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WORKCOVER QUEENSLAND AMENDMENT BILL 2001 Explanatory Notes

WORKCOVER QUEENSLAND AMENDMENT BILL 2001

                                   1
                WorkCover Queensland Amendment Bill 2001


             WORKCOVER QUEENSLAND
              AMENDMENT BILL 2001


                      EXPLANATORY NOTES

GENERAL OUTLINE
Objectives of the legislation
   The objective of the Bill is to implement an election commitment from
the WorkCover Queensland--Leading Australia Policy 2001.
   The WorkCover Queensland--Leading Australia Policy 2001 committed
the Government inter alia to introducing:
    `a responsible and integrated workers' compensation package to give
    seriously injured workers and their dependants greater compensation
    without increasing employer premiums'.


Reason for the Bill
  In order to satisfy the detail of the Government's commitment to the
WorkCover Queensland--Leading Australia Policy 2001, the WorkCover
Queensland Act 1996 requires amendment.
  The WorkCover Queensland--Leading Australia Policy 2001 included
commitments to:
    ·    `maintain full common law access including the 20% threshold
         test, while reducing legal costs for those less seriously injured;
    ·    increase statutory benefits for workers to ensure that seriously
         injured workers and their dependants receive greater
         compensation including:
         ·    increasing the lump sum benefit on the death of a worker to
              $250 000;
         ·    increasing the maximum statutory benefit able to be
              received by an injured worker by 24% to $150 000;

 


 

2 WorkCover Queensland Amendment Bill 2001 · increasing the amount available for dependants of those fatally injured; and · improving the criteria to access statutory gratuitous care · improve common law pre-proceedings processes and administrative arrangements to ensure claims are resolved earlier; · repeal the unjust contributory negligence and mitigating loss provisions introduced by the previous Coalition Government; and · allow the courts to have discretion to make awards for costs, interest on damages and loss of consortium.' (See page 3 of the Policy and the Premier's statement to the Parliament of 16 May 2001, Hansard at 878.) The Premier announced to Parliament on 16 May that this package of reforms is a significant job initiative of the Government, making beneficial changes to the WorkCover system while still achieving reduced premium rates for employers. Achieving the objectives The Policy stated that these reforms were to be introduced within the disciplines of ensuring: · equity and fairness for both employers and employees; and · maintaining employers' premium rates at competitive levels, with no increase for 2001-02. The Bill will meet the Government's policy objectives, and achieve equity and fairness for both employers and employees, by introducing reforms that will: · maintain all workers' rights to proceed to common law, while retaining some control on legal costs for the less seriously injured; · establish a new pre-proceedings claims process; · repeal provisions that prescribe consideration of possible sources of contributory negligence; · maintain the responsibility of injured workers to minimise the effect of their injury by compulsory attendance for rehabilitation;

 


 

3 WorkCover Queensland Amendment Bill 2001 · repeal limitations on damages awarded by the court; and · introduce new provisions for the awarding of costs. Alternatives to the Bill During consultation in relation to the Bill, all stakeholders were given the opportunity to put forward their views as to how the Government's policy commitment could be best implemented through legislative change. Many options were provided as to how the policy could best be implemented, and the Bill as drafted represents the position that is considered to best meet the Government's objectives. Administrative costs and savings to Government WorkCover's actuary advises that the proposed changes can be successfully implemented from 1 July 2001 without necessitating an increase in employers' premium rates. Consistency with fundamental legislative principles The Bill will increase benefits to injured workers and their dependants for all injuries that occur after 1 July 2001. The retrospective application of such beneficial legislation is not considered to offend the fundamental legislative principles of the Legislative Standards Act 1992. Consultation The following stakeholders have been consulted: · Unions The Queensland Council of Unions and the Australian Workers' Union. · Employer groups The Housing Industry Association, the Queensland Timber Board, the Hotel, Motel and Accommodation Association, the Queensland Mining Council, the Master Plumbers Association, Queensland Master Builders, the National Electrical Contractors Association, the Queensland Self-Insurers Association, the Retailers Association of Queensland, Mount Isa Mines,

 


 

4 WorkCover Queensland Amendment Bill 2001 Commerce Queensland, the Australian Industry Group, Queensland Farmers' Federation and AgForce. · Lawyers The Queensland Law Society, the Australian Plaintiff Lawyers' Association, the Bar Association of Queensland, the NSW Bar Association and over one hundred individual firms of solicitors as well as several chambers of barristers. · Government departments and agencies All Queensland Government departments and agencies including WorkCover. · Courts The Chief Justice, and judges of the Supreme and District Courts through the Office of the Attorney-General. · Other groups The Insurance Council of Australia and the Queensland Industrial Relations Society. Stakeholders have been offered at least three opportunities to be involved in the development of the Bill. For each group of stakeholders other than the Courts an initial discussion was held at which the intentions of the Bill were outlined and submissions requested. After a first draft of the Bill was prepared, stakeholders including the Courts were invited to comment on this draft to make submissions about suggested changes and to contribute to any further changes that went to a new pre-proceedings process. All stakeholders have also been invited to make comments on the final drafts of the Bill. NOTES ON CLAUSES Short title Clause 1 provides the short title of the Bill.

 


 

5 WorkCover Queensland Amendment Bill 2001 Commencement Clause 2 provides that the Bill is taken to have commenced on 1 July 2001. Act amended Clause 3 provides that the Bill amends the WorkCover Queensland Act 1996. Amendment of s 5 (Workers' compensation scheme) Clause 4 provides an amendment to s 5(4) of the WorkCover Queensland Act 1996. Section 5 of the WorkCover Queensland Act 1996 sets out the objectives of the workers' compensation scheme. The Bill provides for the return of s 3(e) of the Workers' Compensation Act 1990. Section 3 (e) stated that one of the objectives of the Workers' Compensation Act 1990 was to protect the interest of employers in relation to claims for damages arising from injury to a worker. This amendment is necessary as the Bill repeals the protection of employers in relation to damages provisions of the WorkCover Queensland Act 1996 (refer clause 5). Omission of s 6 (Protection of employers in relation to damages) Clause 5 repeals s 6 of the WorkCover Queensland Act 1996. Section 6 of the WorkCover Queensland Act 1996 was originally considered to provide for the mutual obligations of both employer and worker in relation to ensuring the safety of all workers. However, in practice, the WorkCover Queensland Act 1996 provided for an onus of proof to be placed on a worker, in relation to contributory negligence and the mitigation of loss by ss 312, 314 and 275 of the WorkCover Queensland Act 1996. The Bill repeals ss 312, 314 and 275 of the WorkCover Queensland Act 1996. The Bill by repealing s6 of the WorkCover Queensland Act 1996 confirms the intention of the Bill to settle considerations of contributory negligence and mitigation of loss in damages claims on common law

 


 

6 WorkCover Queensland Amendment Bill 2001 principles. The Bill in so repealing s6 also recognises that it is superfluous to set out obligations as are contained in s6 in workers compensation legislation as the mutual obligation of employers and workers for workplace health and safety is better provided for and set out elsewhere under part 3, divisions 2 and 3 of the Workplace Health and Safety Act 1995. Amendment of s 11 (Meaning of `damages') Clause 6 amends section 11 of the WorkCover Queensland Act 1996. Section 11 defines the term "damages" for the purposes of the WorkCover Queensland Act 1996. The Bill provides for a new subsection 3 to be added to this definition. The new subsection clarifies that a reference in the WorkCover Queensland Act 1996 to the liability of an employer for damages does not include a liability to pay damages for loss of consortium (i.e. association between spouses which includes companionship, affection, love and sexual relationship) resulting from injury sustained by a worker. On the question of claims for consortium and the provisions of the WorkCover Queensland Act 1996 as they applied before this Bill is taken to have commenced see Karanfilov v Inghams Enterprises P/L [2000] QCA 348 (25 August 2000). Omission of ch 1, pt 4, div 6, sdivs 5-6 Clause 7 repeals ss 42 and 43 of the WorkCover Queensland Act 1996. Sections 42 and 43 provide for the definition of `certificate injury' and `non-certificate injury' respectively. The Bill repeals the `certificate' regime provided for under the WorkCover Queensland Act 1996 and as a consequence the definitions in ss 42 and 43. The certificate regime introduced a superfluous use of phrases to describe the assessment of an injury for a level of permanent impairment and the control of access to damages. The WorkCover Queensland Act 1996 currently provides that a "certificate injury" is one that has resulted in a work related impairment of 20% or more for either a physical or psychological/psychiatric injury, but not a combination of both. It is used in chapters 3 and 5 to clarify which workers have to irrevocably choose between common law access and an

 


 

7 WorkCover Queensland Amendment Bill 2001 impairment lump sum and for which workers certain provisions about costs apply. Workers who have sustained a certificate injury do not have to make an irrevocable election. A "non-certificate injury" is one that has resulted in a work related impairment of less than 20% (including 0%) for either a physical or psychological/psychiatric injury. It is used in chapters 3 and 5 to clarify which workers have to irrevocably choose between common law access and an impairment lump sum and for which workers certain provisions about costs apply. Workers who have sustained a non-certificate injury have to make an irrevocable election. The Bill replaces the certificate regime but maintains a 20% work- related impairment threshold test for access to damages. This 20% threshold test will be used in chapters 3 and 5 to clarify which workers have to irrevocably choose between common law access and an impairment lump sum and for which workers certain provisions about costs apply. However, it is the intention of the Bill that the current certificate regime will be replaced by a simple description of an injury by the degree of work- related impairment. For example: An injury that has resulted in a work related impairment of 20% or more for either a physical or psychological/psychiatric injury, but not a combination of both is used in chapters 3 and 5 to clarify which workers have to irrevocably choose between common law access and an impairment lump sum and for which workers certain provisions about costs apply. Workers who have sustained an injury that results in a work related impairment of 20% or more for either a physical or psychological/ psychiatric injury, but not a combination of both do not have to make an irrevocable election. By contrast an injury that has resulted in a work related impairment of less than 20% (including 0%) for either a physical or psychological/ psychiatric injury is used in chapters 3 and 5 to clarify which workers have to irrevocably choose between common law access and an impairment lump sum and for which workers certain provisions about costs apply.

