11 August 2021: Proposed Amended Comcare Guide to the Assessment of Permanent Injuries will make it harder for injured workers to recovery lump sum Compensation.
The Comcare scheme which was introduced in 1988 for Commonwealth employees and later workers of large national companies who were granted Comcare licences, has over the years become increasingly complex. In our experience, the increasing complexity has not been aimed at making the system better but at making it harder for injured workers to recover compensation.
A key battle ground has been lump sum compensation and common law damages. Workers who suffer serious injury as a result of their employer’s negligence can under the Victorian WorkCover scheme sue for damages for pain and suffering of around $550,000 and loss of income of around $1.275m. Contrast this with the Comcare scheme, where workers are unable to sue for loss of income at all and where pain and suffering damages have been fixed and not indexed at a maximum of $120,000 since the scheme was first introduced in 1988. Payments under the Victorian scheme, and indeed lump sum payments under the Comcare scheme, are annually indexed and increased. The failure to index the maximum common law payment under the Comcare scheme means that injured workers’ rights to sue have been stolen by stealth and as a result very few injured workers sue for damages under the Comcare scheme because of the risk/costs involved versus potential reward.
The abolition by stealth of workers’ common law rights under the Comcare scheme has also meant that an important check on negligent or unsafe practices by employers is lost. Where appropriate common law damages are available, this acts as a deterrent on negligent employers who react mostly to the hip pocket nerve. If successive employees are injured and sue because of unsafe practices, this is a powerful incentive for employers to change those unsafe practices and in our experience, employers react more to successful damages claims than to prosecutions under the Health and Safety Act where prosecutions in the Federal arena appear to be few and far between.
Notwithstanding the already parlous state of common law damages/lump sum entitlements under the Comcare scheme, Comcare has announced a draft amended impairment guide which (no surprises here) will make it even harder for workers to be entitled to lump sum payments.
To even get to the point where a worker might sue for damages or be entitled to a lump sum under the Comcare scheme, the worker must have at least a 10% level of impairment. A worker’s level of impairment is currently assessed under the Comcare 2.1. Ed Guide. By way of background the 2.1 Ed Guide was introduced on 1 December 2011. A consequence of the amended Guide was that it became harder for workers across a number of categories of injuries to get to 10%.
The proposed further amendments to the Comcare Guide will make it even harder for some injured workers to recover lump sum compensation. Notably under the new proposed Guide, the impairment assessment of psychological injuries will be much harsher, the chapters relating to pain and headaches will no longer apply and generally the assessment criteria with respect to a number of injuries will be harsher and more complex to apply.
The justifications for the amended guide reference best practice and national consistency but in fact each jurisdiction in Australia has modified existing guides to suit their unique workers compensation system but most importantly, the Comcare system is the only one where common law rights for injured workers have been so dramatically curtailed which means that the lump sum benefits under the Comcare scheme should in our view be more generous, rather than harsher, than in other jurisdictions.
In conclusion, if you have suffered a permanent injury and have been considering making a lump sum claim, now is the time to do so. If the proposed Guide is passed into law, it will likely apply to all lump sum claims submitted after the commencement of the new Guide rather than based on date of injury. If you need advice regarding your lump sum/common law entitlements, please contact Angela Sdrinis Legal for a free consultation.
By Angela Sdrinis