ByLawyers News and Updates

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News and Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Workers compensation legislation – NSW

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There have been a number of small but important amendments to New South Wales workers compensation legislation.

Relevant provisions of the Motor Accidents and Workers Compensation Legislation Amendment Act 2021 commenced on 16 June 2022.

The amendments include:

  • Changes to the Workers Compensation Act 1987 with regard to deemed diseases. These are certain specified diseases and medical conditions which are deemed to be caused by certain employment, such as asbestosis. The Act has been amended so that minimum periods of service in specified employment and minimum exposure requirements can now be included on the list of deemed diseases in the regulations.
  • Additional entitlements for volunteer firefighters, emergency and rescue workers under the Workers Compensation (Bush Fire, Emergency and Rescue Service) Act 1987. This amendment brings the compensation entitlements of these volunteer workers into line with those of paid workers. The new entitlements for volunteers include funeral expenses and funds management fees for dependent children of deceased volunteer workers.

The By Lawyers Workers Compensation publication has been amended accordingly.

A further provision of the amending Act awaits proclamation. This relates to an additional entitlement to compensation for any dependent children of a deceased worker. The fees charged by the NSW Trustee and Guardian to manage the dependent child’s lump sum entitlement will be a separate benefit claimable and paid by the insurer, so that a lump sum compensation amount paid to a dependent child of a deceased worker will not be eroded by fees. This amendment will be incorporated in the By Lawyers publication when it commences.

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and for adjustments – usually increases – in government fees and charges. Those regular updates occur every year and have an impact on many different areas of law and therefore on numerous By Lawyers publications.

These updates can include court filing fees, lodgement fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and action these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and also other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

Quite separately, there is also usually a raft of new and amending legislation, from both Commonwealth and state parliaments, which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other Obiter posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Terminal condition entitlements – QLD

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The Terminal condition entitlements section of the By Lawyers Workers Compensation QLD publication has been enhanced.

A link to a helpful new resource from Worksafe on Terminal condition lump sum compensation eligibility will assist practitioners to quickly access information required to advise their clients on their workers compensation rights and entitlements.

If a worker has a terminal condition, as defined in s 39A of the Workers Compensation and Rehabilitation Act 2003 (QLD), they are entitled to lump sum benefits as set out in s 128B of the Act.

Terminal conditions, for the purpose of entitlements under the Act, are work-related illnesses or injuries likely to result in the death of the worker in the short term. This is generally within two or three years, but up to five years from diagnosis. They must be incurable. Medical certification is required.

Although common law damages claims are available for workers with a terminal condition, entitlements if paid promptly, may be of more practical and immediate benefit to some clients. The new resource from Worksafe is intended to assist not only workers in understanding their rights, but insurers in making timely and consistent assessments and medical practitioners in understanding questions asked of them when writing assessment reports.

See the By Lawyers Workers Compensation (QLD) publication for more information and guidance on making claims for injured workers. The By Lawyers District Court – Civil – Acting for the Plaintiff guide will also be of assistance to practitioners in bringing common law damages claims for injured workers.

Personal Injury Commission – NSW

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Overview

From 1 March 2021 the Personal Injury Commission (PIC) became the ‘one-stop shop’ for dispute resolution for workers compensation and motor accident claims in NSW.

The PIC has two divisions with a single point of entry via an online portal. The PIC takes over from the Workers Compensation Commission, which has been abolished. The PIC also takes over most of the dispute resolution functions from the State Insurance Regulatory Authority (SIRA) regarding motor accident claims.

The idea of the consolidation is to gain efficiencies via a single entity, especially with medical assessments and medical dispute determination. Medical assessors for both workers compensation and motor accidents claims, along with merit reviewers for motor accident matters and mediators for workers compensation matters, are appointed by the President of the PIC and operate under the PIC legislation.

The substantive law does not change.

The By Lawyers Workers Compensation and Motor Accidents publications – both Prior to 1 December 2017 and From 1 December 2017 – have all been be amended.

Legislation

Personal Injury Commission Act 2020;

Personal Injury Commission Regulation 2020; and

Personal Injury Commission Rules 2021.

What the PIC does

The PIC is not a court but is headed by a President, who is a judge of a court of record. The PIC will publish its decisions.

The two divisions, Motor Accidents and Workers Compensation, have a common registry, and common practice and procedure wherever possible.

The PIC replaces the Workers Compensation Commission and determines all disputes under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987.

Disputes in relation to claims under the Motor Accidents Injuries Act 2017 (MAIA) and the Motor Accidents Compensation Act 1999 (MACA) previously managed and resolved by SIRA are now dealt with by the Personal Injury Commission. The PIC also takes over from the Motor Accidents Claims Assessment and Resolution Service (CARS) and the Medical Assessment Service (MAS).

The Act requires the PIC to deal with proceedings justly, quickly, cost-effectively and with as little formality as possible.

The rules of evidence do not apply and proceedings must be as informal as possible, including telephone conferences instead of formal hearings.

What the PIC does not do

Disputed common law damages claims still go to the District or Supreme Court. However, the PIC must mediate the dispute first and/or provide a certificate before proceedings can be commenced.

As it is not a court, the PIC cannot determine matters that involve federal jurisdiction. The PIC Act provides a mechanism to send proceedings that involve federal jurisdiction to the District Court.

The Workers Compensation Independent Review Office (WIRO) is now known as the Independent Review Office (IRO). It continues to manage disputes regarding insurers previously managed by WIRO, with the addition of CTP insurers for motor accident claims. IRO also continues WIRO’s previous responsibility for the funding of workers compensation claims via the existing ILARS grants.

No change to the substantive law

The establishment of the PIC and the transfer to it of dispute resolution functions does not affect the underlying substantive law.