 


 

8 WorkCover Queensland Amendment Bill 2001 Workers who have sustained an injury of less than 20% (including 0%) for either a physical or psychological/psychiatric injury have to make an irrevocable election. This simple procedure will dispose of the current multifarious descriptions of injury as "serious" or "non-serious injury", "certificate" or "non-certificate" injury. Amendment of s 167 (Maximum entitlement) Clause 8 increases the maximum amount of compensation payable for 1 injury or multiple injuries sustained in 1 event under s 167 of the WorkCover Queensland Act 1996 to $150 000. This amendment is intended to ensure that injured workers receive fair compensation without necessarily having to resort to common law, with its associated legal costs. Amendment of s 201 (Calculation of WRI) Clause 9 amends s 201 of the WorkCover Queensland Act 1996. Section 201 provides for how a work-related impairment of a worker for an injury is to be calculated. Work-related impairment (WRI) is defined under chapter 1, and is a worker's lump sum compensation entitlement expressed as a percentage of the statutory maximum compensation for the worker's permanent impairment attributable to the worker's employment. WRI is used to determine if a worker has to make an irrevocable election to access common law and the level of certain weekly or lump sum benefits. The Bill repeals the definitions of certificate and non-certificate injury, which stated that when a total WRI is calculated for a worker who has sustained both a physical and a psychological or psychiatric injury, the worker's WRI for the psychiatric or psychological injury must not be combined with the WRI for the physical injury. The Bill confirms that when a total WRI is calculated for a worker who has sustained both a physical and a psychological or psychiatric injury, the worker's WRI for the psychiatric or psychological injury must not be combined with the WRI for the physical injury.

 


 

9 WorkCover Queensland Amendment Bill 2001 Amendment of s 203 (WorkCover to give notice of assessment of permanent impairment) Clause 10 amends s 203(1) of the WorkCover Queensland Act 1996. Section 203 provides that WorkCover must, within 28 days of receiving an assessment of a worker's permanent impairment, give the worker a notice of the results of the assessment. The 28-day timeframe was introduced to ensure the worker is given timely notification of the assessment results. The notice of assessment provides details of the assessment including: · whether the worker has sustained permanent impairment from the injury; · if so, the degree of permanent impairment; · the work related impairment resulting in either a certificate or non-certificate injury; · additional lump sum entitlements, if any. A worker's degree of permanent impairment for all injuries sustained in the event must be assessed before an offer of lump sum compensation can be made for any one of the injuries. This ensures that the worker is assessed for their total entitlement for lump sum before they are required to make a decision on the offer. The Bill provides in order to improve the efficiency of the assessment process for a reduction of the period of time in which WorkCover must give the worker a notice of assessment from 28 days to 14 days. Additionally the Bill reflects the reduction in the threshold test for a grant of gratuitous care by providing that the notice of assessment must state that if the worker's WRI is 15% or more the worker's entitlement to additional lump sum compensation (if any) for gratuitous care under section 211 must be stated in the notice. Amendment of s 206 (Certificate injury) Clause 11 amends s 206 of the WorkCover Queensland Act 1996. Section 206 of the WorkCover Queensland Act 1996 dealt with a "certificate injury" as defined in chapter 1 and specified those workers able to access common law without the need to make an election between lump sum compensation and seeking common law damages.

 


 

10 WorkCover Queensland Amendment Bill 2001 A worker with a certificate injury may accept or defer a decision about the offer within 28 days (i.e. the decision period) after the offer is made by giving a written notice to WorkCover. For a certificate injury, if the worker: · accepts the offer, WorkCover must pay the worker the amount of lump sum compensation offered; · does not notify WorkCover within the decision period, the worker is taken to have deferred their decision; · fails to notify WorkCover of their decision before seeking damages (i.e. lodges a notice of claim), the worker is taken to have rejected the offer of lump sum compensation. Clause 11 simply repeals the reference to certificate injury in section 206 replacing it with a statement that this section applies if the worker has a psychiatric or psychological injury that results in a WRI of the worker of 20% or more, or another injury that results in a WRI of the worker of 20% or more, and the worker is entitled to lump sum compensation. These amendments have been made as a consequence of the repeal by this Bill of s 42 of the WorkCover Queensland Act 1996, which provided for a definition of certificate injury. Amendment of s 207 (Non-certificate injury) Clause 12 amends s 207 of the WorkCover Queensland Act 1996, relating to `non-certificate injury'. For a worker with a non-certificate injury, when giving the notice of assessment, WorkCover must advise the worker they must make an irrevocable election between accepting lump sum compensation or seeking damages. The worker may accept, reject or defer a decision about the offer within the decision period after the offer is made by giving a written notice to WorkCover. For a non-certificate injury, if the worker: · accepts the offer, WorkCover must pay the worker the amount of lump sum compensation offered · does not notify WorkCover within the decision period, the worker is taken to have deferred their decision

 


 

11 WorkCover Queensland Amendment Bill 2001 · fails to notify WorkCover of their decision before seeking damages (i.e. lodges a notice of claim), the worker is taken to have rejected the offer of lump sum compensation. The Bill simply replaces the reference to non-certificate injury in s 207(1) with a new statement that this section now applies if the worker has a psychiatric or psychological injury that results in a WRI of the worker of less than 20%, or another injury that results in a WRI of the worker of less than 20%, and the worker is entitled to lump sum compensation, or the worker has an injury that does not result in any WRI of the worker. This amendment has been made as a consequence of the repeal of s 43 of the WorkCover Queensland Act 1996, which provided for the definition of non-certificate injury. Amendment of s 210 (Additional lump sum compensation for certain workers) Clause 13 amends s 210 of the WorkCover Queensland Act 1996, which currently provides for additional lump sum compensation payable to a worker with an injury that results in a work-related impairment of 50%. The amount payable is paid according to a graduated scale prescribed under a regulation. The Bill amends s 210 by increasing the maximum additional lump sum compensation available to a worker with an injury that results in a work- related impairment of 50% or more to $150 000. This amendment is intended to ensure that less seriously injured workers receive fair compensation without having to resort to common law, with its associated legal costs. Amendment of s 211 (Additional lump sum compensation for gratuitous care) Clause 14 provides for the amendment of s 211 of the WorkCover Queensland Act 1996 to reduce the threshold at which a worker is entitled to additional lump sum compensation for gratuitous care. The Bill provides that a worker is entitled to an additional lump sum payment of compensation if they have sustained a work-related impairment (WRI) equal to or greater than 15%. The purpose of gratuitous care payments is to compensate workers who are in need of ongoing special care assistance after cessation of a statutory

 


 

12 WorkCover Queensland Amendment Bill 2001 claim, in cases where such assistance is to be provided gratuitously by another person (e.g. spouse, parent, child or friend of the worker). This payment is not designed for the provision of professional care or services for the worker. The care is to be provided at home, on a voluntary basis. Nursing homes, or places where a worker would receive attendant care, continue to be excluded from the definition of a home. To receive an additional lump sum payment for gratuitous care under the WorkCover Queensland Act 1996 a worker must have sustained a WRI of 50%. The reduced entitlement threshold provided for by the Bill reflects recommendations of the Report of the Commission of Inquiry into Workers' Compensation and Related Matters in Queensland dated 30 June 1996. The Report recommended that the statutory grant for gratuitous care be available to workers with an impairment level exceeding 15% WRI and that WorkCover Queensland be able to pay a reasonable lump sum in this regard against a graduated scale described in a regulation. Notably the WorkCover Queensland Act 1996 set a substantially higher level (50% WRI) for the receipt of this payment. (Refer to recommendation 32, page 168 of the Report of the Commission of Inquiry into Workers' Compensation and Related Matters in Queensland dated 30 June 1996.) The Bill does not return damages for Griffith v Kerkemeyer awards, thus preventing workers from claiming an entitlement to damages for gratuitous services of a nature that could be ordinarily provided by a member of the worker's family or household, such as domestic, nursing and attendance services. The continuing restriction on damages for gratuitous services is offset by the easing of the criteria for access to the gratuitous lump sum payment of up to $150 000, under the statutory system for workers who are permanently impaired, and who have moderate to total dependencies for day-to-day care. Gratuitous care lump sums are not deducted from common law damages awarded in a common law action. This amendment is intended to ensure that less seriously injured workers receive fair compensation without having to resort to common law, with its associated legal costs.

 


 

13 WorkCover Queensland Amendment Bill 2001 Amendment of s 218 (Total dependency) Clause 15 amends s 218(2)(a) of the WorkCover Queensland Act 1996 which outlines the amount of compensation payable to the dependants of the worker and in what circumstances. The Bill amends s 218 by increasing the amount of compensation payable to the worker's dependants to $250 000. The Bill also amends s 218(2)(b) of the WorkCover Queensland Act 1996 to increase the amount of compensation payable in situations where the worker has left a totally dependent spouse and dependent members of the worker's family who are under 16 or are students. Each member of the family who is under 16 years of age or a student will be entitled to $9 375. This amendment is intended to ensure that less seriously injured workers receive fair compensation without having to resort to common law, with its associated legal costs. Amendment of s248 (Worker must mitigate loss) Clause 16 amends s 248 of the WorkCover Queensland Act 1996, which relates to a worker's obligation to mitigate loss. The common law duty to mitigate loss requires a worker to do all they can to minimise the effect of their injury, such as participating in rehabilitation, taking medical advice and participating in return-to-work programs. The Bill provides for the worker's obligation to mitigate their loss, clarifying their additional duty to mitigate loss under the statutory compensation scheme as well as under s 275 of the WorkCover Queensland Act 1996 when claiming damages. Amendment of s 250 (Definitions for Chapter 5) Clause 17 amends s 250 of the WorkCover Queensland Act 1996, which provides for certain definitions for Chapter 5 (Access to Damages). The Bill repeals the definition of `damages certificate'. Currently a damages certificate is issued to a worker, or dependant of a deceased worker, who has not previously lodged an application for compensation. A conditional damages certificate can currently be issued to a worker if there is an urgent need for the claimant to commence legal proceedings, and if WorkCover is undecided about the application for a damages certificate.

