Compensation for Commonwealth employees

Monday 8 July 2019
Grace Bowran-Burge

Originally published in Precedent Magazine

Comcare is a national compensation scheme, originally established to provide standardised and consistent compensation for Commonwealth employees who are injured at work.[1] The scheme was subsequently expanded to cover prescribed large businesses.

The Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’), often called the Comcare Act, is the primary piece of legislation in the Comcare scheme. The SRC Act dictates which workers are covered by the scheme, the compensation (both economic and non-economic) available to those workers, and the requirements a worker must demonstrate to access this compensation. It also establishes Comcare as the relevant insurer, regulator and manager of the scheme.

Why is the scheme important?

Responsibility for implementing workers’ compensation schemes and workplace health and safety in Australia has traditionally resided with state and territory governments. This can create problems when applied to national employers. From an employer perspective, it can be impractical and difficult to administer different workers’ compensation schemes across multiple employees within one organisation or corporation. From an employee perspective, it can seem unfair that two employees who sustain work related injuries within the same organisation or corporation can be treated differently depending on their location at the time of injury.

The Comcare scheme provides all those covered with a consistent safety, rehabilitation and compensation system, no matter what Australian state or territory an employer operates in or where its employees are located.

Who is covered by Comcare?

Although initially established to cover Commonwealth employees, the scheme today also covers employees of the ACT government and members of the Australian Federal Police Force. In addition, large corporations are now able to apply to the Safety, Rehabilitation and Compensation Commission for a licence to self-insure their workers’ compensation liabilities and/or claims management. [2] If successful, the self-insurer will assume the responsibilities of Comcare and the SRC Act will apply to all employees of that corporation.

Currently there are over 35 companies who self-insure under the Comcare scheme, including, but not limited to:

  • Wilson Security;
  • Virgin Airlines;
  • Telstra;
  • Reserve Bank of Australia;
  • Optus;
  • Medibank Private;
  • National Australia Bank;
  • Linfox;
  • John Holland;
  • Commonwealth Bank of Australia; and
  • Australia Post.[3]

Benefits Available under the Comcare Scheme

The SRC Act provides employees who sustain a work related injury with a variety of benefits. These benefits include:

  • Payment of medical expenses. [4]
    • These may include regular doctor appointments, psychological counselling, physiotherapy and massage treatments.
  • Payment of aids, appliances and modifications.[5]
    • These may include glasses, orthopaedic shoes, artificial limbs, telephones for the visually impaired, and various car, workplace and household modifications
  • Payment of household and attendance care services.[6]
    • These may include cooking, house cleaning, laundry and gardening services.
  • Incapacity payments.[7]
    • Incapacity payments are payable until retirement age, assuming the worker remains incapacitated for their pre-injury employment by virtue of their work-related injury.
      • For the first 45 weeks of incapacity, compensation is payable at 100 per cent of the employee’s normal weekly earnings, subject to any amount the worker is actually earning through their employment.
      • If an employee is incapacitated for longer than 45 weeks, the compensation is then calculated based on the percentage of normal weekly hours the employee worked during the week.
  • Lump sum compensation.
    • The SRC Act provides for lump sum compensation when an employee suffers a permanent impairment as a result of their work related injury. [8] ‘Impairment’ is defined as the loss of use, damage or malfunction of any part of the body or of any bodily system or function, or part of such system or function.[9] A worker’s degree of impairment is expressed as a percentage based on the concept of ‘whole person impairment’.  An assessment of 10 per cent or higher (excluding assessments for hearing loss, loss of finger, toes, taste or smell) attracts lump sum compensation. Often, a small non-economic loss lump sum is also payable to the injured worker. [10]

 

Where an employee’s death is the result of a work-related injury, compensation is also available to the employee’s dependents.[11] Compensation includes:

  • A lump sum payment to dependants who were financially dependent on the deceased;[12]
  • Fortnightly payments for each child who was a dependant of the employee at the date of death and is under the age of 16, or aged between 16 and 25 and receiving full-time education and not working;[13] and
  • Payment or reimbursement of funeral expenses.[14]

 

Somewhat uniquely for a workers’ compensation scheme, if a Comcare employee has an accident arising out of their employment and the accident does not cause injury but results in property loss or damage, Comcare is also liable to compensate the employee for the amount which will be reasonably incurred by the employee in the replacement or repair of the property.[15] The remainder of this article focusses on claims where an injury is sustained, rather than property damage claims.

