Published: 20 May 2016
Author: Ryan Carlisle Thomas
Comcare – claiming income support and lump sums
If you’re laid off work through injury and covered by Comcare, the Commonwealth Government’s workers compensation scheme, you will be eligible for income replacement and your medical costs.
But how much?
Under Comcare, income support is called an incapacity benefit. As the name implies, it’s a payment made to someone who is unable to work because their injury has incapacitated them.
The amount you are paid varies according to the length of time you are off work. The important number to remember here is 45. That’s the number of weeks during which you are entitled to claim 100% of your normal weekly earnings. After 45 weeks, the level of entitlement drops to 75% of your normal weekly earnings.
What if I am permanently injured?
If you are permanently incapacitated as a result of your workplace injury or illness, you may be entitled to a "no fault" lump sum compensation payment under Comcare.
Below is a list of things to note in relation to "no fault" lump sum compensation claims:
First, you will have to wait till your injury settles down or stablises, so that Comcare can be confident that you are unlikely to recover any further. Typically, this is about 12 months after your injury.
Second, you must be considered by Comcare to have an injury that has incapacitated you by at least 10% of your total normal bodily function. You will be required to undergo a medical assessment in order to determine your level of impairment. This is an important point. Comcare will try to have you use one of their doctors, but remember you have a right under the legislation to choose which medico-legal doctor you attend. Which is obviously preferable.
Third, Comcare seldom offers a full entitlement in the first instance. Their lawyers will play hardball. That’s why it’s important you choose which medico-legal doctor you attend.
Finally, making a claim for a permanent impairment payout will not put your weekly income payments or your right to reimbursement for medical expenses at risk. However, your acceptance of a “no fault” compensation payment will extinguish your right to sue your employer for a potentially larger amount using Common Law. In Common Law claims, negligence becomes a factor.
Common Law compensation claims
Assuming that you have already met the 10% impairment threshold test, you may wish to consider a Common Law claim for damages, if you can establish that your injury resulted from your employer’s or a third party's negligence. This will require you and your legal team to prove negligence, potentially in a court of law, although many Common Law claims are settled outside court.
The reason you might want to consider a Common Law claim is that the damages payout in compensation is typically higher than a “no fault” Comcare payout. But, and it’s a big but... you may or may not be successful. And, if you opt to sue for Common Law damages, you will be required to give up your “no fault” claim. You can’t pursue both.
In making any decision, you really ought to consult with a Comcare legal expert.