Public consultation - independent review of the Safety, Rehabilitation & Compensation Act 1988

Review of the Safety, Rehabilitation and
Compensation Act 1988

Submission to Independent Review Panel
DE CEM BER 2 0 2 4

www.aigroup.com.au 1
Response to Consultation Paper
Safety, Rehabilitation and Compensation Act 1988

Submission to Independent Review Panel

INTRODUCTION

Ai Group has only a small number of members that are self-insurers within the Comcare scheme. We are responding to the discussion paper and terms of reference in relation to the interests of current Comcare self-insurers, but also for the following reasons:

• Large employers want the option to participate in a national scheme for workers’
compensation and self-insurance under the Comcare scheme is the only option
potentially available to them.
• Employers who operate across multiple states/territories find it particularly difficult to
understand and implement the different legislative provisions and to navigate multiple
arrangements for claims management and calculation and payment of premiums.
• Most large employers who want to become self-insured need to liaise with multiple
regulators and meet different requirements for compliance with self-insurance
monitoring, reporting and audits.
• Recommendations and decisions that are made about the detail of the Comcare
scheme may influence future changes in state/territory schemes, so it is important that
we bring forward the views of the broader employer population to influence the
outcomes of this review.

BACKGROUND

We note that the current review of the Safety, Rehabilitation and Compensation Act comes almost twelve years after the finalisation of the Hawke Report in December 2012.
Ai Group made submissions to that review in response to an Issues Paper and also responded to the recommendations in that report.
During this time there were also informal discussions about how the Comcare scheme could move to the next stage and provide opportunities for employers that worked across more than one jurisdiction to join Comcare as an insured employer.
Subsequently, the Safety, Rehabilitation and Compensation Amendment (Improving the
Comcare Scheme) Bill 2015 was introduced into Parliament. www.aigroup.com.au 2
If the Bill had passed, a raft of changes would have been implemented, including the removal of the “competition test”1 applicable for self-insurance with Comcare. The Bill did not progress through the full parliamentary processes before an election resulted in the Bill lapsing.

RESPONSE TO QUESTIONS IN THE CONSULTATION PAPER
Ai Group will not be responding to all the questions posed in the paper, as we do not have the same level of insight into the operation of the Comcare Scheme as we do other schemes, particularly in relation the public sector aspects of the scheme.

3.1 Best practice in workers’ compensation (Term of reference 1)
Q.1 What are the primary objectives of a workers’ compensation scheme? Should these be
expressly stated in the Act?

The primary objectives of a workers’ compensation scheme should be to provide appropriate levels of compensation for injured workers and to provide appropriate levels of support to injured workers and their employers to maximise opportunities for successful recovery and return to work.
Ai Group does not have a strong view about whether workers’ compensation legislation should include objectives. We note that the current Act does not include objectives. We also note that most, but not all, other workers’ compensation Acts do include objectives. Of interest is that one of the jurisdictions that do not have objectives in their workers’ compensation legislation is
Western Australia which introduced a completely new Act in 2023 (effective 1 July 2024).
If objectives are to be included their wording will be an important consideration and the finalisation of those words should be undertaken in a consultative manner. They must balance the rights of workers with the rights of employers and ensure that they focus on the role that all parties play in the management of the scheme, both in the insured space and as self-insurers.
Q.5 What changes are required to the Comcare scheme to better accommodate remote
work and working outside ‘traditional’ work hours
Increasing access to technology which allows for remote work has been impacting the manner in which people work for many years. However, the ability to “work from anywhere” has increased significantly since the work from home restrictions that were applied during
COVID-19 spanning most of 2020 and 2021.
It is now our experience that many technology facilitated workers are choosing to: work from home as their main method of work; go interstate, or even overseas, to visit family and continue work as if they were at home; and work far more flexible hours that allow for caring duties and/or the pursuit of hobbies that would otherwise be restricted if required to work 9 to 5.

