Updates in Comcare

Presumptive Liability, Rehabilitation/Medical Examinations, and Impairment Guide - Fair Work Legislation (Closing Loopholes) Act 2023 (Cth)

Fair Work Legislation (Closing Loopholes) Act 2023 (Cth) - Presumptive Liability, Rehabilitation/Medical Examinations, Impairment Guide.

We wrote previously on time limits being introduced into the Comcare scheme which is one of a suite of changes implemented by the Federal Government in this space. Further changes include:

Presumptive Liability

First responders who are diagnosed with Post Traumatic Stress Disorder will have their psychological injury deemed to have been caused or significantly contributed to by employment and on this basis will be entitled to compensation. Effectively there will be a reverse onus of proof whereby employers will be required to show that the condition is not connected to employment rather than the other way around.

Generally speaking, the class of workers to whom this legislation applies to includes Australian Federal Police officers, Federal Firefighters, Paramedics and other first responders employed in the commonwealth system.

The Minister will be able to declare classes of employees to whom the legislation applies.

Rehabilitation and Medical Examination Assessments

Employees who have made a claim for compensation, or have an existing claim for compensation, are often asked to attend medical examinations for the purpose of determining the merits of the claim and how best to facilitate rehabilitation.

Historically, employers rely heavily on these one-off examinations to consider entire claims. On 14 June 2024, new legislation will become effective allowing employees to review their requirement to attend a medical examination. Similar to above, an employee has 30 days to request reconsideration of a decision requiring them to undergo a medical examination.

The new legislation also requires Comcare to create a Guide for Arranging Rehabilitation Assessments and Requiring Examinations. The guide, among other considerations, will be aimed at strengthening the weight that employers must give to the injured employee’s treating doctors.

Permanent Impairment

Employees who have a permanent impairment in connection with an accepted claim may be entitled to make a further claim for lump sum compensation under the Safety, Rehabilitation and Compensation Act 1988.

To be entitled to a lump sum, an injured worker must have sustained because a compensable injury of at least a 10% permanent level of permanent impairment. In April 2023, Comcare issued their latest edition of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 3.0).

This edition of the guide places a stronger emphasis on objective findings of physical impairment, rather than simply relying on the radiological scans (such as MRIs and X-Rays).

Comcare have also recognised pain conditions in the guide, which arise where no other diagnosis better explains the signs and symptoms of the condition. This opens the door to compensation for employees who have suffered an injury which theoretically should have healed but medically still have pain and impairment.

The Guide to the Assessment of the Degree of Permanent Impairment has always been a tricky instrument to navigate, and we welcome the new edition which aims to provide clarification on how to assess permanent impairment. We remind employees that only qualified medical practitioners can undertake impairment assessments.