 


 

14 WorkCover Queensland Amendment Bill 2001 To expedite the pre-proceedings process for Chapter 5, the Bill streamlines current requirements by repealing the need for damages certificates to be issued before proceedings commence. The Bill also provides for the inclusion of a definition of `written final offer', as meaning the written final offer under s 294 of the WorkCover Queensland Act 1996. The provided definition of final written offer makes clear that for the purposes of awards of costs by a court any reference to final written offers under Part 11 of Chapter 5 is taken to be the final written offers exchanged under s 294. Amendment of s 253 (General limitation on persons entitled to seek damages) Clause 18 amends s 253(1) of the WorkCover Queensland Act 1996, which identifies persons entitled to seek damages for an injury sustained by a worker. The WorkCover Queensland Act 1996 has revolutionized the law applicable to projected or would be claims at common law by a worker or their dependant against an employer for damages. The Act has erected a number of hurdles to be cleared by would be plaintiffs before being entitled to start the proceedings for damages. It is unusual for a potential defendant to have the power to determine whether or not it may be sued, but that is in practical terms the consequence of this Act. The Bill in its amendments does not intend to unsettle the prohibition upon third party liability found in the decision of Bonser v Melnacis & Anor [2000] QCA 13, so that no claim can successfully be made by a third party tort feasor against an employer pursuant to section 6 c of the Law Reform Act 1995. To assist an understanding of the amendments brought by the Bill to the divisions of Part 2 -(Entitlement Conditions) it may first assist to explain what is seen as the effect of the current provisions of the WorkCover Queensland Act 1996. Persons who have an entitlement to seek damages under the WorkCover Queensland Act 1996 (s.253) are: (a) A worker who has sustained a work related impairment of 20% or more resulting in a certificate injury

 


 

15 WorkCover Queensland Amendment Bill 2001 (b) A worker who has sustained an injury which has resulted in a work related impairment of less than 20%, and have irrevocably elected to seek damages (c) A worker whose application for compensation has been allowed, but not yet assessed for permanent impairment (d) A worker who has not previously lodged an application for compensation (e) Dependents of a deceased worker who died as a result of a work related injury Under the Act there are two main methods of seeking damages. In the scenario of the injured worker falling into categories nominated above as a, b or c the worker must obtain a notice of assessment from WorkCover for all injuries resulting from an event. Workers who have not lodged an application for compensation or dependants of a deceased worker (d & e) may only seek damages if they have received a damages certificate or conditional damages certificate, which decides if the person was a worker, if the worker sustained an injury, and the degree of impairment. Issuing of the certificate allows the worker to begin legal proceedings without risk of falling outside the period of limitations. The issuing of damages certificates, conditional or otherwise, does not circumvent the pre- proceedings process. In the scheme of the Act, the importance of a claimant's (s 250 defines "claimant" as a person entitled to seek damages) compliance with Parts 5 and 6 is readily seen from: · the statutory stay of proceedings started by a claimant who holds a conditional damages certificate until such compliance occurs; · the object of Part 5-Pre Court procedures as stated in s 279 which is "to enable WorkCover to enter into early negotiations with claimants to achieve early resolution of claims for damages before the start of court proceedings" The Act intends that proceedings for damages begun by claimants holding a conditional certificate under ss 262, 265 or 270 are not to progress after commencement unless and until the claimant complies with Parts 5 and 6. Clearly the Act hopes that claims for damages will be settled before costs of court proceedings are incurred and which costs may ultimately have to be borne by WorkCover.

 


 

16 WorkCover Queensland Amendment Bill 2001 Conclusion The WorkCover Queensland Act 1996 intends that: · As a general rule all claimants for damages for personal injury to whom the Act applies must comply with Parts 5 and 6 of Chapter 5 - (Access to damages) before starting court proceedings in accordance with Part 7 - Start of Court Proceedings; · However, in certain cases to which ss 262, 265 and 270 apply, a claimant may obtain from WorkCover a conditional damages certificate if there is an urgent need "to bring proceedings for damages" and once that conditional certificate is given, the claimant may start proceedings for damages for the injury but the proceedings are stayed "until WorkCover makes the certificate unconditional and the person complies with Parts 5 and 6"; · As "urgent need to bring proceedings for damages" is the condition precedent to WorkCover issuing the conditional certificate it is apparent that it is intended that an approaching expiry of a time limitation period discloses an "urgent need" and the conditional certificate procedure was intended to avoid situations where a claimant (i.e. "a person entitled to seek damages" (s 250) would be defeated by expiry of a limitation period before proceedings were started or begun. The Bill replaces s 253(1)(a) with a new provision stating that a worker will be entitled to seek damages if the worker: · has received a notice of assessment from WorkCover for the injury; or · has not received a notice of assessment for the injury but has: (a) received a notice of assessment for any injury resulting from the same event, and (b) for the assessed injury, the worker has elected or is taken to have elected to seek damages and, under s 255 of the WorkCover Queensland Act 1996, can not change the election. It is intended that this amendment allow a worker to be entitled to seek damages where not all of the injuries resulting from an event have been assessed. However it is intended that in order to seek damages the worker must have received a notice of assessment for at least one of the injuries resulting from the same event. But if a worker has received a notice of

 


 

17 WorkCover Queensland Amendment Bill 2001 assessment and accepted a lump sum compensation under Chapter 3, part 9, division 3 for an injury, the worker is not entitled under subsection 253(1)(a)(ii) or otherwise to seek damages for any injury resulting from the same event. The Bill also provides for a new category of worker that may be entitled to seek damages even if their application for compensation, which is or has been the subject of a review or appeal under ch 9 of the WorkCover Queensland Act 1996, has not yet been decided. This new category of worker has been created so as to allow a worker who is currently seeking review or an appeal of a decision of WorkCover under chapter 9 to be able to complete the appeal without the time taken to start and end the review and appeals process causing the person to otherwise be denied claiming damages for an injury because the period of review or appeal has caused the worker to fall outside of the period of time allowed under the Limitation of Actions Act 1974. The Bill also amends s 253(1)(b) and (d) to remove the words `sustained by the worker'. Amendment of s 254 (Worker with terminal condition) Clause 19 amends s 254(2) of the WorkCover Queensland Act 1996, which identifies provisions of chapter 5 (Access to damages), that do not apply to a worker with a terminal condition. Section 254 allows a worker who has a terminal condition to bypass some of the pre-proceedings requirements of chapter 5, if they choose, to achieve more speedy resolution of the damages claim due to the extenuating circumstances of their condition. The Bill provides for an additional exemption to be included as a result of requirements created by the Bill, for the worker to satisfactorily participate in rehabilitation in accordance with s 275(3) of the WorkCover Queensland Act 1996. Replacement of ch 5, pt 2, divs 2-6, div 7, hdg and s 273 Clause 20 provides for the inclusion of a new s 255, which does no more than restate s 259 of the WorkCover Queensland Act 1996, but places it in a more appropriate position within the structure of the Act. The Bill consistent with s 259 of the WorkCover Queensland Act 1996 provides that a claimant who has a WRI of less than 20% may seek

 


 

18 WorkCover Queensland Amendment Bill 2001 damages only after they have received a notice of assessment from WorkCover, and made an irrevocable election to claim damages for the injury, as opposed to accepting the lump sum payment of compensation offered by WorkCover. This clause also replaces ch 5, pt 2, divs 2-6 of the Act relating to access to damages. Chapter 5 regulates access to damages for all injured workers and provides for a pre-proceeding claims process, which must be complied with. The current process is considered to be complex and time- consuming, and does not achieve its original objective of promoting timely settlements. Divisions 2-6 are replaced with the following divisions: · Division 2 - Consequences, to costs, of seeking damages The new division provides which particular cost provisions under the Bill apply to a worker with a WRI of 20% or more, and which apply to a worker with a WRI of 20% or less, or one who has an injury that does not result in any WRI. For a worker with a WRI of 20% or more, pt 11 div 1 applies in relation to costs (indemnity costs), and for a worker with a WRI of nil or less than 20%, pt 11, div 2 applies in relation to costs (standard costs). · Division 3 - Claimant who has received notice of assessment This new division 3 replaces division 2 and 3 of the WorkCover Queensland Act 1996, which currently applies to workers who have sustained a certificate or non-certificate injury. Division 2 and 3 of the WorkCover Queensland Act 1996 provide that a claimant may seek damages only after they have had their injury assessed for permanent impairment and received a notice of assessment from WorkCover. If the notice of assessment indicates that the claimant has a non- certificate injury and contains an offer of lump sum compensation, the claimant must irrevocably choose between accepting lump sum compensation and seeking damages for the injury. If the notice of assessment states that the claimant has not sustained any permanent impairment, the claimant can choose to seek damages for the injury. The Bill provides a new division for circumstances where a claimant has simply received a notice of assessment from WorkCover for an injury.

