15 May 2017
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).
Currently, injured workers covered by the Comcare or Seacare schemes lose the right to claim loss of earnings benefits at age 65 despite many Australians not being able to access the pension until age 67. The Bill amends the SRC Act and the Seafarers Act to ensure that injured employees in receipt of weekly compensation payments for incapacity can continue to receive those payments until they reach ‘pension age’ as defined in the Social Security Act 1991. The qualifying age for the age pension under the Social Security Act 1991 will begin to increase on 1 July 2017. By linking compensation for incapacity with the pension age rather than age 65, these amendments will ensure there is no gap between the cessation of compensation for incapacity and eligibility for receipt of the age pension.
The Bill also seeks to bring into line benefits for catastrophically injured workers who will require intensive care and support for the rest of their lives because of the severity of their injuries. Currently there is a cap on weekly compensation payable for household services and attendant care services for employees with a catastrophic injury. This cap will be removed. An employee with a catastrophic injury will also be eligible to receive compensation for household services from the day of the injury whereas under current legislative arrangements there is a 28-day waiting period.
5 May 2017
Psychological Injuries - Developments in "Reasonable Administrative Action"
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?
In the case of Martin a claim was made for a psychological condition arising out of an employee’s failure to get a promotion. The applicant, Ms. Martin, claimed that she had been bullied and harassed by her supervisor at her place of work, the ABC. As a result of the bullying she sought and obtained a temporary transfer to a higher position. When she applied to be made permanent in that new position she was unsuccessful and “broke down uncontrollably” as a result. She was diagnosed with an adjustment disorder. The Tribunal supported Comcare’s decision that Ms. Martin had suffered the injury “as a result of reasonable administrative action”. The case was appealed through the Federal Court, and then to the Full Court of the Federal Court, which found that the Tribunal had made the wrong finding regarding the cause of the disorder. The High Court however rejected the decision of the Full Court of the Federal Court, in particular with respect to how the Court interpreted “as a result of” as importing a “common sense” test. At the heart of it, the Court held that the appropriate test was whether without the taking of the administrative action, the applicant would have suffered the injury.
In the subsequent decision of Lim, ( FCAFC 64) handed down by the Full Court of the Federal Court, the Court agreed with the Tribunal that the relevant adjustment disorder was contributed to, to a significant degree, by her employment. This case also involved a psychological condition arising out of Dr. Lim’s employment. However, unlike Martin, there were numerous other employment related factors which contributed to the injury. The Full Court of the Federal Court ruled that the matter be sent back the Tribunal. The reason for this, they stated, was that on the face of it, there was no evidence that she would not have suffered the ailment had the relevant administrative action been taken.
What does this all mean?
In essence what the decisions in Martin and Lim mean is that although there may have been reasonable administrative action undertaken in a reasonable manner, that in and of itself will not trigger the exclusion. What must be shown is that there were no other employment related factors which contributed “to a significant degree” to the injury. In other words, if there are multiple employment related factors which have significantly contributed to the injury, the fact that one or more might be considered reasonable administrative action, is not sufficient to trigger the exclusion. The Tribunal must weigh up all the factors and determine whether, had it not been for the reasonable administrative action, would the injury still have occurred?
This is a helpful departure for injured workers from the previous interpretations of how the RAA exclusionary provision operated which from the time of the decision in Hart v Comcare  FCAFC 16] was regarded as applying if any one “reasonable administrative action” contributed to an injury. In other words, on the basis of Hart, even if there were numerous employment related factors which contributed to a psychological injury but only one “reasonable administrative action” which did so, the whole claim would fail.
Having said that, psychological injury cases are still difficult for workers to win with the legislation, and the way it is generally applied, stacked up against them.
3 April 2017
How long should Comcare or a licensee pay for physiotherapy treatment?
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:
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.
There is considerable case law to the effect that for treatment to be compensable it must have therapeutic value and Comcare and licensees often argue that treatment can only have therapeutic value if it results in permanent improvement and that treatment which only provides temporary pain relief and or maintenance cannot be regarded as “therapeutic.”
Sommerville and Comcare  AATA 289 (5 May 2016) is a recent decision which helpfully sets out the circumstances in which physiotherapy and other passive therapy treatments (i.e. hydrotherapy, massage etc) can be regarded as therapeutic. Deputy President Bean said in his decision, “It is clear from the applicable case law, that treatment can be “therapeutic”, even if its only effect is the reduction of pain.”
Deputy President Bean then went on to summarise the case law as follows:
In Comcare v Watson, (1997) 73 FCR 273), Comcare submitted that a treatment can only be “therapeutic” if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the “healing or curative” connotation of the words “therapy” and “therapeutic”: see eg Shorter OED, 3rd ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of “therapeutic treatment” which includes “treatment given for the purpose of alleviating an injury”: [emphasis added]. The Shorter OED, for example, defines “alleviation” as “the action of lightening … pain”. That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation.
Deputy President Bean also referred to case law which supports the proposition that the provision of temporary relief from pain through physiotherapy can qualify as medical treatment which it is reasonable for an employee to obtain. In Re Chowdhary and Comcare, the Tribunal observed that, “While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement.”
