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18 December 2024
Ms Justine Ross
Chair
Independent Panel
Review of the Safety, Rehabilitation and Compensation Act 1988
Department of Employment and Workplace Relations
By Online Upload
Dear Ms Ross,
We welcome the opportunity to provide a response to the Issues Paper for the Independent
Review of the Safety, Rehabilitation and Compensation Act 1988.
Maurice Blackburn would be delighted to make the experience and expertise of our legal professionals available to the Panel, if that would be of benefit to the review.
Please do not hesitate to contact us via the contact details below if we can further assist with the Panel’s important work.
Yours faithfully,
Michelle James Jana Davey
Principal Lawyer, Personal Injuries Senior Associate, Comcare
Maurice Blackburn Lawyers Maurice Blackburn Lawyers
E. [redacted] E. [redacted]
P. [redacted] P. [redacted]
Submission in
Response to the
Independent Review of the Safety,
Rehabilitation and
Compensation Act
1988
December 2024
Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
Contents
Introduction ................................................................................................................. 3
Executive Summary .................................................................................................... 3
Responses to Terms of Reference ............................................................................. 5
2. Employees’ Experience of the Scheme ........................................................... 5
2a. Improving Health Outcomes for Injured Workers ........................................... 5
2b. Experiences and Outcomes of Specific Groups ............................................ 7
3. Scheme Coverage ........................................................................................... 8
3a. National Coverage of Private Sector Employees ........................................... 8
3b. Work Health and Safety Coverage ................................................................ 9
5. Scheme Entitlements ..................................................................................... 11
5a. Eligibility for Compensation ......................................................................... 11
5b. Scheme Entitlements................................................................................... 13
5c. Interactions with Other Schemes and Sources of Income ........................... 16
5d. Rehabilitation, Return to Work and Early Intervention ................................. 18
6. Resolving Disputes in the Scheme ................................................................ 20
7. Scheme Administration .................................................................................. 21
7a. Delegated Claims Management .................................................................. 21
7b. Ensuring Fair, Accurate and Timely Decision Making ................................. 22
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
Introduction
Maurice Blackburn Pty Ltd is a plaintiff law firm with 33 permanent offices and 29 visiting offices throughout all mainland states and territories. The firm specialises in personal injuries (including work injuries), abuse law, medical negligence, employment and industrial law, dust diseases, superannuation (particularly total and permanent disability claims), negligent financial and other advice, and consumer and commercial class actions.
Maurice Blackburn employs over 1000 staff, including approximately 330 lawyers who provide advice and assistance to thousands of clients each year. The advice services are often provided free of charge as it is firm policy in many areas to give the first consultation for free. The firm also has a substantial social justice practice.
Maurice Blackburn runs a specialised Commonwealth workers’ compensation practice, assisting claimants across the country with claims pursuant to the Safety, Rehabilitation and Compensation Act
1988 (Cth) (the SRC Act) and the Seafarers Rehabilitation and Compensation Act 1992 (Cth).
Our Comcare Department works with injured employees to assist them in disputes before the
Administrative Review Tribunal1 (ART) relating to initial liability rejections and denial or cessation of benefits as well as acting for claimants of permanent impairment and non-economic loss compensation.
Executive Summary
Maurice Blackburn believes that the SRC Act is no longer fit for its original purpose, which was to provide appropriate support and compensation to predominantly white-collar Government employees in environments where workplace health and safety standards were generally met.
The long-tail nature of the scheme is in principle well suited for white collar workers, whose injuries are generally amenable to successful recovery and return to work.
The opening up of the scheme to certain private multi-state employers as self-insured licensees, however, has seen the SRC Act’s capacity to adequately provide for injured workers eroded. The entitlements and supports available under the scheme are not suitable for the types of injuries often sustained by blue-collar workers and those who work in high-risk environments. Most of the self- insured licensees operate in these environments.
As a result, injured workers are being left with insufficient supports – particularly those most seriously injured who require support which the scheme was never designed to provide. We are left with the untenable position where two workers with the same injury in the same location – one covered by
Comcare, one by a state scheme – will not be entitled to the same supports and benefits. One worker and his/her family will experience a dignified and secure future post-injury outcome, the other will not.
To our mind, there are two possible solutions to the problem:
i. The Government move to limit migration of private multi-state employers from state schemes
across to the SRC Act and phase out the existing licensees; or
1 Formerly the Administrative Appeals Tribunal
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Independent Review of the Safety, Rehabilitation and Compensation Act 1988
ii. The Government move to align the entitlements available under Comcare to at least match
those offered under the better state schemes.
We believe that, from an injured worker’s perspective, the best solution would be to do both.
In order to bring Comcare in line with other schemes, there are several core deficiencies currently within the scheme which will need attention:
i. Improving access to Common Law damages – this would mean adopting a more realistic
threshold, removing the cap imposed by s45 and allowing access to all heads of damage;
ii. Introducing a capacity to redeem benefits to a lump sum payment, to get injured workers off the
scheme and set them up financially to adjust to their new circumstances,
iii. Vastly improving the appeals process. Central to this is enabling injured workers to access
legal support to assist them in their decision making. Comcare is the most complex of all
statutory compensation schemes in the country, and also the one that provides the least
assistance to those in its care in navigating its legal complexities.
Our experience with Comcare is drawn from the lived experience of the limited number of injured workers we’ve been able to assist with their claim. Our responses to the consultation questions are, therefore, limited to those that centre on the user experience.
Maurice Blackburn would be delighted to make the experience and expertise of our legal professionals available to the Panel, if that would be of benefit to the review.
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Maurice Blackburn Lawyers: Submission in response to the
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Responses to Terms of Reference
2. Employees’ Experience of the Scheme
2a. Improving Health Outcomes for Injured Workers
Related Questions
8. What is your claim experience? Positive, negative or neutral?
11. What changes to the Comcare scheme would better support workers with life-changing injuries and illnesses?
12. What changes to the Comcare scheme would better support workers with psychological injuries and illnesses?
Maurice Blackburn’s experience of Comcare’s claims process comes from assisting injured workers navigate the scheme.