 


 

19 WorkCover Queensland Amendment Bill 2001 In these circumstances, and where there is an urgent need for the claimant to start a proceeding for damages, this division states that s 280A, as introduced by the Bill provides a way for the claimant to satisfy s 308(1)(a)(ii) of the WorkCover Queensland Act 1996. This new procedure avoids the need for costly court proceedings. The Bill also states that the claimant may also, under s 305 of the WorkCover Queensland Act 1996, as amended by the Bill seek leave to start a proceeding for damages for an injury without complying with s 302 of the WorkCover Queensland Act 1996. However, if leave is given, the proceedings are stayed until the claimant complies with s 302 of the WorkCover Queensland Act 1996. The division introduced by the Bill also makes provision for circumstances where a claimant has more than one injury from an event, and has not received a notice of assessment for the injury but has received a notice of assessment for any other injury resulting from the same event. In these circumstances, the claimant need not have, and WorkCover cannot decide to have, the injury assessed to decide if the injury has resulted in a degree of permanent impairment. Furthermore, WorkCover cannot decide that the claimant's notice of claim does not comply with s 280 of the WorkCover Queensland Act 1996 solely on the fact that the claimant has not received a notice of assessment for the injury. However, for the claimant to be entitled to seek damages for the injury, WorkCover must decide that the claimant was a worker when the injury was sustained, and that the worker has sustained an injury. WorkCover must make these decisions within 3 months after: (a) the claimant gives, or is taken to have given, a complying notice of claim, or (b) the claimant gives a notice for which WorkCover waives compliance with the requirements of s 280 with or without conditions, or (c) a court makes a declaration under s 304 of the WorkCover Queensland Act 1996. WorkCover will be required to notify the claimant and the claimant's employer of its decision and, where WorkCover decides that the claimant was not a worker when the injury was sustained, or that the

 


 

20 WorkCover Queensland Amendment Bill 2001 worker has not sustained an injury, the notification must include written reasons for the decision. If WorkCover does not make a decision within the 3-month timeframe, the claimant may have the failure to make a decision reviewed under ch 9 of the WorkCover Queensland Act 1996. Where a claimant is aggrieved by a decision made by WorkCover in relation to the question of whether the claimant was a worker when the injury was sustained, and whether or not the worker has sustained the injury, the claimant may apply to have the decision reviewed under Chapter 9 of the WorkCover Queensland Act 1996. The claimant mentioned in s 253(1)(a)(ii) of the Bill may ask WorkCover to have the injury assessed to decide if the injury has resulted in a degree of permanent impairment. WorkCover must have the degree of permanent impairment assessed and give the claimant a notice of assessment. However the notice of assessment is only for the purposes of assessing the degree of permanent impairment for the purposes of Chapter 5 part 11. To remove any doubt the Bill declares that the assessment does not give the claimant an entitlement to lump sum compensation under Chapter 3, part 9 division 3 for the injury. The Bill also provides that where there is an urgent need for the claimant to start a proceeding for damages, this division states that s 280A, as created by the Bill, provides a way for the claimant to satisfy s 308(1)(a)(ii) of the WorkCover Queensland Act 1996. It also states that the claimant may also, under s 305 of the WorkCover Queensland Act 1996, as amended by the Bill, seek leave to start a proceeding for damages for an injury without complying with s 302 of the WorkCover Queensland Act 1996. However, if leave is given, the proceeding started by leave is stayed until: (a) WorkCover decides that the claimant was a worker when the injury was sustained; (b) WorkCover decides that the claimant has sustained an injury; (c) any review or appeal under ch 9 of the WorkCover Queensland Act 1996 ends, (d) if the claimant decides to have the injury assessed under ch 3, pt 9 and WorkCover gives the claimant a notice of assessment; and

 


 

21 WorkCover Queensland Amendment Bill 2001 (e) the claimant complies with s 302 of the WorkCover Queensland Act 1996. Urgent proceedings must be discontinued if it is decided by WorkCover, or on review or appeal under ch 9 of the WorkCover Queensland Act 1996, that the claimant was not a worker when the injury was sustained or the worker has not sustained an injury. · Division 4 - The worker if the workers' application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment. The Bill introduces a new division 4, which replaces division 4 of the WorkCover Queensland Act 1996. Division 4 of the WorkCover Queensland Act 1996, currently applies to workers whose application for compensation has been successful, yet who has not had their injury assessed for any permanent impairment. Division 4 of the WorkCover Queensland Act 1996 replicated, in part, s 182D of the Workers' Compensation Act 1990. Section 182D provided that the worker must request WorkCover to assess their injury for a permanent impairment, and the worker could not seek damages until they had received a notice of assessment stating their WRI. Once the worker had received the notice of assessment and if the worker had less than 20% WRI, the worker must make an election to seek damages before proceeding further. No election was required if the worker had not sustained any impairment. Division 4 of the WorkCover Queensland Act 1996 applies only to a worker whose application for compensation has been successful, but has not been assessed for any permanent impairment that may have resulted from the consequences of the event for which the application for compensation was lodged. The new division 4 provided by the Bill applies to a worker if the worker's application for compensation has not been assessed for permanent impairment. The new division provides that a claimant may seek damages only after being provided with a notice of assessment, unless there is an urgent need for the claimant to start a proceeding for damages. For urgent proceedings, s 280A, as created by the Bill, provides a way for the claimant to satisfy s 308(1)(a)(ii) of the WorkCover

 


 

22 WorkCover Queensland Amendment Bill 2001 Queensland Act 1996. This new procedure avoids costly court proceedings. The claimant may also, under s 305 of the WorkCover Queensland Act 1996 as amended by the Bill, seek leave to start a proceeding for damages for an injury without complying with s 302 of the WorkCover Queensland Act 1996. However, if the leave is given, the proceeding started by leave is stayed until WorkCover gives the claimant a notice of assessment and the claimant elects to seek damages for the injury, and complies with s 302 of the WorkCover Queensland Act 1996. Urgent proceedings must be discontinued if the claimant has started an urgent proceeding and elects to accept an offer of payment of lump sum compensation for the injury. · Division 5 - the worker, if the worker has lodged an application for compensation for the injury that is or has been then subject of a review or appeal under chapter 9 and the application has not been decided in or following the review or appeal The Bill introduces a new division, which applies to a person who has lodged an application for compensation that has been the subject of a review or appeal under ch 9 of the WorkCover Queensland Act 1996 and has not been decided. This division provides that the claimant may seek damages for the injury only after: (a) any review or appeal under chapter 9 of the WorkCover Queensland Act 1996 ends; (b) the application for compensation is decided; and (c) WorkCover gives the claimant a notice of assessment. In the case of (c), WorkCover must have the degree of permanent impairment assessed and give the claimant a notice of assessment. Where there is an urgent need for the claimant to bring proceedings for damages the division states that s 280A, as introduced by the Bill, provides a way for the claimant to satisfy s 308(1)(a)(ii) of the WorkCover Queensland Act 1996. This new procedure avoids the need for costly court proceedings. The claimant may also, under s 305 of the WorkCover Queensland Act 1996, as amended by the Bill, seek leave to start a proceeding for

 


 

23 WorkCover Queensland Amendment Bill 2001 damages for an injury without complying with s 302 of the WorkCover Queensland Act 1996. However, if leave is given, the proceeding started with the leave is stayed until: any review or appeal under ch 9 of the WorkCover Queensland Act 1996 ends; and WorkCover gives the claimant a notice of assessment, and the claimant complies with s 302 of the WorkCover Queensland Act. Urgent proceedings must be discontinued if it has been decided by WorkCover, or on review or appeal under ch 9 of the WorkCover Queensland Act, that the claimant was not a worker when the injury was sustained, or has not sustained an injury. · Division 6 - the worker, if the worker has not lodged any application for compensation for any injury resulting from the event The new division 6 provided by the Bill replaces division 5 of the WorkCover Queensland Act 1996. Division 5 of the WorkCover Queensland Act 1996 currently applies to a worker who has not previously lodged an application for compensation for an injury in which they wish to seek damages. Division 5 currently prohibits a claimant from seeking damages unless they sought from WorkCover, and WorkCover issued, either a damages certificate or a conditional damages certificate. This division also dictates which costs provisions under the WorkCover Queensland Act 1996 applied to a worker, depending on their level of WRI. A claimant is also required to discontinue proceedings under a conditional damages certificate if WorkCover does not make the damages certificate unconditional because the claimant is deemed not to be a worker or not to have sustained an injury. The new division 6 introduced by the Bill provides that the claimant may only seek damages for any injury resulting from the event if WorkCover decides: (a) for every injury resulting from the event whether the claimant was a worker when the injury was sustained and has sustained an injury; and (b) gives the claimant a notice of assessment for every injury. WorkCover must make a decision or decisions in this regard within 3 months after:

 


 

24 WorkCover Queensland Amendment Bill 2001 (a) the claimant gives, or is taken to have given, a complying notice of claim, or (b) the claimant gives a notice for which WorkCover waives compliance with the requirements of s 280 with or without conditions, or (c) a court makes a declaration under s 304 of the WorkCover Queensland Act 1996. WorkCover must notify the claimant and the claimant's employer of its decision and where WorkCover decides that the claimant was not a worker when the injury was sustained, or the worker has not sustained an injury, the notification must include written reasons for the decision. If WorkCover does not make a decision within the 3-month timeframe, the claimant may have the failure to make a decision reviewed under ch 9 of the WorkCover Queensland Act 1996. A person aggrieved by a decision made by WorkCover as to whether the claimant was a worker when the injury was sustained and has sustained an injury, may have the decision reviewed under ch 9 of the WorkCover Queensland Act 1996. Where WorkCover gives the claimant a notice of assessment for the injury Chapter 3, Part 9 applies to the assessment but only for the purposes of assessing the degree of permanent impairment for the purposes of part 11. To remove any doubt it is declared that the assessment does not give the claimant an entitlement to lump sum under chapter 3, part 9 division 3 for the injury. Where there is an urgent need for the claimant to bring proceedings for damages, the division provides that s 280A, as introduced by the Bill, provides a way for the claimant to satisfy s 308(1)(a)(ii) of the WorkCover Queensland Act 1996. This new procedure avoids the need for costly court proceedings. The division also provides that the claimant may, under s 305 of the WorkCover Queensland Act 1996, as amended by the Bill, seek leave to start a proceeding for damages for an injury without complying with s 302 of the WorkCover Queensland Act 1996. However, if leave is given, the proceeding started with the leave is stayed until:

 


 

