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Queensland
WORKCOVER QUEENSLAND
AMENDMENT BILL 2001
Queensland
WORKCOVER QUEENSLAND
AMENDMENT BILL 2001
TABLE OF PROVISIONS
Section Page
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4 Amendment of s 5 (Workers' compensation scheme) . . . . . . . . . . . . . . . . . . 8
5 Omission of s 6 (Protection of employers in relation to damages) . . . . . . . . 8
6 Amendment of s 11 (Meaning of "damages"). . . . . . . . . . . . . . . . . . . . . . . . 8
7 Omission of ch 1, pt 4, div 6, sdivs 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8 Amendment of s 167 (Maximum entitlement) . . . . . . . . . . . . . . . . . . . . . . . 9
9 Amendment of s 201 (Calculation of WRI) . . . . . . . . . . . . . . . . . . . . . . . . . 9
10 Amendment of s 203 (WorkCover to give notice of assessment of
permanent impairment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11 Amendment of s 206 (Certificate injury) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12 Amendment of s 207 (Non-certificate injury) . . . . . . . . . . . . . . . . . . . . . . . . 10
13 Amendment of s 210 (Additional lump sum compensation for
certain workers) ........................................... 11
14 Amendment of s 211 (Additional lump sum compensation for
gratuitous care) ........................................... 11
15 Amendment of s 218 (Total dependency) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16 Amendment of s 248 (Worker must mitigate loss) . . . . . . . . . . . . . . . . . . . . 12
17 Amendment of s 250 (Definitions for ch 5) . . . . . . . . . . . . . . . . . . . . . . . . . 12
18 Amendment of s 253 (General limitation on persons entitled to
seek damages) ............................................ 12
19 Amendment of s 254 (Worker with terminal condition) . . . . . . . . . . . . . . . . 13
20 Replacement of ch 5, pt 2, divs 26, div 7 hdg and s 273 . . . . . . . . . . . . . . . 14
255 Worker who is required to make election to seek damages . . . . . . . . 14
2
WorkCover Queensland Amendment Bill 2001
Division 2--Consequences, to costs, of seeking damages
256 Consequences, to costs, of seeking damages . . . . . . . . . . . . . . . . . . . 15
Division 3--Claimant who has received notice of assessment
Subdivision 1--Application of division 3
257 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Subdivision 2--Claimant mentioned in s 253(1)(a)(i)
258 Application of subdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
259 Need for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Subdivision 3--Claimant mentioned in s 253(1)(a)(ii)
260 Application of subdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
261 Claimant with more than 1 injury from an event . . . . . . . . . . . . . . . . 16
262 Claimant may ask for injury to be assessed for permanent
impairment ........................................ 17
263 Need for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
264 When urgent proceeding must be discontinued . . . . . . . . . . . . . . . . . 18
Division 4--Claimant mentioned in s 253(1)(b)
265 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
266 Claimant may seek damages only after being assessed . . . . . . . . . . . 19
267 Need for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
268 When urgent proceeding must be discontinued . . . . . . . . . . . . . . . . . 20
Division 5--Claimant mentioned in s 253(1)(c)
269 Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
270 Access to damages if application for compensation is subject to
review or appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
271 Need for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
272 When urgent proceedings must be discontinued . . . . . . . . . . . . . . . . 21
Division 6--Claimant mentioned in s 253(1)(d)
273 Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
273A Access to damages if claimant has not lodged application for
compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
273B Need for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
273C When proceedings must be discontinued. . . . . . . . . . . . . . . . . . . . . . 24
Division 7--Person mentioned in s 253(1)(e)
3
WorkCover Queensland Amendment Bill 2001
273D Application of div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
273E Claimant may seek damages only in particular cases . . . . . . . . . . . . 24
273F Need for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
273G When proceedings must be discontinued. . . . . . . . . . . . . . . . . . . . . . 27
Division 8--Review of worker's decision to accept payment of lump sum
compensation for injury--WRI less than 20%
273H Application of div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
21 Amendment of s 274 (Decision not to seek damages reviewable in certain
circumstances) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
22 Replacement of ch 5, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
PART 3--MITIGATION OF LOSS AND REHABILITATION
275 Mitigation of loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
275A Provision of rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
275B Costs of rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23 Replacement of s 279 (Object of pt 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
279 Object of pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
279A Overriding obligations of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
24 Amendment of s 280 (Notice of claim for damages) . . . . . . . . . . . . . . . . . . 30
25 Insertion of new s 280A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
280A Noncompliance with s 280 and urgent proceedings . . . . . . . . . . . . . 31
26 Amendment of s 281 (Claimant to tell WorkCover of change to
information in notice of claim) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
27 Amendment of s 282 (Response to notice of claim) . . . . . . . . . . . . . . . . . . . 32
28 Replacement of s 283 (WorkCover to give information to claimant) . . . . . . 33
283 Claimant and WorkCover to cooperate . . . . . . . . . . . . . . . . . . . . . . . 33
29 Amendment of s 285 (WorkCover and claimant to attempt to resolve claim) 35
30 Amendment of s 288 (Non-disclosure of certain material). . . . . . . . . . . . . . 35
31 Replacement of s 293 (Compulsory conference) . . . . . . . . . . . . . . . . . . . . . 36
293 Compulsory conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
293A Procedure at conference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
293B Information to be given by party's lawyer before other type of
settlement attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
32 Omission of ch 5, pt 6, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
33 Amendment of s 302 (Compliance necessary before starting proceeding). . 39
4
WorkCover Queensland Amendment Bill 2001
34 Amendment of s 303 (Claimant to have given complying notice of claim or
WorkCover to have waived compliance). . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
35 Insertion of new s 305A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
305A Other provision for urgent proceedings . . . . . . . . . . . . . . . . . . . . . . . 39
36 Amendment of s 308 (Alteration of period of limitation) . . . . . . . . . . . . . . . 39
37 Replacement of ss 312314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
312 Contributory negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
38 Amendment of s 316 (Damages other than to claimant). . . . . . . . . . . . . . . . 41
39 Replacement of ch 5, pt 10, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
40 Omission of ch 5, pt 10, divs 1 and 2, and div 3 hdg . . . . . . . . . . . . . . . . . . 41
41 Replacement of ch 5, pt 11, div 1 and div 2 hdg . . . . . . . . . . . . . . . . . . . . . . 41
Division 1--Costs applying to worker with WRI of 20% or more or
dependant
320 Application of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
321 Principles about orders as to costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
322 Costs if written final offer by claimant . . . . . . . . . . . . . . . . . . . . . . . 42
323 Costs if written final offer by WorkCover . . . . . . . . . . . . . . . . . . . . . 42
323A Interest after service of written final offer . . . . . . . . . . . . . . . . . . . . . 42
Division 2--Costs applying to worker with WRI less than 20% or no WRI'.
