Comcare covers employees of the following employers:
All are covered for injuries at work by the SRC Act (Safety Rehabilitation and Compensation Act 1988).
Journey cover (for travel to and from work) ceased some years ago. Travel for work is covered.
Since 2006, the coverage has been extended to certain private sector employers such as Optus. These are often "self insurers". Comcare is perceived as attractive as benefits and thus premiums are lower, and the enforcement/penalty regime is lower. On the positive side it does provide for one system across Australia.
The SRC Act commenced on 01-12-88. Injuries since that date are covered by this Act. Injuries include diseases and psychological conditions.. Some injuries are excluded, such as stress caused as a result of reasonable administrative action, disciplinary action or failure to obtain promotion and self inflicted injuries. Aggravations to existing injuries are also covered.
If injured at work:
The report should be sent to the employer as soon as possible. It should describe the incident or accident as clearly as is possible. Do not be concerned (and certainly do not delay the report) if some details are not presently available.
PROCEDURE
Once a claim is received, it is investigated by Comcare and a Determination
is issued. If the claim is accepted the benefits will be paid.
If the Determination rejects the claim, then you may seek a Reconsideration
This must be sought within 30 days of the Determination.
We often seek an extension of time
before expiration of the 30 days so that more evidence can be
obtained.
If, after reconsideration, the claim is denied, then an Appeal to
the Administrative Appeals Tribunal (AAT) is available. This
appeal should be lodged within 60 days of receipt of the (Reconsideration)
decision. No fee is involved when lodging the appeal.
After an appeal is lodged, the employer must provide you with a full set of the
relevant documents and medical reports. These are known as the T documents - the pages will be numbered T1 onwards.
It is not necessary to be represented by a lawyer in the AAT.
The hearing is not supposed to be formal but will certainly look formal.
Witnesses will be sworn and cross-examined
on their statements.
It is probably correct that in most cases, the case will be decided by the medical evidence.
The main questions are:
If you lose, no costs are awarded against you. If you win, then some
legal costs will be awarded to you or your lawyer.
Your entitlement to compensation turns on the interpretation and thereby the application of the following four provisions of the SRC Act
(1) s 14, which provides for liability to pay workers' compensation for an "injury" suffered by an employee;
(2) s 5A(1)(b), which defines "injury" to mean an injury "arising out of, or in the course of . employment";
(3) s 6(1)(b), which relevantly provides:
(4) s 6(3)(a), which relevantly provides that s 6(1)(b) does not apply where an employee sustains an injury while at a place referred to in that subsection "if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury".
See Some Extracts from SRC Act for more.
Generally speaking, there is no common law claim as in the old
days. The benefits are basically as follows:
LUMP SUM BENEFITS
A lump sum is additional to other benefits.
- Up to Permanent Impairment Lump Sum (see benefits table) for
any permanent impairment.
The amount will depend on an assessment of your whole body impairment.
Generally it must be at least 10% of whole person.
There are exceptions eg hearing is 5%.
WEEKLY BENEFITS
- First 45 weeks 100% of pre-injury earnings
If an employee has retired and receives a pension from the
Superannuation scheme, then the maximum of the combined
Superannuation pension and the Compensation pension will not
exceed 70% of salary, and no more than 50% of Average Weekly
Earnings.
Other expenses may be reimbursed eg taxi if needed, mileage if return
journey is over 50km.
Overnight accommodation is (very reluctantly) paid for some long country
journeys by injured workers.
Household care may be payable, as well as other assistance/aids you may need.
- Up to Death Benefit Lump Sum (see benefits table) payable to
spouse/ dependent children. INCAPACITY PAYMENTS UNDER THE SRC ACT 1988
Incapacity payments (INCAP) are top up payment to ensure that an injured worker receives more or less the same
average income as he received before the injury. For the first 45 weeks, the injured worker will receive 100% of
Normal Weekly Earnings (NWE), less any earnings. After the first 45 weeks, the injured worker will be entitled to
incapacity payments, subject to a cap as set out below, less any earnings.
NWE EXPLAINED:
The weekly income before the injury is called the NWE (Normal Weekly earnings) and could be said (in simple terms)
to be an average of the total income for the 12 weeks prior to the injury. NWE will include regular overtime and
some allowances.