25 WorkCover Queensland Amendment Bill 2001 (a) WorkCover decides that the claimant was a worker when the injury was sustained and the worker has sustained an injury; (b) any review or appeal under ch 9 of the WorkCover Queensland Act 1996 ends; (c) WorkCover gives the claimant a notice of assessment, and; (d) the claimant complies with s 302 of the WorkCover Queensland Act 1996. Urgent proceedings must be discontinued if the claimant has started an urgent proceeding and it has been decided by WorkCover or on review or appeal under ch 9 of the WorkCover Queensland Act 1996 that the claimant was not a worker when the injury was sustained, or the claimant has not sustained an injury. · Division 7- A dependant of the deceased worker, if the injury sustained by the worker results in the worker's death The Bill introduces a new division 7 to replace division 6 of the WorkCover Queensland Act 1996. Division 6 of the WorkCover Queensland Act 1996 currently applies to a dependant of a worker whose death resulted from a work-related injury. Division 6 of the WorkCover Queensland Act 1996 allows a deceased worker's dependant to seek damages, only if the dependant has received statutory compensation in accordance with chapter 3, part 10, or, if an application for compensation has not previously been made, WorkCover has issued a damages certificate to the dependant. Division 6 of the WorkCover Queensland Act 1996 replicates, in part, section 182D of the Workers' Compensation Act 1990 for a dependant of a deceased worker who has not previously lodged an application for compensation. Before seeking damages, the dependant had to apply in the approved form to WorkCover for a damages certificate. WorkCover could only issue a certificate if the deceased person was a "worker" when the event occurred and the worker died as a result of an "injury" as defined in chapter 1. The division introduced by the Bill provides that for the claimant to be entitled to seek damages for the injury, any of the following must apply: (a) An application has been made for compensation under chapter 3, part 10 of the WorkCover Queensland Act 1996--

 


 

26 WorkCover Queensland Amendment Bill 2001 (i) WorkCover has paid compensation under ch 3, pt 10 for the worker's death to the claimant as a dependant of a worker; or (ii) The application is or has been the subject of a review or appeal under ch 9 and the application has not been decided in or following the review or appeal. (b) An application for compensation mentioned in (a) above has not been made, and WorkCover decides that the claimant was a dependant of the worker; the deceased was a worker when the event happened and the worker sustained an injury in the event and the injury caused the worker's death. WorkCover must make a decision, for the purposes of (a)(ii) and (b) above within 3 months after: (a) the claimant gives, or is taken to have given, a complying notice of claim, or (b) the claimant gives a notice for which WorkCover waives compliance with the requirements of s 280 with or without conditions, or (c) a court makes a declaration under s 304 of the WorkCover Queensland Act 1996. WorkCover must notify the claimant and the claimant's employer of its decision for the purposes of (a)(ii) and (b) above WorkCover decides that: (a) the claimant was not a dependant of the worker; or (b) the deceased was not a worker when the event happened, or (c) the worker did not sustain an injury resulting from the event, or (d) the injury did not cause the worker's death, the notification include written reasons for the decision. If, where an application for compensation has not been made, WorkCover does not make a decision within the 3-month timeframe, the claimant may have the failure to make a decision reviewed under ch 9 of the WorkCover Queensland Act 1996. A person aggrieved by a decision made by WorkCover, where an application for compensation has not been made, may apply to have the decision reviewed under ch 9 of the WorkCover Queensland Act 1996.

 


 

27 WorkCover Queensland Amendment Bill 2001 Where there is an urgent need for the claimant to bring proceedings for damages, this division states that s 280A, as created by the Bill, provides a way for the claimant to satisfy s 308(1)(a)(ii) of the WorkCover Queensland Act 1996. This new procedure avoids the need for costly court proceedings. The claimant may also, under s 305 of the WorkCover Queensland Act 1996, as amended by the Bill, seek leave to start a proceeding for damages for an injury without complying with s 302 of the WorkCover Queensland Act 1996. However, if leave is given in circumstances where WorkCover has paid compensation under ch 3, pt 10 of the WorkCover Queensland Act 1996 for the worker's death to the claimant as a dependant of a worker, the proceeding started with the leave is stayed until the claimant complies with s 302 of the WorkCover Queensland Act 1996. In circumstances where the application is not or has been the subject of a review or appeal under ch 9 and the application has not been decided in or following the review or appeal, the procedure is stayed until WorkCover decides that (a) the claimant was a dependant of the worker, (b) the deceased was a worker when the event happened, (c) the worker sustained an injury from the event, and the injury caused the workers death, (d) any review or appeal under ch 9 ends, and (e) the claimant complies with s 302 of the WorkCover Queensland Act 1996. Urgent proceedings must be discontinued if it is decided by WorkCover, or on review or appeal under ch 9 of the WorkCover Queensland Act 1996, that the claimant was not a dependant of the worker, or the deceased was not a worker when the event happened, or the worker did not sustain an injury from the event, or the injury did not cause the worker's death. Amendment of s 274 (Decision not to seek damages reviewable in certain circumstances) Clause 21 amends s 274(7)(d) of the WorkCover Queensland Act 1996 to remove reference to `certificate injury' and to replace it with reference to

 


 

28 WorkCover Queensland Amendment Bill 2001 `WRI of the worker of 20% or more', as a consequence of the removal of the definition contained in s 42 and repeal of the certificate regime. Replacement of ch 5, pt 3 Clause 22 replaces pt 3, s 275 of the WorkCover Queensland Act 1996. Section 275 of the WorkCover Queensland Act currently places an onus on the injured worker to prove that they took all reasonable steps to mitigate the damages. If the court believes that the worker has failed in this obligation, damages must be reduced to reflect any such failure. It is the duty of all workers to take all reasonable steps to mitigate the loss caused by their injury. The Bill provides that the common law duty to mitigate loss applies to all workers in relation to claims or proceedings for damages, and the worker must satisfactorily participate in rehabilitation. The worker's duty in this regard is in addition to any duty the worker may have under s 248 of the WorkCover Queensland Act 1996. In relation to the provision of rehabilitation, this clause provides that WorkCover may make rehabilitation available to a worker on WorkCover's initiative or if the worker asks for it. If WorkCover makes rehabilitation available to a worker before admitting or denying liability for damages, this must not be taken, for that reason alone, as an admission of liability. If liability has been admitted for damages, or WorkCover agrees to fund rehabilitation without making an admission of liability, WorkCover must, if the worker asks, ensure that reasonable and appropriate rehabilitation is made available to the worker. The Bill also provides for a mediation process if a worker is not satisfied that the rehabilitation is reasonable and appropriate. Fees and expenses of a mediator are to be paid as agreed between the parties or, in the absence of agreement, by the parties in equal proportions. For the purpose of the new pts 5,6, and 7 of the WorkCover Queensland Act 1996 relating to pre-court procedures, settlement of claims and the start of court proceedings, WorkCover must make rehabilitation available to the worker, and the worker must satisfactorily participate in the rehabilitation. WorkCover must bear, or reimburse, the cost of providing the rehabilitation, unless WorkCover's liability for the cost is reduced by agreement with the worker, or by order of the court. WorkCover may seek to recover the cost of rehabilitation if, before the rehabilitation commenced, they have provided a written statement to the worker of the

 


 

29 WorkCover Queensland Amendment Bill 2001 estimated rehabilitation costs. The following applies if the costs of rehabilitation is to be taken into account in the assessment of damages: (a) the damages are first assessed, without reduction for contributory negligence, on the assumption that the worker has incurred the cost of the rehabilitation, (b) then, any reduction of the damages assessed, on account of contributory negligence, is made, (c) then, the total cost of rehabilitation is set-off against the amount assessed. Replacement of s 279 (Object of pt 5) Clause 23 amends s 279 of the WorkCover Queensland Act 1996. Section 279 of the WorkCover Queensland Act 1996 describes the objective of part 5 as being to allow early negotiations with claimants before court proceedings are started. The Bill has been amended to emulate rule 5 of the Uniform Civil Procedure Act 1999 relating to pre-proceedings. The purpose of the rules is to: · facilitate the just and expeditious resolution of the real issues in civil proceedings at minimum expense; · the rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules. · a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way, · the court may impose appropriate sanctions if a party does not comply with these rules or an order of the court. The intention of the amendments is to place a greater emphasis on pre- court proceedings as a means of facilitating the just and expeditious resolution of the real issues in a claim for damages at the minimum expense. As well as clarifying the obligations of the parties, this new clause provides for sanctions if parties do not comply.

 


 

30 WorkCover Queensland Amendment Bill 2001 Amendment of s 280 (Notice of claim for damages) Clause 24 amends s 280 of the WorkCover Queensland Act 1996 relating to notice of claim for damages. The Bill amends s 280(2) to more clearly define the obligations of a claimant when serving a notice of claim on a self-insurer or on WorkCover. These amendments are also consistent with ch 4, pts 3 and 4 of the Uniform Civil Procedure Act 1999, relating to service in particular cases and ordinary service respectively. The Bill amends s 280(5) of the WorkCover Queensland Act 1996, which requires the notice of claim to be verified by statutory declaration. Instead it requires the claimant to verify by statutory declaration any statement made in the notice of claim for damages that is from the claimant's own personal knowledge. Insertion of new s 280A Clause 25 provides for the inclusion of a new s 280A in the WorkCover Queensland Act 1996. The purpose of this new section is to enable a claimant to avoid the need to bring an application under s 305 of the WorkCover Queensland Act 1996. The new section provides the ability to achieve compliance without providing a notice of claim. If there is an urgent need to start a proceeding for damages the claimant must, in the notice of claim, state the reasons for the urgency and the need to start the proceeding, and ask WorkCover to waive compliance with the amended s280. This clause then requires WorkCover, within 3 business days of receiving a notice of claim, to advise the claimant whether or not WorkCover agrees that there is an urgent need to start a proceeding for damages. The Bill provides that the claimant's notice of claim may be given to WorkCover by facsimile transmission. A claimant's lawyer may now sign the notice of claim on the claimant's behalf if it is not reasonably practicable for the claimant to do so. The Bill also provides that, if WorkCover agrees that there is an urgent need to start proceedings for damages, WorkCover may impose conditions it considers necessary and appropriate to justify waiving compliance with the amended s 282(2)(b). The claimant must comply with the conditions within an agreed reasonable time. The claimant's agreement to comply with the conditions is taken to have satisfied s 308(1)(a)(ii) of the WorkCover Queensland Act 1996, as amended by the Bill.

