Published: 19 September 2013
Author: Ryan Carlisle Thomas
Comcare or TAC. Which is better for road accident compensation?
Employees of the Commonwealth Government and some other large companies who are injured while at work and on the road, will almost certainly apply for injury compensation under the national insurer, Comcare.
What many of these people are not aware of is that they may also be eligible for compensation in Victoria through the TAC (Traffic Accident Commission), where the benefits can be more generous and fairer. To be entitled to damages under the Transport Accident Act, it is necessary to show that the car accident was caused by the negligence of another party and that you have suffered a "serious injury" and/or a 30% whole body permanent impairment.
The catch is, if you are successful with your TAC claim, you will have to repay any benefits received under the Comcare scheme and this may leave you worse off. It's complicated and it's inequitable and you can be left seriously out of pocket.
The conflicts between Comcare and TAC payouts don't just affect Commonwealth public servants. They have a direct bearing on anyone who works for Telstra, Australia Post, Chubb, Linfox, K & S Freighters, Fleetmaster and Transpacific Industrial Waste who are also covered by the Comcare scheme.
Let me explain.
Road accidents & compensation: Comcare versus the TAC
Many Commonwealth public servants and employees of Telstra, Australia Post and Linfox, for example, typically spend a lot of time on the road, making them more at risk to road injury. Many are not aware that if their accident occurs in Victoria and they have suffered a serious injury as a result of the negligence of another driver, they will be entitled to sue for damages under the Victorian transport accident scheme as well as to apply for benefits under Comcare. Potentially, the TAC benefits are much higher. Let's compare them.
A damages claim for a serious injury will usually result in a large payout. Under the Transport Accident Act, damages for pain and suffering are capped at just under $490,000 and damages for economic loss are capped at just under $1,100,000. Both may be claimed. In contrast, damages for pain and suffering under the Comcare scheme are capped at $110,000 (this figure has not been indexed since 1988 when the legislation was introduced) and there is no entitlement to receive a lump sum for economic loss. Instead there is an entitlement to incapacity payments of 45 weeks full pay and 75% thereafter.
Accordingly, a worker who sues for damages under the TAC scheme can potentially receive a much larger pay out than by remaining under the Comcare scheme.
Unfortunately because of the interplay of federal and state legislation, workers can be left out of pocket.
Under the TAC scheme, you are unable to claim for economic loss damages during the first 18 months following a motor vehicle accident. Under the Comcare scheme, you can't claim damages for economic loss, but you can claim incapacity payments. However, workers who claim for economic loss damages under the TAC will be required to repay the Comcare incapacity payments they received during the first 18 months, even though this loss can't be claimed under the TAC scheme (s93(10) of the Transport Accident Act).
This can leave you worse off.
When is double dipping not double dipping?
The legislation requiring a worker who received damages from a third party to repay all their Comcare benefits was passed in order to prevent "double dipping". Indeed, it would be inequitable if workers could claim benefits under both schemes for similar losses. Unfortunately, because federal legislation prevails over state legislation, workers still have to repay benefits even though these benefits have not been recovered (and are unable to be claimed) through the TAC.
This was one of the inequities argued against by Ryan Carlisle Thomas in the recent Safety, Rehabilitation and Compensation Act Review.
Because the interplay between the Safety Rehabilitation and Compensation Act and the Transport Accident Act is complex, it is important you seek advice from a lawyer who is expert in both Comcare and TAC claims.