Time Limits must be Prescribed under Comcare Legislation
The article “When a win against Comcare isn’t really a win” (SMH 13/9/18-https://www.smh.com.au/politics/federal/when-a-win-against-comcare-isn-t-really-a-win-20180913-p503es.html) completely reflects the experience of many of our Comcare clients.
The difficulty in dealing with Comcare is that unlike state based workers compensation schemes such as Workcover in Victoria or the federal Seafarer’s compensation scheme where agencies face time limits in dealing with claims, no such time limits apply to Comcare. This means that claimants have nowhere to go if Comcare is “stonewalling” other than lodging a complaint with Comcare, the very agency that is stuffing them around. Under the Seacare legislation for example, claims must be determined within specific time periods or the employer is “deemed” to have rejected the claim. This then gives the injured worker the right to take legal action. Where there are no time limits, workers are unable to take legal action under administrative law processes because there is no actual decision which can be appealed. In extreme cases, an application can be made to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 but this is an extremely costly, time consuming and difficult process, particularly where the decision being sought might be over $1,000 of physiotherapy expenses.
Following a review of the Comcare scheme where there was significant feedback about the distress and financial strain that was being experienced by workers who were experiencing delay in Comcare and licensees making decisions, the then Labour government passed legislation in 2011 introducing time limits into the scheme which meant that Comcare would be required to determine claims within specific time periods (not surprisingly workers on the other hand have always faced time limits in responding to Comcare’s determinations). Section 61 (1A) of the Safety Rehabilitation and Compensation Act states that Comcare must make a determination regarding each claim for compensation “within the time prescribed by the rules”. However, Labour never introduced the regulations and subsequent liberal governments have, conveniently for Comcare and licensees, never gotten around to doing so either.
The lack of time limits faced by Comcare in determining claims means that the sometimes very excessive delays, not only in relation to the payment and reimbursement of medical expenses but more importantly in processing claims for loss of income, can mean that injured workers face losing their homes and/or other irreparable financial damage to say nothing of the very significant emotional stress these delays cause already injured and in many cases traumatised workers.
Angela Sdrinis Legal calls upon the new Prime Minister Scott Morrison and the Workplace Minister Craig Laundy to do something about this appalling state of affairs.