Injured workers and compensation from Comcare

Injured workers and compensation from Comcare

Injured employees of the Commonwealth and prescribed large businesses must demonstrate that they sustained their injury during the course of their employment for their claim to be accepted.

But what does that mean when a worker is not strictly at work? For example when a worker is injured on their lunchbreak? Or on a work conference? Or on the way to their car?

Case study

In 2013 the High Court, in Comcare v PVWY, ruled that when a worker is injured while they are not at work, the circumstances of the injury have to be examined.

This involves looking at what activity the employee was doing when they were injured, and whether the employee was induced or encouraged by the employer to be engaging in that activity. If so, the injury is considered to have occurred in the course of employment.

Since this decision, courts have further elaborated on this test.

In September 2017, Mr Mustica, a Melbourne airport worker had finished his shift and was lightly jogging to the staff only bus stop to catch a shuttle bus to the nearby staff car park. On the way, Mr Mustica suffered a meniscus tear to his right knee and lodged a Comcare claim.

His claim was rejected on the basis that he had not sustained his injury during the course of his employment.

Mr Mustica appealed this decision to the Administrative Appeals Tribunal, and in December 2019 the Tribunal found in his favour. The decision confirmed that by providing him with a parking pass application form, endorsed by his supervisor, that the employer had induced or encouraged him to use that particular carpark.

The AAT added that while Mr Mustica's employer did not require him to drive to work or use the car park, it was enough that Mr Mustica was leaving his workplace in a way and manner that was permitted by the employer.

As such Mr Mustica sustained his injury within what can be regarded as the reasonable boundaries of his workplace and was entitled to compensation.

What does this mean for injured workers?

The case of Mr Mustica serves as a reminder to injured workers that you may still be entitled to compensation, even if your injury did not occur whilst you were at work.

It is also important to note that it is critical that each case considers whether a worker was induced or encouraged to engage in the activity that caused their injury. For this reason injured workers governed by the Comcare scheme should seek legal advice early on from an expert Comcare lawyer.

To discuss your injury or Comcare claim, call a lawyer for free legal advice on (03) 9321 9988.

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