured on or before 14 October 2013, this is in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition (AMA 4). For those injured on or after 15 October 2013, the assessment is in accordance with the Guides for the Evaluation of Permanent Impairment (GEPI), based on AMA 5. In the latter case, as set out above, there is no entitlement to seek damages unless there is greater than 5% impairment.
Where a worker has suffered an injury or impairment which is assessed at greater than 30% degree of permanent impairment, they are entitled to an additional lump sum payment of up to $218,400 for the injury (psychiatric injury can not be included).
Under certain circumstances, individuals with a greater than 15% impairment who require a “moderate to total level of dependency on day to day care for the fundamental activities of daily living” may be entitled to a payment of up to $226,555 for care.
For workers injured on or before 14 October 2013, or those injured after this date with greater than 5% impairment, the worker must choose between taking the permanent impairment lump sum, or bringing a damages claim.
In awarding damages, the court must consider the Injury Scale Value for the Calculation of General Damages. The ISV assigns injuries a numeric range from 1-100 and a corresponding damages sum. The maximum award for an injury sustained after 1 July 2013 under the ISV is $337,300.
Damages for the loss of future earnings are calculated with reference to the average Queensland full-time adult persons ordinary time earnings. Payments are restricted to three times the weekly QOTE or $4110.30 per week for each week of the period of loss of earnings.
4. How is the scheme faring financially?
Prior to the 15 October 2013 amendments, Queensland had the only profitable workers’ compensation scheme in Australia and its 2012 profit exceeded $500 million.
In short, it was a scheme that didn’t need changing – a view supported by the Finance and Administration Committee which recommended no major changes after a thorough review.
5. What were some of the key legislative changes that removed people’s rights?
The new amendments severely limit the rights of Queenslanders before they have been employed, while they are at work and once they are looking to return to work after an injury.
For the first time in Queensland’s history, a worker must meet a certain degree of impairment before they can access their common law right to seek damages.
These ‘thresholds’ severely limit the rights of workers and are already impacting the lives of real people.
6. What role has the Australian Lawyers Alliance played in combatting the changes?
The Australian Lawyers Alliance has opposed the changes since the beginning. In August 2012, our submission to the Finance and Administration Committee Inquiry noted that the Queensland scheme had delivered at or close to the lowest premiums in the country for the past fifteen years, providing reliable cover for Queensland workers and employers. We asserted that 'common law access should remain without impairment thresholds.'
The Queensland branch of the Australian Lawyers Alliance has continued to lobby against the changes.
On 13 November 2013, Rod Hodgson and I met with the Attorney General to discuss the workers’ compensation amendments. ALA QLD continues to engage key stakeholders on this issue through our involvement in the WorkCover Stakeholder Party Group.
We also seek to publicize the inequities of these reforms to the wider community through our involvement in the WorkCover Protection Coalition.
Over the past several months, I have discussed the WorkCover changes at several public events including the Brisbane 'Rally4Rights' event and a meeting of the QLD Civil Liberties Network.
The Queensland branch of the Australian Lawyers Alliance continues to lobby against the imposition of thresholds. If you would like to join us in our efforts please email the Queensland Liaison Officer, Bridget Mullins, at email@example.com.
Find out more about the changes at the Australian Lawyers Alliance Queensland WorkCover seminar on 19 May 2014 in Brisbane. See here for further details.
Michelle James is the Queensland President of the Australian Lawyers Alliance, an accredited specialist in personal injury and principal at Maurice Blackburn Lawyers, Brisbane. In 2013, Michelle received the Law Society's Agnes McWhinney Award for Outstanding Professional and Community Contribution by a Woman Lawyer. Michelle tweets at @Michelle_James_.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).