As indicated in Chowdhary however, there is also case law to the effect that in some circumstances, continuation of passive physiotherapy treatment is not reasonable. In Re Popovic and Comcare (2000) 64 ALD 171), the Tribunal stated (at ): “In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic: … per Finn J. However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997.”
Deputy President Bean said, “Similarly, in Re Alamos and Comcare ( AATA 629), the Tribunal accepted in the context of a back injury that the applicant obtained relief from the pain she suffered and gained flexibility following each session of physiotherapy treatment. However, the Tribunal also stated that in considering whether particular treatment was reasonable, “it is necessary to consider all of the circumstances” and not only the beneficial effects experienced by the injured employee. The Tribunal went on to state: “Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:
• the benefit of the treatment to the injured worker;
• the long-term effect of the treatment;
• whether the treatment is likely to cure the injury or significantly reduce its effects;
• whether the treatment maintains the status quo;
• the cost of ongoing treatment.
After referring to the Clinical Framework and other decisions, the Tribunal said: “Mrs Alamos has undertaken more than 300 sessions of physiotherapy which her evidence suggests only results in a short-term alleviation of symptoms. In such circumstances, as noted by the Tribunal in Chowdhary and Popovic, it may not be reasonable to obtain ongoing treatment.”
Deputy President Bean also referred to another case where a similar decision was reached by the Tribunal in Re Durham and Comcare ( AATA 753). Again, this case involved a back injury which had occurred some 17 years previously. Prior to Comcare’s decision not to pay for further physiotherapy, the applicant was obtaining two sessions of physiotherapy per week. In light of the evidence, previous cases and the Clinical Framework, the Tribunal concluded:
“ I am satisfied from the evidence of the Applicant himself, and all the doctors whose evidence was before me, that there has been no consistent progressive improvement in Mr Durham’s back over the last 17 years. He has become habituated to the physiotherapy, even though he has managed with one session or less a week since December 2013. In considering the application of the case law (Re Popovic and Comcare and Comcare v Rope and Comcare v Holt), and the cost benefit argument, I find that long term physiotherapy such as Mr Durham has had has no place. The ‘Clinical Framework for the Delivery of Health Services’ deals with independence and self management, which has been hampered by Mr Durham’s dependence upon twice weekly Commonwealth funded physiotherapy. I am satisfied that the correct or preferable decision is to affirm the decision of the Respondent of 14 August 2013.
Deputy President Bean concluded however, that a significant point of distinction between those cases and Ms Somerville’s matter was that she was not seeking regular ongoing physiotherapy treatment. Rather, her position was that she required access to physiotherapy as needed, in particular to manage the effects of flare-ups of her condition. He noted that Ms Sommerville’s expectation was that she was likely to need in the order of one or two sessions of physiotherapy per year. He also noted that the cost of the physiotherapy treatment was likely to be in the vicinity of $60 per session. Deputy President Bean also referred to the records produced by Comcare which verified that Ms Sommerville had made infrequent claims for physiotherapy treatment in recent years and he found for the Applicant in this regard.
The “take out” from this decision is that claims for longstanding physiotherapy treatment will be decided on the facts, will involve a costs benefit analysis and will depend on the therapeutic value of the treatment on an ongoing basis.
There are many decisions where the Tribunal has refused to reinstate liability for physiotherapy treatment which has continued for years with multiple sessions at significant expense and little obvious improvement. Treatment used sparingly is more likely to be approved and where injured workers become dependent on treatment which does not demonstrably result in any real improvement or alleviation of symptoms is unlikely to be found to be compensable for years on end.
30 March 2017
Comcare Payments and Superannuation
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).
“Retirement” in this context can include medical retirement, redundancy and/or resignation or termination for some other reason. If a worker accepts a voluntary redundancy or resigns for reasons other than ill health, this may mean that there is no entitlement to receive loss of earnings (incapacity) benefits. However, the right to claim medical and like expenses and/or lump sum impairment continues after termination of employment whatever the reason for the termination.
In the case of medical retirement and/or forced redundancy, injured workers may still be entitled to loss of earnings (incapacity) benefits. However, these benefits may be reduced on the basis that superannuation has been “received” and the formulas in sections 20 to 21A of the SRCA referred to above will be applied.
An employee is taken to have “received” their superannuation benefit if they have retired from employment and accessed their superannuation or reached their minimum preservation age (usually age 55) and rolled over their superannuation benefit to another fund (whether by election or not.) If retirement takes place before the preservation age of 55, a worker is not taken to have “received” his or her superannuation because this is not presently payable. (Comcare v Dunstan  FCAFC 2)
Comcare (or a licensee) can only take into account the employer-funded component of a superannuation benefit. Contributions made by workers are not taken into account when applying the formula and calculating a worker’s incapacity benefits.
Most superannuation schemes provide for a total and permanent disability (TPD) benefit to be paid (which is over and above the normal resignation benefit) where a worker is considered to be totally and permanently disabled as may be the case on medical retirement.
A TPD benefit may be considered to form part of superannuation as it is received on retirement. However, what is then required is the identification of the ‘superannuation amount’ (i.e. the proportion of the TPD lump sum payment attributable to the employer’s contributions, and not the employee’s own contributions). In other words, some or all of the TPD payment may form part of the superannuation amount as defined (Lushington and Comcare  AATA 310 (18 April 2001).