1
The competition test allows the Minister to determine that a business can apply to be a self- insurer if “carrying on business in competition with a Commonwealth authority or with another corporation that was previously a Commonwealth authority” – s.100 of the Act. www.aigroup.com.au 3
The key difference we have identified within our membership is the movement away from workers seeing flexibility as a privilege, to it now being seen as a right. Very few employers have been able to achieve a full return to the workplace for those who demonstrated that they could effectively work from home, with little time to prepare, for the best part of two years. And many new entrants to the workplace want the same flexibility.
In relation to workers’ compensation this creates an increased risk for employers. Employers who permit working from home will generally seek to ensure that the work station of a worker, and the immediate vicinity in which they work, meets expected work health and safety (WHS) requirements. However, they cannot control the adjacent areas that are not part of the home workplace, which are accessed by the worker during breaks. More significantly, they have no control over when breaks are taken or what the worker does during those breaks.
It is not unusual for workers to: commence work at home very early; take a break to drop the children at school; continue working until school pickup; take the children home and get them settled into their after school activities; and then return to work. Later in the evening, they may decide to do a final check of emails in preparation for the next day.
In addition, with many large employers having ongoing contact with overseas entities such as parent companies and subsidiaries, the increased access to various forms of videoconferencing means that a worker in these organisations may do a “split shift” of sorts.
They may work in the office from 10am to 4pm and then after many hours at home undertaking normal domestic life, and maybe even a few hours sleep, spend multiple hours on videoconferences in the early hours of the morning; followed by a few more hours sleep and a late start the next day.
Section 6(1) of the Act establishes an entitlement to compensation:

… while the employee was at the employee’s place of work, for the purposes of that
employment, or was temporarily absent from that place during an ordinary recess in that
employment.
Where there is such flexibility or requirements for unusual patterns of work, it is difficult to determine under which circumstances a worker could and should, or should not, be entitled to compensation.
The jurisdictional creep that can apply in situations where people have flexibility in their hours and their work location is a concern in all schemes.
Key examples date back to 2011, with the case of Hargreaves and Telstra [2011] ATTA 417 where Ms Hargreaves suffered physical injury in 2006 whilst working from her home. On the first occasion she got up from her workstation to go downstairs to take cough medicine; she fell down the stairs and injured her shoulder. On the second occasion she got up to go downstairs to make sure her door was locked after her son had left for school; again she fell down the stairs and hurt her shoulder. The Tribunal determined that both injuries were in the course of her employment. In relation to the first injury this was because the Tribunal considered that going to take her medication was “a need for an absence from her workstation for the necessities of nature such as a toilet break or a meal break”. In relation to the second injury the
Tribunal found that Ms Hargreaves had been directed by her employer to keep the door locked during the day when she was working from home; this became a requirement of her employment and fell within the scope of her employment. www.aigroup.com.au 4
In State of NSW v Knight [2023] NSW PICPD63, the Personal Injury Commission considered the case of a claimant who was working from home during COVID-19 stay at home orders and because she was immune-compromised. In 2021 she suffered an injury when she attempted to intervene in a dog attack on her daughter’s puppy who was outside the front door of her home.
The Commission accepted that the only reason the puppy was outside was to enable the worker to continue with her employment in a professional manner without interruption; the Member was satisfied that the actions were a reasonable and practical necessity and were consistent with what her employer would have reasonably expected in the circumstances.
More recently, the case of Lauren Vercoe v Local Government Workers Compensation Scheme
[2024] SAET 91 has captured media attention and once again increased the concerns of employers in relation to claims for injuries whilst working from home. In this case the claimant had advised their employer that they would be working from home as they were looking after a colleague’s dog. The claimant erected a 60cm high metal pet fence in the doorway of her sunroom (which she was using as an office) for the purpose of keeping the puppy away from her pet rabbit. The claimant later tripped on the fence, and was injured, as she stepped over it to exit the sunroom when she was leaving the room to make a cup of coffee. In the judgment accepting the claim by the SAET it was stated “while there may be circumstances in a particular matter that take a worker outside of the limits of an ‘authorised break’ … that is not the case here. After commencing work Ms Vercoe’s evidence is that she took a break, intending to get herself a cup of coffee. Unsurprisingly, this practice was permitted by the Council and was consistent with its encouragement for employees to take regular short breaks away from their workstations. Taking a coffee break is a likely act of an employee during the course of their working day. While there is some evidence that Mr Vercoe was also going to check on the puppy, I am satisfied … that she was taking an authorised break.”
There has been one notable case that has formed a different interpretation, but it occurred prior to the more recent widespread working from anywhere arrangements that are in place post
COVID-19.
In Demasi and Comcare [2016] AATA 644, the worker suffered physical injury while working from home as a producer and presenter for the ABC. Ms Demasi commenced work at 7.30am and was due to conduct a phone interview at 9.30am. This was postponed to 10.30am when the interviewee had forgotten the interview. Ms Demasi decided to take an early break and go for a run prior to the rescheduled interview time, and suffered a broken hip. The Tribunal refused to accept the claim on the ground that the injury was not sustained during an ordinary recess.
Instead they determined that there was a difference between going for a run during a lunch break and going for a run at an ad hoc, random time of the day. They concluded that his was
“not a recess … much less an ‘ordinary one’”.
Due to the beneficial nature of workers compensation legislation, and the design of dispute resolution processes, case law on the interpretation of many provisions of our various workers’ compensation laws is limited.
It is Ai Group’s view that this review provides an opportunity for the Commonwealth to consider a more contemporary approach to the broad entitlement to compensation that workers have when undertaking work in a place of their own choosing, such as their own home. The flexible nature of work that occurs in these situations, makes the concept of “ordinary recess” one that cannot reasonably be applied. www.aigroup.com.au 5
Q.6 What changes are required to the Comcare scheme to better manage complex
psychological claims?
Psychological injury claims are increasing in every jurisdiction, and all schemes are grappling with how to better manage these claims and support workers and employers to achieve a successful and sustainable return to work. It is Ai Group’s view that the innovative approaches that are needed sit beyond the scope of legislative change.
However, we do note that the 2015 Bill had an amending provision related to psychological or psychiatric ailment or injury (s.29H) which we strongly supported. If passed the provision would have required an employee to obtain a certificate from a “mental health practitioner” within
12 weeks of making their claim, and if they refused or failed without reasonable excuse, to comply would have their benefits terminated.
A mental health practitioner was broadly defined as:
(a) a legally qualified medical practitioner who is registered under a Health Practitioner
Regulation National Law in the speciality of psychiatry (other than as a student); or
(b) a legally qualified psychologist who is registered under a Health Practitioner
Regulation National Law in the speciality of clinical psychology (other than as a student);
or
(c) a legally qualified medical practitioner who has completed mental health training,
where the training was covered by an approval under subsection (7).
It was our view at the time, and remains so, that this approach could be beneficial to the worker by ensuring that they receive appropriate treatment and support that would assist recovery, rehabilitation and return to work

