On 31 August 2017 the Queensland Government enacted the Workers Compensation and Rehabilitation (Coal Workers’ Pneumoconiosis) and Other Legislation Amendment Act 2017 (“Act”).

The well-known purposes of the Act are to provide stronger workers’ compensation protection for black lung workers and improve the electrical safety licensing framework. However, the Act impacts beyond the electrical and mining industries and affects all self-insured employers and statutory insurers (“insurers”).

The Act now clarifies that the power to grant a stay under the Industrial Relations Act 2016 (“IRA”) does not apply to an appeal under the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”)

[1].

So what does it mean?

In the past, if there was a review of a Regulator’s decision on a workers’ compensation claim, the Queensland Industrial Relations Commission (“QIRC”) may grant a stay for the decision[2]. This meant that insurers were not required to pay workers’ compensation benefits until the QIRC appeal has been decided or the QIRC ordered the insurer to pay.

For example:

Worker applies for compensation claim

↓

Insurer rejects worker’s claim for compensation

↓

Worker applies to the Regulator for review

↓

Regulator sets aside insurer’s decision and accepts the worker’s claim for compensation

↓

Insurer appeals the Regulator’s decision to the QIRC     OR    Insurer requests QIRC for stay of the Regulator’s decision and QIRC grants stay

With the new amendments, the QIRC can no longer grant stays in appeals against the Regulator’s decision to accept compensation. The matters are further complicated as:

  1. the worker is not required to refund compensation payments to the insurer[3];
  1. the insurer must comply with the Regulator’s decision i.e. by accepting the compensation claim and paying compensation benefits to the worker[4].

Effectively, the insurer could suffer significant financial detriment if the insurer was successful in appealing against the Regulator’s decision to accept compensation but any compensation already paid cannot be recouped from the worker.

To prevent such an outcome, we recommend that insurers and employers make careful considerations when drafting Reasons for Decisions and making submissions to the Regulator for reviews. Further, if the worker ultimately issues a common law claim against the employer[5], any compensation benefits paid may be taken into account.

If you require further information about statutory compensation or how the Act potentially affects you and strategies to deal with the impacts of the Act, please feel free to contact us on 07 3211 2233 or via email sisi.soong@btlawyers.com.au

 

[1] Section 15 of the Act inserts subsection (2) to section 566 of the IRA which says “This section does not apply to an appeal under the Workers’ Compensation and Rehabilitation Act 2003, chapter 13, part 3 against a decision to allow an application for compensation under that Act”. (QIRC Appeals are governed by the IRA.)

[2] In JBS Australia Pty Ltd v Workers Compensation Regulator [2016] QIRC 138, the Court granted a stay to JBS as JBS had good prospects of succeeding in the appeal.

[3] even if the QIRC decides that the worker was not entitled to compensation: Section 566 of the WCRA.

[4] Section 545(3) of the WCRA.

[5] Subject to the QIRC’s decision.