Our Comcare Department acts for claimants of permanent impairment and non-economic loss compensation. We also work with injured employees to assist them in disputes before the
Administrative Review Tribunal (ART) relating to initial liability rejections and denial or cessation of benefits.
Most of the issues referred to in questions 8 to 14 are covered in more detail in other parts of this submission. By way of summary:
In response to question 8:
We consider that, on the whole, our clients have had a negative experience of the scheme. This dissatisfaction comes from a combination of:
• A lack of understanding of the scheme. Most injured workers we have spoken with proximate to
the time of injury are either surprised to learn that they are not covered under their state
workers’ compensation scheme or confused about the difference,
• Long wait times for decision making. Even with the new time frames which have been
introduced, a claimant can have a lengthy wait for an initial liability determination in a disease
claim. There are no time frames for determining claims for benefits such as medical treatment
and surgery (Please refer to our response to questions in section 7b for more on this),
• Frustration and concern for their future and the sense of a lack of fairness in circumstances
where their injury occurred as the result of the employer’s negligence, yet they have extremely
limited common law rights,
• Concern over their inability to redeem their benefits, when faced with the prospect of having to
‘stay on scheme’ for a lengthy, indefinite period and the compounding losses of reduced
income and loss of superannuation contributions while on incapacity benefits.
• Problems arising as a result of outsourced or delegated claims management processes (Please
see our responses under section 7a for more on this). These include:
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o Injured workers employed by licensee companies who have been offered suitable
duties only until their claim is determined and then, if rejected, stood down without pay
while they await a reviewable decision.
o Concerns related to the inability of injured workers to redeem their benefits, as
described above, are often compounded by fraught relationships with self-insurer
claim managers and delays in reimbursement for out-of-pocket expenses.
o The approach to claims management by self-insurers being unhelpful to injured
workers who just want help to ‘get better and to get back to work’.
o A somewhat hostile approach to claims management by some self-insurers, with
common unhelpful behaviours such as:
▪ Discouraging workers from lodging claims, or managers telling injured
workers that it is likely any claim they lodge will be denied;
▪ Using the power in s58 to request medical records in excess (in scope and
date range) of what is necessary to determine the claim;
▪ The use of surveillance;
▪ Using the past medical history uncovered during the claim assessment
process to discipline, stand-down or terminate workers;
▪ Standing workers down upon lodgement of a claim or when the claim is
unfavourably determined; and
▪ Managers and claims managers insisting on attending medical treatment
appointments with injured workers and, on occasion, asking a claimant to
change treaters.
• Disappointment and frustration at the series of reconsiderations and appeals a long-term ‘on
scheme’ claimant may face over a lengthy period of time. These can relate to various aspects
of their claim, from initial liability, to requests for treatment, travel expenses, surgery or
attempting to rebut a cessation of benefits (commonly known as a ‘no present liability’
decision).
In response to question 11:
Maurice Blackburn believes that better support for workers with life-changing injuries would be achieved through:
• The provision of easier access to common law benefits, by adjusting or removing the current
thresholds for access (please see our response to questions in section 5c for more on this)
• The provision of access to more appropriate benefits through common law, by indexing or
removing the cap and allowing access to all heads of damages (please see our response to
questions in section 5c for more on this)
• The provision of the capacity to satisfy the threshold on a whole-of-person basis (please see our
response to questions in section 5b for more on this)
• The provision of the capacity to redeem benefits to a lump sum (please see our response to
questions in section 5c related to redemption for more on this)
• The removal of obstacles which hamper or delay access to the scheme (Please see our
response to 5a for more on this).
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• Improving the internal and external appeals processes, including making it easier for claimants
to access legal assistance (please see our response to questions in section 6 for more on
this).
In response to question 12:
Maurice Blackburn believes that better support for workers with psychological injuries would be achieved through:
• The provision of the capacity to satisfy the threshold to access common law benefits on a
whole-of-person basis (please see our response to questions in section 5b for more on this)
• The removal of barriers to accessing the scheme for physical injuries, which in turn lead to the
development of psychological injuries
• The certainty that comes with the provision of the capacity to redeem benefits to a lump sum,
thereby reducing the psychological impacts of being exposed to the long tail drip-feed of
benefits, often involving multiple disputes over access to benefits (please see our response to
questions in section 5c for more on this)
• Faster decision making. While we recognise some steps have been taken to provide a time
frame for decision making, psychological injuries invariably fall into the ‘disease’ category
which has a 60 day response time frame. This time frame can be extended if the decision-
maker requires additional information such as a medico-legal report
• Stronger return to work provisions, binding on employers. In our view, s40 is ineffective,
particularly when it comes to self-insured licensees.
2b. Experiences and Outcomes of Specific Groups
Related Questions
15. What is the claim experience for women, First Nations workers, older workers or other diverse worker groups?
In response to question 15, the Consultation Issues Paper tells us that: 2
Australian Bureau of Statistics data shows the age group with the highest work-related injury or
illness are people aged 55 to 59 years.
That reflects our observations that older workers are disproportionally impacted by injuries sustained shortly before or after ‘pension age’.
The effect of s23 is that a worker in this situation receives incapacity benefits for a limited period (if at all), with no regard to their intended retirement age.
We consider s23 to lack clarity, in that it only expressly deals with workers injured before attaining pension age. In our experience, self-insurers make differing interpretations of whether benefits are payable to a worker injured after pension age.
2 Ref: p.17
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Maurice Blackburn Lawyers: Submission in response to the
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3. Scheme Coverage
3a. National Coverage of Private Sector Employees
Related Questions
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.
20. What criteria should apply for corporations to join the Comcare scheme?
General comments:
In our view, the SRC Act is no longer fit for its original purpose, which was to provide long-tail workers' compensation benefits to predominantly white-collar Government employees in environments where workplace health and safety standards were generally met.
Over time, the scope of the Comcare scheme has been expanded by granting self-insurance licenses to certain private multi-state employers. The current 39 licensees comprise of a range of industries with predominantly blue-collar workers. In our experience, the SRC Act fails to adequately protect and compensate many of these workers in the event of employment related injury or disease.
We can see why being a licensee would be attractive to a private multi-state employers.
• Comcare offers a cheaper average premium rate, compared to other schemes. In the 2022-23
financial year, Comcare was the only scheme to offer an average base premium rate of less
than 1% of payroll.
