CPSU members in Woden demonstrate for fair compensation laws
It is CPSU policy that every worker has the right to work in a safe and healthy environment.
It is also CPSU policy that those workers who suffer from occupational injury
or disease have the right to comprehensive financial compensation and access to
rehabilitation and health care services at their employer’s expense.
What kind of
compensation scheme are you covered by?
The workers’ compensation scheme that covers Commonwealth employees is a
‘no-fault’ scheme. This means that an employer must pay compensation to an
employee who suffers from an injury or illness related to their employment,
regardless of whether or not the injury or illness was caused by the employer’s
negligence. Under this scheme, employment must have contributed in some
significant degree to the onset or aggravation of the injury or illness.
The Commonwealth Safety, Rehabilitation and Compensation Act (the SRC Act)
allows Comcare or licensed employers, like Telstra and Australia Post, to pay
compensation.
When are you entitled to receive workers’ compensation?
You are entitled to receive workers’ compensation when you are injured or
made ill while:
working, including during normal breaks taken at your place of work
attending or travelling to and from
official training, seminars and so on
the place where you are receiving treatment for a work-related and
compensable injury or illness
From 13 April 2007 the Government enacted new legislation which dramatically
reduces the coverage of public sector workers in relation to accidents sustained
during travel to and from work and on breaks. To find out more visit the Compo -
your rights at risk campaign page
What should you do if you have an accident at work
If you suffer an injury or illness at work or experience a serious near-miss
incident, fill out an incident report and notify your supervisor, health and
safety representative and union delegate.
If you are exposed to potentially dangerous substances such as asbestos,
biological hazards (for example, legionnaire’s disease) or chemicals, make sure
the date and circumstances of the incident are recorded in your personnel file.
These records could provide valuable evidence for later claims.
How do you claim workers’ compensation?
To claim workers’ compensation, fill out a Comcare compensation claim form
and submit it to your employer (usually the personnel section) with a medical
certificate from a doctor.
Make sure your medical certificate provides a clear diagnosis and not simply
a description of the symptoms.
Your employer must then complete their details on the form and quickly
forward all documents to Comcare for a decision.
Here are some tips to follow when you are completing a compensation form:
For straightforward claims, such as claims for injuries resulting from
trips and falls, complete the claim form with clear details of the time and
date of the injury and any witnesses.
If your claim is less straightforward or is in relation to an illness or
condition, such as stress, provide very clear and relevant details on the
claim form. Include details of as many work-related episodes as you can that
may have contributed to the final illness, for example, ‘throughout the
course of my employment and in particular on . . .’ (include specific date/s
and episode/s). All evidence and statements must show how the injury or
illness is related to your employment.
If you have ever suffered from a similar injury or illness before, even
if it was a long time ago, make sure you mention this on your claim form.
Make sure that your job description includes the duties you were doing
when you sustained the injury.
Start a personal file in which to keep a copy of your claim form, copies
of all inward and outward correspondence, medical reports and a dated
written record of important conversations with relevant parties.
Forward all medical and pharmaceutical receipts with your claim, keeping
a copy in your personal file.
Only submit medical reports that support your claim.
Include the names of witnesses and consider including witness statements
to support your claim.
What should you do if your claim takes too long?
In most cases, claims for compensation are settled quickly and amicably.
However, claims for some illnesses can take longer, for example, occupational
stress, occupational overuse syndrome (also known as RSI), heart attack or
degenerative back conditions.
If Comcare takes an unreasonably long time to make a decision about your
claim, contact the Comcare team leader. If that doesn’t help, contact the
Commonwealth Ombudsman to investigate the delay. CPSU can also refer you to a
law firm to assist you to progress your claim.
What types of claims are rejected?
The SRC Act describes certain claims that are not accepted. These are claims
for stress resulting in any way from reasonable administrative action taken in a
reasonable manner, which means anything reasonable done in connection with:
a performance appraisal or a suspension action; counselling or disciplinary
action (whether formal or informal); and a failure to obtain a promotion,
reclassification, transfer or benefit, or a failure to retain a benefit. Comcare
can also reject a claim for an injury that predates employment and was not
disclosed to the employer when employment began or where the injury was caused
by serious and willful misconduct.
If your claim is in relation to stress, CPSU can refer you to an experienced
workers’ compensation law firm that specialises in this type of claim. You
should be fully informed of your rights and obligations before you lodge a claim
for stress or any psychological injury.
What are your rights of privacy?
Comcare has strict guidelines on privacy.
The circumstances in which information about your claim can be released are
set out on the cover of the Comcare claim form, above the area for your
signature.
Comcare may only conduct covert surveillance when there is evidence of fraud,
malingering or misrepresentation.
