Comcare

What is workers compensation

Workers’ compensation is a type of insurance that can offer you a safety net if you have sustained a work-related injury or illness.

It is a legal requirement for employers to have workers’ compensation insurance to cover their workers should they get injured or sick.

This type of insurance offers financial support to help you get better without having to worry about funding your treatment. In addition, it offers vocational rehabilitation assistance to help you return to pre-injury duties or, if that is not feasible, to pay for retraining to enable you to return to the workforce.

The entitlements vary depending on type of workers’ compensation scheme your employer is part of and depending on your injury or illness. The entitlements may include:

• weekly payments of compensation (wages) whilst you are unfit for work
• hospital and treatment costs
• vocational rehabilitation expenses
• a lump sum payment if you have sustained a permanent impairment
• payment for funeral expenses for dependents to support your family if you are tragically killed at work
• domestic assistance

There are 11 workers’ compensation schemes in Australia. There is a scheme in each state and territory (each providing different entitlements) and three Commonwealth schemes (Comcare, for example). Each system is governed by different laws, although there is some overlap.

Comcare is a national workers’ compensation system that covers employees of Australian Government agencies and corporations licensed by the Safety Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) including individuals making claims against the Commonwealth for asbestos-related conditions, the ACT Government and a handful of private companies.

If your employer is operating under the Comcare scheme at the time of your accident or other work- related injury, you are entitled to claim compensation under the SRC Act.

If you have suffered a work-related injury including a psychological injury, or an aggravation or exacerbation of a pre-existing condition, contact RZ Injury Lawyers as soon as possible.

The Comcare scheme is complex, and without specialist legal advice you may not receive your full entitlements. Legal advice and representation can dramatically improve the outcome of your case. Remember that strict time limits apply, and it is best to engage a lawyer as soon as possible so that you are aware of your rights and obligations throughout the entire process.

Generally, all Commonwealth and ACT Government employees are covered by the Comcare Scheme. A small number of private companies who are licensed ‘self-insurers’—that is, large national employers who insure their employees under the Comcare Scheme. This includes:

• ANZ Bank
• Linfox
• Telstra
• Australia Post
• Ramsay Healthcare
• StarTrack
• Wilson Security
• John Holland
• Toll Group Transport Company; and
• the Commonwealth Bank.

The Comcare scheme includes:

• workers employed on a full time, part time, and causal basis
• apprentices and trainees
• contractors (in most situations)
• municipal counsellors
• secondary school or TAFE students
• undergraduate and postgraduate students (in some situations)

If you sustained your injury while you were a public servant, you remain entitled to compensation even though your employment has ended.

If you are unsure if your employer is insured under the Comcare scheme or a state-based workers’ compensation, your employer or your union will be able to advise you on that.

What can I claim under Comcare?

In some ways, Comcare is similar to the more common state based workers compensation scheme in Western Australia, although the entitlements in each system vary. Each system is a “no fault system”, which means that, except in limited circumstances, you are entitled to compensation regardless of whose fault the injury or illness results from.

Lump sum payment under Comcare?

If you sustain a permanent disability as a result of a work injury you may be entitled to a lump sum payment. Assessing a lump sum payment can be complicated. It is usually only paid once, so it is therefore important to seek legal advice about this payment. It is also a payment that is not taxed. Lump sum payments for permanent impairment can run into the hundreds of thousands of dollars.

What injuries or illnesses are covered under Comcare?

Various types of injuries are covered including physical injuries to your neck, back, arms, legs, teeth, jaw, head, etc.

You are also covered for numerous diseases and medical conditions including asbestos diseases, heart problems, cancer, dermatitis/skin disorders, respiratory conditions, stroke, psychiatric/psychological conditions, and others.

Differences between Comcare and Workers Compensation scheme

The main differences between Comcare and the state-based workers compensation is that Comcare provides access to weekly payments until normal retirement age if you have demonstrated ongoing incapacity for work. By contrast, the prescribed amount for weekly payments payable under the WA workers’ compensation system is approximately $240,000.