• Comcare offers companies with national scope the benefit of only dealing with one scheme,
rather than have different parts of their business subjected to different rules and premiums
due to geographic location.
• The Return to Work obligations under Comcare are less onerous on licensees than under state
schemes (Please also see our responses under section 5d for more on this).
• Under Comcare, at-fault employers are protected from large common law claims. Comcare
offers injured workers limited access to common law rights – capped at $110,000 (set in 1998
and not indexed), and only for general damages (non-economic loss).
• Licensees enjoy the flexibility to encourage workers to accept alternative means of
compensation - such as off-scheme settlements - to keep the claim ‘off the books’ and reduce
time lost to injuries and similar statistics.
• Licensees have the ability to cease benefits more regularly during the claims process compared
with state schemes. The appeals process following such decisions is skewed in favour of the
employer.
• Past/ongoing injuries or exposures which occurred under a state scheme are not considered
when assessing a claim lodged after the employer becomes a licensee under Comcare, even
if the claimant’s employment spans both periods.3
3 See Pacific National Services Pty Ltd v Tsoumbris [2024] FCA 324 at 35
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The potential impact of the ‘migration’ to Comcare of private multi-state employers on the viability of state schemes should be considered. The shallowing of the premium pool, should greater access to licensee arrangements be granted, is of concern.
In response to question 20, Maurice Blackburn believes that, should licensee arrangements under
Comcare continue to be made available to private multi-state employers, the employees of those entities should have a genuine say in whether that arrangement is entered into.
Maurice Blackburn believes that the criteria for applying for licensee status should include a requirement that employees agree to their employer leaving the state scheme and self-insuring under
Comcare.
This will become more important if no discernible improvements in Comcare’s benefits and entitlements for injured workers result from this inquiry.
From the worker’s perspective, the current application process to become licensee4 contains a number of important safeguards. It includes a requirement that Comcare assess:
any submission made by unions representing employees of the applicant.
The information provided to assist representative organisations in providing a submission tells us that:
In your submission, you should state how you would be affected by the self-insurance licence
application or extension.
This is an important step. It is important that those making the decision to grant a licence hear first- hand the potential impacts on workers who would be covered by the scheme. It should not be tenable that a worker would be worse off in their entitlements due to the decision to grant a licence.
The Safety, Rehabilitation and Compensation Directions Amendment Instrument 2023 5 provides clear direction on the primary criteria that Comcare and the SRCC must use in assessing the application by a private multi-state employer:
7A Matters to be considered in deciding whether to grant a licence – eligible corporations
In determining an application for a licence under section 104 of the Act, the primary criteria to
be considered by the Commission is whether it is satisfied, on reasonable grounds, that:
(a) the applicant is a member of a corporate group in which a majority of employees in the
corporate group are, at the time of the application, covered by the Act; and
(b) the licence would not result in an overall reduction in workers’ compensation
entitlements for the employees of the applicant to be covered by the Act.
This direction has provided valuable guidance to those who make decisions regarding the granting of licences. Both stipulations are, in our opinion, welcome and necessary.
3b. Work Health and Safety Coverage
Related Questions
21. What are the implications for non-Commonwealth licensees in maintaining or ending the transitional period for their coverage under the WHS Act?
4 https://www.srcc.gov.au/become-a-self-insurer/assessing-licence-applications
5 Ref: https://www.legislation.gov.au/F2023L00757/latest/text
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22. Should self-insured licensees be regulated by Comcare under Commonwealth WHS laws, or state and territory WHS laws and regulators? Please give reasons.
According to the SRCC website, 39 companies now hold licences under the SRC Act. 6 These employers operate across a wide array of industries.
While some engage purely in white-collar type work (for example, those involved in the banking industry), others have employees engaged in riskier activities, where the risk of serious or permanent injury is higher.
For example, a number of licensees work in transportation. Data tells us that this is one of the most dangerous industries for people to work in.
The most up-to-date publicly available data available for national workplace deaths and injuries is from the 2021/22 period.7 During this period, nationally there were 54 fatalities. That is 2.6 fatalities for every thousand workers. The comparable rate across all other industries is 0.16 per thousand workers.
Most fatalities occurred as a result of:
• Being a driver or passenger when transporting freight or people (29)
• Driving/moving freight/people (11)
• When temporarily out of the vehicle (3)
• Loading/unloading (2)
• Conducting repairs/maintenance (2)
In terms of injuries, there were 4,477 injury claims made by transport workers during that period.
38.5% of injury claims were related to body stressing. 26.5% of injury claims resulted from falls, trips and slips.
The most common forms of workplace injury for transport workers were:
• Joint/ligament/muscle/tendon injury (5,059)
• Musculoskeletal (1,980)
• Mental health (1,313)
• Wounds and lacerations (1,142)
• Fractures (947)
With the possible exception of mental health, these are uncommon injuries in white collar working environments.
Nationally during this period, according to ABS data, machinery operators and drivers accounted for the second highest rate of injury of any industry group with 6.5% of all claims. The only industry with a worse injury rate was personal services workers. Transport, postal and warehousing accounted for
5.1% of all workplace injuries.8
6 Ref: https://www.srcc.gov.au/current-self-insurers/list-of-current-and-former-self-insurers
7 https://data.safeworkaustralia.gov.au/interactive-data/industry/road-transport
8 https://www.abs.gov.au/statistics/labour/earnings-and-working-conditions/work-related-injuries/latest-release
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Other licensees work in industries such as aviation (eg Virgin Australia), security (eg Wilson Security) and personal services (eg Ramsay Health).
This means that the regulator must have a breadth of experience and expertise to understand the risk profile of all these industries.
State schemes have developed systems and processes for managing such risks. We are not convinced that Comcare has developed a similar profile.
5. Scheme Entitlements
5a. Eligibility for Compensation
Related Questions
36. What is 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?
37. Is there sufficient clarity as to when an employee sustains an injury ‘in the course of their employment’ if they are away from their usual place of employment or injured during an interval within their usual period of employment?
