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1
Workers' Compensation Amendment
WORKERS' COMPENSATION
AMENDMENT BILL 1994
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
The objectives of this legislation are to:
(1) Correct operational difficulties in the administration of the
Workers' Compensation Act 1990.
(2) Introduce policy changes aimed at achieving greater equity among
both employers and injured workers.
(3) Enhance the financial stability of the Workers' Compensation
Fund.
NOTES ON PROVISIONS
Clause 1 sets out the short title of the Bill.
Clause 2 sets out specific dates upon which certain sections of this Bill
will commence.
Clause 3 states that this Act amends the Workers' Compensation Act
1990.
Definitions
Clause 4 sets out to:
remove the definition of "commencement of this Act" as it is
·
now redundant due to recent amendments to the Acts
Interpretation Act
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Workers' Compensation Amendment
· remove from sub-section 2.1 the definition of injury as this
reference is now included in the new sub-section 2.1A.
define "authorised person" as referred to in clause 10
·
define `award' as being an award under the Industrial Relations
·
Act 1990 or the Industrial Relations Act 1988 ( Commonwealth )
define `industrial agreement' to mean an industrial agreement,
·
certified agreement or enterprise flexibility agreement under the
Industrial Relations Act 1990. The intent of this clause is to
ensure that injured workers covered under such agreements
receive weekly compensation at the base weekly rate established
under the agreement. This principle is consistent with awards and
their application in the calculation of weekly benefits.
· remove the definition of injury to a new section 2.1A.
· extend the definition of compensable medical treatment by
amending the definition of `medical treatment' to include
treatment by a registered chiropractor and osteopath (to ensure
consistency with the Chiropractors and Osteopaths Act).
define `State' as including a Territory.
·
· Section 2.1(5) is now redundant due to recent amendments to the
Acts Interpretation Act and has been removed.
Clause 5--inserts a new sub-section 2.1A which sets out to amend the
definition of `injury' to:
introduce a requirement for employment to be `a significant
·
contributing factor' to the injury or to the aggravation or
acceleration of a disease.
· require employment to be a significant contributing factor to a
loss of hearing resulting in industrial deafness for such a
condition to be compensable;
· correct a drafting error in the current legislation with regard to the
death component of the definition of injury. Death must result
from an injury or disease arising out of or in the course of
employment if the employment was a significant contributing
factor to the injury;
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Workers' Compensation Amendment
· limit the grounds for compensation for a stress related condition
resulting from certain work incidents as specified. The limiting
provision in the Safety, Rehabilitation and Compensation Act
1988 (administered by the Federal workers' compensation
scheme) have been incorporated into the definition of injury as
appropriate.
Clause 6--omits existing section 2.2(2A) which defines `holding
company' as this reference is now included at section 2.2(10).
This clause also amends the reference to a `contract of employment' to a
`contract of service' to ensure consistency with similar references in the Act
A new section 2.2(3A) clarifies the status of labour hire agencies with
respect to their liability as employers. This clause sets out to clarify the
intent of the Act so that where a labour hire agency provides labour to a
client to fulfil an arrangement made with the client, the labour hire agency is
the employer of the labour so hired.
This clause then sets out to define both `arrangement' and `labour hire
agency' within a new sub-section 2.2(10).
Clause 7--amends sub-section 2.3 to specifically make clear that the
provisions declaring persons not to be workers are limited to their activities
in the capacity described.
The clause also clarifies the original intent of sub-section 2.3(b) to
specifically exclude from the definition of a worker any person who is a
professional sportsperson whilst engaged in the sport or activities associated
with the sport.
Clause 8--amends section 4.15 to provide for the recovery of both
claims costs and premiums together with penalties where an employer has
contravened section 4.9(2) of the Act which relates to an employers legal
liability and obligation to insure. This clause provides for the General
Manager to reduce the level of penalties provided for by this section in
extenuating circumstances and includes provisions for appeal..
Clause 9--omits sub-sections 4.16, 4.17, 4.18, 4.19 as these have now
been incorporated in the new Part 4A as referred to in Clause 10.
Clause 10--inserts a new Part 4A entitled Investigation and
Enforcement which includes the powers for inspections of a workplace
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Workers' Compensation Amendment
particularly in relation to rating of policies for premium purposes. The Act
does not lend itself to incorporating powers of entry at present. This part of
the Act introduces a structure which provides safeguards in relation to the
exercise of power of entry. The purpose of existing sub-sections 4.16, 4.17,
4.18, 4.19 have been incorporated into this new Part.
Clause 11--this clause clarifies the liability of employers in relation to
the insurance of interstate workers. It is designed to operate in conjunction
with similar legislation in other jurisdictions. The clause provides for the
application of two tests in establishing employers liability and eligibility of
benefits for injured workers, i.e. (1) principle place of employment; (2)
principle place of business.
Clause 12--removes sub-section 5.4(2)(a)(ii)(B) which relates to the
application of the Act where an injury is due to a worker's wilful
misconduct of a serious kind. This reference is now included in section
5.5(1)(b) as outlined in Clause 13.
This clause also inserts a new sub-section 5.4(2A) which defines those
claims where employment need not be a significant contributing factor to
the injury, e.g. journey claims.
