Further to the earlier post regarding amendments abolishing thresholds.
Workers’ claims after 15 October 2013 and before 31 January 2015 where the DPI is 5% or less
Where the worker does not have an entitlement to common law because the DPI is 5% or less during the period of 15 October 2013 until 30 January 2015, section s 193A governs the worker’s entitlement to a lump sum compensation payment and Regulations 112A – 112U govern the mechanics of the scheme.
In order to be eligible the worker:
- needs to have a decided DPI (Regulation 112E);
- fall within the former section 237(1)(a)(i) of the 2013 amending Act; and
- has not accepted or rejected the lump sum offer previously offered, in other words, the offer must have been deferred.
Significantly, there is a further ‘qualifying condition’ in Regulation 112D, apart from being DPI 5% or less within the former section 237(1)(a)(i) of the 2013 amending Act; namely the insurer is satisfied on the balance of probabilities that the worker’s employer would have been liable to pay damages.
Regulation 112F imposes on the insurer an obligation to decide if it has enough information to decide whether the qualifying condition is met; and if there is enough information, if it is met. If the insurer is satisfied, a notice in the approved form under s 193A is required to be given (193A notice).
If the worker is aggrieved of the insurer’s decision as to the qualifying condition, the worker may under Regulation 112H ask for written reasons for the decision, within 10 business days of receiving the s 193A notice and the insurer must within 10 business days of receiving the worker’s request provide written reasons.
Pursuant to Regulation 112G the 193A notice is required to state the amount of compensation the worker is entitled to. If the qualifying condition is not met, the 193A notice must state under Regulation 112G(3) the following:
(a) the insurer’s decision; and
(b) that the worker may ask the insurer for written reasons for the decision; and
(c) that the worker may apply to the panel for a review of the decision only if the worker has asked the insurer for the reasons for the decision.
Alternatively, in the event the insurer is not satisfied that there is enough information to decide the qualifying condition, the 193A notice must state under subsection 4, the following:
(a) the insurer’s decision; and
(b) that the worker may, within 60 business days after receiving the notice, give the insurer information to enable the insurer to decide whether the qualifying condition is satisfied for the worker; and
(c) that, if the worker does not give the insurer the information within the period mentioned in paragraph (b)—
(i) the qualifying condition will be taken not to be satisfied for the worker; and
(ii) the worker will not be entitled to section 193A compensation; and
(iii) the worker will not have a right to apply to the panel for a review of the matters mentioned in subparagraphs (i) and (ii).
Regulation 112I(2) governs the mechanism for the worker giving the further information to the insurer:
(a) may give the insurer information relevant to the decision within 60 business days after receiving the section 193A notice; and
(b) if the worker gives information to the insurer under paragraph (a)—must advise the insurer whether the worker has engaged a lawyer and incurred legal costs in giving the information.
Subsection 3 allows the insurer to extend the period of 60 business days, if the worker has a “reasonable excuse” for not giving the information within the 60 business day period. Subsection 4 deems the qualifying condition not to be satisfied, if the information is not given; or an extension is not provided.
The process for making a decision once the further information is provided is determined by Regulation 112J. The insurer has the latter option of two time frames; firstly 60 business days after receiving the information from the worker; or 10 business days after meeting the worker under Regulation 112K. If a decision is not made, the insurer is deemed under subsection 6 to have made a decision that the qualifying condition is not met. This deemed decision is included as a ‘decision’ for the purposes of the mechanism for reviewing the insurer’s decision under Subdivision 4.
If the qualifying condition is met, the insurer is required under subsection 4 to state the amount of compensation under the s 193A notice in the approved form. Similarly, if it not met, the insurer is required to give written reasons for the decision under subsection 5.
Regulation 112K is activated if the insurer proposes to decide that the qualifying condition is not satisfied, but before making that decision is required to give the worker an opportunity to meet to discuss the proposed decision.
Ten business days prior to such a meeting the insurer is required to give the worker relevant information, namely the information the insurer intends to rely upon to make the decision, apart from the information already provided by the worker. The worker is only entitled to one meeting with the insurer.
The review process for an aggrieved worker of the decision that the qualifying condition is not met is prescribed by Subdivision 4. Relevantly, under Regulation 112M once written reasons of the decision are provided; or if the insurer is deemed to have decided the qualifying condition is not met under Regulation 112J(6) by their failure to give a decision within time, the worker has 20 business days pursuant to Regulation 112N to apply to the panel, established by Subdivision 5, for a review of the decision.