38. Is the current threshold for liability for diseases (significant contribution) appropriate?
39. Are the current exclusions under the SRC Act appropriate?
General comments:
While the questions above offer the opportunity to comment on individual elements related to scheme eligibility, they do not offer scope for commentary on the difficulties for injured workers associated with merely trying to have their claim accepted.
Claims through Comcare take place through a series of circular processes, leading to an injured worker eventually gaining access to the scheme’s benefits.
Once an initial claim is lodged, the self-insurer must decide to accept or reject the claim. It can be rejected on numerous grounds, on bases as simple as that the claimant ticked the wrong box on the form – for example, if the worker said that the claim was for a new injury and never had any similar symptoms or illnesses before, but a perusal of medical history shows that it was an extension of on old, existing injury, the claim is rejected and the appeals process starts.
The claimant has a defined time limit with which to decide to lodge an internal appeal against the decision, by way of a ‘reconsideration’. Once the reconsideration has been lodged, the self-insurer must respond. Before recent adjustments to time requirements, it was not unusual for this to take a number of months and we had seen occasions where a worker had waited over 6 months for a response.
If the internal appeals process upholds the original decision, which in our experience occurs in more than 80% of cases, the claimant has a defined period in which to commence the external review process which, until its recent preplacement, was through the Administrative Appeals Tribunal.
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It is worth noting that the claimant has not, to this point, been able to access any benefits from the scheme – the claimant is still trying to gain access to Comcare benefits.
The scheme is designed such that each element of the claim must be claimed and approved individually, right down to a specific receipt for medical expenses. It is not unusual, then, for a claimant to have numerous claims at various stages of appeal in various judicial processes.
Maurice Blackburn has supported one applicant who, through the various cycles of claim, decision and appeal, has taken six years just to gain entry to the system. 9 As a further example, we have acted for a claimant who appealed to the Tribunal to have his initial liability claim accepted. Following the successful appeal, which resulted in the acceptance of his claim, he lodged his medical certificates and medical treatment receipts, seeking arrears of benefits back to the onset of his injury. His claims for arrears of incapacity payments and medical expenses were rejected, necessitating him engaging us again for a second appeal.
It is worth noting that the appeals mechanism only allows for appeals against individual decisions.
There is no capacity within the scheme to request a review of the claimant’s case as a whole and the
Tribunal’s jurisdiction is limited to only considering whether the specific decision under review is right or wrong.
In response to Question 36, we consider that the evolution of the scheme via case law has created a vastly complex and highly technical scheme. While the appeal process via the Tribunal is intended to be low cost and supportive of unrepresented claimants, the reality of the scheme is that navigating disputes requires in-depth knowledge of the scheme and legal precedent.
This is in no small part contributed to by the distinction between ‘injury’ and ‘disease’ and the differing tests and exclusions which are then relevant. In our experience, state schemes which do not place such precise distinctions around defining these terms are easier for claimants to navigate and are less rigid. Psychological injuries are invariably defined as ‘diseases’ under the SRC Act, acting as an extra layer of complexity to claims which are often factually difficult and which attract exclusionary provisions, such as that for ‘reasonable administrative action’.
In relation to question 37, we note that vast amount of case law on this very topic, much of which has involved the superior Courts10, is a clear indication of the lack of clarity on the issue of when an employee sustains an injury ‘in the course of their employment’ if they are away from their usual place of employment or injured during an interval within their usual period of employment.
Again, in our view, it takes a significant amount of experience in order to provide advice to claimants on these points and frequent litigation demonstrates that the law is often misapplied by claims managers or is not designed to deal well with novel situations or to adapt to workers’ changing work patterns and modern employment experiences.
In response to questions 38 and 39, we would again point to complexity as the primary issue impacting worker experience during the claim process.
One notable exclusion within the Comcare scheme is ‘journey claims’. In 2007, the Safety,
Rehabilitation, Compensation and Other Legislation Amendment Act 2007 (SRCOLA Act) was passed, amending the SRC Act by revisiting the connection between work and eligibility for workers’ compensation, removed coverage for non-work-related journeys, and attempted to make the scheme more administratively efficient.
This means that workers covered by Comcare are at a disadvantage compared to those covered by other schemes, such as those in Queensland, NSW and SA.
9 See for example: https://www.smh.com.au/politics/federal/abc-staffer-wins-bullying-case-in-six-year-compensation- battle-20180813-p4zx7x.html
10 For example, Canute v Comcare [2006] HCA 47, Linfox v O’Loughlin [2018] FCAFC 173, Comcare v PVWY [2013] HCA 41
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5b. Scheme Entitlements
Related Questions
40. How can entitlements be structured to improve outcomes for employees and their families? What changes can balance fair support while ensuring the financial viability of the Comcare scheme? For example, should changes be made to the step-down provisions or the duration of payments?
41. What changes are needed to best determine fair compensation for medical treatment and rehabilitation and household and attendant care services?
42. How should the permanent impairment provisions be improved?
43. Does the Comcare scheme sufficiently support injured employees with no potential to return to work?
44. Should the scheme allow more options to finalise claims, including lump sum payments? What safeguards should be in place?
In response to question 40:
As a law firm with national presence, Maurice Blackburn is well placed to comment on the differences in statutory entitlements that injured workers may access, across schemes.
Direct monetary entitlements can be described under the following headings:11
1. Income replacement
Under Comcare and once the claim is accepted, an injured worker is entitled to:12
• 0-45 weeks: 100% of pre-injury earnings
• Thereafter: 75% of pre-injury earnings
The above generally includes overtime, but not bonuses, as part of the calculation of ‘normal weekly earnings’.
At face value, this is not sizeably different to entitlements under other schemes. However, it should be noted that under many other schemes a claimant will be on these benefits for a limited period and may then be able to redeem benefits or pursue a common law claim for future economic loss, calculated without the step down.
The overall effect of a long-tail scheme is that the claimant remains on these stepped down benefits for the duration of their claim and loses superannuation contributions, disproportionately impacting those who are seriously injured and remain on scheme for life.
In some states, a dependent spouse will receive an additional weekly benefit. This is not available under Comcare.
