Australia: Additional compensation under section 193A: When and how it applies

Recent amendments to the Workers' Compensation and Rehabilitation Act (Qld) 2003 have seen the introduction of section 193A which applies to injuries which attracted a DPI of or less than 5% between 15 October 2013 and 31 January 2015 and were therefore precluded from the common law. The purpose of this provision is to provide additional lump sum compensation to eligible workers. This alert provides a quick summary of eligibility requirements, additional compensation amounts, the legislative process and insurer obligations.

Eligibility

• Section 193A will only apply to those workers who had a DPI of 5% or less and who had not accepted or rejected the offer of lump sum compensation under section 189. This means the worker's decision must be deferred.
• Under the Workers' Compensation and Rehabilitation Regulation (Qld) 2003 ("the regulation") at 112D(2) a worker will be entitled to section 193A compensation only if they are able to meet the "qualifying condition" such that they will be entitled to compensation only if the insurer is satisfied, on the balance of probabilities, the worker's employer is, or would have been, liable to pay damages to the worker but the worker cannot seek damages because of the former threshold requirements.

Process

• The process for determining the qualifying condition is set out in sub-division 3. The insurer must decide if it has enough information to decide whether the qualifying condition is satisfied and, if it has, whether the condition is satisfied (regulation 112F). After deciding the matters mentioned in regulation 112F, the insurer must give the worker a section 193A notice in the approved form (regulation 112G(1)).
• The obligation is on the insurer to locate workers who may be eligible for additional lump sum compensation and then as soon as practicable after the commencement of this provision, to make a determination (regulation 149(2)).
• If the insurer decides that the qualifying condition has been satisfied, the section 193A notice must state the amount of section 193A compensation to which the worker is entitled (regulation 112G(1)).
• If the insurer decides the qualifying condition is not satisfied, the section 193A notice must state:
• 1. the insurer's decision;
  2. that the worker may ask the insurer for written reasons for the decision; and
  3. that the worker may apply to the panel for a review of the decision, only if the worker has asked the insurer for reasons for the decision (regulation 112G(3)).
• If the insurer does not have enough information to make the decision, the section 193A notice must state:
• 1. the insurer's decision;
  2. that the worker may, within 60 business days after receiving the notice, give the insurer information to enable it to decide whether the qualifying condition is satisfied; and
  3. if the worker does not give the insurer the information within that period, the qualifying condition will be taken not to be satisfied, the worker will not receive section 193A compensation and the worker will not have a right to apply to the panel for review (regulation 112G(4)).
• The worker has 10 business days from the date of receipt of a section 193A notice advising the qualifying condition has not been met, to request written reasons for the decision (regulation 112H). The insurer must then provide those written reasons within 10 business days (regulation 112H(3)).
• If the insurer has provided a section 193A notice stating it does not have enough information to decide whether the qualifying condition has been satisfied, the worker has 60 business days to give the insurer information relevant to the decision (regulation 112I(1)). At this point the worker must also advise if they have engaged a lawyer and incurred legal costs in giving the information (regulation 112I(2)). The insurer can extend the 60 business day period if the worker has a reasonable excuse (regulation 112I(3)). However, the qualifying condition will not be satisfied if the worker does not give the required information within the 60 business days or any further extension period granted by the insurer (regulation 114I(4)).
• If the worker has given information under regulation 112I and the insurer does not believe the qualifying condition has been met, the insurer must give the worker an opportunity to meet with it and discuss the proposed decision, before making that decision (regulation 112K). The insurer has to provide the worker with any relevant information it holds at least 10 business days before the meeting and is not required to give the worker the opportunity to meet more than once, although if a worker fails to attend a meeting we suggest issuing a follow up letter confirming this was the case, before the decision is issued.
• If the worker provides the insurer with additional information:
• The insurer must consider this further information when making its decision about whether the qualifying condition has been satisfied (regulation 112J(2));
• The insurer must make the decision within the later of 60 business days after receiving the information or if the insurer meets with the worker under regulation 112K, 10 business days after the meeting (regulation 112J(3));
• If the insurer decides the qualifying condition is met, it must provide the worker with written notice in the approved form stating the amount of compensation the worker is entitled to (regulation 112J(4));
• If the insurer decides the qualifying condition has not been satisfied, it must give written reasons for the decision to the worker (regulation 112J(5));
• If the does not make a decision within the prescribed period, it is taken to have decided the qualifying condition has not been satisfied (regulation 112J(6)).

Review

• The worker may apply for a review of the insurer's decision within 20 business days after the worker receives the written reasons or the day the worker becomes aware the insurer has failed to decide whether the qualifying condition has been satisfied (regulation 112N(1)).
• The application for review must include the reasons why the worker is seeking the review, attach a copy of the reasons for decision (if applicable), state if the worker has had the opportunity to give the insurer further information and include any further information the worker would like the panel to consider and if the worker has engaged a lawyer and incurred legal costs in relation to the application, it should include a statutory declaration to this effect (regulation 112N).
• As soon as practicable after receiving the application, the insurer must give the panel and the worker any information the insurer has considered in making its decision (regulation 112O).
• The panel can review the insurer's decision without receiving oral submissions (regulation 112P) and while there is capacity for oral submissions, over time one would expect the most cost efficient way to progress these matters will be with written submissions.
• The panel can then confirm the decision or cancel the decision and substitute a new decision. The panel is required to give the worker and the insurer written notice of its decision and the reasons for its decision and its decision is final (regulation 112P).

Additional compensation and legal costs

• If the qualifying condition is satisfied, the amount of compensation payable is set out in Schedule 4A of regulations as follows. The amount of additional compensation must be set out in the section 193A notice.

• If the worker has engaged a lawyer and incurs legal costs, they will be eligible for a prescribed payment for their legal costs which is also set out in schedule 4A as follows.

Information still to come

• The review panel will be made up of a chairperson and 2 members appointed by the Minister. These appointments have not yet been made.
• The form for the section 193A notice has not been finalised, but should be released shortly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.