In relation to psychological injury claims, Ai Group believes it is important to restate our responses to the recommendations of the Hawke Report that we made in May 2013.
Recommendation 5.2 – Psychological injuries (general)
Ai Group supports the recommendation that an employee’s perception of a state of affairs will only provide a connection with employment where that perception has a reasonable basis.
This will allow for an equitable application of the law to employers who must be able to run their businesses in a reasonable way without a claim being accepted due to an unreasonable perception on behalf of the worker.
Recommendations 5.5 and 5.6 – Psychological injuries (reasonable administrative action)
Ai Group does not support any narrowing of the exclusion
The manner in which the reasonable administrative action exclusion is written in most legislation results in the use of double negatives which can be difficult to analyse; recommendation 5.5 is complicated by this factor:
… the SRC Act [should] be amended so that the reasonable administrative action exclusion in s5A(1) operates only where the reasonable administrative action taken in a reasonable manner in respect of the employee’s employment has contributed, to a significant degree, to the disease, injury or aggravation. www.aigroup.com.au 6
It is apparent from the commentary in the report related to this recommendation that the intent is for a worker to be entitled to compensation for a psychological injury resulting from reasonable administrative action, if there are other work-related factors which have also contributed to the psychological injury.
Hence, the recommendation will narrow the current exclusionary provisions around reasonable management action. We did not support that approach.
Ai Group supports a broad, non-exclusive list of actions that would be defined as administrative action.
Section 5A(2) currently includes a list of actions that would be seen as administrative actions.
The list is non-exhaustive, meaning that other actions may be included. We recognise that this has led to some litigation, as outlined in the report.
Recommendation 5.6 proposes to narrow the current exclusionary provisions by turning this non-exhaustive list into a complete list, i.e. if the action does not specifically meet one or more of the criteria listed, it does not meet the definition of administrative action.
It is Ai Group’s view that it is not possible to provide a complete list that would reflect all of the appropriate actions that should be defined as administrative action, particularly as they may relate to increasing obligations placed on employers over the last decade.
Changes made to the Victorian Act in 2010 (and adopted in the current Act) provide a non- exhaustive list of 14 actions that may be seen as management action (being the exclusionary term utilised in that legislation). That list encompasses a range of actions that are not in the current SRC Act list, for example: provision of leave of absence; investigation into alleged misconduct; transfer; demotion, redeployment or retrenchment; and training.
This approach was adopted in Victoria because the previous exhaustive list had limited application of the exclusion to a point where actions required by an employer, such as investigation of a bullying complaint, could not be covered by the exclusion.
It is particularly concerning that the current list in the SRC Act includes at (f) reference to “an employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit”. The use of the word failure means that a worker could make a claim for a psychological injury if they were successful in obtaining a promotion but “stressed” by the process. It also means that the exclusion would not apply to a reasonable decision to transfer a worker. It is also unclear how the current list would apply to an investigation into alleged bullying or sexual harassment which ultimately finds no reason to pursue any form of counselling or disciplinary action.
It is crucial that a worker is not able to claim compensation for a psychological injury when an employer is taking “reasonable action in a reasonable manner”, within the broad range of actions that may be considered to be “adverse” by a worker.
Employers must be able to make the necessary decisions to manage the business effectively, respond to poor performance and investigate concerns/complaints about an employee’s behavior (including complaints about sexual harassment, harassment or bullying). If the action of the employer relates to complaints about sexual harassment, harassment or bullying, they not only have the right to manage the issue, they have a legal obligation to manage the issue.
They must be able to do so in an appropriate manner, without the result of a successful workers compensation claim. www.aigroup.com.au 7
Ai Group does not support any narrowing of the current exclusionary provisions related to reasonable administrative action taken in a reasonable manner. We support the ongoing use of a non-exhaustive list. If the concept of a complete list is adopted, the current list must be greatly extended.

3.3 Scheme coverage (Term of reference 3)
Q.19 Is it still appropriate for the Comcare scheme to be the pathway to a national scheme
for private multi-state employers? Apart from Australian Government entities and
companies who should have access to the Comcare scheme? Give reasons.
As the only current option for an employer to join the Comcare scheme is as a self-insurer, we have firstly considered this answer in that context. We will address coverage as insured employers in our answer to question 20.
If passed, the 2015 Bill would have removed the competition test for self-insurers to enter the
Comcare scheme. This would have allowed for any employer that operated in more than one jurisdiction to apply for self-insurance if they met the other eligibility criteria.
Ai Group welcomed this approach as a positive move towards a national scheme that we hoped would have been the first move toward opening the scheme up to enable access to a national scheme for businesses that operated across more than one Australian scheme, as insured employers.
When the Bill did not progress, we did at least still the competition test to enable a small group of large employers to opt into Comcare as a self-insurer.
However, in 2023 the Safety, Rehabilitation and Compensation Directions were amended, without fanfare, to introduce a new direction which requires that in determining an application for a new licence, the primary criteria to be considered by the Commission is whether it is satisfied, on reasonable grounds that:
a) The application is a member of a corporate group in which a majority of employees in the
corporate group are, at the time of application, covered by the Act.
b) The granting of the application would not result in an overall reduction in workers’
compensation entitlements for the employees of the applicant to be covered by the Act.