11 Data is this section is mainly drawn from: https://www.safeworkaustralia.gov.au/doc/comparison-workers- compensation-arrangements-australia-and-new-zealand-2023
12 Ibid: Table 3.3, p.87
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2. Death Benefits
Death benefits currently available under Comcare are:
• $643,667 lump sum
• $14,639 funeral expenses
• $177 pw for each dependent child.
These benefits are roughly in line with what a worker’s family might expect under other schemes.
3. Permanent Impairment
Under Comcare, those suffering permanent impairment are entitled to: 13
• Lump sum benefit up to $220,861
• Non-economic loss up to $82,823
Comcare is the least generous of all schemes when it comes to permanent impairment lump sum benefits. For example, the comparative benefit caps, as at 2023 were:14
• NSW $713,660
• Vic $644,640
• Qld $380,580 plus $431,130 gratuitous care
Limitations on permanent impairment entitlements include:
• Minimum impairment threshold of 10% before statutory entitlement to lump sum compensation
for permanent impairment can be claimed.
• Injuries are assessed separately and related and/or secondary injuries cannot be combined to
reach the threshold.
• The Guides used by Comcare for calculating impairment are inconsistent and difficult to use
(please refer to our response to question 42 below).
• The claimant must satisfy repetitive medical examinations, due to the long tail nature of the
scheme and no capacity to redeem entitlements to a lump sum.
• Cessation of incapacity payments at pension age.
How these limitations compare to other schemes:
• Under the Queensland scheme there is no minimum threshold for statutory claims of permanent
impairment.
• Under the Victorian scheme there is a legislated threshold of 10% impairment, but in a number
of physical/muscular-skeletal injuries, 5% is considered sufficient.
• The better schemes allow for the combining of separate physical injuries in the calculation of
whole-of-person impairment.
13 Ibid: Table 3.3, p.89/90
14 Ibid: Table 3.3, p.92
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The above comparison clearly indicates that injured workers are worse off if their employer is covered under Comcare, compared to similarly injured workers under most state compensation schemes. This is especially pertinent where the worker suffers permanent incapacity.
In response to question 41:
It is important that injured workers covered by Comcare can expect equivalent care to colleagues covered by state schemes. Part of this involves ensuring that access to equivalent quality of care is possible.
For example, our experience tells us that pay rates for allied health professionals under Comcare are low and out of step with pay rates for other compensation schemes across the country.
This has the potential to mean that allied health practitioners may avoid doing Comcare work, in favour of providing their services for schemes which recompense on a more realistic basis.
This in turn would lead to a situation where a greater proportion of junior and inexperienced practitioners undertake this work, creating a scheme that undervalues experienced practitioners obtaining better health outcomes for patients.
Such short-term cost-cutting actions lead to worse outcomes for injured workers and, in the long run, greater cost to the scheme
In response to question 42:
Maurice Backburn notes that there has been a lengthy process to review and update Comcare’s
Guide to the Assessment of the Degree of Permanent Impairment. Prior to the shelf-life of Edition 2.1 expiring in April 2023, Comcare undertook a thorough consultation process in 2021 on a forward thinking (if flawed) replacement.
The draft of the Guide proposed in mid-2021 demonstrated a clear intention to align the Guide with the
American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition
(“AMA5”). While the 2021 draft had some limitations, overall it demonstrated a positive and constructive progression from past editions of the Comcare Guide.
Having no success at agreeing that version, Comcare then produced a stopgap model (Edition 3) to ensure that claims could continue to be processed upon the expiry of Edition 2.1.
As it stands, under Edition 3, Comcare is still operating with a second-rate permanent impairment assessment process, when compared to comparable schemes.
We reiterate our hope that Edition 3 is merely a placeholder document and encourage Comcare to continue to make meaningful changes to the Guide.
Maurice Blackburn would be pleased to provide more detail in relation to the faults, complexities and inconsistencies in Edition 3, if that would be of benefit to the Panel.
Injured workers covered by Comcare deserve the same clarity and predictability in the outcomes of the permanent impairment assessment process as any other worker around the country. Without a major revision of Edition 3, sadly, this will not be the case.
For our view on Question 44, please refer to our responses under section 5c below.
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Maurice Blackburn Lawyers: Submission in response to the
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5c. Interactions with Other Schemes and Sources of Income
Related Questions
45. Should access to common law continue to be restricted?
46. Should there be a greater right to redeem compensation benefits? In what circumstances should redemptions be available?
Access to Common Law
In response to question 45, Maurice Blackburn believes that employees covered by Comcare should have the capacity to elect to pursue a common law claim and that this should be available regardless of their degree of impairment.
If the claimant is successful by comprise or judgment, all heads of damage should be available to the claimant.
If a claimant were to elect to do so, this would require recovery of past compensation under the SRC
Act in respect of that injury and finalise a claimant's statutory entitlements into the future.
If the above provisions were included in the Comcare system, it would align Comcare with rights available to injured workers under the larger state schemes.
At present, we have the untenable position whereby two workers injured under negligent circumstances in the same location – one covered by a state scheme, the other by Comcare – have vastly different entitlements. The worker covered by the state scheme has access to common law entitlements across all heads of damages, while the other worker under Comcare is stuck on a long tail-pension type scheme for sub-par wage loss and medical treatment coverage.
Consider the following example:
Fred is a 40 year old diesel fitter employed by a company operating in an industrial setting. During the course of his work, and as a result of his employer’s negligence, he injured his shoulder and had two lots of surgery.
He cannot return to his trade and has no education or training for any other trade. He was earning
$125,000 per year. After his injury he received about 80% of his wages for 10 months until his injury stabilised and was then assessed as having a 7% impairment.
• If Fred’s employer is covered by the Comcare scheme:
Fred cannot claim common law damages even though his employer is at fault. Fred is not
entitled to any permanent impairment lump sum compensation because Fred has a less than
10% whole person impairment. He is only able to claim ongoing legislative benefits such as
incapacity payments until ’pension age’ at 75% of his pre-injury earnings, and medical treatment
benefits.
Fred will need to constantly claim from the relevant insurer for his ongoing benefits, exposing
him to regular costly and lengthy review and litigation disputes that are typical of Comcare
claims.
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
Fred is not able to be paid out his future entitlement which would allow him to get on with his life
and would allow the insurer and employer to get on with their interests without continuing to
have to pay their internalised claims management costs.
