Fears over Queensland Government Workers Compensation review

Workers in Queensland have good reason to be uneasy about the Parliamentary Committee Enquiry by the Queensland Government into the State's workers' compensation system whose results will be handed down soon.

The enquiry's brief was to look at:

• whether the 2010 changes to the workers' compensation scheme to water down common law entitlements of injured workers have reduced common law claim numbers;
• WorkCover's current and future financial position;
• the scheme's impact on the Queensland economy; and
• Queensland's competitiveness and employment growth.

The Queensland workers' compensation scheme provides payment of statutory benefits to injured workers in the State. It also pays for the medical expenses for treatment and rehabilitation caused by injury at work.

It is a "short tail" scheme which provides for the payment of benefits until an injury is judged "stable and stationary". A claim cannot go more than five years and weekly benefits are capped at $200,000 over the life of the claim.

The scheme also provides workers the right to bring common law claims for damages for the pain, suffering, permanent impairment, loss of income and loss of earning capacity for injuries caused by negligent work accidents and unsafe work practices.

While workers' compensation premiums are a cost to business, it should be a comfort to employers in Queensland that the State has the second-lowest premiums in the country at 1.45 per cent of wages.

The only cheaper premium is in Victoria, which is at 1.29per cent of wages, but employers pay for the first two weeks of wages if a worker makes a claim or alternatively pays an increased premium. As the Queensland Law Society stated in its submission to the Parliamentary Enquiry, the Queensland and Victorian WorkCover premiums are therefore effectively about the same.

Despite this, it is feared that there is strong agitation from the government to push down the premium further, which would be coupled with reduced entitlements to injured workers.

If the State Government is serious about looking at increasing Queensland's competitiveness, in improving employment growth and helping the Queensland economy, it should look at repealing its regressive payroll tax which taxes employers with a payroll of more than $1.1 million at a rate of 4.75 per cent of the payroll. One would think there would be no greater disincentive to employers than to tax them for employing staff.

Despite this, it is believed that the government is looking at a number of changes to the WorkCover system in Queensland.

It is believed that part of the changes to the system is to follow the lead of New South Wales and to end the entitlement of workers to receive statutory benefits for injuries suffered whilst travelling to and from work.

These claims account for about six per cent of workers' compensation statutory benefit claims. WorkCover however often obtains a refund of benefits paid in journey claims from CTP insurers in successful liability claims involving motor vehicle accidents going to and from work.

Claims made by injured workers do not affect the premium of employers but they do provide coverage, particularly to workers in rural Queensland and to workers in the mining industry, who have to travel significant distances at some risk to get to and from work. One would think that a LNP government would not want to take away benefits which benefit rural workers.

It is also believed that the government is looking at introducing a threshold which workers must cross before they can bring a claim for damages against negligent employers.

Before workers can bring a common law claim they need to have an assessment of their "work related impairment". The guides used by WorkCover to complete the assessment do not measure permanent pain or disability but impairment under an assessment code known as AMA 5. Workers with lifting related injuries, often in the building industry, who often suffer back injuries which drive them out of employment are routinely assessed at 0 per cent.

The June 2012 report entitled "Queensland Workers' Compensation Claims Monitoring", published by Q-Comp, provides case studies of injuries which have been assessed at zero per cent impairment by Medical Assessment Tribunals that form part of the WorkCover system. As well as the limited ability to sleep, the symptomology of these injured workers included:

• severe pain radiating into the neck and lower back;
• being unable to walk more than 1 km;
• the need for analgesia daily;
• restricted bending;
• difficulty putting on shoes and walking up and down stairs;
• needing to wear lumbosacral supports; and
• having to take Panadeine Forte and other pain killing medication.

In effect, workers with significant disability often register as a zero per cent impairment.

If the government was to impose a threshold of zero per cent impairment, many Queenslanders would lose rights to pursue employers for injuries caused by dangerous work practices. This will leave working families to suffer significant financial disadvantage and throw them onto a lifetime dependence on social security benefits.

As well, employers finding that they can expose their workers to the risk of injury without the risk of being sued will lead to complacency in workplace health and safety. This has occurred in New Zealand in which workers have no entitlement to bring common law claims.

Late last year, Professor Watson of the University of Auckland Business School Department of Commercial Law said, after completing a report into the "no fault" New Zealand system:

Individuals are careful because for most of us, hurting or killing someone is not something we want to carry around for the rest of our lives. However a corporate entity itself has no conscience, no matter what individuals within the corporation think.

Any watering down of the entitlement of Queensland workers to sue for injuries suffered because of unsafe work places will lead to an increased level of worker injury and workplace health and safety complacency in the State.

The Q-Comp report on the Queensland workers compensation scheme for the year ending 2012 shows that the scheme is incredibly healthy.

Common law claims in 2009/2010 dropped by 9.6 per cent and a further 4.7 per cent on top of that in the 2011/2012 year. Numbers will likely drop again in 2012/2013 because of 2010 changes brought in by the government which reduced the viability of smaller claims and raised the bar in the level of culpability which needs to be proven to bring a successful common law claim.

As well, the damages payout for claims in the 2011/2012 year dropped 6.9 per cent. The icing on the cake is that the profit for Queensland WorkCover in the year ending 2011/2012 was in excess of 150 million.

Queensland is envied as having the best and most profitable workers' compensation system in the country. It is hoped that common sense prevails and the scheme is left alone.