What compensation are you entitled to?
If your compensation claim is successful you may be entitled to:
compensation payments for periods off work or for reduced earnings that
are a result of your injury
100 per cent of your normal wage (including normal allowances or regular
overtime) up to a maximum of 45 weeks
after 45 weeks, 75 per cent of your normal weekly wage until you return
to work or until you reach 65 years of age
reimbursement of medical expenses, which continue to be paid after you
have reached the age of 65
reimbursement of other expenses.
Comcare relies on your employer to keep up to date with wage movements in
your job to ensure your weekly benefits are accurate.
What expenses will Comcare reimburse you for?
Comcare must reimburse you for reasonable expenses that you incur for the
following items:
Medical treatment: Medical treatment can include physiotherapy, osteopathy, massage and
chiropractic treatment. Your treating doctor must authorise and monitor these
treatments.
Where you require extensive physiotherapy or chiropractic treatment make sure
your treating doctor makes the referral and periodically reviews the treatment.
Also, check the amount Comcare will reimburse you, as you may have to pay a
‘gap’ payment, which is the difference between the amount charged and the amount
reimbursed.
Travel: This may include travel by public transport or car journeys longer than 50
kilometres return. Travel costs can be claimed for journeys to medical treatment
or to attend Comcare medical examinations.
Home assistance: This may include things like cleaning and gardening services. However,
Comcare might not reimburse you for home assistance expenses if there is a
household member capable of performing those duties.
Also, set out in the SRC Act is a limit to the amount that can be paid for
home expenses.
Alterations to home or car: These may include things like handrails in the shower or power steering in
the car.
Accommodation: Accommodation costs may be paid if you are required to visit a specialist and
your attendance will reasonably require you to stay away from home overnight.
Time off work: Where you have returned to work but are still receiving treatment, Comcare
will reimburse you for time off work to attend medical treatment, when that
treatment cannot reasonably be received outside normal work hours.
Can you take a redundancy, retire or resign while you’re on workers’
compensation?
If you resign or take a redundancy package it may adversely affect your
entitlement to compensation. Speak to your case manager and seek union or legal
advice before accepting a package.
If you are retired on the grounds that you are an invalid, if you accept a
redundancy package or if you resign, Comcare may reduce your benefits by the
amount of any superannuation you receive.
Will you accrue leave while you’re off work?
While off work, you will continue to accrue annual recreational leave and
sick leave for the first 45 weeks. In a graduated return to work after 45 weeks
off, leave accrues in proportion to the number of hours you work. Long service
leave accrues at the full rate for the entire compensation period.
However, you cannot take any form of leave (except maternity leave) during a
period on compensation.
When can Comcare suspend or stop payments?
Comcare may suspend benefits where, for example:
you do not attend an assessment for a rehabilitation program
you do not start or participate in a return-to-work program
you do not attend or cooperate at a medical examination that has been
arranged by Comcare and you have not advised Comcare that you have a
reasonable excuse to do so.
Comcare may also suspend benefits if you move to an area of lower
employment, unless you have reasonable cause to do so.
Comcare may stop paying benefits where, for example:
medical evidence indicates your condition is resolved
medical evidence indicates your condition is no longer work related
medical expenses no longer relate to the injury for which compensation
was granted
you reach the age of 65
you are convicted of an offence and imprisoned.
Are you entitled to a lump-sum payment?
Comcare pays lump-sum compensation over and above the normal weekly payments
and medical expenses when your impairment is permanent and stable.
For an impairment that stabilises after 12 December 1988 the law prohibits
lump-sum compensation if the impairment is less than 10 per cent of your whole
person. This is assessed according to a guide produced by Comcare. Since few
general practitioners are familiar with this guide it is wise to seek out
specialist assistance before attempting to obtain an assessment.
If your claim for permanent impairment is successful you are entitled to at
least around $17,339 on current rates (at 1 July 2007) for an impairment
measuring 10 per cent of your whole person.
It’s important to note that once you accept permanent impairment lump sum
compensation, then you will be excluded from making a common law damages claim.
An alternative to a permanent impairment lump sum compensation claim if you
successfully claim is a common law damages claim. You may consider making such a
claim if you believe your injury was due to your employer failing to take care
to protect you from unreasonable risk of injury at work. The SRC Act imposes an
upper limit on the amount that can be awarded for common law damages.
You will need to seek expert legal advice if you are considering making a
claim for a lump-sum payment. CPSU can refer you to an approved legal firm that
specialises in workers’ compensation.
Do you have to attend a Comcare medical examination? What are your rights?
Comcare has the right to require you to undergo a medical examination by a
doctor of Comcare’s choosing.
