A couple of days ago I chatted with a lovely person via our Facebook page, who stated that Comcare is even worse than WorkCover and that they outright defraud their ‘clients’ (injured workers). After investigating the matter a little closer, we did find out that for example, last year, the Federal Court found that Comcare, had breached the relevant legislation in trying to short change workers on their 10% permanent impairment payouts!
Comcare is blatantly cheating injured workers
For those unfamiliar with Comcare, Comcare is the Federal Government equivalent of WorkSafe 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.
In 2006, the Howard Government tried to falsify the guidelines under which lump sum compensation payments could be awarded to injured workers, in particular those suffering from musculo-skeletal injuries.
Comcare scheme: how it works
Injured workers who are covered by the Comcare scheme are, like WorkCover workers, 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. (In Victoria, the impairment threshold for injured workers under WorkCover/WorkSafe Vic is 5% for certain injuries).
This basically means that an injured worker who has been assessed as having a total body impairment rating of 10% (which is massive) would be entitled to a meager little lump sum of between $25 and $35,000. This is a one-off payment for the injured worker’s rest of his/her life! In addition to this “lump sum” (if an injured worker meets the whopping 10% threshold that is) weekly payments and medical expenses are also usually (read USUALLY) paid for.
However, as stated earlier, in 2006 the Howard Government, desperate to save money, introduced a new Comcare guide to assess the level of injured workers’ total impairment. Needless to say that the “new” guide was developed and introduced for the sole purpose of reducing the cost to the Government (and employers) for impairment claims, and in particular for the most frequent of injury claims, namely those for musculo-skeletal injuries. How convenient – not!
The Howard Government, however, made its move sneakily because they knew that it would be not very (politically) correct nor popular to simply raise the threshold on all impairment levels so that injured workers on a permanent 10% impairment would basically lose their compensation. So what they did instead was to make Comcare shift the impairment threshold by stealth as it were – the new guidelines were introduced which now included tables under which doctors (impairment assessors) were in fact prevented from assessing injured workers with a permanent impairment between 8% and 13% – how fully SICK!
What this really means is that the Government made it look that the legislation makes an employer (Comcare) pay a meager lump sum to any worker who has sustained a permanent impairment of 10%, but in reality the new Comcare guidelines really prevent doctors from making an assessment at that level.
Thanks God, the clever Federal Court OVERRULED the new Comcare guideline. In the matter of Comcare -v- Broadhurst [2011] the Court determined that the Guide was invalid to the extent that it did not provide for a 10% impairment value.
Also see Comcare v Broadhurst [2011] FCAFC 39
It appears however that there is still no sign of the new amended Guide, nor a new announcement of its release date!
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 -although “better” than WorkSafe Victoria’s ancient and primitive AMA guide 4th edition- is certainly not as “generous” in its assessment criteria.
Unless we have somehow missed the “new guideline” (we can’t find it anywhere – can you?) we believe that it may be in the best interest of injured workers, covered by Comcare, to sit tight and wait until the new guidelines are out before proceeding with their claim so that they can fairly (there’s nothing “fair” but any way, let’s say “fairer”) compensated for their terrible injuries.
Shortlink: http://aworkcovervictimsdiary.com/?p=6219
Thank you for bringing awareness to this major problem!
Hi Di, don’t thank us, we thank YOU as it is thanks to you that we decided to digg a little deeper into comcare…. and maybe all this explains too why they won’t even pay for incontinent pads!
We have a client who fell off the back of a truck, which resulted in ABI (Acquired Brain Injury) and after an MRI an aneurism was detected. They operated on this and as a result the client had a stroke – the insurer through ComCare accepted liability for the incident, but would not accept the stroke. So the family got to the point they were too scared to ask for anything as each time they did they had to assess if the need was a result of the first incident or the stroke. Even down to paying for physio!
This is just one case .. there is MANY!
That is absolutely disgusting! We know of someone who has had many injury related surgeries and suffered a heart attack and heart failure during one of the surgeries at a young age (under 40) and at least he had workcover accepting liability for his heart trouble. However Xchanging’s dodgy impairment assessors gave that person 0% impairment rating for a near death (truly) and scarring on the heart … They should hand their heads in SHAME!!! It’s outright fraud and your client’s family should take the matter to court. It was a surgical complication (stroke) therefore it is related to the original injury! Let’s put it that way, had this patient NOT had his injury he would not have required surgery and he would NOT have suffered a stroke. There is nothing more to it!
I’m a victim of Comcare gone wrong and not fulfilling its commitment to people I strongly believe it motto should change from ‘Putting you first’ to ‘Putting bullies first’ or ‘Putting dollars first’
I’m in the process of submitting a review of my claim as they have disallowed it by believing one lie my employer said about my professional-personal integrity. Comcare during their determination failed to take into account 18 pages of incident-accidents with about 70 documents that prove my claims, 4 OHS incident reports and the last that I got taken by ambulance to hospital as I collapsed at work due to the continuous relentless bullying-harassment- victimisation caused by my employer–supervisor.
