Comcare - Assessing a Claim

-Note: Information contained in this fact sheet is general advice only and should not be relied upon as professional legal or medical advice.

A delegated Claims Services Officer (CSO) will assess and determine a new claim received by Comcare.

Guiding principles

Comcare delegates will have regard to the following principles:

  • No fault legislation
  • Natural justice
  • Onus of proof
  • Standard of proof
  • Case law

No fault legislation

Under the provisions of the Safety, Rehabilitation and Compensation Act 1988, the Commonwealth has a no-fault workers' compensation scheme.

In a no-fault scheme, injured workers do not have to demonstrate that their employer has done anything wrong in order for an injury to be eligible for compensation - the requirements for liability are set out by law.

Even if an employee has been negligent or behaved inappropriately in the workplace, and that behaviour has contributed to the onset or worsening of their injury, the injury may still be compensable.

Natural justice

Comcare decision makers must observe the principle of natural justice. In the context of Comcare's decision making, the natural justice principle establishes two key rules:

  • that decision makers must provide opportunity to a person whose interest will be adversely affected by any decision to be heard; and
  • that decision makers must be disinterested or unbiased in any matter that has to be decided.

Onus of proof

Under the SRC Act, injured employees have no legal onus of proof. This means, there is no obligation on employee to 'prove' a case. However, it is necessary for an employee to satisfy the criteria of the SRC Act.

Comcare also has an investigatory authority to obtain evidence. That power is provided under sections 57, 58 and 71 of the SRC Act.

Standard of proof

Standard of proof means the degree of certainty with which contested facts must be established in order to be accepted as proved.

Under administrative laws, such as the SRC Act, the basis for decisions is established on the ‘balance of probabilities’. This means Comcare decision makers must decide:

  • that more likely than not, that the fact or the facts relied upon by them existed at the relevant time
  • if they are satisfied, or reasonably satisfied, as to the existence of the facts.

Case law

Many cases have gone before the courts for interpretation of phrases or words in workers' compensation legislation. A great deal of weight is placed on decisions on questions of law from the courts, to the extent that they set legal precedent.

Injury or Disease

Section 14 of the Safety, Rehabilitation and Compensation Act 1988 provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee.

Injury is defined in section 5A(1) of the Act to mean:

5A(1) In this Act:

injury means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Disease is further defined in section5B as:

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment; that wascontributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, Comcare may take the following matters into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

Significant degree is defined in section 5B(3) as a degree that is substantially more than material.

Generally, all medical conditions that relate to the functioning of the mind are referred to as psychological injuries. Claims for psychological injury are usually treated as diseases because identifying a single incident, which causes an injury can be difficult. This view has been supported by health professionals, as well as the courts.

Liability

For compensation to be payable under the Safety, Rehabilitation and Compensation Act 1988,

Comcare must find if liability for a claim relating to an injury exists.

Finding liability is a statement by Comcare of two things:

  • what the claimed medical condition is
  • whether the claimed injury or disease, or aggravation of either, is work related.

Finding liability does not automatically give injured employees access to all entitlement provisions under the Act. Each claim for time off work or medical expenses, or other entitlements, must pass a test of its own before it can be accepted and paid for.

The liability threshold

Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 provides that:

"Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

There are only three tests to be considered when determining liability:

  • there must be an injury within the meaning of the Act (sections 4, 5A, 5B, 6 and 7)
  • a person must be an employee for the purpose of the Act (section 5) and
  • an injury must result in a loss, either:
  • incapacity for work
  • death
  • impairment, or medical expenses.

Information from Comcare website (Last updated: 14 May 2014)