42 Amendment of s 324 (Application of div 2) . . . . . . . . . . . . . . . . . . . . . . . . . 43
43 Amendment of s 325 (Principles about orders as to costs) . . . . . . . . . . . . . . 43
44 Amendment of s 437 (Reference to tribunals) . . . . . . . . . . . . . . . . . . . . . . . 44
45 Amendment of s 454 (Further reference on fresh evidence). . . . . . . . . . . . . 44
46 Replacement of s 456 (Finality of tribunal's decision) . . . . . . . . . . . . . . . . . 44
455A Tribunal may refer non-medical matters back to WorkCover . . . . . . 44
456 Finality of tribunal's decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
47 Amendment of s 457 (Decisions of tribunal) . . . . . . . . . . . . . . . . . . . . . . . . 45
48 Amendment of s 489 (Application of pt 2) . . . . . . . . . . . . . . . . . . . . . . . . . . 45
49 Amendment of s 498 (Who may appeal). . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
50 Insertion of new s 501A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
501A Application of Uniform Civil Procedure Rules and Industrial
Relations (Tribunals) Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
51 Insertion of new ss 510A and 510B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5
WorkCover Queensland Amendment Bill 2001
510A Costs of appeal to Industrial Court . . . . . . . . . . . . . . . . . . . . . . . . . . 46
510B Recovery of costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
52 Insertion of new ch 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CHAPTER 14--TRANSITIONAL PROVISIONS FOR WORKCOVER
QUEENSLAND AMENDMENT ACT 2001
587 Definitions for ch 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
588 Injury before 1 July 2001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
589 Reference to medical assessment tribunal . . . . . . . . . . . . . . . . . . . . . 48
590 Formal revival of claim for loss of consortium . . . . . . . . . . . . . . . . . 48
53 Amendment of sch 3 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . 49
MINOR AMENDMENTS
2001
A BILL
FOR
An Act to amend the WorkCover Queensland Act 1996
s1 8 s6
WorkCover Queensland Amendment Bill 2001
The Parliament of Queensland enacts-- 1
1 Short title
Clause 2
This Act may be cited as the WorkCover Queensland Amendment 3
Act 2001. 4
2 Commencement
Clause 5
This Act is taken to have commenced on 1 July 2001. 6
3 Act amended
Clause 7
This Act amends the WorkCover Queensland Act 1996. 8
4 Amendment of s 5 (Workers' compensation scheme)
Clause 9
(1) Section 5(4)(c) to (e)-- 10
renumber as section 5(4)(d) to (f). 11
(2) Section 5(4)-- 12
insert-- 13
`(c) provide for the protection of employers' interests in relation to 14
claims for damages for workers' injuries; and'. 15
5 Omission of s 6 (Protection of employers in relation to damages)
Clause 16
Section 6-- 17
omit. 18
6 Amendment of s 11 (Meaning of "damages")
Clause 19
Section 11-- 20
insert-- 21
s7 9 s 10
WorkCover Queensland Amendment Bill 2001
`(3) Also, a reference in subsection (1) to the liability of an employer 1
does not include a liability to pay damages for loss of consortium resulting 2
from injury sustained by a worker.'. 3
7 Omission of ch 1, pt 4, div 6, sdivs 56
Clause 4
Chapter 1, part 4, division 6, subdivisions 5 and 6-- 5
omit. 6
8 Amendment of s 167 (Maximum entitlement)
Clause 7
Section 167(1)(a), (b) and (c), `$103 100'-- 8
omit, insert-- 9
`$150 000'. 10
9 Amendment of s 201 (Calculation of WRI)
Clause 11
Section 201-- 12
insert-- 13
`(3) However, in relation to an event, the worker's WRI for a psychiatric 14
or psychological injury and the worker's WRI for another injury must not 15
be combined in calculating the WRI for the worker's injury.'. 16
10 Amendment of s 203 (WorkCover to give notice of assessment of
Clause 17
permanent impairment) 18
(1) Section 203(1), `28 days'-- 19
omit, insert-- 20
`14 days'. 21
(2) Section 203(3)(b)(ii)-- 22
omit, insert-- 23
`(ii) the WRI calculated for the injury; and'. 24
(3) Section 203(3)(c)-- 25
omit, insert-- 26
s 11 10 s 12
WorkCover Queensland Amendment Bill 2001
`(c) if the worker's WRI is 50% or more--the worker's entitlement to 1
additional lump sum compensation under section 210;1 and 2
(d) if the worker's WRI is 15% or more--the worker's entitlement to 3
additional lump sum compensation (if any) for gratuitous care 4
under section 211.2'. 5
(4) Section 203(4), `259, 260'-- 6
omit, insert-- 7
`255, 256'. 8
11 Amendment of s 206 (Certificate injury)
Clause 9
(1) Section 206, heading-- 10
omit, insert-- 11
`206 Worker's decision about lump sum compensation--WRI 20% or 12
more'. 13
(2) Section 206(1)-- 14
omit, insert-- 15
`(1) This section applies if-- 16
(a) the worker has-- 17
(i) a psychiatric or psychological injury that results in a WRI of 18
the worker of 20% or more; or 19
(ii) another injury that results in a WRI of the worker of 20% or 20
more; and 21
(b) the worker has an entitlement to lump sum compensation.'. 22
12 Amendment of s 207 (Non-certificate injury)
Clause 23
(1) Section 207, heading-- 24
omit, insert-- 25
1 Section 210 (Additional lump sum compensation for certain workers)
2 Section 211 (Additional lump sum compensation for gratuitous care)
s 13 11 s 14
WorkCover Queensland Amendment Bill 2001
`207 Worker's decision about lump sum compensation--WRI less than 1
20% or no WRI'. 2
(2) Section 207(1)-- 3
omit, insert-- 4
`(1) This section applies if-- 5
(a) the worker-- 6
(i) has-- 7
(A) a psychiatric or psychological injury that results in a 8
WRI of the worker of less than 20%; or 9
(B) another injury that results in a WRI of the worker of 10
less than 20%; and 11
(ii) has an entitlement to lump sum compensation; or 12
(b) the worker has an injury that does not result in any WRI of the 13
worker.'. 14
(3) Section 207(2)(a), `259, 260'-- 15
omit, insert-- 16
`255, 256'. 17
13 Amendment of s 210 (Additional lump sum compensation for
Clause 18
certain workers) 19
Section 210(2), `$103 100'-- 20
omit, insert-- 21
`$150 000'. 22
14 Amendment of s 211 (Additional lump sum compensation for
Clause 23
gratuitous care) 24
Section 211(1)(a), `50%'-- 25
omit, insert-- 26
`15%'. 27
s 15 12 s 18
WorkCover Queensland Amendment Bill 2001
15 Amendment of s 218 (Total dependency)
Clause 1
(1) Section 218(2)(a), `$164 960'-- 2
omit, insert-- 3
`$250 000'. 4
(2) Section 218(2)(b), `$6 190'-- 5
omit, insert-- 6
`$9 375'. 7
16 Amendment of s 248 (Worker must mitigate loss)
Clause 8
Section 248-- 9
insert-- 10
`(3) The worker's duty under this section is in addition to any duty the 11
worker may have under section 275.3'. 12
17 Amendment of s 250 (Definitions for ch 5)
Clause 13
(1) Section 250, definition "damages certificate"-- 14
omit. 15
(2) Section 250-- 16
insert-- 17
` "written final offer" means written final offer under section 294.'. 18
18 Amendment of s 253 (General limitation on persons entitled to
Clause 19
seek damages) 20
(1) Section 253(1)(a)-- 21
omit, insert-- 22
`(a) the worker, if the worker-- 23
(i) has received a notice of assessment from WorkCover for the 24
injury; or 25
3 Section 275 (Mitigation of loss)
s 19 13 s 19
WorkCover Queensland Amendment Bill 2001
(ii) has not received a notice of assessment for the injury, but-- 1
(A) has received a notice of assessment for any injury 2
resulting from the same event (the "assessed injury"); 3
and 4
(B) for the assessed injury, the worker has elected or is 5
taken to have elected to seek damages and, under 6
section 255, can not change the election; or'. 7
(2) Section 253(1)(b) and (d), `sustained by the worker'-- 8
omit. 9
(3) Section 253(1)(d), as amended-- 10
renumber as section 253(1)(e). 11
(4) Section 253(1)(c)-- 12
omit, insert-- 13
`(c) the worker, if-- 14
(i) the worker has lodged an application, for compensation for 15
the injury, that is or has been the subject of a review or 16
appeal under chapter 9; and 17
(ii) the application has not been decided in or following the 18
review or appeal; or 19
(d) the worker, if the worker has not lodged any application for 20
compensation for any injury resulting from the event; or'. 21
(5) Section 253-- 22
insert-- 23
`(2A) If a worker has accepted an offer of lump sum compensation under 24
chapter 3, part 9, division 34 for an injury, the worker is not entitled, under 25
subsection (1)(a)(ii) or otherwise, to seek damages for any injury resulting 26
from the same event.'. 27
19 Amendment of s 254 (Worker with terminal condition)
Clause 28
(1) Section 254(2)(a) and (b)-- 29
4 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent
impairment), division 3 (Notification of assessment of permanent impairment)
s 20 14 s 20
WorkCover Queensland Amendment Bill 2001
renumber as section 254(2)(b) and (c). 1
(2) Section 254(2)-- 2
insert-- 3
`(a) section 275(2); '.
