As a result of the five yearly review of Queensland’s workers compensation scheme, the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act) has just been amended.
Definition of injury
One of the most important changes is to the definition of a psychological or psychiatric injury.
Prior to these changes, from 2013 to November 2019 the Act stipulated that for a psychological or psychiatric injury to be a compensable injury, the psychiatric or psychological disorder must have arisen out of, or in the course of, employment and employment must have been the major significant contributing factor to the injury.
For any other injury to be compensable, employment simply had to be a significant contributing factor.
The Act has been amended to remove the major qualifier from the definition of psychological or psychiatric injury. Now for a psychological or psychiatric injury to be a compensable injury, employment must simply be a significant contributing factor.
This important change reflects the requirements of the Act before the 2013 amendments, when the definition of compensable psychological injury only required the worker’s employment to be a significant contributing factor.
Rationale for the amendment
According to the Explanatory Memorandum, the amendment:
- restores the position that existed prior to the 2013 amendments to the Act;
- is not expected to result in a major increase in compensable psychological or psychiatric injuries (prior to the 2013 amendments the rejection rate was 61.5%, compared to a 62.5% rejection rate in 2018); and
- allows Queensland to align with other jurisdictions (none of the other Australian jurisdictions require work to be the major contributing factor).
Reasonable management action
Despite the amendment, injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances:
- reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- the worker’s expectation or perception of reasonable management action being taken against the worker; or
- action by the Regulator or an insurer in connection with the worker’s application for compensation.
Example of actions that may be reasonable management action taken in a reasonable way include:
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker;
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.
What employers should do
An employer should manage their workers reasonably and in a reasonable way.
If an employee lodges a workers compensation claim which the employer does not support, the employer should, immediately upon receiving the claim, make submissions to WorkCover as to why the claim should not be accepted.
An employer’s failure to make these submissions within the first week after receiving a claim is likely to result in WorkCover accepting the claim. Once a claim is accepted, subject to a successful appeal, the employee will be entitled to receive statutory compensation and pursue a common law damages claim against their employer.
It is anticipated that this important change will result in an increase in workers compensation claims for psychiatric or psychological injuries being made by employees as well as an increase in the number of these claims being accepted.
Given the significant premium and associated impact a claim can have on your business, if you have concerns about a worker’s compensation claim being made by your employee it is important to seek advice as soon as possible.
Murdoch Lawyers regularly assists employers:
- understand the workers compensation and employment law system;
- object to questionable workers compensation claims; and
- appeal WorkCover’s decisions.