DISCOUNTING NWE:
If an employee returns to work eg is redeployed and works the same hours as he did before the injury, including
overtime, then there is no discount. If working between 75% and 100% of the prior hours, then it is discounted to
95% of NWE. The table sets out other discounts. Note that if overtime is included, the Normal Weekly Hours may be
say 42 hours. When redeployed, the injured worker may only work 38 hours - no overtime - not 100% of normal
weekly hours - and will only be entitled to 95% of NWE. See Comcare v Heffernan [2011] FCAFC 131.
ADJUSTING NWE:
NWE is adjusted upwards in line with pay rises. It is increased by the same percent as the pay rise.
NWE is also adjusted by promotions this is a complex matter. If the new NWE (after adjustment for promotion)
exceeds the original NWE, then Section 8(10) will negate any benefit it seems. In short and in part, it says:
INCAP CALCULATION:
INCAP is calculated by subtracting actual earnings (AE) from Normal Weekly Earnings (NWE). INCAP is not paid
during periods of leave.
COMPENSATION BENEFITS TABLE 2005-2016
These benefits are indexed each year on 1st July.
COMPENSATION BENEFITS TABLE 2001-2004
These benefits are indexed each year on 1st July.
COMPENSATION BENEFITS TABLE 1996-1998
These benefits are indexed each year on 1st July.
COMPENSATION BENEFITS TABLE 1993-1995
These benefits are indexed each year on 1st July.
s19(5) of the Act provides a ceiling of 150% of Average Weekly
Ordinary Time Earnings for Full Time Adults AWOTEFA for payments
after the first 45 weeks.
See AWOTE Rates for details.
WORKERS COMPENSATION MILEAGE RATES
s16(6) of the Act sets a kilometre rate for those using private
transport to obtain medical treatment. If a private motor vehicle
is used to travel more than 50km for treatment, then the rates
below are paid:
Section 44 of the SRC Act restricts common law claims against the
(Commonwealth) employer. There is a limited provision for a common
law claim under s45 of the Act. The limit is $100,000.
S45 will allow claims for non-economic loss if the employee is entitled to
compensation under s24, s25 or s27 of the Act. The employee must elect
to make a claim under the Act or to sue for non-economic loss.
The election is irrevocable. There is also a limit to the
damages that may be recovered at common law. Comcare must be advised of
the election within 7 days.
See also the provisions of s48.
See Safety Compensation and Rehabilitation Act and
Compensation Cases in this Database for more information
The High Court has determined that Commonwealth Employees cannot make
a claim under any State Acts. See Telstra v Worthing
JOURNEY COVER HAS NOW CEASED.
Historical Notes only: On the 15th January 1996, journey provisions in the SRC Act were
amended, narrowing the definition of a journey. Generally speaking
injuries received on the journey to and from work are compensable
under the SRC Act.
The Courts had decided that the journey could commence at the
door. Thus slipping on steps, on paths, or tripping over the dog
could result in a compensable injury.
The amendment to the definition in s6(1) of the Act will set out
a clearer definition of the commencement and cessation of a
journey. Now the journey will commence at the boundary of the
land on which a residence is situated. A strata unit boundary
will include common property. Any injury occurring on your land
will not be compensable.
So if you fall over your water meter on your boundary on the way
to work, it will be compensable as the injury presumable will
occur outside your boundary. Not so on the way home!
Legal advice should be obtained on any of these matters.
SOME EXTRACTS FROM THE SRC ACT
1
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
(1) In this Act:
injury means:
6 Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(b) while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c) while the employee was temporarily absent from the employee's place of work undertaking an activity:
(d) while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or
(e) while the employee was at a place of education, except while on leave without pay, in accordance with:
(ea) while the employee was travelling between the employee's place of work and a place of education for the purpose of attending that place in accordance with:
(f) while the employee was at a place for the purpose of:
(g) while the employee was travelling between the employee's place of work and another place for the purpose of:
(h) while the employee was, at the direction or request of the Commonwealth or a licensee, at a place:
(i) while the employee was:
6(2)
6(3) Subsection (1) does not apply where an employee sustains an injury:
Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall be treated as having so arisen if it was sustained: .