There is no change to the entitlements of injured persons to damages, benefits and entitlements under either workers compensation or motor accidents legislation.

Transitional provisions

Transitional provisions are set out in the Personal Injury Commission Regulation 2020.

For existing matters – that is, claims lodged before the commencement of the PIC on 1 March 2021 – the PIC deals with disputes and medical assessments. However it does so under the previous legislative framework – so the Workers Compensation Commission Rules 2011 and the existing provisions of the motor accidents legislation. That includes appeals, so for any arbitrated decision that was heard before 1 March 2021, but which is appealed after 1 March 2021, the appeal proceeds on the basis of the pre-existing legislation.

By Lawyers keeps you up to date!

All relevant By Lawyers publications have been updated in line with the commencement of the Personal Injury Commission. Commentary and precedents have been amended, replaced or added wherever required in our Workers Compensation, Motor Accidents and District Court publications.

Workers’ compensation – QLD

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Recent amendments to workers’ compensation legislation have commenced in Queensland.

All workers’ compensation provisions of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2019 have commenced as of 1 July 2020. They mostly apply only in relation to new claims.

The amendments include:

  • extending workers’ compensation coverage to unpaid interns;
  • requiring employers and insurers to provide ongoing rehabilitation and return to work services if the injured worker has been unable to return to work after their entitlement to weekly benefits and medical expenses ceases;
  • requiring employers and insurers to take reasonable steps to provide support services for workers with psychiatric and psychological injuries on a without prejudice basis while their claims are being assessed;
  • removing the requirement for the worker’s employment to have been the major significant contributor to a worker’s psychiatric or psychological injury;
  • making the decision of an insurer not to provide support services to workers with psychiatric and psychological injuries reviewable;
  • extending circumstances in which insurers have discretion to waive time requirements for lodging an application;
  • replacement of dollar amounts of compensation with reference to QOTE, being the seasonally adjusted amount of Queensland full-time adult ordinary time earnings, as declared by the Australian Statistician;
  • requiring self-insured employers to report injuries and payments to WorkCover;
  • making provision for qualification, via accredited training, of the rehabilitation and return to work coordinators that employers must appoint under the Act;
  • providing that apologies or expressions of regret by employers regarding workplace injuries are not admissible or able to be considered on the question of liability in an action for common law damages – this applies retrospectively to apologies or expressions of regret made before the commencement of these amendments.

The By Lawyers Queensland Workers’ Compensation publication has been updated accordingly.

1 July updates – All states

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1 July updates are a big focus for By Lawyers. This is because many Commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Out of time claims – Workers Comp – NSW

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Out of time claims under the Workers Compensation Act 1987 were considered in the recent Supreme Court decision of Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102.

Section 151D (2) of the Act provides that common law claims must be brought within 3 years of the date of injury. Out of time claims require the leave of the court in which the claim is brought. In Hole, Button J granted leave to commence proceedings some four years out of time on the basis that the plaintiff had adequately explained the delay.

Interestingly, the essence of the explanation was the plaintiff’s extended engagement in the claims process under the Workplace Injury Management and Workers Compensation Act 1998. The Court noted that: ‘…there is a whole structure, external to the Court in which litigation is to commence, in which one must engage in an effort to have the matter resolved away from Court.’

In that context, the Court also noted that this was not a case where anybody involved in the litigation was ‘taken by surprise‘, or prejudiced by the delay.

In its consideration of the matter the Court followed the principles relating to a grant of leave for out of time claims set out in Smith v Grant [2006] NSWCA 244.

These helpful cases have been added to the By Lawyers Workers Compensation (NSW) Guide. A link to s 151D has also been added to the Retainer Instructions precedent on the matter plan in that Guide.

Workers Compensation – NSW

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The By Lawyers Workers Compensation – NSW publication has been updated.

The final provisions of the Workers Compensation Legislation Amendment Act 2018 commenced on 21 October 2019.

The amendments include the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings.

The new Schedule 3 to the Workers Compensation Act 1987 provides the method for determining pre-injury average weekly earnings. Insurers and workers may now agree on a figure.

The relevant section of the By Lawyers Workers Compensation – NSW commentary has been updated accordingly.

Workers Compensation guide – NSW

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The By Lawyers Workers Compensation guide has received an extensive author review. The matter plan has been amended in accordance with the commentary updates. This reflects recent amendments to the Workers Compensation Act 1987. New precedents have also been added.

The following are excerpts from the updated commentary in our NSW Workers Compensation guide:

Interaction with the Motor Accident Injuries Act 2017

For clients who have suffered injuries which require significant ongoing treatment into the future, or who have an established entitlement to payment of ongoing weekly income benefits, the value of ongoing and future benefits must be considered and explained to the client so that instructions to finalise the MAIA claim and therefore finalise all future workers compensation benefits are given on a fully informed basis. The advice given and the instructions received must be fully recorded in a file note and the client required to sign a written authority to settle on that basis.

There is a precedent Authority to settle available on the matter plan.

Entitlement to weekly benefits

The extent of any entitlement to weekly benefits is assessed with regard to the capacity of the injured worker to undertake some form of employment and is reviewed by a twenty-eight-day cycle. This entitlement to weekly benefits cannot be regarded as fixed and final until retirement age even where the worker has suffered a serious injury.

An injured worker is required to provide to the insurer a Certificate of Capacity from the treating doctor. This certificate is required to contain the opinion of the doctor about work capacity even where work which is stated to be within the capacity of the injured worker is not available.

The insurer is not required to accept the treating doctor’s opinion and may adopt the opinion of its own doctor.

The insurer is required to make a Work Capacity Decision based upon available, proper information.

Precedent letters to the client’s treating and specialist doctors, requesting the doctor’s opinion about work capacity, are available on the matter plan.

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