How to claim compensation

If you have suffered an injury or illness, and your employer is covered under Federal scheme it is important that you report to your employer the injuries you have suffered, and the circumstances of those injuries as those will be recorded in the Accident Report Book. You lodge the Claim for Compensation Application Form, and the form will state all injuries which you have sustained and their consequences.

Once you have lodged your claim, you need to attend medical appointments on a regular basis to enable your treating doctor to record all your injuries on the medical certificates.

Your injury could be deemed as occurring at work if it occurred:

• during lunch or other authorised breaks
• whilst travelling to or from work
• At a work function and even away from your place of employment provided that your employer encouraged you to be there for work purposes (even on a weekend or outside “normal working hours”)
• Whilst travelling to a work function or an approved work activity
• Whilst participating in an approved sporting activity
• During a work training session
• When travelling to and/or from medical treatment for a work injury.

How much weekly payment will I get?

Generally, the rate of weekly payments is based on your usual earnings before injury, including usual overtime and allowances. Incapacity payments may change depending on the following factors:

• For the first 45 weeks, you will receive 100% of your normal weekly earnings, minus any income you are still earning;
• The 45 weeks are cumulative, not consecutive. For example, if you take one day a week off for medical treatment, this counts as one day toward your 45 week total.

If, after 45 weeks, you are still unable to work at your pre-injury capacity, your weekly payments will vary.

Some compensation claims are accepted within weeks. If a claim is rejected, however, and challenged through a court, the process can take up to one year or longer.

Other factors that influence timing are:

• your rehabilitation progress
• waiting for your injury to stabilise (for lump sum payment claims)
• your prospects of returning to work; and
• waiting on medical evidence.

Generally speaking, you should engage a lawyer as soon as possible. They can make sure your interests are protected at every stage of the process.

Can I sue my employer for negligence?

If your injury or illness was the result of your employer’s negligence, you may also have a common law damages claim.

Under the Comcare Scheme, your claim for damages is restricted to ‘general damages’—that is, pain and suffering, and loss of enjoyment of life.

To make a successful common law negligence claim you must:

• Have developed an injury or illness during the course of your normal work,
• Meet the 10% permanent impairment threshold, and
• Prove that your employer was negligent in their duty of care to you, and
• Establish that their negligence caused your injury or illness

You have three years from the date of your injury or illness to begin a negligence claim against your employer.

Making a Comcare negligence claim extinguishes your right to claim a lump sum for permanent impairment, so it is crucial to consider your options before seeking damages. It is extremely important to seek legal advice before deciding whether to sue your employer for damages.

Why should involve RZ Injury Lawyers in my claim?

At RZ Injury Lawyers we’ll determine whether you have a claim and provide advice in plain English. In addition, we will:

• Handle all negotiations with Comcare and the insurer on your behalf
• Maximise your entitlements
• Challenge medical and other evidence provided by the insurer
• Represent you should legal proceedings be necessary
• Investigate any additional financial benefits you may be entitled to (for example, TPD)
• Recommend the best and most efficient strategy to progress your claim

What if my Comcare claim has been rejected?

If Comcare have denied your claim and you wish to have the decision reviewed, you must make a written request for reconsideration within 30 days.

Comcare are then required to consider the decision again and hand down a new written decision, referred to as a ‘reviewable decision’.

Should you wish to further contest this decision, you must lodge an appeal with the Administrative Appeals Tribunal within 60 days.

Lodging a successful appeal can be complex. If your claim has been denied, it’s important to get advice from an experienced lawyer before applying for a review or an appeal. They will assess your application, provide advice on your individual circumstance, and ensure your claim has the greatest chance of success.

Disputing a claim at the Administrative Appeals Tribunal (AAT)

We have significant experience advising Commonwealth Employees and their families (when necessary) in appeals to the Administrative Appeals Tribunal (AAT) to dispute decisions made by other compensating authorities. This can be a complex process and often involves technical legal points. Accordingly, it is important to seek advice from a lawyer who specialises in this area of work.

How much will it cost to make a claim?

At RZ Injury Lawyers we will provide you with a free initial consultation to discuss your injury and the circumstances in which it arose. If we consider your claim to have good prospects, we will represent you on a ‘no win, no fee’ basis, which means you will not pay any legal fees unless you win your case.