5
4
20 Replacement of ch 5, pt 2, divs 26, div 7 hdg and s 273
Clause 5
Chapter 5, part 2, divisions 2 to 6, division 7 heading and section 273-- 6
omit, insert-- 7
`255 Worker who is required to make election to seek damages 8
`(1) This section applies if a worker's notice of assessment states that-- 9
(a) the worker's WRI is less than 20%; or 10
(b) the worker has an injury that does not result in any WRI of the 11
worker. 12
`(2) If, in the notice of assessment, the worker is offered a payment of 13
lump sum compensation under chapter 3, part 9, division 36 for the injury, 14
the worker is not entitled to both-- 15
(a) payment of lump sum compensation for the injury; and 16
(b) damages for the injury. 17
`(3) If, in the notice of assessment, the worker is required to make an 18
election to seek damages for the injury, the worker can not change the 19
worker's election-- 20
(a) if the worker has elected to seek damages for the injury--after 21
notice of the election is given to WorkCover; or 22
(b) if the worker is taken, under section 207(7),7 to have elected to 23
seek damages for the injury--after the worker lodges a notice of 24
claim. 25
5 Section 275 (Mitigation of loss)
6 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent
impairment), division 3 (Notification of assessment of permanent impairment)
7 Section 207 (Worker's decision about lump sum compensation--WRI less than
20% or no WRI)
s 20 15 s 20
WorkCover Queensland Amendment Bill 2001
`Division 2--Consequences, to costs, of seeking damages 1
`256 Consequences, to costs, of seeking damages 2
`(1) If the claimant is a worker and the claimant's notice of assessment 3
states that the claimant's WRI is 20% or more, part 11, division 1 applies in 4
relation to costs in the claimant's proceeding for damages. 5
`(2) If the claimant is a worker and the claimant's notice of assessment 6
states that-- 7
(a) the claimant's WRI is less than 20%; or 8
(b) the claimant has an injury that does not result in any WRI of the 9
claimant; 10
part 11, division 2 applies in relation to costs in the claimant's proceeding 11
for damages. 12
`(3) If the claimant is a dependant, part 11, division 1 applies in relation 13
to costs in the claimant's proceeding for damages. 14
`Division 3--Claimant who has received notice of assessment 15
`Subdivision 1--Application of division 3 16
`257 Application of div 3 17
`This division applies to a claimant who is a person mentioned in 18
section 253(1)(a). 19
`Subdivision 2--Claimant mentioned in s 253(1)(a)(i) 20
`258 Application of subdiv 2 21
`This subdivision applies to a claimant who is a person mentioned in 22
section 253(1)(a)(i). 23
s 20 16 s 20
WorkCover Queensland Amendment Bill 2001
`259 Need for urgent proceedings 1
`(1) This section applies in relation to an urgent need for the claimant to 2
start a proceeding for damages. 3
`(2) Section 280A8 provides a way for the claimant to satisfy 4
section 308(1)(a)(ii).9 5
`(3) Also, the claimant may, under section 305,10 seek leave to start a 6
proceeding for damages for an injury without complying with 7
section 302.11 8
`(4) However, if the leave mentioned in subsection (3) is given, a 9
proceeding started by leave is stayed until the claimant complies with 10
section 302. 11
`Subdivision 3--Claimant mentioned in s 253(1)(a)(ii) 12
`260 Application of subdiv 3 13
`This subdivision applies to a claimant who is a person mentioned in 14
section 253(1)(a)(ii). 15
`261 Claimant with more than 1 injury from an event 16
`(1) The claimant need not have, and WorkCover can not decide to have, 17
the injury assessed under chapter 3, part 912 to decide if the injury has 18
resulted in a degree of permanent impairment. 19
`(2) WorkCover can not decide that the claimant's notice of claim does 20
not comply with section 28013 only because the claimant has not received a 21
notice of assessment for the injury. 22
`(3) However, the claimant may seek damages for the injury only if 23
WorkCover decides that the claimant-- 24
8 Section 280A (Noncompliance with s 280 and urgent proceedings)
9 Section 308 (Alteration of period of limitation)
10 Section 305 (Court to have given leave despite noncompliance)
11 Section 302 (Compliance necessary before starting proceeding)
12 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent
impairment)
13 Section 280 (Notice of claim for damages)
s 20 17 s 20
WorkCover Queensland Amendment Bill 2001
(a) was a worker when the injury was sustained; and 1
(b) has sustained an injury. 2
`(4) WorkCover must make a decision for the purpose of subsection (3) 3
within 3 months after-- 4
(a) the claimant gives, or is taken to have given, a complying notice 5
of claim; or 6
(b) the claimant gives a notice of claim for which WorkCover waives 7
compliance with the requirements of section 280, with or without 8
conditions; or 9
(c) a court makes a declaration under section 304.14 10
`(5) WorkCover must notify the claimant and the claimant's employer of 11
a decision it makes for the purpose of subsection (3). 12
`(6) If WorkCover decides that the claimant-- 13
(a) was not a worker when the injury was sustained; or 14
(b) has not sustained an injury; 15
the notification must include written reasons for the decision. 16
`(7) If WorkCover does not make a decision for the purpose of 17
subsection (3) within the time mentioned in subsection (4), the claimant 18
may have the failure to make a decision reviewed under chapter 9. 19
`(8) A person aggrieved by a decision made by WorkCover for the 20
purpose of subsection (3) may have the decision reviewed under chapter 9. 21
`262 Claimant may ask for injury to be assessed for permanent 22
impairment 23
`(1) Despite section 261, the claimant may ask WorkCover to have the 24
injury assessed under chapter 3, part 9 to decide if the injury has resulted in 25
a degree of permanent impairment. 26
`(2) WorkCover must have the degree of permanent impairment assessed 27
under chapter 3, part 9 and give the claimant a notice of assessment. 28
`(3) Chapter 3, part 9 applies to the assessment, but only for the purpose 29
of assessing the degree of permanent impairment for the purposes of 30
part 11. 31
14 Section 304 (Court to have made declaration about noncompliance)
s 20 18 s 20
WorkCover Queensland Amendment Bill 2001
`(4) To remove any doubt, it is declared that the assessment does not give 1
the claimant an entitlement to lump sum compensation under chapter 3, 2
part 9, division 315 for the injury. 3
`263 Need for urgent proceedings 4
`(1) This section applies in relation to an urgent need for the claimant to 5
start a proceeding for damages. 6
`(2) Section 280A16 provides a way for the claimant to satisfy 7
section 308(1)(a)(ii).17 8
`(3) Also, the claimant may, under section 305,18 seek leave to start a 9
proceeding for damages for an injury without complying with 10
section 302.19 11
`(4) However, if the leave mentioned in subsection (3) is given, the 12
proceeding started by leave is stayed until-- 13
(a) WorkCover decides that the claimant was a worker when the 14
injury was sustained; and 15
(b) WorkCover decides that the claimant has sustained an injury; and 16
(c) any review or appeal under chapter 9 ends; and 17
(d) if the claimant decides to have the injury assessed under 18
chapter 3, part 9--WorkCover gives the claimant a notice of 19
assessment; and 20
(e) the claimant complies with section 302. 21
`264 When urgent proceeding must be discontinued 22
`(1) This section applies to a proceeding mentioned in section 263(4). 23
`(2) The claimant must discontinue the proceeding if it is decided by 24
WorkCover, or on review or appeal under chapter 9, that the claimant-- 25
15 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent
impairment), division 3 (Notification of assessment of permanent impairment)
16 Section 280A (Noncompliance with s 280 and urgent proceedings)
17 Section 308 (Alteration of period of limitation)
18 Section 305 (Court to have given leave despite noncompliance)
19 Section 302 (Compliance necessary before starting proceeding)
s 20 19 s 20
WorkCover Queensland Amendment Bill 2001
(a) was not a worker when the injury was sustained; or 1
(b) has not sustained an injury. 2
`Division 4--Claimant mentioned in s 253(1)(b) 3
`265 Application of div 4 4
`This division applies to a claimant who is a person mentioned in 5
section 253(1)(b).20 6
`266 Claimant may seek damages only after being assessed 7
`(1) The claimant may seek damages for the injury only if WorkCover 8
gives the claimant a notice of assessment. 9
`(2) For subsection (1), WorkCover must have the degree of permanent 10
impairment assessed under chapter 3, part 9 and give the claimant a notice 11
of assessment. 12
`(3) Chapter 3, part 9 applies to the assessment. 13
`267 Need for urgent proceedings 14
`(1) This section applies in relation to an urgent need for the claimant to 15
start a proceeding for damages. 16
`(2) Section 280A21 provides a way for the claimant to satisfy 17
section 308(1)(a)(ii).22 18
`(3) Also, the claimant may, under section 305,23 seek leave to start a 19
proceeding for damages for an injury without complying with 20
section 302.24 21
`(4) However, if the leave mentioned in subsection (3) is given, the 22
proceeding started by leave is stayed until-- 23
20 Section 253 (General limitation on persons entitled to seek damages)
21 Section 280A (Noncompliance with s 280 and urgent proceedings)
22 Section 308 (Alteration of period of limitation)
23 Section 305 (Court to have given leave despite noncompliance)
24 Section 302 (Compliance necessary before starting proceeding)
s 20 20 s 20
WorkCover Queensland Amendment Bill 2001
(a) WorkCover gives the claimant a notice of assessment; and 1