What the lump sum payment is comprised of should be considered on a case by case basis in order to assess the employer’s contribution. It may be that the superannuation scheme identifies a part of the lump sum as attributable to the employer’s contributions or where that is not possible, it may be that the whole of the lump sum is considered to be the superannuation amount.
Under the current formula each $100,000 in superannuation lump sum received will result in a reduction in incapacity benefits of approximately $50.00 per week.
Once employment is terminated, incapacity payments will be increased on 1 July every year by the relevant indexation rate as prescribed.
23 May 2016
Comcare Payments Update
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).
If you are on Comcare benefits, you should provide your EFT details to Comcare so that you can receive payments direct, if you are not already doing so.
The advantages of receiving payments by EFT means that delay will be minimised and workers will also receive notifications and updates via email.
The benefits for service providers are clear. Some service providers including GP’s and medical specialists are reluctant to treat Comcare claimants because of delays in receiving payments and accounts being lost or unable to be located by Comcare. Forwarding invoices electronically and receiving payment by EFT should minimise administration costs and expedite payments. Comcare claimants should advise their treaters of this new facility.
Registration can be done through the online forms portal:
Even though electronic processing is a positive move, Comcare receipients will remain frustrated by delays in claims being accepted and processed. Unfortunately time limits for the processing of claims are yet to be introduced despite the Safety Rehabilitation and Compensation Act being amended by the Gillard Government to inroduce time limits. Section 61 (1A) provides that the determining authority must consider and determine each claim for compensation within the “period prescribed by the regulations.” Unfortunately regulations prescribing time limits have never been passed.
If you have lodged a claim for compensation or payment of a claim and this has been denied or you have not received a response, Angela Sdrinis Legal can assist with a free first consultation.
22 September 2015
Comcare Bill stalled in the Senate -Abetz tries to make changes through the back door
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)
The “fit note” will apparently be an amended type of “Certificate of Capacity” which doctors currently complete when workers need time off for an employment related injury. There is no current requirement under the Safety Rehabilitation and Compensation Act 1988 (SRCA) for doctors to complete a prescribed form but most doctors use either the certificates that have been developed under the state based workers compensation system of the place where the worker resides or certificates of capacity that have been developed by Comcare. It seems from Abetz’s announcements that doctors will be pressured to use the so called “fit notes” which he said “will help employers understand what they need to do to support a person to return to work and good health as quickly as possible. The certificate of capacity will focus on capacity for work and encourages doctors to consider options including a graduated return to work, modified duties and reduced hours.”
It is of course really important for workers to get themselves back to work after an employment related injury. The sooner workers get back to work the less likely it is that an injury will become entrenched. However the announcement about a new type of certificate of capacity which it appears will become compulsory for use and may be rolled out nationally is of concern in the current environment where we have a Bill in parliament which contains very harsh sanctions for workers who are unable to get back to work. It seems this step is probably part of a wider campaign which seems to be pointed at either getting workers back to work or getting them off the system, regardless of whether they have the capacity to work and in some cases regardless of whether their employers are prepared to make the reasonable adjustments often required before they can go back.
The reality is that under the Bill workers face sanctions if they don’t get back to work but there is very little by way of penalties for employers who refuse to offer suitable duties to their injured workers.
6 July 2015
Compo win against Australia Post- NWE, loss of overtime, impairment and physiotherapy treatment.
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:
The Tribunal found that the Applicant was entitled to lump sum impairment with respect to left and right shoulder injuries. In determining the NEL scores which were to be applied, the Tribunal referred to the “duality of the injuries” but in the end was satisfied that the Applicant was entitled to rely on separate NEL scores for each injury even though arguably there may have been some cross over in effect. Senior Member Handley said at para 112 after determining that the same score for suffering should be applied with respect to each claim:
“On balance I am satisfied that a score of 2 should be applied in respect of the applicant’s right shoulder because his symptoms were distinct, were in the nature of mental distress, were episodic in nature and his activities were reduced. I think a similar finding should be made in respect of the left shoulder, because it is that injury which must also be assessed, as opposed to an assessment of the contribution to the suffering by that injury upon the applicant with an equivalent injury in his other limb. To follow that path runs the risk of assessing the suffering upon the applicant as a whole person when, section 27 entitles compensation for non-economic loss in respect to an injury. I do not know of any authority on these issues and none was submitted. The exercise of making a finding of the suffering experienced by the applicant as a result of his left shoulder injury, in his circumstances, is very difficult but in an attempt to exclude the presence of the right shoulder injury I find that an equivalent score of 2 should be also be applied in respect of the applicant’s left shoulder.”