There is no compensation to Fred for the loss of his career, and there is no incentive for his
employer to review their systems and processes to ensure this doesn’t happen to anyone else.
• If Fred’s employer is covered by the Queensland scheme:
Fred can pursue a claim for common law damages. This will entitle him to pursue past loss of
earnings, future medical expenses and to receive compensation for the loss of his career
(known as future economic loss, including loss of superannuation). By this method, Fred could
expect to receive at least $300,000 thereby providing him and his family with some measure of
security for the future.
• If Fred’s employer is covered by the Victorian scheme:
Fred can pursue a claim for common law damages. Fred would also be able to receive ongoing
legislative benefits at 80% of his pre-injury wage. A common law claim for pain and suffering
and loss of earnings, where Fred has, say, a 40-50% loss of earnings would perhaps produce a
$550,000 common law payment to Fred.
With the exception of the ACT and Western Australia, Comcare has the lowest maximum permanent impairment compensation available to Australian workers. However, the ACT and Western Australia schemes allow for access to a significant common law lump sum in negligent circumstances to compensate for the lower permanent impairment compensation. The same allowances are not replicated in the SRC Act.
As it currently stands, the capped damages award of $110,000 and tight restrictions on the available heads of damages (pain and suffering only, not economic loss) renders the pursuit of common law damages pointless in the face of the irrevocable election against lump sum compensation. This has the capacity to leave an injured worker hundreds of thousands of dollars worse off than if covered by a state scheme, unable to meet living expenses, and reliant on the public purse.
It is worth noting that the cap on common law claims for non-economic loss of $110,000 is currently not indexed. It was fixed in December 1988 and has not changed since.
Having no access to common law damages for economic loss means that the injured worker will be
‘stuck’ on the scheme, or worse, face regular and protracted legal disputes to make the case that they continue to suffer from a significant and permanent injury. This means they will be subjected to:
• The on-going drip-feed of statutory benefits on an indeterminate basis, even when doing so is
indisputably adverse to his/her health;
• Unnecessary and unreasonably repetitious independent medical examinations; and
• No capacity to redeem the benefit to a lump sum or exit the scheme (see below).
In practice, the near absence of common law claims also incentivises workplace cultures that are not motivated to improve their OH&S performance based on an awareness and accountability for faulty systems or practices. Worker health and safety remains at risk.
Redemption
In response to question 46, unlike other schemes, under Comcare there is no capacity for the claimant to make a choice to redeem prospective statutory benefits to a lump sum even where the evidence supports a conclusion, on the balance of probabilities, that the benefits are likely to be payable under the SRC Act into the future.
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As a result, workers are left to continue to claim benefits on the long-tail scheme by having to liaise with Comcare and/or the licensee employer on an indeterminate basis, even when doing so is indisputably adverse to their health.
In the event that the claims process has an adverse psychological affect or worsens an existing psychological injury, this is not compensable and can (and often is) used by Comcare or a licensee to defend a decision to cease benefits or deny a claim.
Workers are required to lodge separate claim forms for every discreet benefit they are seeking - for example, on each occasion that they are seeking reimbursement for a medical receipt, and/or require another medical certificate signed by their doctor. In return, they must receive a written decision from
Comcare or the licensee either accepting or rejecting that claim. Each decision is capable of being appealed by internal reconsideration and subsequently the ART.
Practically, this can result in multiple individual claims and decisions being lodged and received by a worker over the duration of their claim. Also, it results in overly complicated appeal proceedings with multiple disputes being appealed over the duration of a claim. This is an inefficient and overly burdensome administrative process on both Comcare, a licensee and the worker. Redemption of benefits allows a worker struggling with the administrative nature of the scheme to avoid this process.
While a long-tail pension-type scheme may be appropriate for the types of injuries associated with white-collar work (for which the scheme was originally intended), it can be extremely detrimental for those working in riskier blue-collar workforces. The nature of the potential injuries sustained in these workplaces make a drip-feed process untenable.
In our experience, licensee companies already seek to create circumstances similar to the redemption process above, albeit in a limited way and in a manner less favourable to the worker. This generally involves resolving a dispute before the Tribunal with affirmation of the decision under review, the claimant signing a deed of agreement and payment of a lump sum amount15, and sometimes, their resignation from employment. As these agreements are often entered to resolve litigation 16, settlement amounts paid to injured workers are lower than the claimant might receive if a formal redemption arrangement was possible, due to:
• The superior negotiating power of the employer where the injured claimant faces them in
litigation;
• The limited scope of an appeal to the Tribunal, which doesn’t allow the worker to ask the
Tribunal to consider their whole claim or any benefits outside of the dispute; and
• The lack of guidelines or ability to formalise such arrangements.
5d. Rehabilitation, Return to Work and Early Intervention
Related Questions
49. Does the Comcare scheme provide suitable criteria and arrangements to support: a. Early intervention? b. Return to work?
15Variously described as some sort of capital sum, non-economic loss payment or self-rehabilitation payment
16In our experience, the Tribinal’s affirmation rate in relation to self-insured licensees is demonstrative of this. Refer, for example, to Table 14 ‘Claim disputation rate’ in the ‘Comcare and SRCC Annual Reports 2022-23’
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
In response to question 49:
a. Early Intervention
We restrict our comments here to early intervention processes amongst self-insurers.
In theory, Early Intervention Programs (IEPs) are beneficial to injured workers in helping them adjust quickly to their new circumstances and to prepare for an efficient return to the workplace, where this is possible for the worker.
In our experience, IEPs fall into two rough categories: those where the focus is on the wellbeing of the worker, and those where the focus is on minimising employer outlay.
Our experience tells us that, when it comes to early intervention systems implemented by licensees, the focus is often on the latter. In some cases, it is difficult not to perceive EIPs as anything more than licensees attempting to improve their statistics and control injury management.
Most IEPs we’ve come across are narrow in their offerings. If access to the program is offered, the provisions would typically include that:
• The scheme allows for only a few treatment sessions (usually four), basic medications and
simple radiology
• The claimant must see the work-appointed doctor
• The claimant will usually not be paid for time off and will need to use leave or similar
entitlements
• The Claimant will have a Rehabilitation and Injury Manager (RIMA) appointed who decides how
much and what type of treatment is allowed
• The Claimant gives authority to Employer to access and review their medical records and their
use is not governed by the Comcare legislation.
