Proposed Changes to Workers’ Compensation including the Definition of Injury

Last week the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill  (“the Bill’) was introduced into Parliament.

The object of the Bill is to implement 12 legislative amendments following a review of the workers’ compensation scheme by an independent reviewer, Professor David Peetz.

One such proposed amendment is the change in the definition of injury to remove ‘the major’ as a qualifier for employment’s ‘significant contribution' to the injury.

Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 contains the current definition of injury –

Meaning of Injury

(1) An injury is personal injury arising out of, or in the course of employment if –

(a) for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury; or

(b) for a psychiatric or psychological disorder – the employment is the major significant contributing factor to the injury.

The proposed amendment would remove ‘the major’ in the preceding paragraph and replace it with ‘a significant’.

This would bring the qualification test in line with physical injuries. It would be a welcome change to the workers’ compensation landscape and would remove a hurdle many workers with psychiatric injury are not able to overcome. Administratively it would reduce the number of review applications submitted on this issue and reduce the number of review decisions then proceeding to the Regulator for consideration.

The recommendations in the Bill include –

? clarifying WorkCover Queensland’s ability to fund and provide programs and incentives that support employers improving health and safety performance, after consulting with the regulator under the Work Health and Safety Act 2011 or any other relevant health and safety regulator;

? exempting expressions of regret and apologies provided by employers following a workplace injury from being considered in any assessment of liability for damages brought under the Workers’ Compensation and Rehabilitation Act 2003 to align with the approach taken in the Civil Liability Act 2003;

? providing an additional way that employers can ensure that rehabilitation and return to work coordinators are appropriately qualified, and requiring employers to provide details of their rehabilitation and return to work coordinators to insurers, to support compliance and the provision of advisory services to coordinators;

? requiring insurers to provide ongoing rehabilitation and return to work services if the injured worker has been unable to return to work after their entitlement to weekly benefits and medical expenses ceases. The employer’s obligations for rehabilitation and return to work are also aligned with their insurer’s obligations;

? requiring self-insured employers to report injuries and any payments made to injured workers to their insurer, aligning their obligations with the existing obligations on employers insured with WorkCover Queensland;

? clarifying that insurers have a discretion to accept claims submitted more than six months after the injury is diagnosed, if the injured worker has lodged a claim within 20 days of developing an incapacity for work from their injury;

? extending workers’ compensation coverage to unpaid interns;

? amending the meaning of injury for a psychiatric or psychological disorder to remove ‘the major’ as a qualifier for employment’s ‘significant contribution’ to the injury; and

? requiring insurers to take all reasonable steps to provide claimants with psychiatric or psychological injuries access to reasonable support services relating to their injury during claim determination.