Ai Group notes that we were not aware that the directions had been amended in this manner until responding to this consultation process.
It appears to us that the government has already removed the possibility for employers who pass the competition test to become self-insured as they would not meet criteria (a) above; it would require an amendment of the directions in order to reinstate this option.
It is also our view that criteria (b) cannot be objectively assessed without looking at the circumstances of each individual claim, which makes this test unworkable. The weekly benefit structure is more attractive under Comcare, compared to Victoria and New South Wales, for people whose absence is less than 45 weeks. However, the absence of access to common law within the Comcare scheme makes it less favourable for long term claimants who can demonstrate their employer was negligent. These are just two simple examples, but there are many other comparisons that could be drawn out on a section-by-section comparison of the
SRC Act with every other workers’ compensation Act in the country. www.aigroup.com.au 8
It is our view that this is not appropriate to make such a significant change via directions whilst the competition test continues to be part of the Act. However, we do wish to emphasise that we would not want to see this test removed from the Act, as it is important for businesses that meet competition test criteria to have the option to compete on a level playing field.
We encourage the government to enter into genuine consultation about when and how employers operating across multiple jurisdictions can be provided with the opportunity to opt into a scheme which would allow them to apply the same set of rules and processes for all their workers.
Term of reference 3(a) has raised concerns for some employers who are currently national private sector employers self-insured within the Comcare scheme. It is not clear whether this term of reference is designed to consider only whether new licensees should be permitted to join the scheme or whether consideration is being given to evicting current self-insurers from the scheme.
These concerns are reinforced by the messaging in the Healthy and Safe Work statement from the ACTU Congress 2024.
In paragraph 179:
(i) The system of scheme agents and self-insurers should be abolished and all workers’
compensation functions should be internalised within the regulatory authorities;

In paragraph 191:
Congress opposes self-insurance for employers as it creates a conflict between profit
generation and administration of workers’ compensation claims, and generally limits
access to benefits, compromises privacy, undermines the premium pool and discourages
workers from exercising their rights. However, Congress recognises that self-insurance
currently exists in all jurisdictions. Therefore, Congress acknowledges that existing self-
insurance arrangements must only be continued if the employer has an exemplary record
in health and safety and a demonstrated commitment to workers’ rights. Further, self-
insurance licenses must be automatically revoked in cases where there is a workplace
death or serious injury and/or repeated non-compliance.
In paragraph 220:
Fair access to workers’ compensation requires workers performing the same role in the
same jurisdiction to have access to the same level and quality of coverage. This principle
is undermined by Comcare’s self-insurance licensing scheme. Self-insurance commonly
affords workers reduced entitlements, and a more onerous and time-consuming claims
process, relative to the scheme otherwise in force in the relevant State or Territory. To
avoid sanctioning further injustice, Comcare must prohibit the issue of further self-
insurance licenses, and deny the renewal of licences currently on foot, other than to
government authorities.
We understand that the union movement has a strong aversion to self-insurance. However, in paragraph 220 it is purported that fair access cannot occur if workers performing the same role in the same jurisdictions do not have the same coverage. This ignores the counter argument that fair access cannot occur if workers performing the same role in the same business do not have the same coverage. www.aigroup.com.au 9
Access to a national system addresses this latter issue of fairness by allowing a national business to ensure all their workers have the same entitlement. It is our view that, from an employee perspective, fairness within the business would be more important than considering what others in their state/territory might be entitled to.
Whatever decisions are made about the future inclusion of additional employers within the
Comcare scheme, the Government should provide certainty to current self-insurers that they will not find themselves having to unwind years of claims management and benefit structures aligned with Comcare and move back into individual state/territory schemes. Such a requirement would create excessive management and administrative costs as they continued to manage existing claims under the provisions of Comcare, and adopt new approaches within the other schemes. Additional burden would also be created if they wish to maintain self- insurance, requiring them to apply to multiple jurisdictions to continue to be responsible for their own claims and costs, rather than being an insured employer.
Whilst we again emphasise that we do not support rolling back Comcare self-insurance that currently exist, any decision to do so would require careful consideration and an extended implementation period.
Ai Group acknowledges the concerns raised by state/territory schemes, more than a decade ago, about the potential financial impact that may be seen if large employers chose to leave the state/territory schemes. This financial impact would be particularly felt by the four centrally underwritten schemes (Queensland, Victoria, South Australia and New South Wales).
However, a protectionist approach for these schemes should not outway the objective consideration of what is the most beneficial approach to workers’ compensation for businesses.

