Do injured workers in QLD have to meet an impairment threshold to sue for Common Law Damages for work injury?
Yes, this is true but only for all work injuries occurring between the dates of 15 October 2013 to 30 January 2015.
For injuries occurring before or after this period no threshold applies.
If you are injured at work and it was due to the negligence or wrongful act or omission of your employer, then you can sue for Common Law Damages in order to be properly compensated for the loss and damage your injuries cause you.
The Degree of Permanent Impairment (DPI)
In October, 2013, the Queensland Government passed legislation amending the Workers' Compensation and Rehabilitation Act 2003 introducing a threshold Degree of Permanent Impairment (DPI) that a worker must have sustained from their work injury, before they have any entitlement to sue for Common Law damages.
The threshold is stated in the Act to be 5%, however, the Degree of Permanent Impairment must be more than this. Therefore, in reality, the threshold is actually 6%.
There are different mechanisms for Permanent Impairment & Psychiatric Impairment
Injuries are assessed under the Guide for Evaluation of Permanent Impairment (GEPI). Psychiatric injuries are assessed under the Psychiatric Impairment Rating Scale or the PIRS.
If an injured worker does not achieve a total 6% Degree of Permanent Impairment in their Notice of Assessment issued at the end of their workers' compensation claim, then they will have no right to sue their employer for compensation for their work injury.
It is important to note that physical injuries and psychiatric injuries are not combined.
The Degree of Permanent Impairment for your physical injuries will be totalled separately to your psychiatric injuries.
They cannot be added together to provide you with a total of 6%.
However, if you achieve a total Degree of Permanent Impairment for your physical injuries of 6%, but you do not achieve a total of 6% for your psychiatric injuries, you can still bring a Common Law claim for all of your injuries.
Both physical and psychiatric and vice versa - you only need to achieve a total Degree of Permanent Impairment of 6% for either your physical or psychiatric injuries to achieve entitlement to sue for compensation and damages.
What if I don't meet the threshold required to bring a Common Law claim?
Then you can seek review of your Degree of Permanent Impairment assessment, although the review avenues are somewhat limited. It should be noted however, that this only applies to injuries occurring from 15 October 2013 to 30 January 2015.
This is because in September 2015 the Labor Government overturned the Newman amendments, reverting back to the former scheme, where no impairment threshold existed.
So for those injured at work before 15 October 2013 and from 31 January 2015, and the injury has been caused or contributed to by the negligence of their employer, then they can bring a claim for Common Law Damages against their employer whether they achieve any impairment rating or not.
The date of injury is actually taken as the day you first seek medical treatment from a doctor
If you sustained an injury over a period of time, then the date of injury is actually taken as the day you first seek medical treatment from a doctor, nurse, medical practitioner and in some cases a Dentist.
So when looking at the date of your injury in an over period of time claim, whether your injury falls within the Newman legislation where you require to meet the 6% DPI threshold, will depend on when you first sought treatment for the injury from one of these medical providers.
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