(b) the claimant-- 2
(i) elects to seek damages for the injury; and 3
(ii) complies with section 302. 4
`268 When urgent proceeding must be discontinued 5
`(1) This section applies if a claimant has started a proceeding mentioned 6
in section 267(4). 7
`(2) The claimant must discontinue the proceeding if the claimant elects 8
to accept an offer of payment of lump sum compensation under chapter 3, 9
part 9 for the injury. 10
`Division 5--Claimant mentioned in s 253(1)(c) 11
`269 Application of div 5 12
`This division applies to a claimant who is a person mentioned in 13
section 253(1)(c).25 14
`270 Access to damages if application for compensation is subject to 15
review or appeal 16
`(1) The claimant may seek damages for the injury only after-- 17
(a) any review or appeal under chapter 9 ends; and 18
(b) the application for compensation is decided; and 19
(c) WorkCover gives the claimant a notice of assessment. 20
`(2) For subsection (1)(c), WorkCover must have the degree of 21
permanent impairment assessed under chapter 3, part 9 and give the 22
claimant a notice of assessment. 23
`(3) Chapter 3, part 9 applies to the assessment. 24
25 Section 253 (General limitation on persons entitled to seek damages)
s 20 21 s 20
WorkCover Queensland Amendment Bill 2001
`271 Need for urgent proceedings 1
`(1) This section applies in relation to an urgent need for the claimant to 2
start a proceeding for damages. 3
`(2) Section 280A26 provides a way for the claimant to satisfy 4
section 308(1)(a)(ii).27 5
`(3) Also, the claimant may, under section 305,28 seek leave to start a 6
proceeding for damages for an injury without complying with 7
section 302.29 8
`(4) However, if the leave mentioned in subsection (3) is given, the 9
proceeding started by leave is stayed until-- 10
(a) any review or appeal under chapter 9 ends; and 11
(b) WorkCover gives the claimant a notice of assessment; and 12
(c) the claimant-- 13
(i) elects to seek damages for the injury; and 14
(ii) complies with section 302. 15
`272 When urgent proceedings must be discontinued 16
`(1) This section applies if the claimant has started a proceeding 17
mentioned in section 271(4) and-- 18
(a) it has been decided by WorkCover, or on review or appeal under 19
chapter 9, that the claimant-- 20
(i) was not a worker when the injury was sustained; or 21
(ii) has not sustained an injury; or 22
(b) the claimant elects to accept an offer of payment of lump sum 23
compensation under chapter 3, part 9 for the injury. 24
`(2) The claimant must discontinue the proceeding. 25
26 Section 280A (Noncompliance with s 280 and urgent proceedings)
27 Section 308 (Alteration of period of limitation)
28 Section 305 (Court to have given leave despite noncompliance)
29 Section 302 (Compliance necessary before starting proceeding)
s 20 22 s 20
WorkCover Queensland Amendment Bill 2001
Division 6--Claimant mentioned in s 253(1)(d) 1
`273 Application of div 6 2
`This division applies to a claimant who is a person mentioned in 3
section 253(1)(d).30 4
`273A Access to damages if claimant has not lodged application for 5
compensation 6
`(1) The claimant may only seek damages for any injury resulting from 7
the event if WorkCover-- 8
(a) decides, for every injury resulting from the event, whether the 9
claimant-- 10
(i) was a worker when the injury was sustained; and 11
(ii) has sustained an injury; and 12
(b) decides, for the injury for which damages may be sought. that the 13
claimant-- 14
(i) was a worker when the injury was sustained; and 15
(ii) has sustained an injury; and 16
(c) gives the claimant a notice of assessment for every injury. 17
`(2) For subsection (1)(c), WorkCover must have the degree of 18
permanent impairment assessed under chapter 3, part 9 and give the 19
claimant a notice of assessment. 20
`(3) Chapter 3, part 9 applies to the assessment, but only for the purpose 21
of assessing the degree of permanent impairment for the purposes of 22
part 11. 23
`(4) To remove any doubt, it is declared that the assessment does not give 24
the claimant an entitlement to lump sum compensation under chapter 3, 25
part 9, division 331 for the injury. 26
`(5) WorkCover must make a decision or decisions for the purpose of 27
subsection (1)(b) within 3 months after-- 28
30 Section 253 (General limitation on persons entitled to seek damages)
31 Chapter 3 (Compensation), part 9 (Entitlement to compensation for permanent
impairment), division 3 (Notification of assessment of permanent impairment)
s 20 23 s 20
WorkCover Queensland Amendment Bill 2001
(a) the claimant gives, or is taken to have given, a complying notice 1
of claim; or 2
(b) the claimant gives a notice of claim for which WorkCover waives 3
compliance with the requirements of section 280, with or without 4
conditions; or 5
(c) a court makes a declaration under section 304. 6
`(6) WorkCover must notify the claimant and the claimant's employer of 7
any decision it makes for the purpose of subsection (1)(b). 8
`(7) If, for any injury, WorkCover decides that the claimant-- 9
(a) was not a worker when the injury was sustained; or 10
(b) has not sustained an injury; 11
the notification must include written reasons for the decision. 12
`(8) If, for any injury, WorkCover does not make a decision for the 13
purpose of subsection (1)(b) within the time mentioned in subsection (5), 14
the claimant may have the failure to make a decision reviewed under 15
chapter 9. 16
`(9) A person aggrieved by a decision made by WorkCover for the 17
purpose of subsection (1)(b) may have the decision reviewed under 18
chapter 9. 19
`(10) For any assessment mentioned in subsection (1)(c) made by 20
WorkCover with which the person does not agree, section 20432 applies. 21
`273B Need for urgent proceedings 22
`(1) This section applies in relation to an urgent need for the claimant to 23
start a proceeding for damages for any injury resulting from the event. 24
`(2) Section 280A33 provides a way for the claimant to satisfy 25
section 308(1)(a)(ii).34 26
32 Section 204 (Worker's disagreement with assessment of permanent impairment)
33 Section 280A (Noncompliance with s 280 and urgent proceedings)
34 Section 308 (Alteration of period of limitation)
s 20 24 s 20
WorkCover Queensland Amendment Bill 2001
`(3) Also, the claimant may, under section 305,35 seek leave to start a 1
proceeding for damages for an injury without complying with 2
section 302.36 3
`(4) However, if the leave mentioned in subsection (3) is given, the 4
proceeding started by leave is stayed until-- 5
(a) WorkCover decides that the claimant-- 6
(i) was a worker when the injury was sustained; and 7
(ii) has sustained an injury; and 8
(b) any review or appeal under chapter 9 ends; and 9
(c) WorkCover gives the claimant a notice of assessment; and 10
(d) the claimant complies with section 302. 11
`273C When proceedings must be discontinued 12
`(1) This section applies to a proceeding mentioned in section 273B(4). 13
`(2) The claimant must discontinue the proceeding if it has been decided 14
by WorkCover, or on review or appeal under chapter 9, that the claimant-- 15
(a) was not a worker when the injury was sustained; or 16
(b) has not sustained an injury. 17
`Division 7--Person mentioned in s 253(1)(e) 18
`273D Application of div 7 19
`This division applies to a claimant who is a person mentioned in 20
section 253(1)(e). 21
`273E Claimant may seek damages only in particular cases 22
`(1) The claimant may only seek damages for the injury if any of the 23
following apply-- 24
35 Section 305 (Court to have given leave despite noncompliance)
36 Section 302 (Compliance necessary before starting proceeding)
s 20 25 s 20
WorkCover Queensland Amendment Bill 2001
(a) an application has been made for compensation under chapter 3, 1
part 1037 and-- 2
(i) WorkCover has paid compensation under chapter 3, part 10 3
for the worker's death to the claimant as a dependant of a 4
worker; or 5
(ii) the application is or has been the subject of a review or 6
appeal under chapter 9 and the application has not been 7
decided in or following the review or appeal; 8
(b) an application for compensation mentioned in paragraph (a) has 9
not been made and WorkCover decides that-- 10
(i) the claimant was a dependant of the worker; and 11
(ii) the deceased was a worker when the event happened; and 12
(iii) the worker sustained an injury in the event; and 13
(iv) the injury caused the worker's death. 14
`(2) WorkCover must make a decision for the purpose of 15
subsection (1)(b) within 3 months after-- 16
(a) the claimant gives, or is taken to have given, a complying notice 17
of claim; or 18
(b) the claimant gives a notice of claim for which WorkCover waives 19
compliance with the requirements of section 280, with or without 20
conditions; or 21
(c) a court makes a declaration under section 304. 22
`(3) WorkCover must notify the claimant and the worker's employer of a 23
decision it makes for the purpose of subsection (1)(b). 24
`(4) If WorkCover decides that-- 25
(a) the claimant was not a dependant of the worker; or 26
(b) the deceased was not a worker when the event happened; or 27
(c) the worker did not sustain an injury resulting from the event; or 28
(d) the injury did not cause the worker's death; 29
the notification must include written reasons for the decision. 30
37 Chapter 3 (Compensation), part 10 (Compensation on worker's death)
s 20 26 s 20
WorkCover Queensland Amendment Bill 2001
`(5) If WorkCover does not make a decision for the purpose of 1
subsection (1)(b) within the time mentioned in subsection (2), the claimant 2
may have the failure to make a decision reviewed under chapter 9. 3
`(6) A person aggrieved by a decision made by WorkCover for the 4