Accessing the Available Benefits

In order to access the benefits available, a worker must first have their Comcare claim accepted. This requires a worker to demonstrate:

  1. They are an employee of the Comcare organisation or company they are lodging a compensation claim with;
  2. They have sustained an injury.
    • Injury is defined in section 5A of the SRC Act to include disease[16], a physical or mental injury (other than a disease) or an aggravation of a physical or mental injury;
  3. This injury has the requisite connection to the worker’s employment with the Comcare organisation or company; and
  4. This injury is not a result of reasonable administrative action.

Importantly, the Comcare scheme is a no-fault scheme. It does not require an injured worker to demonstrate negligence on the part of their employer.

Requisite Connection

Where the claimed condition is an injury, the worker must demonstrate the injury has arisen “out of or in the course of employment.”[17] Where the claimed condition is a disease, the worker must demonstrate the disease was “contributed to, to a significant degree by the employee’s employment.”[18] Generally, psychiatric conditions are classified as diseases, rather than injuries, however in instances where “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” has occurred, this classification may not be appropriate. [19]

Reasonable Administrative Action

Where a worker’s injury is a result of reasonable administrative action, taken in a reasonable manner, they are disentitled to claim compensation. Section 5(a) and 5(b) of the SRC Act offers a non-exhaustive list of what constitutes reasonable administrative action, including:

  1. A reasonable appraisal of the employee‘s performance;
  2. A reasonable counselling action (whether formal or informal) taken in respect of the employee‘s employment; 
  3. A reasonable suspension action in respect of the employee‘s employment; 
  4. A reasonable disciplinary action (whether formal or informal) taken in respect of the employee‘s employment; 
  5. Anything reasonable done in connection with an action mentioned in paragraph(a), (b), (c) or (d); 
  6. Anything reasonable done in connection with the employee‘s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. 

In accordance with the High Court’s decision in Comcare v Martin [2016] HCA 43, where the taking of the administrative action is an event without which the employee would not have suffered an ailment or aggravation significantly contributed to by their employment, they are disentitled to compensation.[20]

Other carve outs

A worker is also disentitled to claim compensation where their injury is intentionally self-inflicted, or where their injury is caused by the serious and wilful misconduct of the employee, unless the injury results in death, or in serious and permanent impairment.[21]

Disputes under the Comcare Scheme

Where a worker disagrees with a decision made by Comcare, they are entitled to request a reconsideration.[22] Reconsiderations requests can be made on any determination, including the decision to reject a claim entirely, to reject certain injuries, to reject claimed medical expenses and on the calculation of a worker’s whole person impairment. A reconsideration is a review of the decision by a different Comcare delegate. It is not a re-investigation of the claim. A request for reconsideration must be given to Comcare within 30 days of the day on which the determination is received.[23] The request must be in writing and must set out the reasons for the request.[24]

The outcome of the reconsideration will be in writing and is called a reviewable decision.[25] Comcare may vary, affirm or revoke the original decision. A reviewable decision can then be challenged in the Administrative Appeals Tribunal (‘AAT’).[26]

The AAT must take a fresh look at the decision, including considering any new information, and decide if the reviewable decision should remain or be changed. An application to the AAT must be made within 60 days of receiving the reviewable decision, must be in writing, and must contain a statement of the reasons for the application.[27]

Decisions of the AAT can be appealed to the Federal Court.[28]

Common Law within the Comcare Scheme

As well as containing the no-fault statutory scheme, the SRC Act also places limitations on worker’s wishing to sue their Commonwealth employer for negligence.

In order to commence common law proceedings against their Comcare employer, a worker must first make a Permanent Impairment claim and be assessed as suffering a whole person impairment of 10% or higher.[29] The worker must then make an election. Should the worker elect to receive their lump sum entitlement they will be prevented from bringing common law proceedings, i.e. suing their Comcare employer for their work-related injury.[30] Alternatively, a worker may elect to institute common law proceedings and not receive the lump sum benefit. An election is irrevocable.[31]

Should a worker elect not to receive the lump sum benefit, and instead commence common law proceedings against their Comcare employer, this claim cannot be brought for economic loss (also known as loss of wages).[32]  Moreover, as dictated by section 45(4) a court cannot award an employee damages exceeding $110,000 for non-economic loss. These two sections, read together, prevent a Comcare employer from receiving more than $110,000 for their work-related injury from their employer.

