Australia's leading provider of affordable DIY legal kits
Call our Customer Care Specialists on 1300 728 200
   
Legal Articles
The provider of this information is Ogilvie Jennings Barristers and Solicitors - Hobart

COMCARE

HOW TO MAKE A CLAIM

Step 1:

You will not be entitled to Comcare benefits unless notice in writing of the injury or disease is given to your employer as soon as is practical after you become aware that you have suffered injury or disease.

It is absolutely essential that you notify your employer of injury as soon as it happens. The easiest way of doing this is normally by reporting the injury/disease in the accident or incident report book, which should be maintained by an employer at each work place.

Accordingly, even if you are not sure that an injury will be serious or anything other than trivial, you should play safe and make sure the injury is reported in writing.

There are in some cases exceptions to this requirement. If you have failed to give notice of injury as soon as practical, you may nonetheless be able to pursue benefits, although it will probably be necessary to put your case before the AAT in such a circumstance.

Step 2:

Complete a claim form in writing. Claim forms can be obtained from your employer or by contacting Comcare on 1800 150 555 or by writing to GPO 9905 in your capital city.

Standard forms are used under the Comcare scheme when lodging a claim. These forms are self-explanatory. You should try and fill in the forms as accurately as possible but need not get "bogged down" if you cannot answer a question precisely or if you cannot remember a precise date.

Provided you make it clear that an answer may not be precise by using words such as "approximately" or even "can't remember" there should not be a problem.

Having said that, Comcare has the power to refuse to deal with your claim until such time as you provide relevant information, which is required by them. Sometimes therefore a "don't know" or can't remember" may lead to an indefinite delay in your claim being dealt with.

Step 3:

Once the claim form has been filled in, it must be given to the employer/Comcare. Unless the claim is a death claim or claim for medical expenses only, it must be accompanied by a certificate from a legally qualified medical practitioner. Generally Comcare will accept the certificate which doctors use under the relevant state worker's compensation scheme.

Normally a medical certificate must contain particular information and details. If you have doubts about whether the certificate you are given is a correct or valid one, the best thing to do is seek legal advice. 

DETERMINING THE CLAIM

There is no time limit within which Comcare must determine a claim.

It may take Comcare weeks or months to determine a claim, which includes a claim for loss of earnings. Before determining the claim, Comcare may arrange for you to be examined by a medical practitioner of its choice. Ordinarily you are obliged to attend such appointment and refusing to do so may just result in delay.

If there is delay in the determination of your claim, this may cause financial difficulties. If you have leave due to you, you can apply for it to be paid. Once leave payments run out, you should ask Centrelink about what, if any, benefits you are able to receive pending determination of the claim.

If there has been unacceptable delay, a complaint can be made to the supervisor or manager of the department you are dealing with or it can be referred to the Ombudsman who will investigate the delay.

Once Comcare have investigated the claim and received all their material, which may include a report from your employer and statements from relevant witnesses, they will make a determination of which you will be notified in writing.

If the claim is refused, you may seek a reconsideration by requesting one in writing. The request must be made to Comcare within 30 days. If your claim has been rejected you should also process your medical accounts through Medicare and/or your private health insurer.

You will be required to repay any benefits you receive when your claim is accepted. If your claim is not accepted at any time, there is no requirement for reimbursement.

If liability has still not been accepted after the reconsideration process, and you wish to pursue the claim further it will be necessary to lodge an application with the Administrative Appeals Tribunal (AAT) seeking a review of the decision.

If you wish to pursue a claim before the AAT it is recommended that you seek assistance from a lawyer. Assuming your claim is accepted you are entitled to the benefits in the SRCA. There are various types of benefits payable. 

WEEKLY BENEFITS

Rates of Pay:

If your claim is accepted and as a result of your injuries or disease you are not able to do your normal work, you are entitled to claim weekly benefits.

Weekly benefits are paid at your "normal" pay for the first 45 weeks of incapacity. "Normal" pay can include allowances or overtime.

If you are still unable to work after 45 weeks, your entitlement to weekly payments is reduced to 75% of pre-injury average weekly earnings.

Generally, the two weeks prior to the injury will be looked at to determine the appropriate level of weekly payments. However, there is power to look at another period it that period more fairly represents the weekly rate at which you were being paid.

