MAKING A CLAIM

Entitlement

To be entitled to benefits, you must give notice in writing of the injury to your employer as soon as practicable after you become aware that you have suffered injury.

The easiest way to notify your employer is to file an incident report. Speak to your immediate supervisor about how this is done. Even if you are not sure that an injury will be serious you should still make sure the injury is recorded.

However, despite the above requirements, the Safety Rehabilitation and Compensation Act 1988 (SRCA) provides fairly wide exceptions and the Administrative Appeals Tribunal (AAT) has traditionally taken a flexible approach to delay in the reporting of injury.

Accordingly, although Comcare regularly points out that there has been delay in notifying employer of injury, a claim which otherwise has merit is unlikely to fail. 

Medical certificate

Once the claim form is completed, unless you are making a death claim or claim for medical expenses, you must obtain a medical certificate from a legally qualified medical practitioner to accompany your application.

Although, the SRCA provides a prescribed form the medical certificate should take, generally Comcare will accept the certificate which doctors use under the relevant state’s worker’s compensation scheme.

Generally, the certificate will include the reason for your incapacity, whether or not you are totally or partially unfit for work and if partially unfit, restrictions placed on your work should be included.

Often, Comcare will contact your doctor in order to obtain a medical report. Your doctor should not talk to Comcare without your express permission and you are not required to give such permission.

However, Comcare is entitled to obtain medical material before considering your claim. It may therefore be appropriate to give permission for the medical report to be provided to Comcare. 

MEDICAL EVIDENCE

Medical treatment

If you have made a claim, Comcare have the right to require you to undergo medical examination by a medical practitioner nominated by them. Comcare may request that you attend reasonable medical examinations at reasonable intervals.

If you fail to attend an examination without reasonable excuse, or if you obstruct the examination, Comcare can suspend your entitlements to all compensation and refuse to deal with your claim until such time as you attend examination. 

Objections

The common reason for refusal to attend an examination is that you have been mistreated by a doctor. Mistreatment may occur physically, through pain caused by the doctors treatment or mentally, through lack of communication by the doctor or downright rudeness.

If this occurs you should report the problem in writing immediately after the examination. Your report should be accurate and objective. You should point out that although you do not wish to see that particular doctor again, you are willing to see another doctor in the same field if and when necessary.

You may wish to object to being sent to too many doctors, to seeing a particular type of doctor (such as a psychiatrist), or to seeing doctors who have expertise in an area not relevant to your injury.

If you believe that you are being sent to see to too many doctors and it is unreasonable, you can advise Comcare that you refuse to see any more doctors and that you demand to see reports made by the doctors who have previously examined you.

However, what is regarded as “reasonable” depends on the circumstances and this is something that you should try to negotiate with Comcare, rather than simply refusing to see doctors.

In relation to objecting to see a particular type of doctor, particularly a psychiatrist, you should be careful. Often, physical injury is accompanied by emotional symptoms which are best diagnosed by a specialist in that area. 

BENEFITS

If your claim is accepted you are entitled to the benefits of the SRCA. 

WEEKLY PAYMENTS

If as a result of your injuries you are unable to perform your normal work, you entitled to claim weekly benefits.

The period 2 weeks prior to the injury will be looked at to determine the appropriate level of payment, but there is power to look at another period if it more fairy represents the weekly rate at which you were paid.

You are entitled to claim your “normal” pay for the first 45 weeks of incapacity, which can include loss of allowances or overtime.

After 45 weeks, if you are still incapacitated, your entitlement to weekly payments is reduced to 75% of your pre-injury average weekly earnings.

If after 45 weeks you are able to return to work in a reduced capacity and are still experiencing loss of wages, you are still able to claim partial benefits. The percentage of loss you can claim will increase in proportion to the extent to which you are able to work.

Maximum benefit payable is $1,117.20 per week and regardless of pre-injury earnings, you cannot be paid more that this amount by way of weekly payments of compensation.

You are entitled to claim increases in the level of your weekly payments if you can show that:

• had you remained in employment your wage would have increased in accordance with comparable employees of your salary classification; or
• on reaching a certain period of service, you would have received an increase.

Reductions

Weekly payments may be reduced if:

• you are receiving a superannuation pension or lump sum benefit. Provision relating to these reductions are outlined in the SRCA;
• you are being maintained as a patient in a nursing home or hospital; or
• you are fit for other work or have been offered other work which you refused to accept.

If your weekly benefit is less that $71.53, you may be forced to accept a lump sum amount in lieu of weekly payments.

Weekly payments will generally cease at age 65. 