Indeed Senior Member Handley found that identical scores under all the NEL components should be applied across the board. Notably Senior Member Handley also found that a sore of 1 should be applied for each injury under “Other Loss” in respect of which he stated:
“I am satisfied that the level of effect upon the applicant by his injuries is greater than minimal and less than marked (but only by regard to the tenor of the criteria against a score of 2). I am satisfied the Other loss(es) suffered by the applicant are best described as moderate disadvantages. The examples given attracting a score of 1 should be understood as examples only to which the applicant is not confined. I am satisfied that each injury, which has caused the applicant to need assistance with dressing, tying shoelaces and his impediment with bathing attracts a score of 1 for each shoulder. The limitations on his dexterity must be numerous as obvious by the two examples recorded above observed during the hearing. The inability of an adult to dress, on occasions, unassisted and be unable to bathe unrestrained is more than a minimal disadvantage.”
Senior Member Handley also found in favour of the Applicant with respect to ongoing liability for physiotherapy treatment. Admittedly, the focus of the decision was on self-management with a home based exercise program to be monitored by a physiotherapist with personal consultations every 3 to 4 weeks as determined by the physiotherapist.
This decision is in contrast to Senior Member Handley’s decision in Bayani v Australia Post (http://www.austlii.edu.au/au/cases/cth/AATA/2015/342.html) which was decided a few weeks earlier. In Bayani, Senior Member Handley found affirmed the decision denying liability for ongoing physiotherapy treatment. Senior Member Handley said:
“The applicant has engaged in physiotherapy treatment for many years but without any alleviation of her injuries. At best, those consultations have done no more than provide her with temporary reduction in her levels of pain and minimal but temporary increases in mobility and independence. It is very unfortunate that there has not been recognition by her practitioners that the applicant has become dependent upon them rather than them directing her focus towards appropriate and competent instruction of appropriate self-management strategies.”
In coming to his decision Snr Member Handley referred to the decision of Comcare v Watson  FCA 149; (1997) 46 ALD 481 at 484, where Finn J considered the definition of therapeutic treatment as appearing within the definition of medical treatment and said “A summary of Finn J’s findings include:
The decision in Maalouf is of interest because the Tribunla determined essentially that the worker was entitled to separate and identical NEL scores for each upper limb injury whereas Comcare and licensees generally will argue that this would normally be tantamount to “double dipping”. The application of a score of 1 under “other loss” is also relevant as claimants are often met with the argument that there should be no score for “Other Loss” in straightforward musculo-skeletal injuries.
Both cases referred to above are helpful in the analysis of when a claim for ongoing physiotherapy treatment should be pursued before the Tribunal.”
30 March 2015
ABBOTT GOVERNMENT ATTACKS THE RIGHTS OF INJURED WORKERS
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.
(See Angela Sdrinis Legal's full submission to the Senate Standing Committee on Education and Employment on the Safety,Rehabilitation and Compensation Amendment (Improving the Comcare Sceme) Bill 2015 by clicking on the link below)
There is no doubt workplace injuries do cost too much. Work injuries cost employers and they cost workers. The SRCA has never provided common law type damages the aim of which is to put a worker in the position they would have been had they not been injured. Increasingly, with limits on and reduction of benefits, workers who are in receipt of compensation under the Comcare scheme, find that they struggle to make ends meet. Many workers with long term injuries go so far backwards after a work injury that they never recover, either psychologically or financially. Of course the effects are worse for those workers whose claims are denied altogether and the proposed changes to the SRCA will mean that some workers will lose the right to compensation at all or their benefits under the scheme will be substantially reduced.
If the Government and employers want to save money in the long term the emphasis should be on health and safety and not on trying to reduce benefits once an injury occurs. In the area of mental health in particular, where we are seeing an increasing incidence of psychological injury because of bullying in the workplace, the changes proposed in the Bill will make it even harder for these workers to successfully claim compensation. This means that there will be less pressure on employers to provide a safe workplace and injured workers will end up on the scrap heap at the cost of tax payers rather than employers.
The Changes can be found under a number of broad headings contained under Schedules in the amending Bill:
Schedule 1 amends the Act to alter eligibility requirements for compensation and includes a new definition for significant degree which now means a “degree that is substantially more than material”. At this stage it is hard to know how this definition will play out in practical terms. In addition, certain matters are to be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee‘s employment and new eligibility criteria for compensation for designated injuries (such as heart attacks, strokes and spinal disc ruptures) and aggravations of designated injuries will apply. The threshold for perception-based disease claims will be effectively raised and the scope of the “reasonable administrative action” exclusionary provisions will be widened to encompass injuries suffered as a result of reasonable management action generally (including organisational or corporate restructures and operational directions) as well as an employee‘s anticipation or expectation of such action being taken. Effectively these proposed changes mean that it will be harder for workers to claim for a range of injuries (particularly psychological injuries) and many workers (who would presently be eligible to claim compensation under the current legislation) will be locked out of successfully claiming compensation.
The fact that spinal injuries are to be covered by these changes is very disturbing. Since the Comcare scheme was expanded to include licensees such as Linfox, Transpacific Industries, K & S Freighters and other companies where the work is largely manually based, there are many more workers suffering serious spinal injuries which are being covered by the scheme. All workers suffer degeneration in the spine as they age. The changes will mean that many workers with back injuries will no longer be eligible to receive compensation.
Schedule 2 amends the rehabilitation and return to work requirements in the Act. Positive changes include more emphasis on getting workers back to work and putting pressure on employers to provide suitable duties. Notably however, there are no penalties which apply to employers who fail to provide suitable work but workers can request rehabilitation plans and under the proposed changes, decisions regarding rehabilitation can be appealed to the Administrative Appeals Tribunal (AAT).