purpose of subsection (1)(b) may apply to have the decision reviewed 5
under chapter 9. 6
`273F Need for urgent proceedings 7
`(1) This section applies in relation to an urgent need for the claimant to 8
start a proceeding for damages for the injury. 9
`(2) Section 280A38 provides a way for the claimant to satisfy 10
section 308(1)(a)(ii).39 11
`(3) Also, the claimant may, under section 305,40 seek leave to start a 12
proceeding for damages for the injury without complying with 13
section 302.41 14
`(4) However, if the leave mentioned in subsection (3) is given, for a 15
claimant mentioned in section 273E(1)(a)(i), the proceeding started by 16
leave is stayed until the claimant complies with section 302. 17
`(5) Also, if the claimant is a claimant mentioned in 18
section 273E(1)(a)(ii) or (b), the proceeding is stayed until-- 19
(a) WorkCover decides that-- 20
(i) the claimant was a dependant of the worker; and 21
(ii) the deceased was a worker when the event happened; and 22
(iii) the worker sustained an injury from the event; and 23
(iv) the injury caused the worker's death; and 24
(b) any review or appeal under chapter 9 ends; and 25
(c) the claimant complies with section 302. 26
38 Section 280A (Noncompliance with s 280 and urgent proceedings)
39 Section 308 (Alteration of period of limitation)
40 Section 305 (Court to have given leave despite noncompliance)
41 Section 302 (Compliance necessary before starting proceeding)
s 21 27 s 22
WorkCover Queensland Amendment Bill 2001
`273G When proceedings must be discontinued 1
`(1) This section applies to a proceeding mentioned in section 273F(5). 2
`(2) The claimant must discontinue the proceeding if it is decided by 3
WorkCover, or on review or appeal under chapter 9, that-- 4
(a) the claimant was not a dependant of the worker; or 5
(b) the deceased was not a worker when the event happened; or 6
(c) the worker did not sustain an injury from the event; or 7
(d) the injury did not cause the worker's death. 8
`Division 8--Review of worker's decision to accept payment of lump sum 9
compensation for injury--WRI less than 20% 10
`273H Application of div 8 11
`This division applies if-- 12
(a) a worker has elected, under section 207,42 to accept payment of 13
lump sum compensation for an injury; and 14
(b) the worker has been assessed under chapter 3, part 9 as having 15
sustained a degree of permanent impairment that results in a WRI 16
of the worker of less than 20%.'. 17
21 Amendment of s 274 (Decision not to seek damages reviewable in
Clause 18
certain circumstances) 19
Section 274(7)(d), `certificate injury'-- 20
omit, insert-- 21
`WRI of the worker of 20% or more'. 22
22 Replacement of ch 5, pt 3
Clause 23
Chapter 5, part 3-- 24
omit, insert-- 25
42 Section 207 (Non-certificate injury)
s 22 28 s 22
WorkCover Queensland Amendment Bill 2001
`PART 3--MITIGATION OF LOSS AND 1
REHABILITATION 2
`275 Mitigation of loss 3
`(1) The common law duty of mitigation of loss applies to all workers in 4
relation to claims or proceedings for damages. 5
`(2) The worker must satisfactorily participate in rehabilitation. 6
`(3) The worker's duty mentioned in this section is in addition to any 7
duty the worker may have under section 248.43 8
`275A Provision of rehabilitation 9
`(1) WorkCover may make rehabilitation available to a worker on 10
WorkCover's own initiative or if the worker asks. 11
`(2) If WorkCover makes rehabilitation available to a worker before 12
admitting or denying liability for damages, WorkCover must not be taken, 13
only for that reason, to have admitted liability. 14
`(3) If-- 15
(a) liability has been admitted for damages; or 16
(b) WorkCover has agreed to fund rehabilitation without making an 17
admission of liability; 18
WorkCover must, if the worker asks, ensure that reasonable and 19
appropriate rehabilitation is made available to the worker. 20
`(4) The worker may, if not satisfied that the rehabilitation is reasonable 21
and appropriate apply to WorkCover to appoint a mediator to help resolve 22
the questions between the worker and WorkCover. 23
`(5) An application for appointment of a mediator under subsection (4) 24
must-- 25
(a) be made in writing; and 26
(b) give details of any attempts made by the applicant to resolve the 27
matter in dispute. 28
43 Section 248 (Worker must mitigate loss)
s 22 29 s 22
WorkCover Queensland Amendment Bill 2001
`(6) The fees and expenses of the mediator are to be paid as agreed 1
between the parties or, in the absence of agreement, by the parties in equal 2
proportions. 3
`(7) WorkCover must make rehabilitation available to the worker, and 4
the worker must satisfactorily participate in the rehabilitation, in sufficient 5
time to enable WorkCover and the worker to comply with parts 5, 6 and 7.44 6
`275B Costs of rehabilitation 7
`(1) If WorkCover intends to ask a court to take the cost of rehabilitation 8
into account in the assessment of damages payable to a worker, WorkCover 9
must, before providing the rehabilitation, give the worker a written 10
statement estimating the cost of the rehabilitation. 11
`(2) WorkCover must bear, or reimburse, the cost of providing the 12
rehabilitation, unless WorkCover's liability for the cost is reduced-- 13
(a) by agreement with the worker; or 14
(b) by order of the court. 15
`(3) The cost to WorkCover of providing the rehabilitation is to be taken 16
into account in the assessment of damages on the claim if, and only if, 17
WorkCover gave the statement mentioned in subsection (1). 18
`(4) The following applies if the cost of rehabilitation is to be taken into 19
account in the assessment of damages-- 20
(a) the damages are first assessed, without reduction for contributory 21
negligence, on the assumption that the worker has incurred the 22
cost of the rehabilitation; 23
(b) then, any reduction of the damages assessed, on account of 24
contributory negligence, is made; 25
(c) then, the total cost of rehabilitation is set-off against the amount 26
assessed under paragraph (b). 27
28
Example--
29
Suppose that responsibility for an injury is apportioned equally between the worker and
30
WorkCover. Damages (exclusive of the cost of rehabilitation) before apportionment are
31
fixed at $100 000. WorkCover has spent $5 000 on rehabilitation. In this case, the
32
worker's damages will be assessed under paragraph (a) at $105 000 (that is, as if the
44 Parts 5 (Pre-court procedures), 6 (Settlement of claims) and 7 (Start of court
proceedings)
s 23 30 s 24
WorkCover Queensland Amendment Bill 2001
1
worker had incurred the $5 000 rehabilitation expense) and reduced to $52 500 under
2
paragraph (b), and the $5 000 spent by WorkCover on rehabilitation will be set off
3
against this amount, resulting in a final award of $47 500.
`(5) If WorkCover is induced by a worker's fraud to provide 4
rehabilitation to the worker, WorkCover may recover the cost of providing 5
the rehabilitation, as a debt, from the worker.'. 6
23 Replacement of s 279 (Object of pt 5)
Clause 7
Section 279-- 8
omit, insert-- 9
`279 Object of pt 5 10
`The object of this part is to facilitate the just and expeditious resolution 11
of the real issues in a claim for damages at a minimum of expense. 12
`279A Overriding obligations of parties 13
`(1) In accordance with the object of this part, this part is to be applied 14
by the parties to avoid undue delay, expense and technicality and to 15
facilitate the object. 16
`(2) A party impliedly undertakes to other parties to proceed in an 17
expeditious way. 18
`(3) A court may impose appropriate sanctions if a party does not 19
comply with a provision of this part.45'. 20
24 Amendment of s 280 (Notice of claim for damages)
Clause 21
(1) Section 280(2)-- 22
omit, insert-- 23
`(2) The claimant must-- 24
(a) if the worker's employer is not a self-insurer-- 25
(i) give the notice of claim in the approved form to WorkCover 26
at WorkCover's registered office; and 27
45 See section 291 (Court's power to enforce compliance with chapter).
s 25 31 s 25
WorkCover Queensland Amendment Bill 2001
(ii) give a copy of the notice of claim to the worker's employer; 1
or 2
(b) if the worker's employer is a self-insurer--give the notice of 3
claim in the approved form to the self-insurer at the self-insurer's 4
registered office.'. 5
(2) Section 280(5)-- 6
omit, insert-- 7
`(5) Any statement made by the claimant in the notice that is in the 8
claimant's personal knowledge must be verified by statutory declaration.'. 9
25 Insertion of new s 280A
Clause 10
After section 280-- 11
insert-- 12
`280A Noncompliance with s 280 and urgent proceedings 13
`(1) The purpose of this section is to enable a claimant to avoid the need 14
to bring an application under section 305. 15
`(2) Without limiting section 304 or 305,46 if the claimant alleges an 16
urgent need47 to start a proceeding for damages despite noncompliance 17
with section 280, the claimant must, in the claimant's notice of claim-- 18
(a) state the reasons for the urgency and the need to start the 19
proceeding; and 20
(b) ask WorkCover to waive compliance with the requirements of 21
section 280. 22
`(3) The claimant's lawyer may sign the notice of claim on the claimant's 23
behalf if it is not reasonably practicable for the claimant to do so. 24
`(4) The claimant's notice of claim may be given by fax in the way 25
provided for under a regulation. 26
`(5) WorkCover must, before the end of 3 business days after receiving 27
the notice of claim, advise the claimant that WorkCover agrees or does not 28
agree that there is an urgent need to start a proceeding for damages. 29
46 Section 304 (Court to have made declaration about noncompliance) or 305 (Court to
have given leave despite noncompliance)