 


 

31 WorkCover Queensland Amendment Bill 2001 Amendment of s 281 (Claimant to tell WorkCover of change to information in notice of claim) Clause 25 amends s 281 of the WorkCover Queensland Act 1996 to require that only significant changes to the information given in the notice of claim be provided to WorkCover by way of a written notice. This clause provides for a similar reference to that in the Uniform Civil Procedure Rules 1999, which requires a plaintiff to supplement a statement of loss and damage where a significant change occurs. Amendment of s 282 (Response to notice of claim) Clause 27 amends s 282 of the WorkCover Queensland Act 1996 in relation to response to notice of claim. Section 282(1) of the WorkCover Queensland Act 1996 currently provides that WorkCover must, within 30 days after receiving a notice from a claimant, give the claimant written notice. The Bill provides that the written notice must be provided within 14 days. In addition to current requirements, the Bill provides that, if there is an urgent need to start a proceeding, WorkCover must include a statement within the notice confirming that the notice of claim is a complying one, and that WorkCover is willing to waive compliance with the requirements if the claimant agrees to satisfy certain conditions imposed by WorkCover. WorkCover must provide a statement, without admitting liability, whether they will to meet the reasonable and appropriate costs of the claimant's rehabilitation. The Bill also provides for an additional provision that, if WorkCover does not respond in writing within 14 days after receiving the notice of claim, the notice of claim will be taken to be a complying notice of claim. In addition the Bill amends s 282(4) of the WorkCover Queensland Act by renumbering it as s 282(5). The new s 282(5) reduces the number of days within which WorkCover must advise the employer or employers against whom negligence is alleged after receiving the notice. The notice period is reduced from 30 days to 7 days. Again, this change has occurred to reflect WorkCover's commitment to improved customer service.

 


 

32 WorkCover Queensland Amendment Bill 2001 Replacement of s 283 (WorkCover to give information to claimant) Clause 28 replaces s 283 of the WorkCover Queensland Act 1996. Section 283 of the WorkCover Queensland Act 1996 provides that WorkCover must disclose to the claimant any relevant information it holds, subject to the non-disclosure provisions in s 288 of the WorkCover Queensland Act 1996. This clause provides for an obligation on both WorkCover and the claimant to cooperate. They must provide each other with copies of relevant documents in their possession in relation to the circumstances of the event that resulted in the injury, the injury itself, or the claimant's prospects of rehabilitation. WorkCover must provide copies of the relevant documents to the claimant within 30 days of receiving a notice of claim or, if documents come into WorkCover's possession after the expiration of 30 days, then within 30 days of the documents coming into their possession. The Bill also provides a mutual obligation for either party to provide information to the other within 30 days, if requested to do so. Either party may request information to be provided in relation to: · the circumstances of the event resulting in the injury; · the nature of the injury and of any impairment resulting from it; · any financial loss resulting from the injury; · the medical treatment and rehabilitation sought by the claimant, or provided by the claimant's employer or by WorkCover; and · the claimant's medical history, as far as it is relevant to the claim; and · any applications for compensation made by the claimant for any injury resulting from the same event. This clause also defines the term `relevant documents' to mean reports and other documentary material, including written statements made by the claimant, the worker's employer, or by witnesses. Amendment of s 285 (WorkCover and claimant to attempt to resolve claim) Clause 29 amends s 285(4)(a) of the WorkCover Queensland Act 1996.

 


 

33 WorkCover Queensland Amendment Bill 2001 Section 285 of the WorkCover Queensland Act 1996 requires WorkCover and the claimant to resolve a claim as quickly as possible. It requires WorkCover to give the claimant a written response to a complying notice of claim within six months, or for a worker with a terminal condition, within three months of; · WorkCover receiving a compliant notice of claim · WorkCover waiving the non-compliance of the notice of claim · The court declaring the notice of claim compliant; or · the court giving leave to proceed. This clause amends s285(4)(a) of the WorkCover Queensland Act 1996 which currently provides that WorkCover must include in its response to a notice of claim its attitude in relation to liability. However, currently WorkCover is not required to particularise a denial liability. The Bill provides that WorkCover must state whether it admits or denies liability in connection with the event to which the claim relates. If it admits liability, WorkCover must state whether it is claiming contributory liability from the worker or another party, and the extent to which WorkCover admits liability (expressed as a percentage). If WorkCover denies liability, in full or in part, it must state the basis of such a denial. The Bill provides for a new s 285(5), which requires that a copy of the written notice must be given to the claimant's employer (i.e. the employer at the time of the injury), within 7 days after giving the original to the claimant. The Bill also provides for the renumbering of s 285(5)-(7) of the WorkCover Queensland Act 1996 to s 285 (6)-(8). The Bill provides that in calculating the 6 month period in which WorkCover must issue the written response, any period in which a decision of WorkCover relevant to the claim is subject to a review or appeal is not to be counted towards the 6 month period. Amendment of s 288 (Non-disclosure of certain material) Clause 30 repeals a part of s 288 of the WorkCover Queensland Act 1996. Section 288 currently allows information and documents to be withheld from the other party if the documents are protected by legal professional privilege (i.e. when the information or document has come into existence

 


 

34 WorkCover Queensland Amendment Bill 2001 between a party and that party's lawyer in the course of obtaining legal advice during pre-proceedings and court proceedings). Currently certain reports must be disclosed to allow the sharing of information that supports the pre-proceeding process. However, statements of irrelevant opinion may be omitted. Documents may also be withheld if WorkCover has reasonable grounds to suspect the claimant of fraud and misrepresentation. This clause repeals the words `but they may be disclosed with the omission of passages consisting only of statements of opinion other than expert opinion' in section 288(2)'. It is intended that, by omitting this reference, statements of opinion other than expert opinion will not be excluded from disclosure. This clause clarifies the intention that all documents provided for in section 288(2) of the WorkCover Queensland Act 1996 be disclosed in their entirety. It is intended that this clause will, in part, overcome difficulties caused by the decisions of Parr v Bavarian Steak House P/L [2000] QCA 429 (24 October 2000) and James v WorkCover [2000] QCA 507 (14 December 2000). Replacement of s 293 (Compulsory conference) Clause 31 replaces s 293 of the WorkCover Queensland Act 1996 relating to compulsory conference, as well as inserting a new s 293A. Section 293 of the WorkCover Queensland Act 1996 currently requires the claimant to organise and hold a compulsory conference within 3 months after WorkCover has given written notice of its response on liability (which must include a counter-offer or a statement of reason). However, if the parties agree, the conference may be held at a later date and may be held with a court-approved mediator. This section requires exchange of any documents not previously exchanged, to ensure that all parties are fully informed. The claimant and a person authorised by WorkCover to settle the claim must attend the conference and actively attempt to settle the claim. If a face-to-face conference cannot reasonably be held, another agreed method and time is allowed. The Bill confirms the need for a compulsory conference to be held for all proceedings for damages. The conference is to be held within 3 months of WorkCover providing a written notice to the worker, under the amended s 285. The Bill also provides that either party may request the compulsory conference, and the parties may agree to defer the conference to a date not

 


 

35 WorkCover Queensland Amendment Bill 2001 within the 3-month period. The Bill also provides that, once a conference time has been agreed to, WorkCover must advise the worker's employer of the details of the conference. The Bill also provides that either party may apply to the court to set a time and place for a compulsory conference, or dispense with the requirement for a compulsory conference. A court, when considering whether to dispense with a requirement for a compulsory conference, must take into account the extent to which the parties have complied with their obligations under the WorkCover Queensland Act 1996. This clause also provides for a new s 293A, which outlines procedure to be complied with for the compulsory conference. This clause provides that the parties may agree or apply to the court for the conference to be held with a mediator. The mediator must be independent of the parties, and either agreed to by the parties or nominated by the registrar of the court. All relevant documentation must be exchanged between the parties 7 days before the conference. Finally, this clause inserts a new s 293B which provides that, before a settlement of claim may be attempted, each party's lawyer must give the party a financial statement. The financial statement must contain matters outlined in s 273A(7) of the Bill, as follows: · the legal costs incurred up to the conclusion of the conference, · an estimate of legal costs and an estimate of net damages likely to be paid if the matter proceeds to trial; · the possible costs orders that may be made should the matter proceed to trial; and the likely consequences this will have on the party; and · costs and net damages that may result if the claim is settled without proceeding to trial. Omission of ch 5, pt 6, div 2 Clause 32 repeals requirements outlined in pt 6, div 2 of the WorkCover Queensland Act 1996. Part 6, div 2 of the WorkCover Queensland Act 1996 ensures the claimant is fully informed of the legal costs associated with all stages of the legal proceedings of the damages claim and the possible legal cost implication of failing to settle for a reasonable amount at an early stage.

 


 

36 WorkCover Queensland Amendment Bill 2001 These requirements have been repealed as the Bill provides for the objectives of this part via the financial statement regime established. Amendment of s302 (Compliance necessary before starting proceeding) Clause 33 provides for a minor amendment to s302 for the WorkCover Queensland Act 1996. Section 302 of the WorkCover Queensland Act 1996 currently provides that the claimant must comply with the relevant divisions in part 2 of chapter 5. This clause provides that a claimant must comply with the relevant division under part 2 of chapter 5 to the extent the division imposes requirements on the claimant. Amendment of s 303 (Claimant to have given complying notice of claim or WorkCover to have waived compliance) Clause 34 amends s 303(a)(i) and (ii) of the WorkCover Queensland Act 1996. Section 303 of the WorkCover Queensland Act 1996 sets out the conditions, which must apply before the claimant, can commence court proceedings. Currently under s 303(a)(i) and (ii) of the WorkCover Queensland Act 1996, a claimant may start proceedings if, at least 6 months or, for a terminal condition, 3 months have elapsed after ; (i) the claimant has given a complying notice of claim; or (ii) WorkCover has waived the claimant's noncompliance with the requirements for lodging a notice of claim. The Bill amends 303(a)(i) and (ii) of the WorkCover Queensland Act 1996 to provide a claimant may now commence proceedings if the claimant has either been given or is taken to have been given a compliant notice of claim, or WorkCover has waived the claimant's non-compliance with the notice with or without conditions. Insertion of new s 305A Clause 35 provides for the insertion of a new s 305A.