I need to find out cases where they have committed policy failure that are currently being looked into and or have been won in court to reference on my letter. Please help!!
When I finish with my letter that is due by this Friday I’ll get onto providing more information about my claim, my experience in being bullied and the damages suffered by myself, my family and friends.
PS: I had to pay the ambulance bill and the hospital-emergency bill is due to be paid otherwise I’ll be put on the ‘Bad Credit list’ this is because my employer and Comcare refuse to take responsibility for their lack of duty of care, and fulfil their commitment to Australian employees.
Sincerely
X
Dear Bernie,
Thank you for sharing your ordeal with us. Unfortunately the laws are still pretty screwed up…but there is hope.
in 2006 the Howard Government decided to “tighten the screws” to stop the “pay outs” and in fact allowed large companies such as banks (i.e. NAB) and Telstra to relatively easily squeeze out of injury claims as it were. (Refer to Exclusionary Provisions which are part of the Safety Rehabilitation and Compensation Act). In layman’s terms, this meant that large companies, such as Telstra, could avoid paying out due compensation if the “psychological stress” was a result of “reasonable disciplinary conduct”; which was enough (jargon really!) to have a legit claim rejected (“excluded”). The jargon here referred basically to the presumption that the pyschological stress inflicted upon a worker was in some bizarre (of course!) way nothing but an “unreasonable reaction” of the part of the aggrieved worker and that the “disciplinary action was of course “reasonably taken”. Fully sick!
The Howard Government also ensured that there were more “exclusions” in place; for example if a worker became stressed because he/she failed to obtain a benefit such as, for example, a redundancy package when sacked, the company (Comcare) was “allowed” to deny the mentally injured or traumatised workers any compensation. This basically means that even though a company would deliberately screw a worker out of a job (workplace), they were not liable for any compensation! Sick!
That’s not all, folks, the Howard Government went as far as to implement an additional “exclusionary provision”; namely “reasonable administrative action”. Yeah… So now the only thing “management” had to show was that an endless list of “reasonable management actions” may have contributed to the employee’s terrible mental injuries, and just walk away!
Perhaps the final nail in the coffin was that ruled by the Federal Court (before 2006) in the case Comcare -v- Hart (2004) [FCA 1144]. In this case, Whitlam J considered provisions of the Safety, Rehabilitation and Compensation Act excluding failure to obtain promotion and its consequences from being a compensable injury. So basically it found that if only one of the exclusionary factors contributed to the [psychological] injury, then the claim should fail! Right — most stress-related work injuries are, of course, caused not by a single factor but by multiple ones! So it became virtually impossible for injured workers to prove that “reasonable administrative actions” had never ever contributed to their psychological injury/stress!
However, more and more injured workers who sustained a mental injury under Comcare are now successful at obtaining liability and cmpensation; for example Sami v Comcare is such an important case! Mr Sami won his case!
And this shows that there is HOPE and that the legal system is now prepared to see through Comcare’s schemes!
Please read the following:
It may be worth looking at Sami vs Comcare and look who the representing lawyer was for Sami…
We will look for more cases involving Comcare and psychological injury.
Hope this helps a little.
I was victim of this… Assessed by gp at over 50% impaired, specialist at 20% but paid after just under 12 mths from claim lodgement at only 10%…. And this was after reconsideration as initial claim was rejected…. And all due to wording…. Carer vs “qualified” carer!
Does anyone know if they can stop fortnightly payments over time?
Hi F, are you under the Comcare scheme?
But I am afraid that the answer is YES. The number of weeks you are entitled weekly payments depends on the state or the scheme you are under. For example in Vitoria under normal workcover (not comcare) your weekly payments STOP after 130 weeks unless you are certified unfit INDEFINITELY. This means that even if some d*ckhead IME (biased) states that you can “lick envelopes” whilst being virtually totally paralysed and as such states you have a minuscule “capacity” for work, they will cut you off weekly payments. Very very tough to get through the 130 week hurdle. And even if you pass the 130 “test” they will continue to “regularly assess” you “capacity for work”.
For Comcare, the weekly payments (legislation etc) should all be available on their website.
The legislative basis for the Commonwealth Government’s compensation scheme is the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
You’re singing my song, relentless bullying turned my up beat happy personality into a blubbering mess who cried at the drop of a hat and suffered severe panic attacks (still do sometimes) . The bully and their assistant have done the same thing to at least 8 other people. Bully is still bullying, I was off work for 4 months comcare pulled the “administrative action ” card and dismissed my claim. I am now under severe financial stress due to my time off work. And the bully is still making my life miserable even though they were removed as my supervisor, duty of care? It doesn’t exist.