47 See sections 259, 263, 267, 271, 273B and 273F.
s 26 32 s 27
WorkCover Queensland Amendment Bill 2001
`(6) If WorkCover agrees that there is an urgent need to start a 1
proceeding for damages, WorkCover may, in the advice to the claimant 2
under subsection (5), impose the conditions WorkCover considers 3
necessary or appropriate to satisfy WorkCover to waive compliance under 4
section 282(2)(b). 5
`(7) The claimant must comply with the conditions within a reasonable 6
time that is agreed between WorkCover and the claimant. 7
`(8) The claimant's agreement to comply with the conditions is taken to 8
satisfy section 308(1)(a)(ii).48'. 9
26 Amendment of s 281 (Claimant to tell WorkCover of change to
Clause 10
information in notice of claim) 11
(1) Section 281(1), after `any'-- 12
insert-- 13
`significant'. 14
(2) Section 281(2), `of change'-- 15
omit. 16
27 Amendment of s 282 (Response to notice of claim)
Clause 17
(1) Section 282(2) and (3), `30 days'-- 18
omit, insert-- 19
`14 days'. 20
(2) Section 282(2)(b) and (c)-- 21
renumber as section 282(2)(c) and (d). 22
(3) Section 282(2)(a)-- 23
omit, insert-- 24
`(a) stating whether WorkCover is satisfied that the notice of claim is 25
a complying notice of claim; and 26
(b) if there is an urgent need to start a proceeding--stating that 27
WorkCover is only willing to waive compliance with the 28
48 Section 308 (Alteration of period of limitation)
s 28 33 s 28
WorkCover Queensland Amendment Bill 2001
requirements if the claimant agrees to satisfy conditions imposed 1
by WorkCover under section 280A; and'. 2
(4) Section 282(2)-- 3
insert-- 4
`(e) stating whether WorkCover is prepared, without admitting 5
liability on the claim, to meet the cost of the claimant's 6
reasonable and appropriate rehabilitation.'. 7
(5) Section 282(4)-- 8
renumber as section 282(5). 9
(6) Section 282-- 10
insert-- 11
`(4) If WorkCover does not give the written notice mentioned in 12
subsection (2) within 14 days after receiving the notice of claim, the notice 13
of claim is taken to be a complying notice of claim.'. 14
(7) Section 282(5), as renumbered, `30 days'-- 15
omit, insert-- 16
`7 days'. 17
28 Replacement of s 283 (WorkCover to give information to
Clause 18
claimant) 19
Section 283-- 20
omit, insert-- 21
`283 Claimant and WorkCover to cooperate 22
`(1) A claimant and WorkCover must cooperate in relation to a claim, in 23
particular by-- 24
(a) giving each other copies of relevant documents about-- 25
(i) the circumstances of the event resulting in the injury; or 26
(ii) the worker's injury; or 27
(iii) the worker's prospects of rehabilitation; and 28
(b) giving information reasonably requested by the other party 29
about-- 30
(i) the circumstances of the event resulting in the injury; and 31
s 28 34 s 28
WorkCover Queensland Amendment Bill 2001
(ii) the nature of the injury and of any impairment or financial 1
loss resulting from the injury; and 2
(iii) if applicable--the medical treatment and rehabilitation the 3
worker has sought from, or been provided with, by the 4
worker's employer or WorkCover; and 5
(iv) the worker's medical history, as far as it is relevant to the 6
claim; and 7
(v) any applications for compensation made by the claimant or 8
worker for any injury resulting from the same event. 9
`(2) Subsection (1)(a) applies to relevant documents that-- 10
(a) are in the possession of the claimant or WorkCover; or 11
(b) are reasonably required by WorkCover from the worker's 12
employer under section 284. 13
`(3) WorkCover must-- 14
(a) give the claimant copies of the relevant documents-- 15
(i) within 30 days after the claimant gives WorkCover a notice 16
of claim; or 17
(ii) if the relevant documents come into WorkCover's 18
possession later--within 30 days after they come into 19
WorkCover's possession; and 20
(b) respond to a request from the claimant under subsection (1)(b) 21
within 30 days after receiving it. 22
`(4) The claimant must respond to a request from WorkCover under 23
subsection (1)(b) within 30 days after receiving it. 24
`(5) This section is subject to section 288.49 25
`(6) In this section-- 26
"relevant documents" means reports and other documentary material, 27
including written statements made by the claimant, the worker's 28
employer, or by witnesses.'. 29
49 Section 288 (Non-disclosure of certain material)
s 29 35 s 30
WorkCover Queensland Amendment Bill 2001
29 Amendment of s 285 (WorkCover and claimant to attempt to
Clause 1
resolve claim) 2
(1) Section 285(4)(a)-- 3
omit, insert-- 4
`(a) state whether liability in connection with the event to which the 5
claim relates is admitted or denied and-- 6
(i) if liability is admitted-- 7
(A) state whether contributory liability is claimed from the 8
worker or another party; and 9
(B) state the extent, expressed as a percentage, to which 10
liability is admitted; and 11
(ii) if liability is denied, completely or partly--give particulars 12
of the basis on which liability is denied; and'. 13
(2) Section 285(5) to (7)-- 14
renumber as section 285(6) to (8). 15
(3) Section 285-- 16
insert-- 17
`(5) WorkCover must also, within 7 days after giving the claimant the 18
written notice, give a copy of the notice to the worker's employer.'. 19
(4) Section 285-- 20
insert-- 21
`(9) In calculating the period of 6 months mentioned in subsection (2), 22
any period during which a decision of WorkCover relevant to the claim is 23
subject to a review or appeal is not counted. 24
`(10) In this section-- 25
"decision", for subsection (9), includes failure to make a decision. 26
"review or appeal" means a review or appeal under chapter 9 that has 27
been started.'. 28
30 Amendment of s 288 (Non-disclosure of certain material)
Clause 29
Section 288(2), from `, but'-- 30
omit. 31
s 31 36 s 31
WorkCover Queensland Amendment Bill 2001
31 Replacement of s 293 (Compulsory conference)
Clause 1
Section 293-- 2
omit, insert-- 3
`293 Compulsory conference 4
`(1) Before the claimant starts a proceeding for damages, there must be a 5
conference of the parties (the "compulsory conference"). 6
`(2) Either party may call the compulsory conference. 7
`(3) The compulsory conference must be held within 3 months after 8
WorkCover gives the claimant a written notice under section 285.50 9
`(4) However, if the parties agree, the conference may be held at a later 10
date. 11
`(5) WorkCover must advise the worker's employer of the time and place 12
of the compulsory conference. 13
`(6) On application by a party, the court-- 14
(a) may-- 15
(i) fix the time and place for the compulsory conference; or 16
(ii) dispense with the compulsory conference for good reason; 17
and 18
(b) may make any other orders the court considers appropriate. 19
`(7) In considering whether to dispense with the compulsory conference, 20
the court must take into account the extent of compliance by the parties 21
with their respective obligations in relation to the claim. 22
`(8) The claimant in person and a person authorised to settle on 23
WorkCover's behalf must attend the conference and actively participate in 24
an attempt to settle the claim, unless the claimant or person has a 25
reasonable excuse. 26
`(9) If it would be unreasonable for all parties to attend at the same place, 27
for example, because of distance or illness, the conference may be 28
conducted by telephone conferencing, video conferencing or another form 29
of communication that allows reasonably contemporaneous and continuous 30
communication between the parties. 31
50 Section 285 (WorkCover and claimant to attempt to resolve claim)
s 31 37 s 31
WorkCover Queensland Amendment Bill 2001
`293A Procedure at conference 1
`(1) The compulsory conference may be held with a mediator if both 2
parties agree. 3
`(2) An agreement that the compulsory conference is to be held with a 4
mediator must specify how the costs of the mediation are to be borne. 5
`(3) The mediator must be a person independent of the parties-- 6
(a) agreed to by the parties; or 7
(b) nominated by the registrar of the court on application under 8
subsection (4). 9
`(4) If the parties are unable to agree on the appointment of a mediator 10
within 30 days after the date for the compulsory conference is fixed, either 11
party may apply to the registrar of the court for the nomination of a 12
mediator. 13
`(5) At least 7 days before the compulsory conference is to be held, each 14
party must give the other party-- 15
(a) copies of all documents not yet given to the other party that are 16