The proposed changes will however put more pressure on workers to return to work even where they believe that they are not yet ready to return to work and/or where they do not believe the rehabilitations plan is suitable and failure to return to work in these circumstances will mean that liability to pay incapacity payments can be suspended. Further the definition of suitable employment has been expanded “to include any employment with any employer, including self-employment”. This means that it will be easier for employers to argue that workers have a “deemed capacity to earn” thereby more readily allowing for a reduction in incapacity payments even where the worker is not actually physically working and receiving other income.
Schedule 5 amends the Act to impose more rigorous requirements in relation to determining the amount of compensation payable under section 16 of the Act in respect of medical expenses incurred by an injured employee including claims for household and attendant care services. This means that it will be harder for workers to successfully claim for these services. Further, a tiered approach will be introduced which will limit the periods that compensation for these services can be paid to workers with “non-catastrophic” injuries. The proposed changes also require that attendant care services to be provided by accredited, registered or approved providers and not by relatives or household members.
Schedule 7 amends the Act to suspend compensation payments when an injured employee is absent from Australia for non-work related purposes for a period of more than 6 weeks. Schedule 8 amends section 116 of the Act to provide that an employee is not entitled to take or accrue any leave entitlements while on compensation leave. Currently workers accrue annual and sick leave during the first 45 weeks of compensation leave and continue to accrue long service leave beyond that date. Schedule 9 contains amendments that align with some state and territory workers‘ compensation schemes. These amendments alter the method of calculating an employee‘s weekly incapacity payments and introduce new “step down” provisions to taper the amount of weekly compensation payments an injured employee is entitled to. This means that workers will no longer be entitled to full pay for the first 45 weeks.
Schedule 10 amends the Act to increase the compulsory redemption threshold where weekly payments of incapacity benefits are up to $208.91 per week. This figure is still way too low to make redemptions (ie pay-outs) an attractive option for workers.
Schedule 11 contains a range of amendments regarding payment of legal costs. One positive change includes that legal costs may be payable with respect to the reconsideration processes. However, an extremely risky change for workers is that workers may be ordered to pay an employer’s costs if an application before the AAT is unsuccessful. Currently, workers cannot be ordered to pay their employer’s legal costs if a claim for compensation is lost in the AAT. The proposed amendments also include that Comcare can introduce a compulsory scale of costs which means that if this scale is less generous than the current 75% of Federal Court Scale which applies in AAT matters, workers will end up paying more in solicitor/client costs which is the shortfall in costs incurred by a claimant and the costs payable by the other side.
Schedule 12 contains amendments that increase the maximum benefit payable under section 24 of the SRCA ie lump sum impairment to $350,000 (the current maximum is about $235,000). However Schedule 12 also provides for a new method for calculating permanent impairment compensation which means that less money is awarded to those who have lower impairment levels, particularly at 10%, which is obviously the most common impairment rate. However, multiple injuries arising out of the same incident or injury will be able to be combined which means that it might be easier to get to 10% or more. On the other hand, access to permanent impairment compensation for secondary psychological or psychiatric ailments and injuries (which is the most common type of secondary injury) will be excluded under the proposed changes.
Some positive changes include that claims are likely to be determined more quickly and that an employer can make provisional medical expenses payments (capped at $5,000) to allow for treatment of an injury before liability has been determined. Comcare will also be able to pay compensation for detriment caused by defective administration. Another positive change is to link the payment of incapacity payments to the pension age, rather than cutting off these payments at a set age currently age 65. Further, the 5% deduction on compensation payments to employees who are accessing superannuation benefits will be removed.
Some of the changes are retrospective whilst others will apply to injuries sustained after the Bill is passed. Whether the Bill will find its way through Parliament in its entirety is of course questionable given the make-up of the Senate and the difficulties that the Abbott Government has generally experienced in passing its legislative agenda.
For example, the Abbott Government introduced a Bill to amend the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on 19 March 2014. The Bill can be found here. The Bill includes changes aimed at easier access to companies who wish to enter the Comcare scheme and removes compensation cover for injuries which occur during off site recesses including lunch breaks. The bill passed the lower house on 26 November 2014 but is yet to pass the Senate.
14 January 2015
DELAY IN SEEKING MEDICAL TREATMENT IN COMCARE CLAIMS
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.
The date of injury is important because under the Safety Rehabilitation and Compensation Act (SRCA) compensation can only be paid from the date the injury is deemed to have occurred. Section 7(4) of the SRCA provides that the injury occurs on the date the claimant first seeks medical treatment. It is therefore important that you attend the doctor as soon as possible if you are injured at work.
A recent Federal Court decision highlighted how important attending the doctor can be. In a matter of Hutchinson v Comcare  FCA 1300, the claimant had suffered a psychological injury at work and was claiming compensation from 5th March 2010 which was the date the worker asserted the incident at work which caused her injury occurred. However Ms Hutchinson did not see the doctor until 31 January 2011 and she appealed a decision by the Administrative Appeals Tribunal which found the date of injury was in fact the date that she first saw the doctor. The Federal Court dismissed the Appeal on the basis that there was no error of law in the Tribunal’s findings. Appeals from the Administrative Appeals Tribunal must be on a question of law, not a question of fact. However, the judge determining the case stated, “even if her (the claimant’s) arguments are correct, they do not reveal an error of law on the part of the Tribunal”.