 


 

37 WorkCover Queensland Amendment Bill 2001 The Bill provides that ch 5, pt 2, div 3 - 7 provides for the urgent starting of proceedings by persons mentioned in the amended s 253(1) of the WorkCover Queensland Act 1996, and for the staying and discontinuance of those proceedings. Amendment of s 308 (Alteration of period of limitation) Clause 36 amends s 308(1) of the WorkCover Queensland Act 1996. Section 308(1) provides that a claimant may bring a proceeding for damages for personal injury after the end of the period of limitation imposed by the Limitations of Actions Act 1974. A claimant may bring proceedings if certain relevant issues are satisfied before the end of the period of limitation, and the claimant complies with s 302 of the WorkCover Queensland Act 1996. A claimant may now satisfy s 308 by giving or being taken to have given, a complying notice of claim, or WorkCover has waived the claimant's non-compliance through the new provision at s 280 of the WorkCover Queensland Act 1996, with or without conditions. Replacement of ss312-314 Clause 37 repeals ss312 to314 of the WorkCover Queensland Act 1996. Section 312 of the WorkCover Queensland Act 1996 requires a court to have regard to whether the claimant has proved the matters relevant to the claim set out in this clause when deciding issues of liability and contributory negligence on the part of the employer and worker respectively. The court must dismiss a claim in the circumstances provided for in the clause. Section 313 placed greater onus on the worker to adhere to instructions provided by the employer. An employer will not be liable for damages because of the employer's failure to ensure the worker did not breach instructions previously given by the employer. Section 314 of the WorkCover Queensland Act 1996 stipulated circumstances in which a court must make a finding of contributory negligence against a worker. The section dictated that if the worker had contributed to their injury in one or more of the circumstances provided for under the section, the court had to reduce the damages award by at least 25% for each specific circumstance found to contribute to the worker's injury.

 


 

38 WorkCover Queensland Amendment Bill 2001 Contributory negligence is a common law principle that acknowledges workers' carelessness in looking after their own safety. It is a defence for an employer in an action for damages to show that an injured worker failed to take reasonable care of themselves, thus contributing to their injury. The current provisions contained in the WorkCover Queensland Act 1996 do not provide grounds for judicial discretion in deciding compensation awards and lack counterbalancing provisions for contributory negligence of employees. See also Wylie v the ANI Corporation Limited [2000] QCA 314 and Liftronic Pty Limited v Unver [2001] HCA 24 (3 April 2001) see also Law Reform Amendment Bill No. 1, 2001. The Bill replaces current sections of pt 8 of the WorkCover Queensland Act 1996 with a provision stating that the Act does not reintroduce the absolute defence of contributory negligence or common employment. The Bill provides that judicial discretion will be used on a case-by-case basis when determining compensation awards. It also provides a non-exhaustive list of examples of contributory negligence, which may be referred by a Court when making a determination in relation to compensation awards. Amendment of s 316 (Damages other than to claimant) Clause 38 amends s 316 of the WorkCover Queensland Act 1996, which currently prevents a court from awarding damages to a person other than the claimant, including damages for loss of consortium. The Bill repeals reference to damages for loss of consortium in s 316. The Bill provides for the use of judicial discretion when considering applications for damages dealing with loss of consortium. It is intended that the Bill overturn the decision of Karanfilov v Inghams Enterprise P/L [2000] QCA 348 (25 August 2000), which decided that s 253 of the WorkCover Queensland Act 1996 interpreted to abolish the ability to claim loss of consortium (refer clause 17). However, consortium is not a matter for which an employer is provided with any indemnity under the WorkCover Queensland Act 1996. Amendment of ch 5, pt 10 Clause 39 replaces the heading for ch 5, pt 10 of the WorkCover Queensland Act 1996, `Awarding of particular damages', with `Exemplary damages'.

 


 

39 WorkCover Queensland Amendment Bill 2001 Omission of ch 5, pt 10, divs 1 and 2 and div 3, hdg Clause 40 repeals divs 1 and 2 of the WorkCover Queensland Act 1996, which relate to future economic loss and interest. Currently, s 317 of the WorkCover Queensland Act 1996 provides that a court may award damages for future economic loss or damages due to diminution of future earning capacity only if the claimant satisfies the court that there is at least a 51% likelihood that the claimant will sustain the future economic loss or diminution of future earning capacity. Section 318 of the WorkCover Queensland Act 1996 provides that a court may order payment of interest only on items of special damage that the claimant has actually paid, and for damages for actual past economic loss. The court must have regard to any unreasonable failure by WorkCover to offer to settle. This section prevents the awarding of interest on general damages. The repeal by the Bill of the provisions contained within divs 1 and 2 will mean that the issue of future economic loss and interest will become a matter for judicial discretion under common law principles. Replacement of ch 5, pt 11, div 1 and div 2, hdg Clause 41 replaces ch 5, pt 11, div 1, which relates to the awarding of costs for those workers with a WRI of 20% or more, or a dependant. Currently the WorkCover Queensland Act 1996 provides that, if a court has assessed damages in the claimant's proceedings for damages, it must apply the principles set out in s 321 of the WorkCover Queensland Act 1996 when making an order about the costs in the proceeding. If the amount of damages is equal to or greater than the claimant's written final offer, the court must, unless WorkCover shows that another order for costs is proper in the circumstances, order WorkCover to pay the claimant's costs: · on a party and party basis up to and including the day of final written offer; and · on a solicitor-client basis after the day of final written offer. If the amount of damages is not more than WorkCover's written final offer, the court must order: · WorkCover to pay the claimant's costs on a party and party basis up to and including the day of final offer; and

 


 

40 WorkCover Queensland Amendment Bill 2001 · the claimant to pay WorkCover's costs on a solicitor-client basis after the day of final offer. In any other case, the Court may make an order about costs as it considers appropriate. The Bill amends s.321 by adopting rules 360-362 of the Uniform Civil Procedure Rules 1999. The adoption of the rules is intended to better meet the objectives of the Act by encouraging the early settlement of claims. The Bill also provides that a court, giving a judgment for costs under this part, must disregard the interest or damages, and the nature of interest relating to the period after the day of service of WorkCover's final written offer. The Bill provides for the language used for costs in s.321 of the Act to be updated to reflect rule 743 of the Uniform Civil Procedure Rules 1999. Rule 743 stipulates that party and party costs now equate to standard basis costs and solicitor and client costs now equate to indemnity costs. The Bill also provides for the inclusion of a definition of "written final offer", as meaning the written final offer under s.294 of the Workcover Queensland Act 1996. The definition of final offer makes clear that for the purposes of awards of costs by a court any reference to final written offer under Part 11 is taken to be the final written offers exchanged under s.294. The Bill repeals references made to certificate injury within this division, as a consequence of the repeal of the definition of certificate injury. The Bill also amends the heading of ch 5, pt 11, div 2 of the WorkCover Queensland Act 1996 to remove reference to non-certificate injury, as a consequence of the repeal of the certificate regime by the Bill. The replacement heading is: `Costs applying to worker with WRI less than 20% or no WRI'. Amendment of s 324 (Application of div 2) Clause 42 provides for the amendment of s 324 of the WorkCover Queensland Act 1996. Section 324 of the WorkCover Queensland Act 1996 provides for the application of division 2 which currently applies if the claimant is a worker who has a non-certificate injury.

 


 

41 WorkCover Queensland Amendment Bill 2001 The Bill repeals the reference to non-certificate injury, as a consequence of the repeal of the certificate regime by the Bill, and replaces it reference to `non-certificate injury' with `WRI of less than 20% or no WRI'. Amendment of s 325 (Principles about orders as to costs) Clause 43 provides for the amendment of s 325(2) to repeal the reference to `party and party costs'. This clause provides for the awarding of costs on the standard basis where an injured worker's injury is assessed below the 20% threshold and the worker chooses the common law option: · if a court makes an award equal to or above the worker's written final offer, then an order must be given to WorkCover to pay the worker's costs on the standard basis from the day of the final offer; · if the amount of damages awarded is equal to or less than WorkCover's written final offer then the Court must order on the standard basis costs against the worker form the date final offer to trial; and · where the judgment award falls between the parties' written final offers, then both parties bear their own costs. The Bill also provides for the inclusion of a definition of "written final offer", as meaning the written final offer under s.294 of the Workcover Queensland Act 1996. The definition of final offer makes clear that for the purposes of awards of costs by a court any reference to final written offer under Part 11 is taken to be the final written offers exchanged under s.294. The aim of this provision is to further ensure that parties make realistic offers during the pre-proceedings process. This clause also helps to ensure that, in the event that an order for damages is made, each party is responsible for their own costs. This will provide an incentive to reach agreement in the mid-ground rather than proceeding to trial and incurring further legal expense, with no certainty of being successful in an application for costs. The Bill provides for the update of terminology used in s 325 of the WorkCover Queensland Act 1996 to reflect terminology used in rule 743 of the Uniform Civil Procedures Rules 1999. Section 743 of the Uniform Civil Procedures Rules 1999 stipulates that party and party costs now equate to standard basis costs, and solicitor- and client-based cost now equate to indemnity-based costs.

