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

Our Ref: MGB:RJH:[redacted]

20 December 2024

Panel Members
Independent Review of the Safety Rehabilitation and Compensation Act 1988
c/o Department of Education and Workplace Relations
GPO Box 9828
CANBERRA ACT 2601

Dear Panel Members

RESPONSE TO TERMS OF REFERENCE

1. We are pleased to provide this submission as part of the independent review of the Safety,
Rehabilitation and Compensation Act 1988 (SRC Act).

2. These submissions are organised in the following sections:

a. About Elringtons Lawyers and our SRC Act expertise.

b. Response to Term of reference 1.

c. Response to Term of reference 2.

d. Response to Term of reference 3.

3. At times, we will provide case scenarios taken from matters in which we have authority
from clients to provide information, and we have taken care to de-identify these matters
and not provide information by which the identity of our client could be identified. Should
further information or clarification be required, please do not hesitate to contact us.

ABOUT US
4. We are a private law firm that represents injured workers from predominantly
Commonwealth and ACT Government sectors under the SRC Act scheme.

5. Elringtons has been in existence for over 125 years, providing legal services to the
southeast of New South Wales and Canberra regions. Today, we have an office in the ACT
and in Queanbeyan NSW. Our clientele is predominantly across the ACT and NSW, but
now extends nationwide across our core areas.

Litigation | Family Law | Property & Commercial | Wills & Estates | Conveyancing
Document No:259493 Liability limited by a scheme approved under Professional Standards Legislation elringtons pty ltd Canberra Queanbeyan info@elringtons.com.au PO Box 230, Deakin West ACT 2600 PO Box 379, Queanbeyan NSW 2620 elringtons.com.au 6A Thesiger Court, Deakin ACT 2600 122 Monaro Street, Queanbeyan NSW 2620
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Independent Review of the SRC Act Page 2 of 12

6. We have been acting for workers in the SRC Act since its inception.

7. We have relationships with the ACT Branch of the Australian Nursing & Midwifery
Federation (ANMF ACT) and the Australian Federal Police Association (AFPA), in which
we provide advice to members concerning their rights and obligations under the SRC Act.

8. Our expertise and experience cover:

a. Advising injured workers on how to make a claim. This is particularly relevant to
workers who have suffered a mental injury, for whom lay evidence of the
circumstances causing their injury is required.

b. Advising workers on the application of liability questions, including whether an injury
is employment-related under the SRC Act. This has included advising on the proper
application of the reasonable administrative action exclusion, and the wilful and
false misrepresentation exclusion.

c. Acting for injured workers in disputes concerning liability, access to reasonable
medical treatment expenses, calculation of normal weekly earnings and incapacity
entitlements, permanent impairment, and responding to Comcare notices about
debts.

9. We have acted for clients in reconsiderations and in pursuing external review.

10. Our relationships with the ANMF ACT and AFPA mean that we are exposed to the
application of the SRC Act for nurses and midwives and the police.

11. A large amount of our clients are officers of the ACT Government, and therefore involves
the application of the SRC Act by a licensee and their agent, Employer Mutual Limited
(EML).

TERM 1: BEST PRACTICE IN WORKERS COMPENSATION

12. We have the advantage of having specialised expertise in the SRC Act, ACT private
scheme,1 and NSW public and private workers compensation schemes.2

13. The ACT private and NSW schemes have a concept of provisional liability3. By this, a
worker’s injury claim is provisionally accepted upon application, with the injured worker
gaining access to incapacity payments and medical treatment expenses (provided that the
tests for those are met) whilst liability for the injury is determined. Noting the median time
off work is 7.2 weeks,4 there is a clear advantage of ensuring workers have timely access
to medical treatment and the ability to take time off from work in order to access that

1 Workers Compensation Act 1951(ACT).
2 Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers
Compensation Act 1998 (NSW) s 93.
3 Workers Compensation Act 1951(ACT) s 130 (example of how payments are commenced immediately and when they may cease); Workplace Injury Management and Workers Compensation
Act 1998 (NSW) s 274 and 280.
4 Safe Work Australia, Key Work Health and Safety Statistics Australia, September 2024, p 8 (Final -

Key WHS Stats 2024_18SEP.pdf).

