What Queensland Self-Insurers Need to Know: Report of the Second Five-Yearly Workers’ Compensation Scheme Review in Queensland What Queensland Self-Insurers Need to Know: Report of the Second Five-Yearly Workers’ Compensation Scheme Review in Queensland

What Queensland Self-Insurers Need to Know: Report of the Second Five-Yearly Workers’ Compensation Scheme Review in Queensland

16 August 2018 | Workers' Compensation

Under section 584A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act), the Minister for Industrial Relations is required to arrange for the Queensland workers’ compensation scheme to be reviewed at least once every 5 years. This year, Professor David Peetz was commissioned to undertake the review (the second since section 584A was introduced) and prepare a report on his findings.

His report was tabled in Parliament on 29 June 2018. Most significantly, it found that the current scheme is functioning well and no ‘major’ changes to its operation are required. Professor Peetz does, however, recommend a number of improvements to the system as it currently stands.

We have summarised the major recommendations to come out of the report below, as far as relevant to self-insured employers in Queensland.

Self Insurance

Significantly, the report recommends that stakeholder input (through unions, medical practitioners, workers and relatives) be encouraged during applications for an individual self-insurer’s licence renewal. The report proposes to encourage input through requiring self-insured employers to advertise for submissions on their application for renewal of their licence to determine if that employer is “fit and proper” to be a self insurer.

The Act currently requires scheme employers to notify WorkCover as soon as they are aware of a worker sustaining a compensable injury. The report recommends that self-insured employers be required to provide the same notification to the self-insurance unit, with that information to be passed on to the Regulator, allowing for the Regulator to conduct audits of all injury management activities, further promoting transparency within the workers’ compensation scheme.

Psychological injuries

The test to be entitled to workers’ compensation for a psychological injury was amended in 2013 by the Newman Government, creating a requirement that employment be the “major significant contributing factor” to the psychological injury.

The report recommends that "the major significant contributing factor” test be removed from the Act, and replaced with the previous test – that employment only be "a significant contributing factor" to the worker’s psychological injury – on bases including that it will bring Queensland back into line with other jurisdictions in Australia.

As many will already be aware, psychological injuries which arise out of reasonable management action taken in a reasonable way by employers are not compensable under the Act. One of the submissions Professor Peetz received during his review was that “reasonable management action” be defined in the Act. The report also highlighted concerns raised by stakeholders during the review that workers were experiencing difficulties identifying evidence in support of psychological claims.

While Professor Peetz ultimately did not recommend that reasonable management action be defined in the Act, the report does recommend that a booklet be developed for workers, setting out what is (and what is not) reasonable management action for the purposes of assessing psychological injury claims.

Noting the time which can be taken in investigating and making a determination in psychological injury claims, and the benefits of early intervention, it is also recommended that insurers meet the cost of early treatment in psychological claims (on a no-prejudice basis) up to a limit and until a decision to accept or reject the claim is made.

Rehabilitation and Return to Work

The review asserts that the Queensland system is not as strong on return to work performance, as it is in other respects. It is noted that the Act promotes return to work, but there is not enough emphasis on ‘durable’ return to work.

It is recommended that:

  • A system be introduced whereby insurers follow up workers some time after benefits have ceased (provisional closure) to ascertain their status and level of functioning (say 3 months and 9 months), and to identify whether further action is required. Final closure would only occur if no further action was required.
  • It is recommended that the Act be amended to:
    • Give worker the right to request referral to a return to work (RTW) program
    • Insurers assess the RTW needs of workers during the life of the statutory claim and refer workers to an accredited RTW program if assessment identifies a significant risk to the worker’s RTW
    • If a worker has not returned to work at the end of the statutory claim, require insurers to retain responsibility for rehabilitation and RTW even after entitlement to compensation ceases by referring workers to a RTW program for a defined period (which is the worker achieves a durable return to work, or the insurer decides that the worker is not reasonably participating in the RTW program or further participation will not reasonably contribute to achieving a durable RTW), with this mandatory if the worker has not achieved a return to work at the end of the claim.
  • It is proposed that accredited and qualified Rehabilitation and Return to Work Co-ordinators be reintroduced.

Common Law Claims

The report does not recommend the abolition or alteration of common law rights.

The report recommends that the Act be amended to exempt apologies provided by an employer to a worker following a workplace injury from being considered in any assessment of liability. This follows research conducted into workplace claims which showed that an employer’s response to injuries can be influential in whether or not the claim proceeds to a common law action.

In order to promote further transparency in the workers’ compensation scheme, and in particular plaintiff’s solicitors’ costs, the review also recommends that data be collected by an independent body to determine the distribution of common law damages to a plaintiff’s solicitors’ fees, and what percentage was paid to the plaintiff themselves. The report recommends that the independent body then publish summaries of the data it collects on an annual basis.

Although stated to be beyond the scope of the review, it was recommended that the interaction between the Act and the Civil Liability Act (which can leave non-employers with a greater liability than employers in common law claims where both are involved) be reviewed.

Statutory Claims

It is noted that the Act does not provide a right to appear to the employer when a worker appeals a review decision to the QIRC. It is stated in the review that to “have the employer as a separate party may over-complicate the matter and be unfairly detrimental to a worker (such as in psychological claims)”. The review recommends that the Regulator put in place procedures to consult with the relevant employer before a decision is made to concede an appeal.

To assist sufferers of chronic, insidious or psychiatric injuries who did not claim on diagnosis because they were not incapacitated at the time, it is recommended that:

  • The Act be amended to give insurers discretion to accept a claim lodged more than 6 months after being assessed by a doctor, if lodged within 20 business days of certification of incapacity.
  • The Regulator develop a practice note that it will allow such claims where the worker did not know they were covered by workers’ compensation before that date.
  • Topically, the report also considered potential amendments to the Act to support the increasing number of workers involved in “gig economy” arrangements, recommending that the coverage of the Act should be redefined to include those who are engaged to work via an agency and requiring the payment of premiums by such intermediaries or agents.

Going forward

According to a media statement released by the Minister for Education and Industrial Relations, the Government is currently in the process of considering the recommendations contained in the report.

So far no changes have been announced. The Minister has also indicated that stakeholders will have the opportunity to discuss any proposed amendments to the Act prior to their implementation.

Watch this space!

You can read the full report here.

Author

Mark Wiemers

Mark Wiemers

Principal

Briana Smith

Briana Smith

Lawyer