5% threshold and work injury claims

How the 5% Threshold May Affect you and your Work Injury Compensation claim

Workers thought that they could breathe a little easier after the Queensland State Government handed down a decision in mid 2013 that it was going to retain the Queensland workers’ compensation system in relation to workers’ rights to pursue common law damages for work injuries.

This right has been either removed or significantly restricted in other states in Australia.

The State Government’s decision was basically made on the reasoning that there was no need to interfere with a system that is the most successful workers’ compensation scheme in Australia.

Who is to be considered a “worker” under Queensland workers’ compensation legislation

The State Government at that time advised they would be only bringing in very minor amendments to the legislation.

These amendments included restrictions on who is to be considered a “worker” under Queensland workers’ compensation legislation, claims for psychological injury, and the introduction of a more proactive return to work scheme for injured workers.

Unfortunately however, Mr Newman and his cohorts in State Government were not to be trusted, as all the while they were espousing their intention to retain Queensland’s workers’ compensation scheme, they were planning to overhaul the scheme by introducing major exclusions for workers to bring claims for injuries sustained in the course of their work, under pressure from large employer groups and big business.

5% threshold applies to work injuries occurring in the period 15 Oct 2013 to 30 Jan 2015

After announcing that there would be no restrictions on claims under the Scheme in mid 2013, by October 2013, the State Government was rushing through poorly constructed legislation slashing the rights of workers in Queensland that had been around for 800 years, and destroying a workers’ compensation scheme that had been developed over a period of more than 30 years and was working for both Queensland businesses and Queensland workers.

The most destructive legislative change, and the change that has so enraged Queensland workers, was the introduction of a law that requires a worker to achieve an impairment rating for their work injury of more than 5% before they have any entitlement to claim common law damages.

More than half of injured workers in QLD would have no right to pursue common law damages

This law meant that more than half of injured workers in Queensland would have no right to pursue common law damages for injuries sustained in the course of their work through no fault of their own.

Other changes made impacted upon the time period for bringing master/servant claims in Queensland, as the Newman legislation requires a worker to take steps to protect their claim within 2.5 years of the injury occurring, rather than the 3 year period of limitation under the Limitation of Actions Act 1974.

Further, the Newman government introduced legislation whereby claims for work injuries both at statutory and common law level can be excluded where a worker does not advise the employer at the time of employment of any pre-existing injury or condition that may impact upon their employment duties.

The workers of Queensland rallied outside the doors of Parliament

The changes were rushed through Parliament whilst the workers of Queensland rallied outside the doors of Parliament and called for Mr Newman to face them, who made no appearance or response.

The changes were also submitted to Parliament at the same time as the introduction of the controversial bikie laws in Queensland, which took media attention away from the fact that the Queensland Government was outlawing the common law entitlements of its workers which they had held for over 800 years.

What these changes meant to Queensland workers was that, if they suffered an injury at work from 15 October 2013 onwards, and their injury was not assessed at 6% or more permanent impairment by WorkCover, they would have no entitlement to sue their employer for damages for that injury.

Labour Govt. repeals 5% threshold restricting injured workers bringing common law claims

On 31 January 2015 however, the Labour Government achieved power in Queensland and one of their first Bills introduced into Parliament was to repeal the 5% threshold rule enacted under the Newman rule.

The repealing legislation brought in by the Labour Government has been welcomed by workers in Queensland and their Unions.

Unfortunately however, there are still some workers who will be subject to the unfair legislation restricting common law claims in Queensland enacted by the Newman Government.

Those workers who suffer an injury during the period 15 October 2013 to 30 January 2015 will still have to achieve a degree of permanent impairment for their work injury of more than 5% to be entitled to pursue a common law claim for damages for their work injury.

What If you have not achieved a 6% or more impairment?

Please note, if you have received a Notice of Assessment from the workers’ compensation insurer stipulating the degree of permanent impairment for your work injury, and you have not achieved a 6% or more impairment for either your physical injuries or your psychiatric injury, then it is imperative that you contact us as soon as possible.

Strict time limits apply if you wish to appeal the degree of permanent impairment stipulated in your Notice of Assessment.

If you miss those appeal time periods, you will lose any opportunity you may have to achieve the 6% impairment required to enable you to pursue a claim for common law damages, potentially resulting in the loss of significant compensation.

 Claims Have Time Limits

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