Comcare

If you are a Commonwealth employee injured at work your entitlements are governed by the Commonwealth Safety & Rehabilitation Act.

Pursuant to this legislation, you have two separate sets of rights and entitlements which need to be protected.

A. NO FAULT BENEFITS UNDER THE WORKERS COMPENSATION SCHEME

Under the no fault scheme, you have basically three sets of rights and entitlements:

1. your entitlements to weekly payments of compensation;
2. payment of medical, rehabilitation and like expenses;
3. if you have an impairment of greater than 10% under the Comcare Guides, to a lump sum under section 24/section 27.

It is important that:

• injuries which you sustained and the circumstances of those injuries are reported to your employer and recorded in the Accident Report Book;
• the claim for compensation application form which you lodge, you have recorded all injuries which you have sustained and their sequelae;
• You continue to lodge medical certificates on the prescribed form for your employer. You should ensure that your treating doctor records on the medical certificates all injuries which you have suffered;
• You have a statutory obligation to participate in rehabilitation;
• Your employer/insurer will require you to attend medical assessments from time to time. You have an obligation to attend and cooperate with these assessments.

The decision made by a Comcare insurer takes the form of “determinations”. You should note that you have only 28/30 days in which to seek a reconsideration of any adverse determination. Should this occur, once the reconsideration has been undertaken you will then receive what is known as a “reviewable decision”. If you are dissatisfied with that “reviewable decision” you then have only 60 days in which to have an appeal lodged to the Administrative Appeals Tribunal.

If you have sustained a permanent impairment you may be entitled to a lump sum under section 24/section 27. Please note that there is a threshold which applies to the majority of injuries. That threshold is a 10% impairment pursuant to the Comcare Guides to Permanent Impairment. If you do not satisfy that threshold, in the majority of cases you would not be entitled to any impairment benefit.

B. COMMON LAW

If you have been injured by reason of the negligence of your employer (or third party) you may wish to sue your employer for damages. In Comcare matters, those damages are restricted to what is known as general damages for pain and suffering and loss of enjoyment of life. The amount of compensation is currently capped at $110,000 (2010).

In order to pursue a common law claim against your employer it is necessary for you to:

1. proceed with an impairment application and obtain an assessment of 10% or more pursuant to the Comcare Guides to Permanent Impairment;
2. make an irrevocable election to proceed with a common law claim for damages. This means that you will not receive whatever impairment benefit entitlement you may otherwise have had;
3. prove that your injuries were due to the negligence of your employer (or third party).

Should your injuries have been caused by the negligence of a third party, then you are able to pursue a claim against that negligent party without the restrictions otherwise imposed by the statutory Workers Compensation scheme. Thus you are able to proceed with a claim for:

• pain and suffering and loss of enjoyment of life
• medical expenses
• economic loss.

You would, however, have to satisfy the State Civil Liability thresholds and requirements (see Public Liability section). In these circumstances, you would have to refund to the Comcare insurer all benefits which they made to you or on your behalf.

Please note that there is a limitation of actions period for bringing of common law claims. In Victoria, this is three years. In some special circumstances it is possible to get an extension beyond the limitation period but no guarantees can be given as to the success of such an application and every endeavour should be made to ensure that proceedings are instituted within the limitation period.