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Workers' Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016

The Workers' Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016 (the Amendement Act) commenced on 8 September 2016.

The Amendment Act amended the Workers’ Compensation and Rehabilitation Act 2003 (the Act) to make a number of changes to Queensland’s workers’ compensation scheme, including:

  • implementing the National Injury Insurance Scheme for work-related catastrophic injuries connected with Queensland
  • amending the self-insurance licensing requirements to provide greater flexibility for applicants
  • reversing the impact of the Byrne decision and restoring arrangements in relation to third party liability and prosecutions for fraud
  • amending the indexation method used to calculate workers’ compensation benefits.

National Injury Insurance Scheme for work-related catastrophic injuries

The amendments implement the National Injury Insurance Scheme (NIIS) for workplace incidents, which ensures workers who sustain particular serious personal injuries receive necessary and reasonable treatment, care and support payments, regardless of fault.

The NIIS for work-related catastrophic injuries is consistent with the NIIS for motor vehicle accidents in Queensland. The Act provides all eligible seriously injured workers with a lifetime statutory entitlement to treatment, care and support payments. Where workers can establish that their employer was at fault in relation to their injury, they may elect to opt out of treatment, care and support payments and accept an award of treatment, care and support common law damages.

Workers’ compensation insurers are able to engage the National Injury Insurance Agency Queensland, established for the motor vehicle accidents NIIS scheme, to perform their functions and exercise their powers in providing this lifetime statutory entitlement.

Existing dispute resolution mechanisms within the workers’ compensation scheme will be used for disputes about treatment, care and support, including the medical assessment tribunals, review by the Workers’ Compensation Regulator and appeal to the Queensland Industrial Relations Commission.

Amending the self-insurance licensing requirements to provide greater flexibility for applicants

The amendments provide greater flexibility for self-insurers by allowing general insurers to issue a security in the form of an unconditional financial guarantee, in addition to the existing forms of security. The amendments also removed the minimum $5 million value for the security required from self-insurers and maintains the requirement for the security to be 150% of estimated claims liability.

Single licence self-insurers who decide to return to a WorkCover Queensland insurance policy will be able to subsequently return to a self-insurance licence within five years under the same minimum full time workers criteria that applied at the time they originally became self-insurers.

Reversing the Byrne decision and restoring arrangements in relation to third party liability and prosecutions for fraud

The amendments reversed the effect of the judgement in Byrne v People Resourcing (Qld) Pty Ltd & Anor. The amendments provide that an employer or WorkCover Queensland can add a third party as a contributor to a damages claim regardless of a “hold harmless” contractual clause between the employer and the third party. In addition, it voids the “hold harmless” clause ensuring that the principal contractor or host employer cannot seek to recover the cost of their negligence from the employer. Further, once the “hold harmless” clause is voided then the principal contractor or host employer’s liability for their negligence cannot be transferred to the employer.

The amendments protect the interests of the employer, the scheme and all premium paying employers by ensuring that they will not have to pay for the negligence of the principal contractor or host employer.

The amendments also respond to the Industrial Magistrates Court decision of Simon Blackwood v Colin Hinder by providing that where certain prosecutions for offences against the Act are to be commenced by the Workers’ Compensation Regulator, only the Workers’ Compensation Regulator’s knowledge of the commission of the offence is relevant to the timeframe for commencing a proceeding. Insurers will be required to refer, without delay, fraud allegations to the Workers’ Compensation Regulator as soon as they have a reasonable belief that fraud has occurred.

Alternative indexation method for workers’ compensation entitlements

The amendments provide a fairer indexation method for injured workers and dependents receiving workers’ compensation benefits. As a result of the changes, a reduction in the value of Queensland Ordinary Time Earnings (QOTE) will no longer automatically result in a reduction to statutory compensation and common law damages entitlements.

Last updated
09 January 2017

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