Clause 13--provides for serious and wilful misconduct to be the basis
for rejection of a claim unless the injury results in death or serious
permanent disability.
This provision ensures that serious and wilful misconduct does not cause
rejection of a claim where the worker's conduct was at the express or
implied direction of the worker's employer.
Clause 14--clarifies the original intent of this section which excludes
entitlements to any benefits or expenses of whatever description after a
person moves abroad and accepts a lump sum payment from the Board.
Clause 15--inserts a new sub-section 7.15A that requires persons in
receipt of benefits under the Act to advise the Board within 14 days of their
return to work either by notification in writing or through the supply of a
medical certificate indicating fitness for work.
Clause 16--clarifies and amends the existing provision that provides for
the calculation of an amount payable to a person who is in receipt of
specified benefits from the Department of Social Security. The provision
allows the Board to pay weekly benefits to the injured worker to an amount
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Workers' Compensation Amendment
that a person is entitled to earn before the maximum pension may be
reduced.
The clause provides for a Regulation to prescribe the method of
calculation of the amount a worker is entitled to earn before the pension is
reduced. The complexity in the wording within the Social Security Act 1991
requires a greater explanation than that presently provided for by the new
section 8.1(4). The provision of a Regulation allows a change in calculation
by Executive Council Minute when changes occur to the Social Security Act
1991.
Clause 17--increases the maximum amount payable upon the death of a
worker to any dependant totally dependent to the sum of $120,000.
Clause 18--clarifies the original intention of the Act by clearly stating
that the degree of disfigurement is calculated as a proportion of the
maximum amount allowable for disfigurement (which is 50% of the
maximum amount prescribed by section 8.31(b)). This amendment will
overcome any misinterpretation of the Act and also ensure consistency with
other permanent partial disability provisions contained in Section 8.6.
Clause 19--amends the reference to a registered chiropractic
manipulative therapist as outlined in Clause 4 and extends the Board's
liability for treatment by such a person by including any treatment involving
the neuromusculoskeletal system of the human body. (This clause ensures
consistency with the Chiropractors and Osteopaths Act).
Clause 20--amends the existing provision by introducing enhanced
management procedures for all private hospitalisation. The amendment
retains the capacity for doctors to admit injured workers to hospital without
approval for periods of up to four (4) days in the case of acute or traumatic
injuries. It improves the measures involved in the management of `elective'
treatment in private hospitals.
Clause 21--amends the existing title of this Division to more accurately
reflect its purpose which outlines the maximum entitlement to
compensation for any one incident.
Clause 22--clarifies the intent of this section which provides that all
entitlements cease upon payment of the maximum compensation prescribed
under the Act.
Clause 23--amends the name of the Neurology Assessment Tribunal to
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Workers' Compensation Amendment
Neurology/Neurosurgical Assessment Tribunal to reflect its membership
which comprises both Neurologists and Neurosurgeons.
Clause 24--omits the words "not more than 25" from section 9.6(4).
This will allow the Board greater flexibility in obtaining the services of
medical specialists to constitute Specialty Medical Assessment Tribunals
and will obviate existing delays in determining claims that result from the
present restriction.
Clause 25--includes a provision to allow the General Manager
discretionary powers to request a determination by a Medical Assessment
Tribunal as to whether a worker has suffered a permanent partial disability
resulting from an injury and the nature and extent of the injury. At present,
if a Tribunal determines that a worker is incapacitated and has suffered a
permanent partial disability, the legislation requires the matter to be referred
for a further Tribunal hearing to determine the nature and extent of the
disability, which causes unnecessary delays in claim settlements and
increases claim management costs.
Clause 26--amends the existing provision to provide for greater
flexibility in selecting those persons constituted to review fresh medical
evidence following the determination of a Medical Assessment Tribunal.
Clause 27--increases the maximum penalty for which a person is liable
where that person has committed an offence against the Act as outlined in
section 11.2(1). In sub-section 11.2(1)(c), the reference to `malingering' has
been removed as difficulties have been experienced in obtaining a definitive
interpretation of this term. The word `malingering' has been replaced by the
words `misrepresenting the person's capacity for work'.
Clause 28--provides a regulation setting power should circumstances
arise where a regulation may be required to clarify matters relating to the
weekly rate of salary or wages payable under the Act.
Clause 29--provides for a new part `Transitional and Saving
Provisions' necessary to ensure effective implementation of the Bill.
Clause 30--incorporates previous transitional arrangements at sections
1.6 to 1.9 in Part 13.
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Workers' Compensation Amendment
MINOR AMENDMENTS
Clause 1--amends multiple references to `industrial award or registered
industrial agreement' to `award or industrial agreement' as defined in
Clause 4 of the Bill.
Clause 2--amends references to `weekly rate of wages' to `weekly rate
of salary or wages' in various sections of the Act.
Clause 3--amends cross-reference of section 2.1(1) to the newly created
Part 13 `Transitional and Saving Provisions'.
Clause 4--amends cross-reference of section 5.8(2)(b) to the newly
created Part 13 `Transitional and Saving Provisions'.
Clause 5--amends the reference in section 8.1(2) and (3) `award or
industrial agreement' as defined in Clause 4 of the Bill.
Clause 6--amends the reference to "industrial award' to `award'.
© The State of Queensland 1994