TGB's Ashleigh Ridgway explains three crucial sections of legislation for Comcare injury claims.
When making a claim for compensation as an injured commonwealth worker, a basic understanding of the most relevant sections of legislation is imperative, writes TGB personal injury lawyer Ashleigh Ridgway.
Three Key Sections Every Commonwealth Worker Needs to Know for their Comcare Injury Claim
Commonwealth workers’ injury claims are governed by the Safety, Rehabilitation and Compensation Act 1988.
There are three key sections every commonwealth worker should know when submitting claims for compensation.
Section 14: The First Step
Section 14 is the gateway section of the legislation. Comcare, the insurer, or your employer will either accept or deny your claim initially under this section.
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
If your claim is not accepted under section 14, you cannot access any compensation for your injuries. This includes reasonable medical expenses and rehabilitation costs as well as weekly payments if you are required to take time off work. You should seek legal advice if the insurer does not accept liability for your claim.
If your claim is accepted, you need to read the decision from your employer very carefully to ensure you are able to access compensation for your injury as listed above.
Section 16: Reimbursement for Medical Expenses
Once your claim has been accepted under section 14 (meaning it is a ‘work related injury’) you need to ensure it is also accepted under Section 16. If accepted under Section 16 you will be able to claim reasonable medical expenses for treatment and rehabilitation for your injury.
Section 16 is detailed but some of the important subsections are:
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
You can generally claim any reasonable medical expenses from the insurer. This includes things like medical consultations, medication, surgery costs and physiotherapy treatment. You can either have your treatment provider send their account direct to the insurer, or pay for it yourself and ask the insurer to reimburse you.
In addition, section 16 requires the insurer to reimburse you for travelling expenses such as petrol, provided the journey was over 50km (return). A train or bus ticket will be reimbursed if the transportation method was reasonably required by you, regardless of the distance travelled. The insurer is also required to pay you accommodation if you need to stay somewhere overnight to obtain medical treatment. There are factors the insurer will take into account when determining the amount to be paid in respect of a journey or accommodation. These factors are listed in section 16(8):
(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was available to the employee;
(b) the means of transport available to the employee for the journey;
(c) the route or routes by which the employee could have travelled; and
(d) the accommodation available to the employee.
If your claim is not accepted under section 16 your employer will not cover any medical, rehabilitation or travelling expenses associated with your injury, which can easily add up so you should contact a lawyer to discuss your dispute options.
Section 19: Recover Earnings
From an injured worker’s perspective section 19 is one of the most important in the legislation as it deals with an injured workers ability to claim income maintenance while they are off work recovering from their injury. Section 19 is very detailed, but importantly, once your claim is accepted under section 19 you are entitled to incapacity payments equivalent to your average weekly earnings, initially, whilst you remain off work.
Incapacity payments are based on your normal weekly earnings and can take into account overtime and shift allowances if applicable. Basically what you are paid whilst off from work should be very similar to what you were earning prior to the injury. If you believe your normal weekly earnings have been calculated incorrectly, click here to read more about your options.
If you are able to return to work, the insurer will calculate how much you actually earn at work (i.e. perhaps you will initially work 2 hours per day for three days per week) and deduct the amount earned from your normal weekly earnings figure. This re-calculation continues as you increase your hours at work and hopefully make a full recovery.
These sections are particularly important because it is possible for your claim to be accepted under section 14, but the insurer not accept your claim for any compensation under section 16 or 19. You should seek legal advice if you receive a decision like this because you may not be able to access the entitlements described above if such a decision is made. An experienced lawyer will be able to guide you through this process and work towards ensuring you receive the entitlements that you deserve.
Conversely, if your claim is accepted for only section 19 or section 16 expenses your lawyer will be able to determine if there are more entitlements you could be accessing.
Unfortunately, it is possible for your employer to cease your entitlement to compensation under section 16 or section 19 throughout the duration of your claim, if this happens your lawyer can work with you to dispute that decision also. That aspect alone involves multiple issues and the important aspects of what can be done if this occurs, are not covered in this particular blog.
Hopefully after reading this you will have a greater understanding of the different sections of legislation you may come across when making a claim for compensation (as a commonwealth worker) either through your employer or Comcare.
Expert Help with your Comcare Injury Claim
TGB has significant experience with commonwealth employee claims. For further information or assistance with your claim, contact us at your nearest TGB office.