Comcare (or a relevant licensee) may from time to time, direct an employee to participate in an internal rehabilitation program or to a rehabilitation program operated by an external providers. The purpose of an occupational rehabilitation program is to support employees to maintain work, return to work or to acquire new employment. There may be a degree of apprehension when receiving a notice to participate in a rehabilitation program, especially where an employee is receiving worker’s compensation benefits under the Comcare scheme. This fact sheet will endeavour to answer workers’ frequently asked questions:
Angela Sdrinis Legal has been pursuing a claim for compensation for former Australian Police Officer (AFP) Lizzie Wiggins since 2014. The claim was denied by Comcare and fought in the Administrative Appeals Tribunal (AAT) for 3 years.
Many workers who suffer injury in the course of their employment are able to do alternative duties. However many employers can be reluctant to offer injured workers alternative duties even though the Safety Rehabilitation and Compensation Act 1988 (SRCA). Under the SRCA, an employer has speciﬁc statutory powers and functions under Part III of the SRC Act. These include arranging for a rehabilitation assessment, determining that a rehabilitation program should be undertaken, arranging with an approved rehabilitation program provider for the provision of a suitable program and ensuring suitable employment is provided.
On 19 March 2014, the Federal government introduced the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) into the House of Representatives.
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)
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.
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).
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.
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.
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:
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)
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).
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).
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?
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