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treatment. In our experience, delays do in providing an assessment of liability for the
purpose of s 14 of the SRC Act.

14. The provisional liability provisions also provide a framework and timeframe by which liability
decisions can and should be made. Whilst the insertion of reg 11A to the Safety,
Rehabilitation and Compensation Regulations 2019 (SRC Regulations) has enacted
timeframes of 20 days for an injury and 60 days for a disease, over this time a worker is
not entitled to incapacity or medical treatment payments on a provisional basis. We
recommend provisional liability be enacted to enable prompt access to necessary
treatment, and time off work to access treatment.

15. We also recommend that timeframes be implemented for issuing decisions concerning
incapacity payments and medical treatment expenses. We have observed delays in
Comcare decision-making leading to delayed treatment for the worker. The practical
consequence of this is that the worker is unable to access treatment as they are unable to
afford it pending Comcare’s decision.

16. In one particular matter, our client commenced a treatment for a mental injury in May 2022.
Comcare were cognisant of this. The client continued to access treatment each month. A
decision on whether to approve the treatment or not was made in April 2023, after eleven
months.

17. The client’s interactions with Comcare in accessing the treatment and whether Comcare
would approve it was an additional source of distress, on top of what was a serious mental
injury.

18. This same client subsequently requested access to another form of treatment in November
2023. They were unable to pay for the treatment without Comcare’s approval. Comcare
made a decision about the treatment in May 2024, six months later. Over this time,
Comcare were appraised of the fact the client could not access treatment.

19. While there will be occasions in which access to treatment of a particular nature can be
complex and will require longer processing time, in our experience, setting timeframes
around when decisions need to be made will provide certainty and set expectations for
both parties. Further consideration can be made for provisional liability decisions for
treatment, up to a certain amount. In NSW, provisional liability for medical expenses up to
$10,000.00 is enacted.5

20. The failure to make a timely decision is often a constructive denial of the treatment,
preventing a worker from accessing treatment they have been recommended. Further, the
delay may prejudice recovery, delay a worker’s access to internal and external review, and
erode trust between the worker and Comcare. All of these are barriers to recovery.

TERM 2: EMPLOYEE’S EXPERIENCE OF THE SCHEME

21. Submissions above in relation to provisional liability are, in our opinion, also focused
towards ensuring the scheme is person centred, and will also act to reduce delays and

5 Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 280; Provisional liability | SIRA: Workers compensation claims management guide.

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ensuing negative impact which we often observe that the worker experiences in dealing
with Comcare.

22. We note that information and opinion is sought on how to best support employees with
diverse needs. We refer you to the first instance and appeal decisions of Phillips and the
Australian Capital Territory6 in the ACT Civil and Administrative Tribunal, which was a
discrimination case run by our firm.

23. In that matter, the applicant had sustained a mental injury during the course of her
employment with the ACT Government. As part of engaging with the ACT Government’s
scheme agent, EML, she was required to provide evidence for her claims for incapacity.
The nature of her injury was that she was incapacitated for work and experienced a range
of cognitive challenges and difficulties. She did not entirely complete a required form or
provide evidence that was necessary for EML to determine her s 19 SRC Act claim, and
despite seeking assistance, EML did not provide assistance which was adapted for her
restrictions due to her mental injury.

24. This delayed her access to incapacity payments by at least seven months. The failure by
EML to actively progress the claim and instead wait on the applicant to provide information,
was found to have caused the applicant disadvantage, and was found to have been
contrary to the Discrimination Act 1991 (ACT).

25. Workers with a mental injury commonly experience the process of dealing with Comcare
or a claims manager difficult. The inherent nature of a mental injury means that the
symptoms can impact mental processing and decision-making ability. This is different to
a person who may be suffering a purely physical injury without any psychological sequelae.

26. The ethos taken by Comcare, in our experience, is not inquisitorial. It is not uncommon for
us to receive clients who, for example, have a long-term injury , yet are not aware of their
ability to make a claim for a permanent injury. Claims managers rely on a worker hunting
out aspects of compensation they may be eligible for by themselves. For a person with a
mental injury, they may suffer a real disadvantage in doing this.