The operation of s 6(1) is subject to exclusion where s 6(3)(a) applies
(b) while the employee was at the employee's place of work, for the purposes of that employment . ; .
- a weekly pension
- an additional lump sum for more serious injuries
- an additional lump sum for pain for pain and suffering
- specific benefits for children, home care
- medical bills are paid in full.
A death benefit is available to a spouse or dependent children.
In addition a weekly pension is paid while the children are
dependent.
- Up to Pain and Suffering Lump Sum (see benefits table)
- After 45 weeks 75% of pre-injury earnings (see note)
- After age 65 nil compensation pension
Note: subject to a ceiling of 150% of Average Weekly Earnings and
low income earners may earn up to 90% of pre injury earnings.
(see benefits table) (see also para Combined Benefits)
- Weekly payments for dependent children (see benefits table)
Per cent normal weekly hours worked Per cent NWE Compensation payable
Not working 75 per cent 75 per cent NWE
25 per cent or less 80 per cent 80 per cent NWE less
actual earnings (AE)
More than 25 per cent but not
more than 50 per cent 85 per cent 85 per cent NWE less AE
More than 50 per cent but not
more than 75 per cent 90 per cent 90 per cent NWE less AE
More than 75 per cent but
less than 100 per cent 95 per cent 95 per cent NWE less AE
100 per cent 100 per cent 100 per cent NWE less AE
2005 2010 2016 2018
Increase 2.6%
Death Lump Sum s17(3) s17(4) $206251.69 $458980.51 $528433.70 $550321.42
Death-Dependent Child s17(5) $ 68.73 $ 126.22 $ 145.32 $ 151.34
Funeral Expenses s18(2) $ 4761.08 $ 10412.50 $ 11654.06 $ 12053.62
Incapacity
- employee s19(7) $ 347.18 $ 412.92 $ 462.17 $ 478.01
prescribed person s19(8) $ 85.96 $ 102.25 $ 114.44 $ 118.37
- dependent child s19(9) $ 42.95 $ 51.09 $ 57.18 $ 59.14
Permanent Impairment s24(9) $ $163535.42 $183034.84 $189310.19
Non-economic Loss
Impairment s27(2) $ 25781.48 $ 30662.91 $ 34319.05 $ 34495.68
Non-economic loss s27(2) $ 25781.48 $ 30662.91 $ 34319.05 $ 34495.68
Household services s29(1) $ 343.74 $ 408.83 $ 457.57 $ 473.25
Attendant care s29(3) $ 343.74 $ 408.83 $ 457.57 $ 473.25
Redemption ceiling s30(1) $ 85.96 $ 102.25 $ 114.44 $ 118.37
Redemption ceiling s137(1) $ 85.96 $ 102.25 $ 114.44 $ 118.37
Pension adjustment 1.3% % %
2001 2002 2003 2004
Death Lump Sum s17(3) s17(4) $184864.84 $190595.65 $196313.52 $201025.04
Death-Dependent Child s17(5) $ 61.61 $ 63.52 $ 65.42 $ 66.99
Funeral Expenses s18(2) $ 4267.39 $ 4399.68 $ 4531.67 $ 4640.43
Incapacity
- employee s19(7) $ 311.18 $ 320.83 $ 330.45 $ 338.38
prescribed person s19(8) $ 77.04 $ 79.43 $ 81.81 $ 83.78
- dependent child s19(9) $ 38.50 $ 39.70 $ 40.89 $ 41.87
Permanent Impairment s24(9) $123243.22 $127063.76 $130875.67 $134016.69
Non-economic Loss
Impairment s27(2) $ 23108.12 $ 23824.47 $ 24539.20 $ 25128.15
Non-economic loss s27(2) $ 23108.12 $ 23824.47 $ 24539.20 $ 25128.15
Household services s29(1) $ 308.10 $ 317.65 $ 327.18 $ 335.03
Attendant care s29(3) $ 308.10 $ 317.65 $ 327.18 $ 335.03
Redemption ceiling s30(1) $ 77.04 $ 79.43 $ 81.81 $ 83.78
Redemption ceiling s137(1) $ 77.04 $ 79.43 $ 81.81 $ 83.78
Pension adjustment
1997 1998 1999 2000
Death Lump Sum s17(3) s17(4) $168937.90 $168937.90 $171640.91 $174730.47
Death-Dependent Child s17(5) $ 56.30 $ 56.30 $ 57.20 $ 58.23
Funeral Expenses s18(2) $ 3899.73 $ 3899.73 $ 3962.13 $ 4033.45
