By Thomas Parer and Lindsay Carroll, NRA Legal

Last week the Queensland Government passed new laws that will change the state’s Workers’ Compensation scheme by introducing some greater responsibilities on employers and insurers, and expanding the scope of coverage for the scheme.

The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Qld) proposes to adopt a number of recommendations from last year’s five year review of the state’s Workers’ Compensation scheme (see the full report here) by Professor David Peetz, and covers range of areas, including:

  • the limitation period for applying for compensation;
  • psychological and psychiatric injuries; and
  • unpaid internships.

In this update, we will unpack some of the main changes to the law and how these changes are going to affect employers. In particular, retailers should pay attention to changes in who and when people may make a claim and the effect that these changes may have to their workers’ compensation premiums.

Test for psychological and psychiatric injuries

One of the more notable changes is to the test of when a psychological and psychiatric injury will be considered to arise “out of, or in the course of” employment, and as a result, changing the degree of connection to work required for a worker to successfully claim workers’ compensation.

Currently in the WCR Act, the test is whether “the employment is the major significant contributing factor” to the injury. The Bill changes the wording of this test to “the employment is a significant contributing factor to the injury”. This would appear to lower the degree of connection required with work for a psychological or psychiatric injury to be covered by workers’ compensation.

At first glance, this may result in an increase in the number of approved workers’ compensation claims for psychological or psychiatric injury. However, this change is in fact a return to the standard provided for in the WCR Act prior to 2013.

The Explanatory Notes to the Bill and Professor Peetz’s report both note that the rejection rate for psychological and psychiatric claims from 2011 – 2013 was 61.5% (when the test was “a significant”), and the rate from 2017 – 2018 was 62.1% (when the test was “the major significant”). Accordingly, while it is possible that the latest change could result in an increase in successful claims, history indicates that this may not be the case

Extension of scheme to unpaid interns

The amendments also provide for people engaged in unpaid work experience, or interns, who are not already covered by the state’s workers’ compensation scheme to be covered.

Increased responsibilities on insurers for psychological and psychiatric injuries

The Bill also introduces new obligations on insurers to provide ‘reasonable services’ to a worker who has made an application for compensation in relation to a psychological or psychiatric injury until the date that their claim has been accepted or rejected.

Examples of reasonable services will likely include mediation services and counselling services. However, this list is not exhaustive, and medical treatment, medicines, nursing, and medical supplies are also provided for up to the cost that the insurer accepts as reasonable. The only costs specifically excluded from this new requirement are costs of hospitalization, and costs arising from being an in-patient at a hospital.

Rehabilitation and Return to Work

Rehabilitation and Return to Work Coordinators

Employers already required to appoint a Rehabilitation and Return to Work Coordinator (RRTWC) under the Workers’ Compensation scheme will also now be required to ensure that RRTWCs are appropriately qualified. Specifically, a RRTWC will be taken to be appropriately qualified where they have completed a training course approved by the Regulator.Employers will be required to provide the details of persons appointed as an RRTWC to the Regulator, including details of how they are qualified, so employers employing a RRTWC should ensure they introduce this reporting into their processes to comply with this new obligation.

Requirement to Assist with Rehabilitation

The Bill changes the nature of insurers’ and employers’ obligations to assist or provide rehabilitation to a worker.

The Bill requires insurers to refer workers to an accredited rehabilitation and return to work program in more circumstances than currently provided for in the WCR Act, including beyond the end of their claim if they have not been able to return to work because of the injury.

It also introduces a requirement for employers to assist with the insurer’s obligations to assist with rehabilitation, and removes the exemption for self-insured employers from providing written evidence to an insurer if the employer considers it is not practicable to provide the worker with suitable duties.

This increased obligation on insurers to provide access to accredited programs beyond a worker’s entitlement to compensation will likely result in an increase in costs to insurers, however the Government has advised that WorkCover is fully funded to meet these costs, however self-insurers may see an increase in costs.

Expressions of Regret and Liability

One of the more positive changes to come from the amendments is the exclusion of expressions of regret or apologies from employers from being considered in determinations of liability for common law damages.

This means that where an employee injures themselves, while employers should take care not to admit liability, they will not have to avoid offering their apologies or commiserations about what has occurred for fear of that being considered to be implied admission.

Exemption from the six-month time limit

Finally, the Bill introduces a waiver of the six-month time limit on lodging a workers’ compensation claim from the time of incurring an injury, as long as the worker lodges a claim within 20 business days of developing an incapacity for work from their injury.

This amendment may result in an increase in the number of claims employers can expect to see in relation to certain kinds of illnesses, like chronic health conditions, mental health issues or psychological injuries. as often employees may persist with work after the moment of injury occurs without making a claim, before a deterioration resulting in incapacity occurs. Accordingly, this keeps the potential for a claim for these kinds of injuries open indefinitely, and could result in an increase in premiums.

Where to from here?

If you are concerned about managing injured employees or a return to work process, contact the NRA Workplace Relations team on 1800 RETAIL (738 245) to discuss the best course of action.