WCRA: Thresholds abolished, lumps sums for gap period & Fire Fighter cancers protected

Further to the earlier post introducing the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015.

On 17 September 2015 the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill was passed and assented to on 24 September 2015 – Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Act No. 13 of 2015).

The 2015 amending Act:

  • Retrospectively abolishes the threshold of 5% DPI (degree of permanent impairment) from 31 January 2015;
  • Essentially re-introduces the previous s 245 of the pre-2013 amendment Act via s. 239A;
  • Introduces s.193A, which applies from 9 October 2015, if the worker’s injury is for an injury of 5% DPI or less and falls between 15 October 2013 – 30 January 2015; and the worker does not have terminal condition; and the worker has not accepted the lump sum offer, then the worker will be entitled to an additional lump sum in compensation, prescribed by regulation.

A quick recap –

For injuries on or before 15 October 2013 or from 31 January 2015 onwards, a worker has entitlement to common law if –

  • a notice of assessment has been obtained; or
  • a notice of assessment has not been obtained but:
    • a notice has been received in respect of an injury arising from the same event; and
    • for that assessed injury, the worker has a work related impairment of 20 percent; or the worker has elected to seek damages.

For injuries after 15 October 2013 pursuant to Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Act No. 52 of 2013), but now until 30 January 2015  –

  • pursuant to the previous s 237 of the 2013 amending Act the worker only has an entitlement to common law, if a notice of assessment has been issued with a DPI of more than 5%; or
  • the worker has a terminal condition; or
  • is a dependent of a deceased worker if the injury resulted in death.

Contractual Indemnity & Contribution:

In Byrne v People Resourcing (Qld) Pty Ltd & Anor [2014] QSC 269 (Byrne) the Chief Justice as he then was, applied the High Court authority of State Government Insurance Office (Queensland) v Brisbane Stevedoring Pty Ltd 123 CLR 228 and found despite any contractual indemnity, the statutory provision provided for a complete indemnity, in circumstances where the insured employer “become legally liable” to pay damages. Whereas the position prior to Byrne was to follow the New South Wales Court of Appeal decisions depending on varying circumstances: Multiplex Constructions Pty Limited v Irving and Ors [2004] NSWCA 346; Nigel Watts Fashion Agencies Pty Ltd v GIO General Insurance Ltd (1995) 8 ANZ Ins Cases ¶61-235; Gordian Runoff Ltd v Heyday Group Ltd (2005) NSWCA 29. Byrne has not been appealed.

Note, for work related injuries which fall between 15 October 2013 to 30 January 2015 and have been assessed to have 5% or less DPI, any indemnity is excluded or contribution by way of joint tortfeasor (Law Reform Act 1995 (Qld)) by virtue of  s 237 of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Act No. 52 of 2013) and the application of Bonser v Melcanais [2000] QCA 13. Whilst the 5% DPI threshold has since been abolished by s 237 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act No.13 of 2015), it is only retrospective until 31 January 2015.

Otherwise, I refer you to:

Record of Proceedings – Hansard dated 17 September 2015

Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015 : Report No. 9, 55th Parliament : Finance and Administration Committee | 2015 | Qld

Explanatory Notes | Second Reading Speech

This report presents a summary of the Committee’s examination of Workers’ Compensation and Rehabilitation (Protecting Firefighters) Amendment Bill 2015.

Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 : Report No. 8, 55th Parliament : Finance and Administration Committee | 2015 | Qld

Explanatory Notes | Second Reading Speech

This report presents a summary of the Committee’s examination of Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015.

WorkCover Queensland’s website statement:

Related links

Please visit Firefighter provisions 2015 for more information on proposed changes for firefighters.

David Cormack – Brisbane Barrister & Mediator

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