Incapacity
- employee s19(7) $ 284.37 $ 284.37 $ 288.92 $ 294.12
prescribed person s19(8) $ 70.40 $ 70.40 $ 71.53 $ 73.82
- dependent child s19(9) $ 35.19 $ 35.19 $ 35.75 $ 36.39
Permanent Impairment s24(9) $112625.29 $112625.29 $114427.30 $116486.98
Non-economic Loss
Impairment s27(2) $ 21117.25 $ 21117.25 $ 21455.13 $ 21841.32
Non-economic loss s27(2) $ 21117.25 $ 21117.25 $ 21455.13 $ 21841.32
Household services s29(1) $ 281.56 $ 281.56 $ 286.06 $ 291.21
Attendant care s29(3) $ 281.56 $ 281.56 $ 286.06 $ 291.21
Redemption ceiling s30(1) $ 70.40 $ 70.40 $ 71.53 $ 72.82
Redemption ceiling s137(1) $ 70.40 $ 70.40 $ 71.53 $ 72.82
Pension adjustment
1993 1994 1995 1996
Death Lump Sum s17(3) s17(4) $151621.34 $154502.15 $158364.70 $166441.29
Death-Dependent Child s17(5) $ 50.53 $ 51.49 $ 52.78 $ 55.47
Funeral Expenses s18(2) $ 3500.00 $ 3566.50 $ 3655.66 $ 3842.10
Incapacity
- employee s19(7) $ 255.22 $ 260.07 $ 266.57 $ 280.17
- prescribed person s19(8) $ 63.18 $ 64.38 $ 65.99 $ 69.36
- dependent child s19(9) $ 31.59 $ 32.19 $ 32.99 $ 34.67
Permanent Impairment s24(9) $101080.90 $103001.44 $105576.47 $110960.88
Non-economic Loss
Impairment s27(2) $ 18952.67 $ 19312.77 $ 19795.59 $ 20805.17
Non-economic loss s27(2) $ 18952.67 $ 19312.77 $ 19795.59 $ 20805.17
Household services s29(1) $ 252.70 $ 257.50 $ 263.94 $ 277.40
Attendant care s29(3) $ 252.70 $ 257.50 $ 263.94 $ 277.40
Redemption ceiling s30(1) $ 63.18 $ 64.38 $ 65.99 $ 69.36
Redemption ceiling s137(1) $ 63.18 $ 64.38 $ 65.99 $ 69.36
Pension adjustment 1.4% 3.9% 3.7%
01-12-88 12c per kilometre
01-04-90 15c per kilometre
01-02-91 16c per kilometre
29-05-95 30c per kilometre
08-11-00 34c per kilometre
01-07-01 42c per kilometer
01-07-03 47c per kilometer
01-07-08 60c per kilometer
(current 2016)
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or
(i) associated with the employee's employment; or
(ii) at the direction or request of the Commonwealth or a licensee; or
(i) a condition of the employee's employment by the Commonwealth or a licensee; or
(ii) a request or direction of the Commonwealth or a licensee; or
(iii) the approval of the Commonwealth or a licensee; or
(i) a condition of the employee's employment by the Commonwealth or a licensee; or
(ii) a request or direction of the Commonwealth or a licensee; or
(iii) the approval of the Commonwealth or a licensee; or
(i) obtaining a medical certificate for the purposes of this Act; or
(ii) receiving medical treatment for an injury; or
(iii) undergoing a rehabilitation program provided under this Act; or
(iv) receiving a payment of compensation under this Act; or
(v) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(vi) receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or
(i) obtaining a medical certificate for the purposes of this Act; or
(ii) receiving medical treatment for an injury; or
(iii) undergoing a rehabilitation program provided under this Act; or
(iv) undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(i) outside Australia and the external Territories; and
(ii) declared by the Minister by legislative instrument to be a place to which this paragraph applies; or
(i) at the direction or request of the Commonwealth or a licensee, at a place outside Australia and the external Territories; and
(ii) a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies.
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
 | Database |