 


 

42 WorkCover Queensland Amendment Bill 2001 Amendment of s 437 (Reference to tribunals) Clause 44 amends s 437 of the WorkCover Queensland Act 1996 to repeal reference to s 265(3)(b) in s 437(c) of the Act, and to replace this reference with reference to ss 261(3)(b), 273A(1)(a)(ii), 273A(1)(b)(iii). The Bill also repeals s 437(ae) of the WorkCover Queensland Act 1996, because it refers to s 265(3)(c) of the WorkCover Queensland Act 1996, which has been replaced under the Bill. The Bill also repeals s 437(g) of the WorkCover Queensland Act 1996, which refers to an application for a damages certificate. This amendment is required as a result of other amendments made by the Bill. Amendment of s 454 (Further reference on fresh evidence) Clause 45 repeals s 454(1) of the WorkCover Queensland Act 1996, to provide that the section applies to referrals made to the tribunal under any of the paragraphs in s 437 of the WorkCover Queensland Act 1996 in relation to a worker's injury. The Bill also removes the reference to certificate and non-certificate injury in s 454(8) of the WorkCover Queensland Act 1996. This reference is repealed in accordance with the repeal of ss 42 and 43 of the WorkCover Queensland Act 1996 by the Bill. The reference is replaced by a reference to `WRI of less than 20%' Amendment of s 456 (Finality of tribunal's decision) Clause 46 replaces s 456 of the WorkCover Queensland Act 1996 and inserts a new s455A. The current s 456 of the WorkCover Queensland Act 1996 specifies that a decision of a tribunal about a matter before the tribunal in relation to a claim for compensation is final. The decision cannot be questioned in a proceeding before a tribunal or court (except in the case of fresh medical evidence). The Bill provides for the insertion of a new s 455A, which provides that the medical assessment tribunal may refer non-medical matters back to the insurer for determination. If the non-medical matter is referred back to the insurer the decision of the insurer may be reviewed under ch 9, pt 2 of the WorkCover Queensland Act 1996. It is intended that, on matters of a medical nature the tribunal's decision will be final. If the medical assessment tribunal elects to make a decision on a non-medical matter that

 


 

43 WorkCover Queensland Amendment Bill 2001 decision will be reviewable under ch 9, pt 2 of the WorkCover Queensland Act 1996. The Bill now provides that a tribunal's decision on a medical matter referred to it under s 437 of the WorkCover Queensland Act 1996, or a decision made under s 455A(1) of the WorkCover Queensland Act 1996, is final and cannot be questioned in a proceeding before a tribunal or a court (except in the case of fresh medical evidence). The Bill also provides that the amended s456(1) has no effect on the Judicial Review Act 1991. The Bill is intended to provide clarification and confirm that determinations of a medical nature by the tribunal are final, whereas determinations in relation to other matters are open to judicial review. Amendment of s 457 (Decision of tribunal) Clause 47 provides for amendment to s 457(1) and (2) of the WorkCover Queensland Act 1996 to clearly state that the medical assessment tribunal must provide written reasons for a decision on any matter referred to it for a decision. Previously s 457 of the WorkCover Queensland Act 1996 required written reasons for decision to be provided only in relation to a decision for `an application for compensation' referred to the tribunal. Amendment of s 489 (Application of pt 2) Clause 48 provides for the amendment of s 489 of the WorkCover Queensland Act 1996 by repealing s (1)(a)(xiii) of the WorkCover Queensland Act 1996 and replacing it with new a new s (1)(a)(xiii). Section 489 of the WorkCover Queensland Act 1996 currently provide that decisions made under s 265(3)(a) or s 270(2)(a) of the WorkCover Queensland Act 1996 are reviewable decisions. These sections refer to the issue of damages certificates, which have been repealed by the Bill. As a consequence, the Bill repeals the references to those sections and provides for new reviewable decisions under ss 261(3)(a) or (b), 273A(1)(a)(i) or (ii), and 273E(1)(b) )(i), (iii) and (iv) which all refer to decisions made by WorkCover when issuing a notice of assessment to the worker. Clause 48 also repeals s (1)(b)(vii) of the WorkCover Queensland Act 1996 and replaces it with a new s (1)(b)(vii), which again reflects the repeal

 


 

44 WorkCover Queensland Amendment Bill 2001 of damages certificates and inserts new reviewable decisions provided for in ss 261(3)(a) or (b), 273A(1)(a)(i) or (ii), 273E(1)(b)(i), (ii), (iii) and (iv). The Bill now provides that, in addition, decisions not made within the timeframe required by the Act for the purpose of ss 161, 261(3)(a) or (b), 273A(1)(a)(i) or (ii), and 273E(1)(b)(i), (ii), (iii) or (iv) are reviewable decisions. Amendment of s 498 (Who may appeal) Clause 49 provides for a new subsection under s 498 of the WorkCover Queensland Act 1996. This section currently makes provision for a claimant, worker or employer aggrieved by the decision (the `appellant') to appeal to an industrial magistrate against the decision of the review unit, WorkCover or the self-insurer (the `respondent'). The Bill provides for the inclusion of a subsection, which, if the appellant is an employer, will allow the claimant or worker to be a corespondent to the appeal, if they wish. Insertion of s 501A (Application of Uniform Civil Procedure Rules and Industrial Relations (Tribunals) Rules Clause 50 provides for the inclusion of s 501A of the WorkCover Queensland Act 1996. The Bill provides that ch 7, pt 2 and ch 9, pt 4 of the Uniform Civil Procedure Rules 1999 and rules 96 to 98 of the Industrial Relations (Tribunal) Rules 2000 apply in relation to appeals to the industrial magistrate or to the Industrial Court. However, if there is inconsistency between this division of the WorkCover Queensland Act and the Uniform Civil Procedure Rules and Industrial Relations (Tribunal) Rules 2000, the WorkCover Queensland Act 1996 will apply to the extent of the inconsistency. Chapter 7, part 2 of the Uniform Civil Procedure Rules 1999 provides for non-party disclosure. Non-party disclosure requires a person who is not party to the proceeding to produce documents to the court which are directly relevant to the pleadings, and which are in their possession or under their control. Chapter 7, part 2 provides for the procedure to be followed when seeking non-party discovery from a person who is not a party to the proceeding. It is intended that the adoption of this provision will apply if an applicant worker wishes to discover matters relevant to their appeal that are currently in the possession of another person such as

 


 

45 WorkCover Queensland Amendment Bill 2001 the employer, and the worker has no other reasonable means to obtain that documentation. Chapter 9, part 4 of the Uniform Civil Procedure Rules 1999 provides for the alternative dispute resolution process. This clause provides for the adoption of this process for the purpose of mediation. Insertion of new ss 510A and 510B Clause 51 inserts a new provision relating to costs of appeal to the Industrial Court. Section 509 allows for appeals from a decision of the industrial magistrate to the Industrial Court, and s 510 prescribes the powers for the Industrial Court. Section 506 of the WorkCover Queensland Act 1996 currently allows an industrial magistrate to make an order for costs, and s 508 of the WorkCover Queensland Act 1996 further allows the recovery of costs if an industrial magistrate has made an order for costs. However, there is currently no comparable provision for the Industrial Court to make an order for costs and recover costs according to the decision of WorkCover Queensland and Trevor Ernst Markwell (No. 2) (No. C64 of 2000). A similar provision was contained in the original version of the WorkCover Queensland Act 1996 but was deleted without explanation in the amendments of 1 July 1999. The Bill rectifies this anomaly by allowing the court to once again have the discretion to award costs on an appeal from an industrial magistrate to the Industrial Court. The Bill also provides that if the industrial court makes an order for costs, the amount ordered to be paid is a debt payable to the party in whose favour the ordered. Insertion of new ch 14 Clause 52 provides for the inclusion of a new chapter 14, providing for the inclusion of the title `Transitional provision for WorkCover Queensland Amendment Act 2001'. The Bill inserts a new s 587, which is the definition provision for chapter 14. The new section provides that, for the purpose of this chapter, a reference to `amended Act' means this Act as amended by the amending Act; the `amending Act ` means the WorkCover Queensland Amendment Act 2001.

 


 

46 WorkCover Queensland Amendment Bill 2001 The Bill provides for the inclusion of s 588 of the WorkCover Queensland Amendment Act 2001, which provides that the provisions of the WorkCover Queensland Act 1996, as in force immediately before 1 July 2001, continue to apply to an injury sustained by a worker before 1 July 2001 despite the enactment of the WorkCover Queensland Amendment Act 2001. The Bill also inserts a new s 589, which provides that ss 437, 454, 455A and 456 of the WorkCover Queensland Amendment Act 2001, as amended by this Bill, do not apply to decisions of the medical assessment tribunal made before Royal Assent is given to the amending Act. The new s 589 also provides that, if a matter relating to an injury arising after the 1 July 2001 is referred to the medical assessment tribunal under s 437 of the WorkCover Queensland Act, and the matter is pending before the tribunal immediately before the day of Royal Assent, the matter is taken from the day of Royal Assent to have been referred to the tribunal under the amended Act. Finally, this clause inserts a new s 590, which provides that a claimant's entitlement to loss of consortium is revived for injuries that occurred after 30 June 2001. Amendment of sch 3 (Dictionary) Clause 53 provides for the amendment of sch 3 of the WorkCover Queensland Act 1996 to repeal the definitions of `certificate injury', `damages certificate' and `non-certificate injury', as a consequence of the repeal of the certificate regime and the provision of damages certificates. The Bill inserts two additional definitions into sch 3 of the WorkCover Queensland Act 1996. The first definition is for a `complying notice of claim'. The Bill provides that a complying notice of claim means a notice of claim that complies with s 280. The second definition is `written final offer' which provides a cross-reference to section 250 in chapter 5.

 


 

47 WorkCover Queensland Amendment Bill 2001 SCHEDULE MINOR AMENDMENTS 1 Section 24(1)(a), `the Education (Student Work Experience) Act 1978 or'- Clause 1 repeals s 24(1)(a) of the WorkCover Queensland Act 1996. This amendment omits an obsolete reference. 2 section 24(4), definition "State student", `a student to which the Education (Student Work Experience) act 1978, section 10 applies or'- Clause 2 repeals section 24(4), of the WorkCover Queensland Act 1996. This amendment omits an obsolete reference. 3 Section 66(1)(b), `section 500(3)'- Clause 3 replaces s 66(1)(b) of the WorkCover Queensland Act 1996 with a reference to s 500(4). This amendment corrects a subsection reference. 4 Section 509(2),'Industrial Court rules'- Clause 4 amends s 509 of the WorkCover Queensland Act 1996 to outline the appropriate rules, which will apply when a party is appealing a decision of the industrial magistrate. © State of Queensland 2001