relevant and required to be given for the claim; and 17
(b) a statement verifying that all relevant documents in the 18
possession of the party or the party's lawyer have been given as 19
required; and 20
(c) details of the party's legal representation; and 21
(d) if the party has legal representation--a certificate (a "certificate 22
of readiness") signed by the party's lawyer to the effect that the 23
party is ready for the conference. 24
`(6) A certificate of readiness must state that-- 25
(a) the party is completely ready for the conference; and 26
(b) all investigative material required for the conference has been 27
obtained, including witness statements from persons, other than 28
expert witnesses; and 29
(c) medical or other expert reports have been obtained from all 30
persons the party proposes to rely on as expert witnesses at the 31
conference; and 32
(d) the party has complied fully with the party's obligations to give 33
the other party material that is relevant and required to be given 34
for the claim; and 35
s 32 38 s 32
WorkCover Queensland Amendment Bill 2001
(e) the party's lawyer has given the party a statement (a "financial 1
statement") containing the information required under 2
subsection (7). 3
`(7) A financial statement must state-- 4
(a) details of the legal costs payable by the party to the party's 5
lawyer up to the completion of the conference; and 6
(b) an estimate of the party's likely legal costs and net damages if the 7
claim proceeds to trial and is decided by the court; and 8
(c) an estimate of the party's likely legal costs and net damages if the 9
claim is settled without proceeding to trial; and 10
(d) the consequences to the party, in terms of costs, in each of the 11
following cases if the claim proceeds to trial and is decided by 12
the court-- 13
(i) the amount of the damages awarded by the court is equal to, 14
or more than, the claimant's written final offer; 15
(ii) the amount of the damages awarded by the court is less than 16
the claimant's written final offer but equal to, or more than, 17
WorkCover's written final offer; 18
(iii) the amount of the damages awarded by the court is equal to, 19
or less than, WorkCover's written final offer. 20
`(8) WorkCover must give a copy of the certificates of readiness and 21
WorkCover's costs statement to the worker's employer at least 7 days 22
before the compulsory conference. 23
`293B Information to be given by party's lawyer before other type of 24
settlement attempted 25
`Before settlement of a claim is attempted in a way other than by a 26
compulsory conference, each party's lawyer must give the party a 27
statement (also a "financial statement") containing the information 28
mentioned in section 293A(7).'. 29
32 Omission of ch 5, pt 6, div 2
Clause 30
Chapter 5, part 6, division 2-- 31
omit. 32
s 33 39 s 36
WorkCover Queensland Amendment Bill 2001
33 Amendment of s 302 (Compliance necessary before starting
Clause 1
proceeding) 2
Section 302(a)-- 3
omit, insert-- 4
`(a) the relevant division under part 2,51 to the extent the division 5
imposes a requirement on the person; and'. 6
34 Amendment of s 303 (Claimant to have given complying notice of
Clause 7
claim or WorkCover to have waived compliance) 8
(1) Section 303(a)(i) and (ii)-- 9
omit, insert-- 10
`(i) the claimant has given, or is taken to have given, a 11
complying notice of claim; or 12
(ii) WorkCover has waived the claimant's noncompliance with 13
the requirements of section 280 with or without conditions; 14
or'. 15
(2) Section 303(b)-- 16
omit. 17
35 Insertion of new s 305A
Clause 18
Chapter 5, part 7, division 1, after section 305-- 19
insert-- 20
`305A Other provision for urgent proceedings 21
`Part 2, divisions 3 to 7 provide for the urgent starting of proceedings by 22
persons mentioned in section 253(1), and for the staying and 23
discontinuance of those proceedings.'. 24
36 Amendment of s 308 (Alteration of period of limitation)
Clause 25
Section 308(1)(a)(i) and (ii)-- 26
omit, insert-- 27
51 Part 2 (Entitlement conditions)
s 37 40 s 37
WorkCover Queensland Amendment Bill 2001
`(i) the claimant gives, or is taken to have given, a complying 1
notice of claim; or 2
(ii) the claimant gives a notice of claim for which WorkCover 3
waives compliance with the requirements of section 280 4
with or without conditions; or'. 5
37 Replacement of ss 312314
Clause 6
Sections 312 to 314-- 7
omit, insert-- 8
`312 Contributory negligence 9
`(1) A court may make a finding of contributory negligence if the worker 10
relevantly-- 11
(a) failed to comply, so far as was practicable, with instructions 12
given by the worker's employer for the health and safety of the 13
worker or other persons; or 14
(b) failed at the material time to use, so far as was practicable, 15
protective clothing and equipment provided, or provided for, by 16
the worker's employer, in a way in which the worker had been 17
properly instructed to use them; or 18
(c) failed at the material time to use, so far as was practicable, 19
anything provided that was designed to reduce the worker's 20
exposure to risk of injury; or 21
(d) inappropriately interfered with or misused something provided 22
that was designed to reduce the worker's exposure to risk of 23
injury; or 24
(e) was adversely affected by the intentional consumption of a 25
substance that induces impairment; or 26
(f) failed, without reasonable excuse, to attend safety training 27
organised by the worker's employer that was conducted during 28
normal working hours at which the information given would 29
probably have enabled the worker to avoid, or minimise the 30
effects of, the event resulting in the worker's injury. 31
`(2) Subsection (1) does not limit the discretion of a court to make a 32
finding of contributory negligence in any other circumstances.'. 33
s 38 41 s 41
WorkCover Queensland Amendment Bill 2001
38 Amendment of s 316 (Damages other than to claimant)
Clause 1
(1) Section 316, `under this Act'-- 2
omit. 3
(2)Section 316, from `, including'-- 4
omit. 5
39 Replacement of ch 5, pt 10, hdg
Clause 6
Chapter 5, part 10, heading-- 7
omit, insert-- 8
`PART 10--EXEMPLARY DAMAGES'. 9
40 Omission of ch 5, pt 10, divs 1 and 2, and div 3 hdg
Clause 10
Chapter 5, part 10, divisions 1 and 2, and division 3 heading-- 11
omit. 12
41 Replacement of ch 5, pt 11, div 1 and div 2 hdg
Clause 13
Chapter 5, part 11, division 1 and division 2 heading-- 14
omit, insert-- 15
`Division 1--Costs applying to worker with WRI of 20% or more or 16
dependant 17
`320 Application of div 1 18
`This division applies only if the claimant is-- 19
(a) a worker, if the worker's WRI is 20% or more; or 20
(b) a dependant. 21
`321 Principles about orders as to costs 22
`If a court has assessed damages in the claimant's proceeding for 23
damages, it must apply the principles set out in sections 322 to 323A. 24
s 41 42 s 41
WorkCover Queensland Amendment Bill 2001
`322 Costs if written final offer by claimant 1
`(1) This section applies if-- 2
(a) the claimant makes a written final offer that is not accepted by 3
WorkCover; and 4
(b) the claimant obtains a judgment no less favourable to the 5
claimant than the written final offer; and 6
(c) the court is satisfied that the claimant was at all material times 7
willing and able to carry out what was proposed in the written 8
final offer. 9
`(2) The court must order WorkCover to pay the claimants's costs, 10
calculated on the indemnity basis, unless WorkCover shows another order 11
for costs is appropriate in the circumstances. 12
`323 Costs if written final offer by WorkCover 13
`(1) This section applies if-- 14
(a) WorkCover makes a written final offer that is not accepted by the 15
claimant; and 16
(b) the claimant obtains a judgment that is not more favourable to the 17
claimant than the written final offer; and 18
(c) the court is satisfied that WorkCover was at all material times 19
willing and able to carry out what was proposed in the written 20
final offer. 21
`(2) Unless a party shows another order for costs is appropriate in the 22
circumstances, the court must-- 23
(a) order WorkCover to pay the claimant's costs, calculated on the 24
standard basis, up to and including the day of service of the 25
written final offer; and 26
(b) order the claimant to pay WorkCover's costs, calculated on the 27
standard basis, after the day of service of the written final offer. 28
`323A Interest after service of written final offer 29
`(1) This section applies if the court gives judgment for the claimant for 30