It is important for injured workers to know that an EIP claim is not an acceptance of liability and does not mean a later claim for the same injury will be accepted.
We suggest that IEPs are only useful for minor injuries that are likely to completely heal within a short period of time (for example: minor sprains or strains). An EIP may, in the right circumstances, represent an effective way for members to access simple forms of treatment quickly.
A workers’ compensation claim should be required to be lodged for moderate and serious injuries and any injury requiring time off work.
b. Return to Work
Safework Australia’s comparison document tells us that:17
The SRC Act does not require employers to have a return to work program or policies in place.
Comcare however recommends that employers have a rehabilitation management system in
place.
Comcare’s Guidelines for self-insurers require consultation with employees regarding individual rehabilitation programs/return to work plans.
17Drawn from: https://www.safeworkaustralia.gov.au/doc/comparison-workers-compensation-arrangements-australia- and-new-zealand-2023: Table 6.2a, p.254
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
All other schemes (except NT) have a legislated requirement that a return-to-work plan must be developed. Some have legislated timeframes in which this must occur.
It is clear that the SRC Act’s lax requirements represent a drawcard for employers seeking less scrutiny over return-to-work processes than state schemes.
6. Resolving Disputes in the Scheme
Related Questions
53. What is your experience of dispute resolution in the scheme? What improvements would you suggest arising from that experience?
54. Should the legislative framework provide for pre-litigation dispute resolution processes prior to external review by the Tribunal? If so, at what point in the process and by whom?
55. Should the legislative framework be changed to adopt best practice in dispute resolution from other schemes? If so, please specify.
56. Is there a role for medical panels to contribute to the dispute resolution process, and if so, how should such a panel be constituted and should the panel’s opinion be binding?
57. How can dispute resolution processes be structured to limit further harm to claimants? For example, should there be dispute resolution at the reconsideration stage? Who should pay legal costs associated with the reconsideration?
58. Do you have other suggestions for improvements to the processes for resolution of disputes? For example, other avenues for the resolving of disputes or providing for ‘all in’ settlements?
In our view, the biggest problem with the current dispute resolution process is that it is entirely skewed in favour of the employer. This manifests itself in a number of ways.
i. A claim can be rejected on numerous grounds, and on numerous occasions. As noted earlier,
the scheme is designed such that each element of the claim must be claimed and
approved individually, right down to a specific receipt for medical expenses. It is not
unusual, then, for a claimant to have numerous claims at various stages of appeal in
various judicial processes.
ii. The appeals mechanism only allows for appeals against individual decisions. There is no
capacity within the scheme to request a review of the claimant’s case as a whole. If
rejections and poor responses have led to inordinate delays in having eligibility accepted
or terms agreed, there is no mechanism for having the process reviewed. It is possible for
an employer to thereby simply ‘wait it out’ until the claimant simply gives up.
iii. Unlike other schemes, there is no intermediary process between the internal review mechanism
and an external process.
iv. The external process is through the Administrative Review Tribunal (ART). This is a ‘no-cost’
jurisdiction, leaving injured workers to take on the defendants’ well-resourced legal teams
without support.
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
One of the major issues with the system is that it is not possible to reclaim the total cost of legal assistance – therefore there are very few law firms that are willing to work in this space. It is the system which claimants are most likely to require assistance in navigating, yet it is the most difficult in which to provide that assistance.
Currently, when before the ART, a successful Applicant is limited to recovering party-party costs, calculated at 75% of the Federal Court of Australia's Scale of Costs. By way of example, if a claim before the tribunal costs $50,000.00 in total legal costs to run to hearing, the Applicant is only able to recover a portion of these costs as party-party costs. In some cases, this can be as low as 50% of the total costs.
As such, the Applicant may be required to pay the balance of their costs from their compensation amount, or alternatively, from their pocket if the compensation doesn't result in a lump sum settlement.
This paucity in cost recovery means that many injured workers choose not to obtain legal representation, or in some cases, not pursue their appeal. Unless significant changes in costs recovery are affected, claimants will not be able to afford access to justice. This is not the case in state compensation schemes.
We refer the Panel to our response in section 7b for further discussion on our concerns with the
Tribunal process.
In response to question 58, we refer the Panel to our response to question 46 in relation to the redemption of benefits. Having more seriously injured workers taken off the scheme through allowing for the redemption of benefits would greatly reduce the likelihood and number of disputes and appeals processes.
7. Scheme Administration
7a. Delegated Claims Management
Related Questions
59. Should the Comcare scheme continue to provide for delegated claims management arrangements?
60. What aspects of the delegated claims management arrangements should remain? What changes are needed?
As noted in response to Question 8, many injured workers’ poor experience of Comcare is borne of issues associated with delegated claims management by self-insureds. Drawn from our experience, the causes of dissatisfaction often include:
• Long wait times for decision making. Even with the new time frames which have been
introduced, a claimant can have a lengthy wait for an initial liability determination in a disease
claim. There are no time frames for determining claims for benefits, such as medical treatment
(including surgery),18
18We have had experience with clients who believe they have ultimately had a less optimal surgical outcome as the result of lengthy delays by self-insured licensee claim managers.
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
• As a combination of very limited provisions around keeping injured workers at work on suitable
duties and the delays in decision making, we are often speaking with workers employed by
licensee companies who have been offered suitable duties only until their claim is determined
and then, if rejected, stood down without pay while they wait on a reviewable decision. It is not
uncommon for these workers to never be permitted to return to work, even during the many
months which can pass while an appeal to the ART is underway,
• Concern over their inability to redeem their benefits, when faced with the prospect of having to
‘stay on scheme’ for a lengthy, indefinite period and the compounding losses of reduced
income and loss of superannuation contributions while on incapacity benefits. This is often
compounded by fraught relationships with self-insurer claim managers and delays in
reimbursement for out-of-pocket expenses.19
Similarly, we have been aware of situations where claimant’s treating doctors have opted to
stop treating the claimant because interacting with the claims manager for treatment
approvals and the like is difficult, time consuming and frustrating.
