Arguments for change – Impairment thresholds

Access to common law in Queensland is not without some restrictions in that the current scheme requires workers with a WRI of less than 20 per cent to make an irrevocable choice between receiving the statutory lump sum on offer or pursuing damages at common law.^677,678 Since 2009, a cap on individual claims of $175,000 for claims lodged on or after 1 July 2009 and $150,000 for claims lodged before 1 July 2009 is applicable. This cap applies separately to both statutory and common law claims arising from the same event.⁶⁷⁹

Many submissions considered that there was a need for a level of impairment threshold to be introduced in order to keep the workers’ compensation fund financially viable.^680,681

CCIQ considered that ‘outcome in terms of the increase in premiums from $1.15 to $1.45 was largely seen as a result of the 2010 inquiry failing to address the issue of access to common law. Our members and businesses more broadly continue to highlight that unfettered access to common law is something that ultimately must be addressed’.⁶⁸²

The HIA advised that they consider that having a minimum threshold provision would make the Queensland scheme more consistent with other jurisdictions.⁶⁸³ Colonial Timber Products stated that ‘the entry into the common law system is too easy for workers and seems to always result in a payout’.⁶⁸⁴ Hyne Timber considered the current access to common law for lesser injuries to be a major burden of the scheme.⁶⁸⁵

675 Ms Drew, Transcript 31 October 2012: 37

676 Mr Ryan, Transcript 16 November 2012: 20

677 WorkCover Queensland. Irrevocable election, Glossary http://www.workcoverqld.com.au/home/glossary [5 February 2013]

678 Submission 89: 7

679 Department of Justice and Attorney-General, Question on Notice 3. 23 November 2012: 15

680 Submission 68: 1

681 Submission 90: 2

682 Mr Behrens, Transcript 31 October 2012: 38

683 Submission 60: 7

684 Submission 40: 3

685 Submission 107: 2

From those wanting to see the implementation of a threshold the majority recommended a WPI threshold of at least 10 per cent which will be in line with other states⁶⁸⁶; and others consider 15 per cent WPI should be introduced for common law claims.687,688,689,690,691,692,693,694

The Australian Meat Industry Council advised the Committee that:

All we are doing is actually gifting them a large amount of money… It is actually becoming endemic in the system, that you do not actually have to have an impairment to get access to a common law claim. It is our belief that there should be an impairment threshold and that that threshold should be set at 15 per cent.⁶⁹⁵

Bundaberg Sugar believes that injured workers should receive appropriate compensation and some rules should be placed on who can use the common law process and a 20 per cent impairment threshold should be set.⁶⁹⁶

Master Builders considered that ‘a low WPI percentage threshold would deliver a 25 percent reduction in common law claims by workers who have recorded a 0 per cent WPI’.⁶⁹⁷

Timber Queensland considers that ‘a permanent impairment assessment automatically occur once the injury is assessed as stationary and stable, and associated damages paid automatically’.⁶⁹⁸ The Queensland Hotels Association (QHA) considers ‘a working group could be established to determine at what level a threshold could be introduced’.⁶⁹⁹

Some submitters consider that injured workers (in some instances) can be re-trained for other types of work and may have the capacity to earn an income without returning to their pre-injury employment. For example, the Electrical Contractors Association stated in the hearing:

I just want to respond to what Pat said in that I have had personal experience with a friend of mine many, many years ago through the workers compensation scheme who was working for a government department on the roads and suffered a serious back injury. In terms of his process and what he has been retrained to do through that - and this is many years before this legislation was in place - he was completely retrained and his capacity for earnings actually increased compared to his previous career path. So I think we need to be careful about the ultimate effect of saying can someone never earn an income again because of the injuries they sustained. Some workers are in that boat absolutely, and we need to take care of them. However, other people, such as Pat’s example, can retrain and their earnings may increase over that period of time.⁷⁰⁰

686 Submission 56: 2

687 Submission 47: 2

688 Submission 107: 2

689 Submission 206: 8

690 Submission 57: 2

691 Submission 92: 3

692 Submission 97: 3

693 Submission 115: 2

694 Submission 142: 2

695 Mr Goode, Transcript 31 October 2012: 18

696 Submission 50: letter

697 Submission 191: 7

698 Submission 29: 9

699 Submission 45: 6

700 Mr O’Dwyer, Transcript 31 October 2012: 11

The Committee asked the witnesses for suggestions on how common law impairment thresholds could be addressed. The Queensland Teachers’ Union considered that the assessment of permanent impairment could perhaps be updated using the Fifth Edition of the AMA guide (currently the Fourth edition is used). They also suggested that:

WorkCover could certainly come up with its own scales. It need not be attached to the American Medical Association guides. The WorkCover regulations do have a set of scales in them which over time have become more and more general. They were originally more specific in that, for example, a broken leg gives you X percentage. It is now a much more generalised leg injury and gives you a range rather than a specific. So that is an alternative - that is, WorkCover goes back to relying on its regulations rather than the AMA guides.⁷⁰¹ Haycroft Workplace Solutions advised:

We have noticed, in our dealings with common law claims, that we have no problem when there is an injury and someone has a fairly significant impairment. The frustration, at the moment, is if someone has a zero per cent impairment and they can still take that claim to a common law aspect. An injured worker goes through the statutory phase and they return to work, then suddenly they do not feel that they have been remunerated well enough and they can still go and start a common law claim on this thing. At the moment, there is two, three, four - I do not know how many around, but it seems to be clogging up that aspect of the common law system. If you have been through an independent doctor and then through a MAT and they have both said zero, why are you still able to then go and ask for a common law negligence claim? That is the main reason why. I suppose it is a frustration from our side of the business and we are seeing it with our clients in the industries. The structure that they have over in WA - and I think it is very similar in Victoria - is that it is a 15 per cent impairment before you can have that triggered to do a common law claim.

Obviously, 15 per cent is quite a lot, but at least it is a starting point.⁷⁰² The Australian Sugar Milling Council observed that:

…one of the problems that we have encountered is that common law settlement is easy to access. In our case they mostly come back into the workforce and the settlement that the person receives is seen by some in the workforce as a reward for having got themselves injured. The other problem that we see with common law at the moment is that the injured worker does not get a very significant payout once other payments have been taken from the settlement that is offered and any process that gave the injured worker a greater percentage of the settlement would be encouraged by us.⁷⁰³

701 Ms Drew, Transcript 31 October 2012: 38

702 Mr Haycroft, Transcript 16 November 2012: 19

703 Mr Warren, Transcript 31 October 2012: 38