27. We consider it would be appropriate for Comcare to not only advertise the various elements
of compensation that are available, but to provide information to injured workers as to the
various elements of compensation they may wish to claim for. It would not be necessary
for Comcare to provide advice on whether they would be eligible for that claim, but it would
be simple enough for information to be provided as part of regular and simple
correspondence or updates that is sent out in relation to their injuries.

28. In relation to sub-point (f) and long-term injuries, we have experience in working with
younger people who are in the scheme and have suffered what appear to be permanent
injuries, which will cause lifelong incapacity to work.

29. Whilst, as the general proposition, we are agreeable with the SRC Act ethos that a person
receives a level of compensation that they are entitled to at the point in time they are
entitled to, and no more or no less, it is the inherent nature of this that the person has a

6Phillips v Australian Capital Territory (as represented by Chief Minister, Treasury and Economic
Development Directorate) (Discrimination) [2021] ACAT 22 (23 March 2021); Australian Capital
Territory v Phillips (Appeal) [2021] ACAT 122 (14 December 2021).

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long-term relationship with Comcare. We receive feedback that the inherent nature of
recurringly going and obtaining medical certificates, or dealing with Comcare, is a constant
reminder of a person’s injury and those events that caused injury. In that fashion, a person
is unable to move forwards in their life and retains an element of dependence on Comcare.

30. Whilst this is not necessarily an answer for all clients, we receive enquiries from people
who wish to know whether they can receive a lump-sum amount of compensation, so that
they can make choices in relation to their lifestyle and not have an ongoing need to engage
with Comcare. The exclusion at s 44 of the SRC Act from bringing any common law claim
is, in our opinion, arbitrary. The SRC Act is intended to provide for a no-fault workers
compensation regime, but it has dire consequences for private rights of workers who are
injured because of the fault of their employer.

31. An equivalent model in New South Wales has a whole person impairment threshold prior
to somebody being able to make a claim for what is called work injury damages. Under
that scheme, a person who has a whole person impairment threshold of over 15% may
bring a work injury damages claim to claim for past and future economic loss.7 If they bring
that claim, the person is excluded under the scheme from accessing any further
compensation for medical treatment expenses and future loss. They receive payment for
whole person impairment in accordance with that which is assessed, which also provides
the gateway for making a work injury damages claim.

32. In motor vehicle accident schemes in the ACT and New South Wales, this whole person
impairment threshold is used enable a person to make a common law claim. By these
thresholds, only serious injuries entitle common law compensation. Unlike the NSW
workers compensation regime, the whole person impairment score is not relevant to the
assessment of damages once the threshold is met.

33. While we can appreciate that there are fiscal considerations in relation to allowing for
compensation, these considerations must be weighed with a person’s right to obtain just
compensation if they have suffered harm caused by someone else.

34. To provide an example, we act for a person in their mid-30s who sustained a serious injury
five years ago. Their injury was a serious physical injury that involved a stabbing, and the
trauma caused Post Traumatic Stress Disorder. The client is unable to work, and has been
unable to return to any suitable employment. Since their injury, they have spent the
equivalent of one year in hospital for their mental injury, requiring regular hospitalisations
in each year since the injury. The work area where he was injured has been subject to
investigation by a work health and safety regulator, and the relevant organisation has
entered into enforceable undertakings to provide modifications to the workplace and
systems, estimated at a cost of $2,900,000.00. While this is not necessarily indicative of
a breach of the common law duty of care, it is indicative of there being deficiencies for the
purpose of the relevant Work, Health and Safety Act and Work, Health and Safety
regulations, by which a person outside the SRC Act can rely on to sue for damages.

35. This individual has enquired with us of their possibility to obtain a lump-sum compensation
as a way of exiting the SRC Act, as they are constantly reminded of their injury when they
deal with the insurer. Should they receive compensation until the age of 67, the
compensation alone is likely to well exceed $1,000,000.00 in incapacity payments. The

7 Workers Compensation Act 1987i (NSW) s 151H.

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client would be interested in obtaining an amount of compensation which would enable
them to find a new place to live, purchase a property without a mortgage, and be able to
access modest treatment as needed. In many respects, that makes fiscal sense for the
scheme, and would also empower the injured person to freely and independently determine
how they now wish to live their life. Should you wish to speak to this client as part of your
process, please advise, as they are very willing to engage with you.

