Employees of the Australian Government and of some large national employers can claim compensation for work injuries under the Comcare scheme.  The Comcare scheme has its own set of rules (which are quite technical) and which is different from State based workers’ compensation insurance. If your Comcare claim has been denied, or you have a dispute with Comcare about incapacity payments, lump sum compensation payments or payments for medical/attendant expenses, we can help.

Eligibility criteria to claim Comcare benefits

If you are employed by an employer which is governed by the Comcare scheme, you can make a claim for compensation if you:

• suffered an injury while you were at work; OR
• your work significantly contributed to or aggravated your injury

Benefits at a glance

If you make a Comcare claim and it gets accepted, there may be a range of benefits available to you. These include:

• payment of your wages (incapacity payments), which you receive if you can’t work
• reimbursement for reasonable medical and treatment expenses
• personal attendant care services, including also for assistance with gardening
• aids and appliances
• travel costs
• payment for permanent impairment and non-economic loss (lump sum compensation)
• and more

Payment of wages (incapacity payments) by Comcare

If you can’t work due to your injuries, then you qualify for weekly incapacity payments. Broadly speaking, this is 100% of your salary for the first 45 weeks, which then gets reduced to 75% thereafter. Incapacity payments can continue until pension age. (Assuming you remain incapacitated to return to work.)

One potential challenge is to ensure that Comcare correctly calculates your normal income. If your salary is the same every week, then this may be a relatively simple exercise. On the other hand, if you work regular overtime and/or you have been in receipt of allowances then things can get tricky.

Lump sum compensation for permanent impairment

If you have suffered permanent impairment you may be eligible to receive a lump sum compensation payment. The meaning of the words “impairment” and “permanent” is defined in legislation. Ultimately, whether your condition amounts to permanent impairment depends on the medical evidence.

If you have suffered permanent, you can get a lump sum payout provided you satisfy one important criterion. The extent of your impairment must be assessed to be at least 10% to the whole person. (There are some exceptions though.)

Examples of disputes we can help with

There can be a whole range of different disputes with Comcare. Here are a few examples:

• Comcare might make an initial denial of liability decision. Basically, this is a decision that you did not sustain an injury, or that it wasn’t sustained in the course of your employment or arising out of your employment. Unless you challenge this decision, you can’t get any benefits.
• Sometimes Comcare decides that even if initially you were entitled to benefits, you no longer suffer from the effects of your compensable injury.  This is a “no present liability” decision. The effect of it is that you would no longer receive benefits. Again, such a decision can be challenged.
• Permanent impairment decisions. There can be a dispute as to whether you have suffered permanent impairment. In addition, the degree of permanent impairment as well as the scores given for non-economic loss can be appealed.

Common law damages

You may be able to sue your employer for damages for your work related injuries. However, there are two major issues you need to be aware of.

Firstly, you have to elect between common law damages and lump sum compensation for permanent impairment. The election is irrevocable. This presents a big risk, because in a damages claim you still have to prove in court that the employer was negligent and this is what caused your injuries.

Secondly, the amount of damages is capped at $110,000. By contrast the lump sum compensation payout may be higher.

That being said, if your injuries were at least in part caused by a third party (i.e. not your employer) then a common law damages claim against that third party may well be a good idea as this may be very beneficial to you.

Legal costs in Comcare claims

In all of our personal injury compensation matters, we act on a  No Win – No Fee basis. What that means is, there’s no upfront cost to you. However, please note that in Comcare matters we are not able to offer you the 25% fee cap which we otherwise usually offer to our clients in State based compensation claims.

Before you engage us, we will provide you a written Disclosure Notice and a Client Service Agreement. These documents set out in detail the service we provide, as well as our fees and outlays. Before you sign anything, you can take these documents home with you, and study them with your family. You can take as long as you need, there is never any pressure from us. If anything in these documents doesn’t make sense to you, we can discuss it with you and you are free to ask another lawyer to give you advice.  And remember, no win – no fee agreements come with a 5 day cooling off period for extra peace of mind.