Last updated 28 March 2018
On 8 September 2016, the ambit of the National Injury Insurance Scheme (the Scheme) was expanded to potentially apply to injuries sustained during the course of employment. Applications of the Scheme are covered under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).
To be eligible, a worker must establish that they:
- meet the same criteria specified in the WCR Act to be eligible to receive compensation under that Act (see WorkCover Statutory Compensation) and
- have sustained a serious personal injury as defined in the National Injury Insurance Scheme (Queensland) Act 2016 (Qld) (NIIS Act) and set out above.
However, a worker will NOT be eligible for the Scheme if they sustained their injury or injuries in the circumstances set out in ss 34(1)(c) or 35 of the WCR Act, that is:
- they sustain an injury while temporarily absent from their place of employment during an ordinary recess
- they are on a journey between their home and place of employment
- they are on a journey between their home or place of employment and a trade, technical or other training school that:
- they are required to attend under the terms of their employment
- the employer expects them to attend
- for an existing injury for which compensation is payable to them, they are on a journey between their home or place of employment and a place to:
- obtain medical or hospital advice, attention or treatment
- undertake rehabilitation
- they are on a journey between their place of employment with one employer and their place of employment with another employer
- they are attending a school (as mentioned above) or a place (as mentioned above).
In addition, an injured worker will be ineligible if the incident giving rise to their injury was caused by the worker’s serious and wilful misconduct.
On acceptance of an injured worker’s application for statutory compensation, the worker can request to be assessed, or the workplace insurer can decide to have the worker assessed, to determine whether the worker has sustained a serious personal injury. If assessed with such an injury, the worker will be an eligible participant in the Scheme and entitled to receive benefits on account of treatment, care and support needs.
The workplace insurer must ensure this assessment is carried out within 20 days of the request being made (s 232M(3) WCR Act), unless otherwise agreed by the parties. After the assessment, the injured worker will be advised of their eligibility in writing within 10 days of a decision being made (s 185 WCR Act).
An injured worker may be assessed as either a lifetime or an interim participant (s 232M(4)(a) WCR Act).
If accepted as a lifetime participant, the Scheme will pay for any necessary and reasonable treatment, care and support, resulting from the workplace injury or injuries, for as long as the worker chooses to be a part of the Scheme.
If the worker is deemed to be an interim participant, the Scheme will pay these costs for a period of two years. At the end of the two-year interim period, the worker will be reassessed to determine whether they are eligible to be a lifetime participant (s 232S WCR Act).
Once accepted, in either a lifetime or interim capacity, the relevant workers compensation insurer will manage the interplay between the worker’s receipt of statutory compensation and benefits under the Scheme.
If an injured worker disagrees with the outcome of their assessment, they are able to have the decision reviewed. In the first instance, the aggrieved worker will have three months from the date of the original decision by the relevant insurer to lodge an application for review with the Workers’ Compensation Regulator.
In the event the regulator affirms the insurer’s decision, the aggrieved worker will then have the right to lodge a notice of appeal with the Queensland Industrial Relations Commission. The notice of appeal must be lodged within 20 business days of the worker receiving the regulator’s decision.
Common law damages
A participant in the Scheme reserves the right to bring a common law claim for damages.
However, any participant in the Scheme who is considering pursuing a common law claim for damages should seek legal advice in respect to whether they should seek, and accept, damages on account of any treatment, care and support needs. This is because, in accepting damages on account of such needs, the participant will be precluded from receiving benefits under the Scheme in the future.