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Published: 03 November 2011
Author: Ryan Carlisle Thomas

Comcare is short changing workers by up to $35,000

Last year, the Federal Court found that the Federal Government's workers compensation fund, Comcare, had breached the relevant legislation in trying to short change workers on their 10% permanent impairment payouts.

Comcare is the Federal Government equivalent of WorkCover in Victoria, and is the fund under which all Commonwealth public servants and the workers of some large national companies are covered for workplace injury.

Keen to cut the amount of money being paid to injured workers by the government and employers, especially workers suffering from musculoskeletal injuries, the Howard Government in 2006 tried to fudge the guidelines under which lump sum compensation could be awarded.

This is how the scheme works.

Workers covered by the Comcare scheme are entitled to a lump sum payment as long as their injury has resulted in permanent impairment of 10% or more. This is the 10% impairment threshold.

An impairment assessment of 10% would entitle a worker to a lump sum payment of between approximately $25,000 and $35,000. This is in addition to other entitlements under the Comcare scheme such as weekly incapacity benefits and medical expenses.

In 2006, the Howard Government introduced a new Comcare Guide to assess the level of permanent impairment. The new Guide was introduced with a view to reducing the cost to the Government and employers of impairment claims, particularly those which involved musculoskeletal injuries, being the most common claims made under the Guide.

Appreciating that it would be politically unpopular to simply raise the bar on the impairment level so that workers on a permanent 10% impairment would lose their compensation, the Government made Comcare try and shift the threshold by stealth. New guidelines were issued which included tables (and in particular Table 9.17) under which doctors were prevented from assessing workers with an impairment level between 8% and 13%.

This meant that while on the one hand, the legislation required an employer to pay a lump sum if a worker had sustained a 10% level of impairment, Comcare's new guidelines prevented doctors from making the assessments at that level.

Not surprisingly, the Federal Court overruled the new guidelines. In the matter of Comcare -v- Broadhurst [2011] FCAFC39, the Court determined that Table 9.17 of the Guide was invalid to the extent that it did not provide for a 10% impairment value.

This decision was handed down on 22 September 2010 at which point Comcare advised that an amended Guide would be issued by July 2011. This date was later pushed back further to October 2011. Still there is no sign of the new Guide, nor a new announcement of its release date.

Comcare's failure to act in a timely manner on the Federal Court's ruling displays contempt for injured workers and effectively fiddles some workers out of up to $35,000 in compensation.

While the Court did allow that injured workers could be assessed in the interim under another existing guideline, namely the AMA Guide to Permanent Impairment 5th Ed, this Guide is not as generous in its assessment criteria. So effectively, the longer Comcare sits on its hands, the more money it saves. In the meantime, workers continue to be short-changed.

My advice to injured workers is that they are better off waiting for Comcare's new guidelines before proceeding with their claim. But everyone's patience is understandably wearing thin.

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