If after the 45 week period you are able to return to some form of employment but you are still not doing your normal job and you are consequently losing some pay, the following arrangements apply:

  • If you are working for less than 25% of your normal weekly hours, you can claim the difference to 80%, of your normal wage.
  • If you are working, from 25% but not more than 50% of your normal hours you can claim the difference to 85% of your normal wage.
  • If you are working more than 50% but not more than 75% of your normal hours you can claim the difference to 90% of your normal wage.
  • If you are working more than 75% but less than 100% of your normal hours you can claim the difference to 95% of your normal wage.
  • If you are working 100% of your normal hours, even if you are in lesser-paid employment, you can claim 100% of your normal wage.

There is however a maximum benefit payable of $1,117.20 per week and regardless of your pre-accident earnings you cannot be paid more than this amount by way of weekly payments of compensation. 

Effect of Superannuation on weekly payments:

Superannuation and weekly payments

If you access your superannuation whilst in receipt of weekly payments of compensation, your weekly benefit will be reduced according to formulas contained in the SRCA.

Superannuation Pensions

If you are in receipt of a superannuation pension, your weekly payment will be reduced by the pension you receive plus the weekly amount you would have been required to pay by way of your own contributions if you had still been a member of the superannuation fund.

Superannuation Lump Sum Benefits

Where you receive a lump sum by way of superannuation, your weekly benefit is reduced by the amount of the lump sum divided by 520 plus the weekly amount you would have been required to pay by way of your own contributions if you had remained in the superannuation fund.

Superannuation Pensions and Lump Sum Benefits

Where you receive a combination of a weekly pension and a lump sum, your weekly benefit is reduced by applying both the above formulas i.e. your weekly pension plus your lump sum divided by 520 plus your notional superannuation contributions had you remained in the scheme 

Limits to weekly payments:

Weekly payments may be reduced if you are being maintained as a patient in a nursing home or hospital.

Weekly payments will generally cease when you turn 65, unless you were injured before the commencement of the SRCA in which case a formula for reducing benefits after age 65 applies.

If your weekly benefit is less than $71.53 per week, your entitlement can be "redeemed" i.e. you can be forced to accept a lump sum in lieu of weekly payments.

If it can be shown that you are fit for other work or that you have been offered suitable work which you have refused to undertake your payments can be reduced by the notional amount that you would have been earning in that other work. 

REHABILITATION

If as a result of your injury you are not able to do your normal job but you can do other work, your employer must provide you with suitable employment or assist you to find such employment.

Generally, your capacity to do other work or to return to your old job will be assessed by an appropriate rehabilitation provider. Your employer may refer you to a rehabilitation service. Alternatively, your doctor can do so with your employer's permission.

Guidelines are published from time to time as to the provision of rehabilitation services. Your employer has wide powers to compel you to participate in a rehabilitation program. Failure or refusal to participate without reasonable excuse can result in a suspension of all of your Comcare entitlements including weekly benefits and medical expenses.

Accordingly, if you believe that you are unable to participate in a rehabilitation program you should ask your doctor to review the proposal and provide a written report in support of your refusal to do so.

However, even if your doctor does support your decision to not participate in a rehabilitation program, your employer can still suspend your entitlements if they have medical opinion to the effect that the proposal is a reasonable one. In these circumstances, only the AAT can make a determination about whether you have been "unreasonable". It can take 9 to 12 months before your case is listed for hearing. In the meantime you are left without any benefits. Accordingly, a decision to not participate in a return to work program should not be made lightly.

There can be disagreement as to what "rehabilitation" involves. Sometimes rehabilitation can involve retraining but Comcare may refuse to pay for a university degree for example.

The matters which are to be taken into account in developing a rehabilitation program, include the following:

  • the potential reduction in future compensation
  • the cost of the program
  • the likelihood for improvement in employment opportunities
  • the likely psychological effect on you if the program is not provided; and
  • the relative merits of any alternative program.

Rehabilitation can be a contentious issue. Sometimes initiative on your part rather than a "wait and see" approach on your part can give you the advantage. 

Tell a friend about this information!
Enter their email address in the box below:

Print this page

Select another subtopic of this information

Need further information? Visit our legal forum where you can ask questions and search for similar topics.

Want to save money?

Check out our list of do-it-yourself legal kits.

Need formal advice?

Let us help you find a lawyer who specializes in your particular area of law.

Need further information?

Visit our legal forum where you can ask questions and search for similar topics.