This case highlights the importance of consulting a doctor as soon as possible after an injury occurs. It is also important to lodge an incident report as soon as possible after work injury. Whilst there is no time limit in the Act for notifying an employer of an injury, s 53 of the SRCA requires that notice of injury is provided “as soon as practicable” and it is not unusual for employers under the Comcare scheme to seek to deny claims on the basis of delay. Generally however the Tribunal will allow claims for compensation where there has been delay in providing notification if the worker can provide an explanation for the delay and if the employer cannot show that it has suffered prejudice because of the delay. (see Prater v Comcare  AATA 7).
8 December 2014
SUPERANNUATION AND INCAPACITY BENEFITS UNDER THE COMCARE SCHEME
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).
The reasoning behind the decision was that the worker has access to the funds for his or her “own purposes including rollover.” This means that for workers below the age of 55, only non-preserved amounts are taken into account because preserved amounts can only be accessed once the worker attains a certain age. The formula also only applies to the employer funded component of the superannuation amount.
This can lead to another problem which is identifying when preserved amounts have been paid at which point the formula will kick in again leading to a further reduction of benefits. Comcare seeks to ensure notification of preserved benefits being paid by requiring the employee’s superannuation scheme to advise when the employee receives a pension, lump sum or both and by requiring workers in receipt of incapacity benefits to complete periodical review forms. (see Comcare Jurisdictional Policy Advice No 2001/18)
In addition, a worker has little capacity to independently verify an employer’s assertions regarding the “employer funded” component of a superannuation pay out and obviously the higher the so called employer funded component, the greater the reduction in incapacity payments.
Unfortunately the provisions reducing a worker’s weekly payment also kick in when a worker takes invalidity retirement unless the worker can demonstrate that the payment (TPD) was an insured benefit and that there were no “employer contributions”.
A report following the review of the Comcare scheme in 2013 (http://docs.employment.gov.au/node/31849) recommended that the provisions which result in reductions in weekly payments on “receipt” of superannuation be removed or at least ameliorated (recommendations 7.5, 7.6 and 7.7). This report was commissioned by the then Labour Government and not surprisingly these recommendations have not been taken up by the Abbott Government.
7 November 2014
ACCRUAL OF ENTITLEMENTS AND THE COST OF MEDICATION FOR TELSTRA WORKERS UNDER THE COMCARE SCHEME.
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.
Recently Telstra has written to a number of workers advising that it has continued to allow injured workers to accrue sick leave and annual leave entitlements beyond the first 45 weeks and that it is now correcting its records and clawing back any entitlements accrued in error.
Recovery of accrued entitlements is covered by the Fair Work Act 2009 which provides that an employer cannot seek to recover alleged overpayments by simply deducting these from a worker’s pay. Instead, the worker and employer should discuss and agree on a repayment arrangement. If the employee agrees to repay the money, a written agreement has to be made and has to set out:
Alternatively a deduction can be made to get back an overpayment if this is allowed under a registered agreement, award, legislation or court order.
Telstra has also notified all injured workers with current claims that cost of medication will only be covered at the rate provided by the Pharmaceutical Benefits Scheme (PBS) and that claimants should provide their medicare or health benefits card to the dispensing chemist.
However, injured workers should be aware that the Safety Rehabilitation and Compensation Act provides that Telstra must pay medical expenses, including the cost of medication, which are “reasonable”. Accordingly, if medication is either not covered by the PBS and/or workers are charged at higher than PBS rates, Telstra can still be required to reimburse the full cost to the worker rather than a reduced PBS or nor PBS rate.
WORKERS WITH PSYCHOLOGICAL INJURIES LIKELY TO BE PUNISHED AGAIN.
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)
A second review was commissioned by the then Minister for Workplace Relations Bill Shorten was released in 2013. (http://docs.employment.gov.au/node/31849). Our previous blog referred to the current Bill amending the Safety Rehabilitation and Compensation Act. (http://www.angelasdrinislegal.com.au/comcare.html).
Unfortunately many of the changes recommended by previous reviews that were positive for workers have never been implemented. Instead we have seen a continuous process which commenced in 2006 under the then Howard Government to reduce worker’s rights. This is particularly so in the area of psychological injuries. The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (SRCOLA) introduced the concept of “reasonable administrative action” which allowed claims for psychological injuries to be excluded if the injury had been contributed to by “reasonable administrative action undertaken in a reasonable manner”.
Unfortunately, this section was applied to find that if any “reasonable” action had contributed to a psychological injury in any way, then the worker’s claim for compensation would fail. The Full Federal Court (FFC) in Hart v Comcare  FCAFC 16 (11 March 2005) (Hart) ruled if one or more of the contributing factors (in the causation or worsening of an employee’s injury or disease) falls within the meaning of an exclusionary provision, an employer will not be liable for the condition.