Subsection 2 requires the application for review to include the following:
(a) the worker’s reasons for asking for a review of the decision;
(b) if the worker has received written reasons for the decision—the reasons;
(c) if the worker has not already had an opportunity to give the insurer information about whether the qualifying condition is satisfied for the worker—any information the worker wants the panel to consider in support of the worker’s application;
(d) if the worker has engaged a lawyer and incurred legal costs in relation to the application—a statutory declaration verifying the worker has engaged the lawyer and incurred legal costs.
The application under subsection 3 must also be served on the insurer. Under Regulation 112O the insurer is required to give the panel information relied upon when they made their decision.
The decision of the panel must either confirm or cancel the decision and substitute a new decision under Regulation 112P(1). Under subsection 2, written notice and reasons for decision must be provided to the worker and the insurer. Subsection 3 provides that the decision is final and if a substituted decision is provided, it is deemed that the qualifying condition is satisfied. Pursuant to subsection 4, the panel may make its decision without having received oral submissions.
Schedule 4A prescribes the method for calculating the compensation if the qualifying condition is satisfied. The amount of compensation is governed by the corresponding DPI and is paid on a graduated scale, together with prescribed legal costs.
Section 2 DPI amount generally
A worker who sustains a DPI shown in column 1 is entitled to the amount shown in column 2 opposite the DPI.
|Column 1 DPI||Column 2 DPI amount|
Section 4 Legal cost amount
(1) This section applies if a worker has engaged a lawyer and incurs legal costs for doing 1 or more things mentioned in column 1.
(2) The worker is entitled to the amount shown in column 2 opposite each thing for which legal costs were incurred.
|Column 1 Circumstance||Column 2 Legal cost amount $|
|Giving information to an insurer under section 112I within the period mentioned in the section||1,700|
|The worker and the worker’s lawyer attending a meeting mentioned in section 112K||2,000|
|The worker, under section 112N, applying to the panel to review an insurer’s decision||1,000|
|The worker giving information to the panel under section 112N(2)(c)||1,700|
Example of when a legal cost amount is included in section 193A compensation—
A worker with a DPI of 5% who has engaged a lawyer to give information to an insurer, attended a meeting with the lawyer and the insurer, and had the insurer’s decision reviewed successfully, is entitled to section 193A compensation totalling $36,190, being $31,490 for the DPI amount and $4700 for the legal cost amount.
Section 3 provides if multiple injuries are sustained from the one event, including a psychiatric injury, the maximum compensation payable is the highest DPI. Accordingly, if payment for a lower DPI has been made, the compensation payable is the difference between the two DPI’s (subsection 4).
Example of DPI amount if subsection (4) applies—
A worker with a DPI of 3% is paid a DPI amount of $18,894 for a physical injury. The worker later receives a notice of assessment stating a DPI of 5% for a psychological injury. The worker is entitled to be paid an additional DPI amount of $12,596 for the difference of 2% between the DPI percentages.
Pursuant to Regulation 112U any payment or decision does not impose liability on the insurer or employer for any other purpose or proceeding.
Division 3A--Entitlement to additional compensation for permanent impairment—Act, s 193A Subdivision 1--Preliminary 112A. Definitions for div 3A 112B. Operation of div 3A Subdivision 2--Amount and condition of entitlement 112C. Amount of compensation—Act, s 193A(2)(a) 112D. Qualifying condition—Act, s 193A(2)(b) Subdivision 3--Process for deciding qualifying condition 112E. Application of sdiv 3 112F. Insurer to consider qualifying condition 112G. Notification 112H. Worker may request reasons 112I. Giving information 112J. Decision based on worker's information 112K. Meeting before decision made Subdivision 4--Review of insurer's decision 112L. Definition for sdiv 4 112M. Application of sdiv 4 112N. Application for review 112O. Insurer to give information to panel 112P. Review by panel 112Q. Insurer must notify amount of entitlement Subdivision 5--Establishment of panel 112R. Panel—Act, s 193A(3) 112S. Appointment to panel 112T. Administrative matters Subdivision 6--Miscellaneous 112U. Liability not affected
SCHEDULE 4A -- SECTION 193A COMPENSATION FOR SPECIFIED WORKERS 1. Amount of section 193A compensation 2. DPI amount generally 3. DPI amount for multiple injuries 4. Legal cost amount
David Cormack – Brisbane Barrister & Mediator