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. 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.
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.
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.  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:
The SRC Act provides employees who sustain a work related injury with a variety of benefits. These benefits include:
Where an employee’s death is the result of a work-related injury, compensation is also available to the employee’s dependents. Compensation includes:
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. The remainder of this article focusses on claims where an injury is sustained, rather than property damage claims.
In order to access the benefits available, a worker must first have their Comcare claim accepted. This requires a worker to demonstrate:
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.
Where the claimed condition is an injury, the worker must demonstrate the injury has arisen “out of or in the course of employment.” 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.” 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. 
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:
In accordance with the High Court’s decision in Comcare v Martin  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.
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.
Where a worker disagrees with a decision made by Comcare, they are entitled to request a reconsideration. 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. The request must be in writing and must set out the reasons for the request.
The outcome of the reconsideration will be in writing and is called a reviewable decision. Comcare may vary, affirm or revoke the original decision. A reviewable decision can then be challenged in the Administrative Appeals Tribunal (‘AAT’).
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.
Decisions of the AAT can be appealed to the Federal Court.
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. 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. Alternatively, a worker may elect to institute common law proceedings and not receive the lump sum benefit. An election is irrevocable.
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). 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.
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.
Size of the Scheme
As at 31 December 2018, 395,707 full time workers were covered by the Comcare scheme, including:
Types of Incidents
In 2017 – 2018 Comcare was notified of 1883 workplace incidents. Of these incidents:
Types of Claims
The most common types of Comcare claims for the 2017 – 2018 year were:
Claim Acceptance Rates
Over the past five years the number of new claims received and accepted in the Comcare scheme has been trending down.
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.
 Commonwealth, Parliamentary Debates, House of Representatives, 22 April 1971, Mr Wentworth.
 Safety, Rehabilitation and Compensation Act 1988 (Cth) part VIII.
 For a full list of current self-insurers, see https://www.srcc.gov.au/information_for_self-insurers/licensees
 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 16.
 Ibid s 39.
 Ibid ss 29 and 29A.
 Ibid s 19.
 Ibid ss 24 – 26.
 Ibid s 4.
 Ibid s 27.
 Ibid Division II
 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 17(3).
 Ibid s 17(4).
 Ibid s 18.
 Ibid s 15
 Injury is defined in term to include an ailment or aggravation of an ailment
 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
 Ibid s 5B.
 Kennedy Cleaning v Petksoska  200 CLR 286 at 300  per Gleeson CJ and Kirby J.
 Comcare v Martin  HCA 43 
 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14.
 Ibid Part VI.
 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62
 Ibid s 62
 Ibid s 63.
 Ibid s 64
 Ibid s 65 and Administrative Appeals Tribunal Act 1975 (Cth) s 29.
 Administrative Appeals Tribunal Act 1975 (Cth) s 44.
 Safety, Rehabilitation and Compensation Act 1988 (Cth) s 45.
 Ibid s 45(2)
 Ibid s 45 (3)
 Ibid s 44(1)
Limitation of Actions Act 1958 (Vic) s 27D.
 https://www.comcare.gov.au/the_schemeGo Back