Additional payments if work related treatment, care and support damages insufficient

The passing of the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016 on 8 September 2016, provides a regime for lifetime treatment, care and support for workers who sustain serious personal injuries in workplace accidents.

The new scheme applies in relation to serious personal injury sustained by a worker on or after 1 July 2016.

A concerning issue for WorkCover Queensland and self insurers moving forward is the provision in the legislation dealing with claims in the future for additional payments.

Section 232ZD of the amending legislation states:

“(1) This section applies if –

(a) the worker accepted treatment, care and support damages awarded for the worker’s injury within the acceptance period; and

(b) the period, of at least 5 years, prescribed by regulation has passed since the worker accepted the awarded treatment, care and support damages; and

(c) the worker considers the amount of awarded treatment, care and support damages is not sufficient to meet the worker’s necessary and reasonable treatment, care and support needs resulting from the the injury.

(2) The worker may apply to the insurer for treatment, care and support payments for the injury.”

It is readily apparent how this provision will be of concern to workers’ compensation insurers. A worker who has accepted treatment, care and support damages is not precluded, after 5 years has passed, from seeking additional funding if they consider the original award was not sufficient to meet their needs.

So a common law claim that is settled by Court Order or out of Court by a signed Release and Discharge, can possibly be revived at a later time.

No-one can predict with any degree of certainty what the number of such requests for additional funding will be. Whereas such additional payments under the CTP scheme will be funded by the levy on motor vehicle registrations in Queensland, workers’ compensation insurers have no such safeguard. Any additional payments in the future will need to be funded through the workers’ compensation scheme directly.

The conditions for re-entry into the scheme after damages are exhausted, or considered insufficient, are still be established.