We note that there are already a significant number of self-insurers within the state-based centrally underwritten schemes (see links below to access the current lists). It is our view that these are the employers who would be most likely to seek self-insurance under the Comcare scheme. Many large employers who would like access to a national scheme in theory would find the self-insurance processes too burdensome to pursue.
NSW self-insurers and group self-insurers
QLD self-insurers
SA self-insurers
VIC self-insurers
Q. 20 What criteria should apply for corporations to join the Comcare scheme?
It is Ai Group’s view that employers who operate in more than one Australian jurisdiction should have access to a national scheme that enables them to work within one set of rules and ensures that all their employees have the same entitlements, irrespective of where they work.
This is particularly relevant for organisations which may have people regularly crossing borders for work, where the state of connection test of “where someone usually works”, can result in a different set of rules applying to people working in the same team.
It is also beneficial to have one set of WHS laws where employers work as contractors on
Commonwealth owned and operated sites, such as in Defence. www.aigroup.com.au 10
The only feasible option for this to occur is through the Comcare scheme which is already in operation.
The first way in which this can occur is through self-insurance, which does restrict access to large employers with significant resources.
The first step for this to occur would be to reverse the recent amendments to the Directions so that organisations that pass the competition test can be considered for self-insurance. It has also been highlighted to us that wholly owned subsidiaries that have been acquired by a licensed self-insurer should be fast-tracked into the scheme to allow a consistent approach across the organisation.
It is Ai Group’s view that there should be a long-term consideration about how Comcare or some other national scheme could provide a true national scheme that can be accessed by any employer that operates across more than one Australian jurisdiction.
Q.21 What are the implications for non-Commonwealth licensees in maintaining or ending the transitional period for their coverage under the [Commonwealth] WHS Act?
See our response to question 22 below, which covers both questions.
Q. 22 Should self-insured licensees be regulated by Comcare under Commonwealth
licensees be regulated by Comcare under Commonwealth WHS laws, or state and
territory WHS laws and regulators? Please give reasons.
It is Ai Group’s view that all Comcare self-insurers should be covered by the Commonwealth
WHS laws and regulated by Comcare under those laws. We have two key reasons for this response.
Australia has not achieved harmonisation
Firstly, we continue to have laws that are not harmonised. Victoria’s ongoing refusal to adopt the model WHS laws is the most obvious divergence. However, it is not the only variation from the model.
There are numerous examples of variations, with the most recent one being many significant changes to the Queensland legislation; these occurred under a previous government, and we have already seen changes made again to the Act following the recent election.
The Commonwealth has also diverged from the model WHS laws on at least one occasion with their decision to not exclude reference to the hierarchy of controls when implementing their psychosocial hazards regulations.
The reason for a transitional arrangement was to ensure harmonisation had been implemented.
As this has not occurred, and is unlikely to occur, employers currently operating under the
Commonwealth laws should be granted an ongoing ability to do so. In addition to the benefits of consistent compensation arrangements, some Comcare self-insurers would have decided to join the scheme in order to be covered by a single set of health and safety laws.
Licensing requirement may be inconsistent with state/territory laws
Secondly, licensing of Comcare self-insurers includes ongoing oversight by the Safety
Rehabilitation and Compensation Commission and Comcare in relation to compliance with license requirements that includes an assessment of the self-insurer’s compliance with WHS laws. www.aigroup.com.au 11
It is unclear how the licensing requirements for self-insurers that are currently covered by the
Commonwealth WHS laws would be amended and what impact this would have the WHS systems they have developed to comply with the Commonwealth laws and Comcare licensing requirements.
It is our view that it would be extremely difficult for a self-insurer who is required to comply with the WHS laws of multiple jurisdictions, can then ensure that are also meeting the licensing requirements that are linked to the Commonwealth WHS laws.