It is the nature of the vast majority of psychological injuries that they develop over a period of time. Often workers will (as a result of previous trauma) become “sensitised” and may appear to “over react” to what would in the normal course of events not be regarded as an “unreasonable” action on the part of the employer. Unfortunately Hart means that the majority of claims involving psychological injuries will fail simply because in the history of any long running claim, there is likely be at least one “reasonable” action which in a highly charged environment involving work place stress or bullying which will contribute to an injury.
Indeed the Hanks review recognised the harshness of the current regime and recommended that the relevant test should be that the “reasonable administrative action” should be the significant contributing factor to an injury, not just a factor, for a claim for psychological injuries to fail. This recommendation was not implemented by the Labour Government which commissioned the report and recent media reports suggest that it is highly unlikely that the current government would take up this recommendation which would ameliorate the harshness of the current regime when it comes to workers with mental health injuries.
A recent article in the Sydney Morning Herald suggests that the Abbott government is planning a fresh assault on the Comcare scheme planning changes that will “attack the most controversial aspects of the Commonwealth's schemes – payouts for psychological injuries, compensation for life, and taxpayer-funded access to dubious therapies.” (http://www.smh.com.au/national/public-service/public-service-compo-culture-in-governments-sights-20140929-10ncyf.html#ixzz3ElyMoIpP )
Unfortunately making it more difficult for workers to claim compensation for psychological injuries is not a solution to the increased incidence of workplace stress that we are seeing. Rather than punishing people who are becoming ill because of work related stress and bullying, we should be looking at the causes of these injuries and why our workplaces are making people ill. In addition, depriving workers of their compensation rights just means that people are shunted onto Centrelink and Medicare and that employers who should be protecting their people escape liability for injuries that are ultimately funded by taxpayers.
Further, a sympathetic rather than a punitive regime is more likely to see workers able to return to work. One proposal which the Federal Government has failed to implement over many years is to develop appropriate inter agency redeployments for people who have suffered work related stress because it is often the case that whilst a worker who has been bullied cannot return to the workplace where the injury occurred, they might flourish in another workplace.
Ironically, the Federal Government undertook an investigation into bullying in the workplace and on 27th June 2013 introduced changes to the Fair Work Act allowing the Fair Work Commission to deal with workplace bullying. However, how useful is this process to be if employers know that workplace bullying will not cost them. In other words, we know that change is more likely to occur where the hip pocket nerve is affected. Whilst the amendments to the Fair Work Act allow a penalty to be imposed on an employer who fails to stop the bullying, these penalties are modest. This process also fails to deal with situations where the bullying has already occurred and injured workers end up on the scrap heap with no recourse to compensation.
29 September 2014
MORE NATIONAL EMPLOYERS TO MOVE TO COMCARE SCHEME
On 19 March 2014, the Federal government introduced the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) into the House of Representatives.
The Bill proposes to allow companies operating across state borders to leave state worker’s compensation schemes and join the federal regime under Comcare. Unions which represent workers in industries such as mining, manufacturing and building which involve heavy work and a higher rate of physical injuries, are opposed to the Bill because they say that Comcare was developed to compensate government workers who traditionally have been in lighter occupations. They say that the benefit regime under the Comcare scheme is less suited to severe injuries.
Certainly, common law rights under the Comcare scheme are derisory compared to the Victorian Workcover scheme for example. Under the Comcare scheme, workers who are injured as a result of the negligence of their employer are limited to claiming damages for pain and suffering to a maximum of $110,000. Workers injured under Victorian law, can claim pain and suffering damages of up to approximately $500,000 and this figure is indexed every year whilst the damages figure under Comcare was set in 1988 and has not been increased since.
Essentially workers common law rights under the Comcare scheme are being abolished by stealth because as the value of the pain and suffering amount is eroded fewer workers are choosing to sue for damages and electing to pursue their lump sum entitlements. This is a win for employers who without an effective common law damages system are under less pressure to provide safe workplaces. In other words, the common law system of financially penalising employers who provide unsafe systems of work is being eroded.
Many workers support groups are calling on the Federal Government to reinstate the moratorium imposed by the Labour Government in 2007 which effectively banned new entrants to the scheme.
In addition, unions are calling on the Federal Government to implement the recommendations of the Hanks report which was handed down in February of 2013, following a review of the Safety Rehabilitation and Compensation Act. (https://employment.gov.au/safety-rehabilitation-and-compensation-act-review-0). Peter Hanks QC, made over 100 recommendations regarding the Comcare system, many of which are still outstanding.
One of the most important recommendations to be implemented, which is in fact outstanding since 2007 when Julia Gillard as the then Workplace Relations Minister commissioned an earlier review, is with respect to the introduction of time limits within which Comcare and licensees are obliged to issue determinations regarding claims for compensation. The Safety Rehabilitation and Compensation Act 1988 was amended in 2011 to provide for time limits which were to be passed by regulation. Unfortunately the Regulations are yet to be introduced. This failure to implement time limits for employers creates a situation where workers can wait for many many months before Comcare issues a determination. In the interim workers are left without income which can and has led to very significant financial and emotional stress.