REHABILITATION

If as a result of your injury you cannot perform your ‘normal’ work but can perform other work, your employer has a duty to provide you with suitable employment or assist you to find such employment.

Generally, your capacity to work will be assessed by a rehabilitation provider. Alternatively, your doctor can do such an assessment with your employer’s permission.

Your employer has the power to compel you to participate in a suitable rehabilitation program. Failure or refusal to participate without reasonable excuse can result in a suspension of all your entitlements under the SRCA.

If you believe that you are unable to participate in a rehabilitation program, (which must be in writing) you should request that your doctor review the proposal and provide a written report in support of your refusal to participate.

However, even if your doctor does support your refusal to participate, your employer can still suspend your entitlements if they have medical opinion supporting that the proposal is a reasonable one. It is then for the AAT to decide whether you have been “unreasonable”.

A decision of the AAT can take 9 to12 months before the case is listed for hearing, during which time you are left without benefits. Accordingly, a decision not to participate in a rehabilitation program should not be made lightly. 

DEATH CLAIMS AND DEPENDENTS

If the deceased had no dependents, compensation is only payable by way of funeral expenses and cost of transporting the body to the mortuary.

If there are dependents, a lump sum amount of $171,640.91 will be payable for the benefit of those dependents. Dependency is defined as economic support. Generally, this will include a spouse/ de facto partner (whether working or not) and children. Children are further entitled to a weekly benefit of $57.20 up until they are 18 if they are not working and beyond if they are students. 

MEDICAL AND LIKE EXPENSES

Your employer is liable to pay the cost of reasonable medical treatment incurred as a result of your injuries, including any medical, dental or other treatment by qualified persons.

Generally, this will include chiropractic treatment, physiotherapy, acupuncture, hydrotherapy, massage etc. and pharmaceutical expenses. Liability will not be accepted for natural therapies.

Your employer will also be liable to pay reasonable travelling expenses at 30cents per kilometre or ambulance, taxi or public transport fares where appropriate. If treatment is sought over 50 kilometres away, an explanation need be provided as to why treatment at that distance is sought. 

HOUSEHOLD AND ATTENDANT CARE SERVICES

Where as a result of your injuries you require home help, Comcare is liable to pay reasonable expenses incurred not exceeding $286.06 per week. Usually the type of services claimed include house cleaning, mowing of lawns etc.

If you require care as a result of your injuries Comcare will also be liable to pay those expenses to a maximum of $286.06 per week. 

INJURIES RESULTING IN PERMANENT IMPAIRMENT

If as a result of your injuries you have suffered permanent impairment you may be able to claim a lump sum benefit or lodge a common law claim. 

Lump sum benefit

A lump sum benefit is offered in addition to your other entitlements under the Commonwealth compensation scheme, therefore your right to claim weekly benefits, medical expenses etc. continues. The maximum lump sum figure available is $157,337.56.

In order to receive a lump sum benefit you must establish that you have a whole person impairment of at least 10%. This assessment must be made by a qualified medical practitioner in accordance with a guide which has been produced by Comcare. 

Common law claims

If you believe your injuries were caused by the negligence of your employer, you may have a right to sue for damages. Damages of up to $110,000.00 may be awarded for pain and suffering and loss of enjoyment of life.

If you decide to pursue a common law claim, you must make an irrevocable election. This means that by deciding to sue, you give up your lump sum entitlements. You must notify Comcare in writing of your decision to sue for damages. 

OTHER BENEFITS

Sickness benefits

If your injuries have effected your ability to earn and your claim has not yet been accepted or has been denied, you are entitled to claim sick pay for your period of incapacity.

Sick pay is an accrued entitlement and should be reinstated if your claim for compensation is accepted. If you have no accrued sick pay or income protection insurance, you are entitled to claim sickness benefits.

To be eligible for sickness benefits, you need to obtain from your doctor a certificate confirming that you are unfit for work and present this to Centrelink. If you later receive benefits under the Comcare scheme you will have to repay Centrelink. 

Medical expenses

If you make a claim for medical expenses and liability for your claim has been denied, you are entitled to claim these expenses on Medicare and/or your private health insurance.

Comcare is required to notify the Health Insurance Commission or Medicare that a claim has been made. Medicare will contact you and ask you to complete a statement of past benefits. Such a statement is a list of all medical treatment you have claimed for since your accident.

You are required to identify the items which relate to your injury. If your claim is successful, the Health Insurance Commission or your private health insurance will claim reimbursement of monies they have paid on your behalf. Comcare is obliged to deduct from your settlement the amount owing.

If your claim is not successful, there is no obligation to repay money.