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.
In the matter of Griffiths and Australian Postal Corporation (Griffiths), the Tribunal considered whether Ms Griffiths was entitled to compensation in respect of her psychological condition and whether she had made a wilful and false misrepresentation in respect of her psychological condition under section 7 (7) of the Safety, Rehabilitation and Compensation Act (the Act).
COMCARE AND SEACARE LEGISLATION AMENDMENT – BILL PASSED FOR MAXIMUM AGE FOR RECEIVING LOSS OF EARNINGS BENEFITS TO INCREASE BEYOND AGE 65
The Comcare and Seacare Legislation Amendment (Pension age and Catastrophic Injury) Bill 2017, introduced into Federal Parliament on 11 May 2017, was given assent on 22 June 2017. Prior to assent, injured workers covered by the Comcare or Seacare Schemes lost the right to claim loss of earnings benefits at age 65, despite many Australians not being able to access the pension until age 67.
COMCARE AND SEACARE LEGISLATION AMENDMENT-MAXIMUM AGE FOR RECEIVING LOSS OF EARNINGS BENEFITS TO INCREASE BEYOND AGE 65
The Comcare and Seacare Legislation Amendment (Pension age and Catastrophic Injury) Bill 2017 has been introduced into Federal Parliament. (https://www.legislation.gov.au/Details/C2017B00080/Explanatory%20Memorandum/Text).
Many injured workers covered by the Safety Rehabilitation and Compensation Act 1988 (SRCA) first seek legal advice for an accepted claim when liability for physiotherapy treatment for a longstanding injury is ceased. S 61 of SRCA provides that:
There have been two recent decisions which have shed light on when the ‘reasonable administrative action’ exclusion will operate. The first of these decisions is Comcare v Martin ( HCA 43) which was handed down by the High Court in 2016. The latest decision, in April 2017, is that of Lim v Comcare. But what do these decisions mean?
An injured employee who is retired from employment and receives a pension and/or lump sum under a superannuation scheme must have their incapacity payments determined in accordance with sections 20 to 21A of the Safety Rehabilitation and Compensation Act 1988 (SRCA).
Comcare has announced a new payment system which will commence from 1 September 2016 whereby all Comcare payments will be paid directly to employees’, employers’ and service providers’ bank accounts by electronic funds transfer (EFT).
Senator Abetz who has been trying without much success to push the Safety Rehabilitation and Compensation (Improving the Comcare Scheme) Amendment Bill 2015 (the Bill) through the Senate has announced a new “fit note” which has been developed for use by all general practitioners in the ACT and surrounding regions before a potential national expansion. (http://content.safetyculture.com.au/news/index.php/09/new-fit-note-help-injured-workers-get-back-work/#.VfzMtprALIU)
Angela Sdrinis Legal recently successfully ran a case against Australia Post with the worker winning all 6 Applications before the Tribunal. (http://www.austlii.edu.au/au/cases/cth/AATA/2015/461.html). Whilst this decision was based on the facts of the case, there are some interesting aspects:
A Bill amending the Safety Rehabilitation and Compensation Act (the SRCA) has been introduced in Federal Parliament ( Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 ) the aim of which is to make the Comcare scheme more sustainable according to Workplace Relations Minister Eric Abetz. These are weasel words which actually mean the aim of the Bill is to reduce worker’s entitlements and providing savings to employers.
Many workers who are covered by the Comcare scheme will develop injuries over a period of time and it is not always possible to pinpoint the date of injury. For example, workers who gradually develop back pain or overuse injuries may find it hard to precisely identify when the injury occurred. Similarly in claims involving work related psychological injuries, it may be difficult to show when normal distress or upset because of a work incident, actually becomes a psychological injury.
Sections 20 and 21 of the Safety Rehabilitation and Compensation Act (1988) (SRCA) deal with the effect of superannuation on incapacity benefits. Generally speaking, workers who are in receipt of incapacity or loss of earnings benefits under the SRCA should resist termination or defer resignation because once employment is terminated a worker’s superannuation is “paid out” and even if these payments are rolled over, a worker is deemed to have “received” the lump sum benefit and therefore weekly payments are reduced on the basis of the formula in the Act. (see Archer v Comcare (2000) 101 FCR 30).
Pursuant to s 116 of the Safety Rehabilitation and Compensation Act, a worker is entitled to accrue sick leave and annual leave but only during the first 45 weeks of absence following acceptance of liability for a work related injury. Thereafter, if an injured worker is unable to work, only long service leave accrues under the SRCA. Similarly an employer is only required to make superannuation contributions when an employee is physically working.
The Comcare Scheme has been subjected to a number of reviews since Julia Gillard was Minister for Workplace Relations in 2007. A first review commissioned by Julia Gillard was released in 2009. (http://docs.employment.gov.au/node/28616)
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