Failure to attend a medical examination could result in the suspension of
your entitlement to any future compensation including weekly benefits, unless
you have good reason for not attending. However, you can request that medical
examinations be timed and located according to your restrictions.
CPSU has secured an agreement with Comcare for you to have the right to be
accompanied by a friend or relative during the medical examination. Please note,
however, that if you are required to attend a psychiatric assessment, it is
unlikely that a friend or relative will be allowed to remain in the room while
you undergo the assessment.
If the doctor’s examining techniques cause you pain or you experience pain
while undressing for an examination then advise the doctor. You also have the
right to refuse to submit to examination techniques that cause pain or
aggravation to the injury.
If you experience any discomfort through the examination, or feel the
examination was rushed or omitted relevant information, then write to Comcare to
advise them of this.
Complain in writing to Comcare and your state health commissioner if the
examining doctor is unduly rough or rude, and send a copy of your complaint to
CPSU.
As well, under section 59 of the SRC Act, you are entitled to copies of
Comcare medical reports.
What is rehabilitation?
Rehabilitation is the process of getting you back to work as soon as possible
by giving you work that you can manage. Rehabilitation may include such things
as continued medical treatment, gymnasium membership, supportive counselling,
vocational training, modifications to your workplace, redeployment or assistance
at home.
It is Comcare’s standard policy that you should be provided with
rehabilitation if you have been off work for more than ten days.
How is rehabilitation arranged?
Rehabilitation is coordinated by the employer’s case manager and managed by
external rehabilitation providers who are accredited by Comcare. External
rehabilitation providers should be independent rehabilitation professionals.
Usually, you, your case manager, treating doctor and rehab provider develop a
case management plan. Others who can become involved include family members or
your union delegate.
All employers covered by the SRC Act are required to have an agency
rehabilitation policy, and it is useful to refer to your employer’s policy when
you are developing a case management plan.
Make sure that your case management plan is realistic. Its aim should be to
help you return safely to work and provide support where necessary.
What does a return-to-work program involve?
Your employer must provide suitable employment or assist you to find suitable
employment during a return-to-work program. Suitable employment is defined as
work that has regard for your age, experience, training and skills.
Your case management plan may include a graduated return to work. This means
your doctor allows you to return to work for limited duties and/or less than
normal hours.
Your doctor should clearly outline the restrictions under which you can work.
For example, you may partly recover from your injury and return to specific
alternative duties for two days per week. You will be paid wages for the hours
you worked plus compensation for the remainder, so that you receive a full wage.
However, make sure that the calculation of your 45-week limit is accurate
(see above, What compensation am I entitled to?).
What happens if you refuse to participate in rehabilitation?
If you unreasonably refuse to participate in a rehabilitation program your
entitlement to any future compensation including weekly benefits may be
suspended until you participate in the program.
Where discussions with your case manager have failed, you have the right to
appeal against an unacceptable case management plan by writing to Comcare,
setting out your reasons for not accepting the plan. Also let your CPSU delegate
and safety representative know you are dissatisfied.
Can you appeal a Comcare decision and how do you do it?
If Comcare rejects your claim you can ask for a reconsideration. You must
make a request for a reconsideration in writing within 30 days (or longer if you
obtain an extension) and you should set out the reasons for your request.
If you want to request a reconsideration, it’s advisable to ask for a
complete copy of your Comcare file. This will help you to develop your reasons
for requesting a reconsideration. Contact CPSU to assist you in developing your
reconsideration case.
During a reconsideration Comcare must assign the claim to another officer not
previously associated with the original decision.
If Comcare rejects your claim after reconsideration then you have 60 days to
lodge an application to appeal the decision in the Administrative Appeals
Tribunal (AAT).
Applications that the Tribunal deems to be ‘frivolous or vexatious’ are not
proceeded with. The appeal is first discussed in several preliminary telephone
conferences, which are informal. This is followed by a formal settlement
conference at the Tribunal (a Conciliation Conference) and then a formal
hearing, if your case is not settled at the Conciliation Conference. Appeals
against AAT decisions are heard in the Federal Court, and then the High Court.
It costs nothing to lodge an appeal with the AAT but it is best if you have
legal representation.
If you obtain a favourable decision in the AAT, it’s likely that most of your
legal costs will be paid by Comcare. If you lose the case you must bear your own
legal costs but not Comcare’s.
How can CPSU help further?
None of the above information is intended as legal advice. CPSU can refer you
to experienced workers’ compensation law firms who specialise in representing
injured workers. Call our Member Service Centre on 1300 137 636 for further
information.
Some regions of CPSU have also established injured worker support groups,
which provide advice and support to injured workers who are enduring the
compensation system.
Some states have union-endorsed workers health centres, which can provide
sympathetic medical treatment and advice.