Importantly, a worker has three years in which to commence common law proceedings against their Comcare employer.[33]

Comcare Statistics

Under section 69 of the SRC Act, Comcare is required to conduct and promote research into, and publish material relating to, the rehabilitation of employees and the incidence and prevention of injury to employees. The following statistics were published on Comcare’s website in fulfilment of this requirement.[34]

Size of the Scheme

As at 31 December 2018, 395,707 full time workers were covered by the Comcare scheme, including:

  • 44 per cent of all public administration and safety employees;
  • 17 per cent of all financial and insurance employees;
  • 17 per cent of all transport, postal and warehousing employees; and
  • 12 per cent of all information, media and technology employees.

Types of Incidents

In 2017 – 2018 Comcare was notified of 1883 workplace incidents. Of these incidents:

  • 62 per cent were “dangerous incidents.”
    • A dangerous incident is an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from immediate or imminent exposure to various things, including fire, gas, steam and various substances;
  • 36 per cent were “serious incidents.”
    • A serious incident is an incident were a worker requires immediate treatment as an in-patient in a hospital, medical treatment within 48 hours of exposure to a substance, or medical treatment for injuries such as amputations, head injury, eye injury or spinal injuries; and
  • 2 per cent resulted in fatalities.

Types of Claims

The most common types of Comcare claims for the 2017 – 2018 year were:

  • Body stressing claims (41 per cent);
  • Falls trips and slips (23 per cent);
  • Being hit by moving objects (12 per cent);
  • Vehicle incidents (9 per cent); and
  • Mental stress (7 per cent).

Claim Acceptance Rates

Over the past five years the number of new claims received and accepted in the Comcare scheme has been trending down.

  • Between 2014 – 2015 an average of 18.9 Comcare claims were made per 1,000 full time Comcare workers, with 14.8 accepted;
  • Between 2015 – 2016 an average of 16.4 Comcare claims were made per 1,000 full time Comcare workers, with 11.9 accepted; and
  • Between 2016 – 2017 an average of 15.2 Comcare claims were made per 1,000 full time Comcare workers, with 11.4 accepted

Concluding Remarks

The Comcare scheme is a technically challenging scheme, which can often make it a difficult jurisdiction for both injured workers’ and practitioners. Despite this, the SRC Act remains an important piece of workers’ compensation legislation, providing all those covered with a single safety, rehabilitation and compensation system, regardless of their location within Australia.

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[1] Commonwealth, Parliamentary Debates, House of Representatives, 22 April 1971, Mr Wentworth.

[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) part VIII.

[3] For a full list of current self-insurers, see https://www.srcc.gov.au/information_for_self-insurers/licensees

[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16.

[5] Ibid s 39.

[6] Ibid ss 29 and 29A.

[7] Ibid s 19.

[8] Ibid ss 24 – 26.

[9] Ibid s 4.

[10] Ibid s 27.

[11] Ibid Division II

[12] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 17(3).

[13] Ibid s 17(4).

[14] Ibid s 18.

[15] Ibid s 15

[16] Injury is defined in term to include an ailment or aggravation of an ailment

[17] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.

[18] Ibid s 5B.

[19] Kennedy Cleaning v Petksoska [2000] 200 CLR 286 at 300 [39] per Gleeson CJ and Kirby J.

[20] Comcare v Martin [2016] HCA 43 [45]

[21] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14.

[22] Ibid Part VI.

[23] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62

[24] Ibid s 62

[25] Ibid s 63.

[26] Ibid s 64

[27] Ibid s 65 and Administrative Appeals Tribunal Act 1975 (Cth) s 29.

[28] Administrative Appeals Tribunal Act 1975 (Cth) s 44.

[29] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 45.

[30] Ibid s 45(2)

[31] Ibid s 45 (3)

[32] Ibid s 44(1)

[33]Limitation of Actions Act 1958 (Vic) s 27D. 

[34] https://www.comcare.gov.au/the_scheme

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