the recovery of a debt or damages and-- 31
s 42 43 s 43
WorkCover Queensland Amendment Bill 2001
(a) the judgment includes interest or damages in the nature of 1
interest; or 2
(b) under an Act, the court awards the claimant interest or damages 3
in the nature of interest. 4
`(2) For giving judgment for costs under section 322 or 323, the court 5
must disregard the interest or damages in the nature of interest relating to 6
the period after the day the written final offer is given. 7
`Division 2--Costs applying to worker with WRI less than 20% or no 8
WRI'. 9
42 Amendment of s 324 (Application of div 2)
Clause 10
Section 324, `non-certificate injury'-- 11
omit, insert-- 12
`WRI of less than 20% or no WRI'. 13
43 Amendment of s 325 (Principles about orders as to costs)
Clause 14
(1) Section 325(2)(a), `final offer'-- 15
omit, insert-- 16
`written final offer'. 17
(2) Section 325(2)(b), `the WorkCover's final offer'-- 18
omit, insert-- 19
`WorkCover's written final offer'. 20
(3) Section 325(2)(a) and (b), `party and party costs'-- 21
omit, insert-- 22
`costs on the standard basis'. 23
(4) Section 325(3), `WorkCover's final offer'-- 24
omit, insert-- 25
`WorkCover's written final offer'. 26
s 44 44 s 46
WorkCover Queensland Amendment Bill 2001
44 Amendment of s 437 (Reference to tribunals)
Clause 1
(1) Section 437, after `the appropriate tribunal'-- 2
omit, insert-- 3
`for decision on the medical matters involved'. 4
(2) Section 437(c), `section 265(3)(b)'-- 5
omit, insert-- 6
`section 261(3)(b), 273A(1)(b)(ii) or 273E(1)(b)(iii)'. 7
(3) Section 437(ea) and (g)-- 8
omit. 9
45 Amendment of s 454 (Further reference on fresh evidence)
Clause 10
(1) Section 454(1)-- 11
omit, insert-- 12
`(1) This section applies to any reference to a tribunal under any 13
paragraph of section 437 relating to a worker's injury.'. 14
(2) Section 454(8), `non-certificate injury'-- 15
omit, insert-- 16
`WRI of the worker of less than 20%'. 17
46 Replacement of s 456 (Finality of tribunal's decision)
Clause 18
Section 456-- 19
omit, insert-- 20
`455A Tribunal may refer non-medical matters back to WorkCover 21
`(1) If the tribunal considers that the terms of a reference to it involve-- 22
(a) both medical and non-medical matters; or 23
(b) entirely non-medical matters; 24
the tribunal may refer the non-medical matters back to WorkCover for a 25
decision. 26
`(2) To remove doubt, it is declared that if the tribunal decides a medical 27
matter mentioned in subsection (1)(a), section 456 applies to that decision. 28
s 47 45 s 48
WorkCover Queensland Amendment Bill 2001
`(3) Section 455 applies to a reference back to WorkCover under 1
subsection (1). 2
`456 Finality of tribunal's decision 3
`(1) Either of the following decisions of the tribunal is final and can not 4
be questioned in a proceeding before a tribunal or a court, except under 5
section 454-- 6
(a) a decision on a medical matter referred to the tribunal under 7
section 437; 8
(b) a decision under section 455A(1). 9
`(2) Subsection (1) has no effect on the Judicial Review Act 1991.'. 10
47 Amendment of s 457 (Decisions of tribunal)
Clause 11
Section 457(1), `an application for compensation'-- 12
omit, insert-- 13
`any matter'. 14
48 Amendment of s 489 (Application of pt 2)
Clause 15
(1) Section 489(1)(a)(xiii)-- 16
omit, insert-- 17
`(xiii)under section 261(3)(a) or (b), 273A(1)(b)(i) or (ii), or 18
273E(1)(b)(i), (ii), (iii) or (iv);'. 19
(2) Section 489(1)(b)(vii)-- 20
omit, insert-- 21
`(vii)under section 261(3)(a) or (b), 273A(1)(b)(i) or (ii), or 22
273E(1)(b)(i), (ii), (iii) or (iv); or'. 23
(3) Section 489(1)(c)-- 24
omit, insert-- 25
`(c) a failure by WorkCover or a self-insurer to make a decision-- 26
(i) on an application for compensation within the time stated in 27
section 161; or 28
s 49 46 s 51
WorkCover Queensland Amendment Bill 2001
(ii) for the purpose of section 261(3)(a) or (b) within the time 1
stated in section 261(4); or 2
(iii) for the purpose of section 273A(1)(b)(i) or (ii) within the 3
time stated in section 273A(5); or 4
(iv) for the purpose of section 273E(1)(b)(i), (ii), (iii) or (iv) 5
within the time stated in section 273E(2).'. 6
49 Amendment of s 498 (Who may appeal)
Clause 7
Section 498-- 8
insert-- 9
`(2) If the appellant is an employer, the claimant or worker may, if they 10
wish, be a party to the appeal.'. 11
50 Insertion of new s 501A
Clause 12
After section 501-- 13
insert-- 14
`501A Application of Uniform Civil Procedure Rules and Industrial 15
Relations (Tribunals) Rules 16
`(1) The Uniform Civil Procedure Rules 1999, chapter 7, part 2 and 17
chapter 9, part 4 and the Industrial Relations (Tribunals) Rules 2000, 18
rules 96 to 98 apply to an appeal under this division with necessary 19
changes. 20
`(2) However, if there is an inconsistency between a provision of the 21
rules mentioned in subsection (1) and a provision of this division, the 22
provision of this division prevails to the extent of the inconsistency.'. 23
51 Insertion of new ss 510A and 510B
Clause 24
After section 510-- 25
insert-- 26
`510A Costs of appeal to Industrial Court 27
`(1) On an appeal, the Industrial Court may order a party to pay costs 28
incurred by another party only if satisfied the party made the application 29
vexatiously or without reasonable cause. 30
s 52 47 s 52
WorkCover Queensland Amendment Bill 2001
`(2) Costs of the order are to be in accordance with the Industrial 1
Relations (Tribunals) Rules 2000, rule 66. 2
`510B Recovery of costs 3
`(1) If the industrial court makes an order for costs, the amount ordered 4
to be paid is a debt payable to the party in whose favour the order is made. 5
`(2) The order may be filed in the registry of a court having jurisdiction 6
for the recovery of a debt of an equal amount. 7
`(3) On being filed, the order-- 8
(a) is taken to be an order properly made by the court; and 9
(b) may be enforced as an order made by the court.'. 10
52 Insertion of new ch 14
Clause 11
After chapter 13-- 12
insert-- 13
`CHAPTER 14--TRANSITIONAL PROVISIONS FOR 14
WORKCOVER QUEENSLAND AMENDMENT ACT 15
2001 16
`587 Definitions for ch 14 17
`In this chapter-- 18
"amended Act" means this Act as amended by the amending Act. 19
"amending Act" means the WorkCover Queensland Amendment Act 2001. 20
`588 Injury before 1 July 2001 21
`The provisions of this Act, as in force immediately before 1 July 2001, 22
continue to apply in relation to an injury resulting to a worker from an 23
event happening before 1 July 2001 as if the amending Act had not been 24
enacted. 25
s 53 48 s 53
WorkCover Queensland Amendment Bill 2001
`589 Reference to medical assessment tribunal 1
`(1) Despite section 2 of the amending Act, the amendments of this Act 2
made by sections 44(1), 45(1), 46 and 47 of the amending Act do not apply 3
to a decision of the tribunal made before the royal assent was given to the 4
amending Act. 5
`(2) A reference of a matter-- 6
(a) that relates to an injury arising after 1 July 2001; and 7
(b) made to the tribunal under section 437 before the day of royal 8
assent of the amending Act; and 9
(c) pending before the tribunal immediately before the day of royal 10
assent; 11
from the day of royal assent is taken to have been referred to the tribunal 12
under the amended Act. 13
`590 Formal revival of claim for loss of consortium 14
`To the extent that the amended Act excluded an entitlement to seek 15
damages for loss of consortium, on the commencement of this section that 16
entitlement is revived in relation to an injury arising after 30 June 2001.'. 17
53 Amendment of sch 3 (Dictionary)
Clause 18
(1) Schedule 3, definitions "certificate injury", "complying notice of 19
claim", "damages certificate" and "non-certificate injury"-- 20
omit. 21
(2) Schedule 3-- 22
insert-- 23
` "complying notice of claim" means a notice of claim that complies with 24
section 280. 25
"written final offer", for chapter 5, see section 250.'. 26
49
WorkCover Queensland Amendment Bill 2001
SCHEDULE 1
MINOR AMENDMENTS 2
section 3 3
1 Section 24(1)(a), `the Education (Student Work Experience) Act 4
1978 or'-- 5
omit. 6
2 Section 24(4), definition "State student", `a student to which the 7
Education (Student Work Experience) Act 1978, section 10 applies 8
or'-- 9
omit. 10
3 Section 66(1)(b), `section 500(3)'-- 11
omit, insert-- 12
`section 500(4)'. 13
4 Section 509(2), `Industrial Court rules'-- 14
omit, insert-- 15
`Industrial Relations (Tribunals) Rules 2000'. 16
17
© State of Queensland 2001
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