3.4 Scheme entitlements (Terms of reference 3 and 5)
Q.36 What is the best practice for determining injuries and diseases? For example, is it still
appropriate to separate these conditions? Is there a different approach needed for
certain injuries, for example psychological injuries?
It is Ai Group’s view that it is important to have a test of predominant contribution, or at least significant contribution for psychological injuries. We also support the ongoing separate of injuries and diseases.
If a decision was made to no longer separate the definition of injury and disease, the current tests for disease should be the minimum applied to all injuries and illnesses.
Q.37 Is there sufficient clarity as to when an employee sustains an injury ‘in the course of
employment’ if they are away from their usual place of employment or injured during
an interval within their usual period of employment?
Please refer to our answer to question 5.
Q. 38 Is the current threshold for liability for diseases (significant contribution) appropriate?
The current threshold for liability must continue to at least be significant contribution. It may be appropriate in some circumstances for the threshold for an injury/illness to require work to be the predominant cause; this approach should definitely be considered for psychological injuries.
Q.39 Are the current exclusions under the SRC Act appropriate.
Please refer to our answer to question 5 in relation to the reasonable management action exclusion for psychological injuries.
In addition, we note that recommendation 5.3 of the Hawke Report recommended that incidents that are a manifestation of an underlying disease (such as heart attacks, stokes, spinal disc ruptures caused by degenerative disease and similar phenomena) should only be covered for workers’ compensation on the same basis as a “disease” – that is, where the incident was contributed to, to a significant degree, by the employee’s employment.
Ai Group strongly supports this recommendation.
Q.45 Should access to common law continue to be restricted?
It is Ai Group’s view that access to common law can negatively impact a worker’s recovery and return to work, and does not have a place in a scheme where claims are accepted on a no fault basis, for access to statutory entitlements. Therefore, we would not support the introduction of a right to common law access.
If any changes are made it would be important that a threshold is introduced which reflects that common law claims can only apply in situations where the person has had a serious injury www.aigroup.com.au 12
which has resulted in significant financial loss that cannot be adequately compensation through statutory entitlements. Various approaches to this can be found in other Australian workers’ compensation schemes.
Q.46 Should there be a greater right to redeem compensation benefits? In what
circumstances should redemptions be available?
Ai Group has the view that redemptions are an appropriate option in some circumstances, to enable an injured worker to get on with their lives without the need to continually interact with their employer and/or the workers’ compensation scheme. As long as controls are in place to ensure the worker is making a fully informed decision, there is no valid argument against redemptions.
We do not have any specific views on the current redemption options.
Q.50 Should the Comcare scheme provide for provisional payments? If so, what should be
the length and amount of any such payments, and how/whether to recover payment if
ultimately the injury is not due to work?
When considering the other major schemes in Australia (NSW, QLD, SA, VIC, WA), provisional payments are not a major feature.
Victoria and Queensland have time limited access to payments for treatment (but not weekly compensation) when they lodge psychological injury claims. This is designed to facilitate timely treatment, but it is our understanding that this has had limited impact due to difficulties accessing services.
New South Wales does have provisional payments for weekly compensation (12 weeks) and medical expenses ($10,000). We have received some anecdotal feedback from employers in
NSW that the 12-week period can slowdown claim determination, as there is no real pressure to make a timely decision. We do not think this is beneficial to the worker or the employer who have an extended period of doubt about eligibility and entitlements.
Other schemes have adopted an approach which continues to support timely decision-making whilst providing a safety-net for workers if there are delays in the decision-making. The most recent example of that is the new provisions in the Western Australian legislation which follows an escalating process, establishing obligations on insurers as summarised below:

• Within 14 days: liability decision notice or notice of deferred decision; if no advice
provided, claim is deemed to be accepted.
• At 28 days: no liability decision; provisional payments commence.
• At 120 days: no liability decision; claim deemed to have been accepted.

Whilst we do not support the concept of provisional payments, if they are being considered by the review, an approach similar to Western Australia would be worth assessing. www.aigroup.com.au 13
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