Injured transport workers Pt 2: Should I make a Commonwealth workers’ compensation Comcare claim or a motor vehicle accident claim?

This is part two in a three-part transport workers series by Tim White. You can read part one here.

Australia employs 550,000 people as road freight transport workers. It’s an enormous part of our nation’s workforce – 5 per cent, in fact. Big employers in the sector include Linfox, TNT, Star Track Express, Australia Post, Telstra and the John Holland group.  For these people, travel is the defining feature of their careers. From city to country and state to state, they are often workers without borders. But what happens if you are a transport worker injured in a motor vehicle accident?

A number of options are open to you, but they can be confusing. On the one hand, if you are entitled to compensation there is a high chance that, given the interstate nature of your work, you are covered by the Commonwealth workers compensation scheme.  On the other, there is an opportunity to make a state-based motor vehicle accident (MVA) claim.

Will I get a larger lump sum through an MVA claim? Am I better off long-term with a Commonwealth workers compensation claim? Can I make a claim for both? Before making any decision you need to get legal advice as every person’s case is different. But first let’s explore the differences between the two.  This blog focuses on Commonwealth workers compensation entitlements.  If you are covered by your state’s workers compensation scheme similar considerations will arise, however your entitlements are determined under a different Act and you will need to seek specific advice about that.

Motor Vehicle Accident Claim

The law on motor vehicle accidents differs from state to state, however, generally the rule is a claim should be made in the state where the accident occurred. For example, in South Australia, if you were not at fault for the accident, you can bring a claim for compensation for any injuries arising from the accident.  Depending on the injuries you suffer, it might be in your interest to investigate a motor vehicle accident claim.

If you wish to pursue a motor vehicle accident claim you generally have three years from the date of your accident to make a claim to the relevant insurer.  The time frames can differ in certain circumstances so it is important to always seek legal advice first. If you are involved in an accident which is not your fault and the insurer accepts your claim you may be entitled to lump sum payments for the following:

1. Past and future economic loss;
2. Past and future medical expenses;
3. Past and future care and equipment expenses;
4. Pain and suffering.

We should note this list is not exhaustive and there may be other aspects to your  claim that are eligible for compensation. If you are unsure it is best to seek legal advice.

Commonwealth Workers Compensation Claim

Under the Commonwealth workers compensation claim you are generally entitled to the following:

1. Income maintenance payments if you need time off work because of your injury;
2. Reasonable medical and travel expenses;
3. A lump sum payment for your injury;
4. Employer to provide suitable duties within your working restrictions.

Under the Commonwealth scheme, income maintenance payments are payable until you reach age 65 and reasonable medical expenses and travel expenses are payable for life.  Your employer is required to provide you with suitable duties for as long as your doctor says you require them.

The lump sum payment is paid if you reach 10% whole person impairment or more.  You can apply for this payment more than once, provided your injury exceeds an additional 10% each time (for example if the injury is worse after a surgery).

There are drawbacks to being on the Commonwealth worker’s compensation system however, because your employer will need to monitor your recovery and progress with your injury.  You may be asked to attend periodic medical reviews and you will be required to keep your medical restriction certificates up to date if you are unable to perform your normal duties.  This process can be tricky to navigate and it is rare for a claim to run its natural course without a legal dispute cropping up along the way. If you choose this option it is wise to get legal advice at the earliest opportunity.

Which one is right for me?

If you have an MVA claim, you will not be paid income support along the way.  If your injuries are serious and you need substantial time off from work, you may need access to Centrelink or other pensions to receive an income during this period. You can also be expected to pay for your own medical and travel expenses. It is possible for the insurance company to pay your medical expenses throughout the course of your claim, but they can cease this funding at any time until your claim is settled so it can be difficult to access the medical treatment you need.

If you fall under the Commonwealth workers compensation scheme all of the above would be covered within reason.  However, the benefit of an MVA claim is that you can receive a lump sum of compensation and manage your own recovery, treatment and any re-training you might want to engage in if you have difficulties returning to work.

A critical difference between the two claim types is that once you finalize your MVA claim (which can take years depending on the extent of your injuries) you cannot seek further compensation from the insurance company.  If your injury deteriorates and you suddenly require expensive medical treatment, this needs to be paid for out of your original settlement.  These expenses can quickly add up. Whereas under Commonwealth workers compensation if you have an accepted claim and the medical expenses are reasonable and related to the work injury, they should be funded whenever you need them, for the rest of your life.

Clearly, there are important factors to take into account before deciding what sort of claim you want to pursue.  In certain circumstances it will be possible for you to pursue both types of claim but you should seek legal advice about this as soon as possible after the accident.

Tindall Gask Bentley Lawyers offers a wealth of experience in both workers compensation and motor vehicle accident claims. Our expert team is ready to help you decide your course of action and fight to secure compensation. Book a free initial first interview today or register your details here and we’ll be in touch soon.

Get in Touch!

To discuss anything in this article, or if you believe you may be eligible for compensation and would like help with your Comcare compensation claim,  please contact TGB partner Tim White.

Tim and his team advise Commonwealth employees across Australia on their entitlement to compensation, and making Comcare claims.

If you need help securing your entitlements, get in touch with Tim on 1800 730 842 or via twhite@tgb.com.au.