Under the Victorian Workcover scheme, if an employer has not made a decision within 60 days an application can be made to the Workcover Conciliation Service.
WHAT IS AN EMPLOYER'S OBLIGATION TO OFFER ALTERNATIVE DUTIES TO AN INJURED WORKER?
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.
Nonetheless the reality is that even in large organisations like Telstra and Australia Post, employers often argue that it is not practicable to offer suitable employment to an injured worker. However, a recent decision of Watts v Australian Postal Coporation  FCA 370, may mean that large corporations will not be able to get away with chucking workers with injuries or health conditions (whether work related orotherwise) on the scrap heap.
The facts of the case were that Ms Watts, a bid manager for Australia Post, suffered a psychological injury which was the subject of a workers compensation claim. Ms Watts was able to continue working but in 2010, Australia Post moved to manage her position under its “Non work related medical restrictions policy.” In mid-May 2010, Australia Post directed Ms Watts to take sick leave and not attend for work on the basis that it was not satisfied she was fit to perform her role as a bid manager, and there were no modifications or restrictions it considered were reasonably available to allow her to do so. In other words, Australia Post did not permit Ms Watts to continue in the position she had been occupying as part of her return to work program. Justice Garling summarised the position as follows, “Delay, prevarication, lack of cooperation, stubborn adherence to process and some obstinacy on both sides all contributed to two years passing without Ms Watts returning to work. She used up her sick leave, her annual leave and from 4 August 2011 had to take leave without pay.”
Ms Watts lodged a complaint under the Disability Discrimination Act 1992 (DDA) on the basis that she should have been able to return to work, and transition back into her position as a bid manager, because the employer could have made “reasonable adjustments” which would have enabled her to continue at work.
Judge Mortimer found that “Australia Post contravened the DDA by engaging in unlawful discrimination on the ground of Ms Watts’ disability; namely, her disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour, within the meaning of s 4(1) of the DDA. The contraventions occurred between May 2010 and April 2011, on the basis of a failure by Australia Post to make reasonable adjustments for Ms Watts so she could remain at work. She was denied the ability to attend work, exercise her skills, be able to use her sick and recreation leave as she chose, all of which are benefits associated with her employment. She is entitled, with some qualifications, to compensation consisting of the re-crediting of her leave and other entitlements, with effect from June 2010 because that is consistent with her case at trial. She is not entitled to compensation for loss of income for the period after 21 April 2011, which includes the period she was on leave without pay, as I have found there was no unlawful discrimination by Australia Post during this time.”
Judge Mortimer also found that Ms Watts was entitled to general damages (damages for pain and suffering) which were fixed in the sum of $10,000.
Essentially Judge Mortimer found that an employer is required to make “reasonable adjustments” to enable an injured worker or any employee suffering from a disability to return to or remain at work. In the case of Watts, Judge Mortimer found that it was possible for Australia Post to make adjustments without suffering “unjustifiable hardship” to use the words of the DDA. Further the onus is on the employer to show that reasonable adjustments would result in the employer suffering unjustifiable hardship.
This judgement means that large employers like Telstra and Australia Post and indeed any employer who is covered by the SRCA will probably struggle to show unjustifiable hardship in making reasonable adjustments to allow an injured worker to remain at, or return to, work. This case is a victory for common sense and for those many workers who following an injury at work risk being thrown on to the scrap heap by employers who don’t wish to take the time or put in the effort to return injured workers to meaningful employment.”
DO INJURED WORKERS HAVE TO ATTEND FITNESS FOR DUTY ASSESSMENTS?
Injured workers or those suffering from health conditions will often be called upon by their employer to attend a “fitness for duty” assessment. Whilst employers clearly have a duty to provide work which is safe and appropriate where a worker is suffering from injury or illness, for the individual involved, a fitness for duty assessment can flag attempts to terminate employment. Consequently, fitness for duty assessments can create anxiety and uncertainty for workers who may already be struggling to hang on to their jobs.
In a matter of Grant v BHP Coal Pty Ltd  FWCFB 3027 (18 June 2014), the Fair Work Commission considered a situation where BHP Coal directed a worker who was employed as a boiler maker to attend an appointment that had been arranged with their nominated doctor for an opinion on whether the worker was fit to return to work. When the worker refused to attend the appointment, BHP terminated his employment.
The Fair Work Commission full bench ruled that the termination of employment was lawful and that the direction to attend the occupational physician was a reasonable direction.
This decision clarifies that workers who refuse to attend assessments by a company appointed doctor do so at their own peril and potentially put their employment at risk. Having said that, it is always a question of what is reasonable and there may be circumstances where it is reasonable to decline to attend a fitness for duty assessment.
In addition, injured workers can be required to attend medico legal assessments for the purpose of their Comcare claims. Unreasonably refusing to attend such an assessment will result in a suspension of your entitlement to receive incapacity or loss of earnings benefits [s37(8) of the Safety Rehabilitation and Compensation Act].
The other issue that often arises for injured workers is whether they have to attend the company doctor for the purpose of treatment. Workers may choose to be treated by the company doctor but it is preferable for workers to attend a doctor of their own choice who is more likely to provide independent advice and support. In other words, workers have the right to choose to be treated by any doctor of their choosing.
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