• Most workers we assist express to us that they just want help to ‘get better and to get back to
work’. Unfortunately, the scheme’s deficiencies and the approach to claims management by
self-insurers do not aid in this
• We have noted that a somewhat hostile approach is taken to claims management by some self-
insurers, with common themes including:
o Discouraging workers from lodging claims or managers telling injured workers that it is
likely any claim they lodge will be denied;
o Using the power in s58 to request medical records in excess (in scope and date
range) of what is necessary to determine the claim;
o The use of surveillance;
o Management using the past medical history uncovered during the claim assessment
process to discipline, stand-down or terminate workers;
o Standing workers down on lodgement of a claim or when the claim is unfavourably
determined;
o Managers/claims managers insisting on attending medical treatment appointments
with injured workers and, on occasion, asking a claimant to change treaters.
7b. Ensuring Fair, Accurate and Timely Decision Making
Related Questions
61. Are further changes required to the claims decision-making framework to improve outcomes and ensure fair, accurate and timely decision making? If so, please specify.
62. How can unintended consequences best be avoided?
19For example, we have had clients who are already on a reduced income due to being on incapacity payments, yet are hundreds of dollars out of pocket while they wait for medication or travel expenses to be reimbursed to them. There is no time frame within which a self-insurer’s claim manager must attend to this.
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
Fair, accurate and timely decision making has never, in our experience, been hallmarks of Comcare’s process when compared with other schemes. Neither the legislative nor regulatory imperatives exist to compel the achievement of best practice.
This is true both for internal and external decision making processes.
Internal Decision Making:
As noted earlier, long wait times for decision making has been a feature of Comcare’s processes since its inception. Even with the welcome new time frames which have been introduced, a claimant can still experience a lengthy wait for an initial liability determination in a disease claim. There are no time frames for determining claims for benefits, such as medical treatment (including surgery).20
External Decision Making:
The recent change from the Administrative Appeals Tribunal (AAT) to the Administrative Review
Tribunal (ART) is welcome, but at this stage, largely untested.
We believe this Review is well placed to help ensure that replication of some of the poorer aspects of the old AAT processes (in terms of their capacity to provide fair, accurate and timely decisions) might be avoided.
The issues that plagued timely decision making under the AAT were a result of issues associated with their systems, as well as personnel.
Systems
• Robustness of the AAT’s ADR process was poor. Respondent behaviours often caused case
conferences to be drawn out or abandoned. For example, Respondent’s very rarely had their
instructor present at conferences and often didn’t have access to them even by phone on the
day. They instead appeared with an inflexible, standing set of instructions leading to stalled
negotiations. This often resulted in aborted conferences, at cost to both sides, and loss of
opportunity to resolve matters by agreement in a timely way.
• There were issues with the Tribunal’s online portal. The information the parties could access via
the portal about the case was inadequate. For example, unlike the Federal Court portal in
which make available documents lodged by both parties, the AAT portal only showed the
records that the particular user had lodged. It was not possible to serve documents via the
Portal, and it wasn’t possible to use the Portal for administrative communications with the
Registry.
• There was a need for better educational materials to help applicants ensure that the AAT had
jurisdiction for their matter. The Annual Report At A Glance document21 reveals just how many
applications the AAT dealt with which were actually dismissed due to lack of jurisdiction. This
took up a significant amount of time and resources. Additionally, these Applicants may miss
time limits in the correct appeal jurisdiction if they incorrectly applied to the Tribunal.
Personnel:
• Support staffing levels. Registry staffing shortages were constantly impacting AAT’s
responsiveness, causing delays in claim progression.
• Registrar availability. The frequent backlog in cases made it difficult to get into the
Tribunal/Conference Registrar’s calendar in a timely way. Due to the backlog, spaces in the
20 We have had experience with clients who believe they have ultimately had a less optimal surgical outcome as the result of lengthy delays by self-insured licensee claim managers.
21 Ref: https://www.aat.gov.au/AAT/media/AAT/Files/Reports/AR202122/AAT-Annual-Report-At-a-glance-2021-22.pdf: see page 2 – in particular the two pie graphs on the right hand side re decisions dismissed by the Tribunal
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Maurice Blackburn Lawyers: Submission in response to the
Independent Review of the Safety, Rehabilitation and Compensation Act 1988
calendar were often booked out months in advance. Similarly, if a matter was to progress to a
Hearing, parties were given a date range for the listing and the parties confirmed their
availability. The Registry then listed a Hearing. Member availability often meant it would be
several months before a set of suitable dates could be found.
• Member experience and suitability for the role. In most cases we had an excellent experience
with AAT Members, and found they were respectful and knowledgeable. In some instances
though, we had a Member who appeared to lack in experience relevant to running a Hearing
or, more commonly, was inexperienced in the particular jurisdiction. As an example, we had
an interlocutory appearance before a Member on a matter on the issue of an objection to
summons. The Member openly said that they usually work in another Division and that they
were not familiar with the issues in dispute.
• Timeliness of handing down of decisions. Under the AAT, after a matter had been to a
Hearing, the Member would almost always reserve his/her decision, handing it down on a later
date. In our experience, the time it would take for a decision to be handed down was
excessive. Maurice Blackburn regularly experienced delays of months – sometime over a year
– for a decision to be handed down.
Maurice Blackburn urges the Panel to satisfy itself that systems under the new ART structure are more fit for purpose.
In response to Question 62:
In relation to unintended consequences, we refer the Panel to the Seafarers’ legislation, which contains specific time limits for decision making which include deemed rejection if the decision is not made in time.
This creates complexity and uncertainty around appeal timeframes and, in our experience, disincentivises claims managers to offer written reasons for the decision if they intend to reject a claim.
We are also seeing self-insurers adopting self-serving strategies within the new time frames for decision making under the SRC Act, such as advising of independent medical examinations just before the end of the time frame, in order to activate the stop clock component while also maximising their decision making period.
There is also no specified outcome or action which can be taken if the decision is not made within time. That is to say, if the insurer doesn’t make a decision within the required time frame, nothing happens. The decision is not deemed accepted nor deemed rejected. There is no penalty for the insurer and no clear means of applying consequences for their breach.
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