36. We therefore recommend:

a. Revocation of the blanket exclusion of the right to sue for negligence against an
employer that is contained in s 44(1) of the SRC Act.

b. A threshold based on whole person impairment be inserted to enable some workers
with serious injuries to sue for negligence, if they wish.

c. The cap of non-economic loss at s 45 be revoked entirely, and no cap is inserted.

d. A worker who satisfies the threshold be entitled to sue for general damages, past
and future economic loss (with superannuation). While we advocate for full common
law rights, we propose this as a compromise.

TERM 5: SCHEME ENTITLEMENTS

37. We note that you have enquired into interactions between Workers Compensation and the
common law and statutory schemes, and other compensation schemes. This has been
dealt with above. We note that the exclusion at s 44 of the SRC Act is all encompassing
of common law claims. Whilst there is the ability to bring a claim for general damages/non-
economic loss,8 the $110,000.00 figure is not indexed and was set in 1988, and is
essentially a practical barrier for anyone bringing a claim, in the sense that it does not
accord with subsequent indexation, inflation or common law decisions of courts in relation
to what a comparable general damages amount would be.

38. We note that there has been a line of cases in Friend9 in which Comcare ran an argument
to seek to recover compensation paid for discrimination.

39. Ms Friend was a former member of the AFP. In 2006, she commenced sworn duties. In
2013, she was diagnosed with mental illnesses. In 2014, liability for her mental injuries was
accepted under the SRC Act and she started receiving compensation for treatment and
incapacity to work. In 2018, she lodged a complaint with the Human Rights Commission
alleging discrimination contrary to the Sex Discrimination Act 1984 against her employer.
Her work injury and discrimination claims had common facts. In 2020, the Commonwealth
settled the discrimination claim by deed for $1.25million. Ms Friend had, during the course
of her discrimination matter, particularised her claim to include general damages, past and
future economic loss, and future treatment. Comcare subsequently sought to recover
compensation paid under the SRC Act under s 48.

40. At first instance (Friend v Comcare [2021] FCA 837), Rares J rejected that Ms Friend had
been paid damages for the purpose of s 48. From [92]-[94], Rares J explains why

8 SRC Act s 45(4).
9 Friend v Comcare [2021] FCA 837 and Comcare v Friend [2024] FCAFC 4.

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compensation for discrimination is distinct from compensation referred to in s 44 of the
SRC Act (our emphasis):

While the AHRC Act and s 46PO, in particular, are not in the same terms as those in the
Competition and Consumer Act, the principles that Gleeson CJ identified in I & L Securities 210
CLR at 121–122 [33] are apposite to the construction of s 46PO(4). This is so because the
purpose of s 46PO(4) is to provide remedies for contraventions of statutory norms of
conduct that the Parliament established in, among other enactments, the DDA and SDA
and to give effect to the policies articulated in the objects of those Acts. And, so long as
the proscribed conduct of unlawful discrimination was a cause of the loss or damage suffered
by a person in Ms Friend’s position, the Court can order the respondent to pay “damages by
way of compensation for any loss or damage suffered because of the conduct of the
respondent”. As Henville v Walker (2001) 206 CLR 459 established in cases under the
Competition and Consumer Act, the applicant is entitled to recover his, her or its entire loss or
damage, even if the applicant had been contributorily negligent in incurring it. Thus, the
statutory measure of damages in s 46PO(4)(d) is not the common law measure. Rather,
that section is addressed to remedy a contravention of a statute.

Once it is appreciated that the Parliament intended the remedies in s 46PO(4) of the AHRC
Act for contravention of the DDA and SDA involving Commonwealth employees
(although, as I have noted above, the SDA might not apply to the AFP) were outside the
scope of the operation of s 44(1) of the SRCA, it is difficult to see a policy reason for
adopting a construction of the word “damages” when used in the SRCA to include the
remedy in s 46PO(4)(d) for conduct that, itself, is able to be litigated by a Commonwealth
employee against his or her employer for unlawful discrimination. The Parliament is
unlikely to have intended that the special remedy of damages in s 46PO(4)(d) for commonplace
reactions to unlawful discrimination, such as depression and anxiety caused by bullying, sexual
harassment or discrimination on the basis of disability or sex, to be denied by the effect of s
44(1) of the SRCA. Emotional trauma is a likely consequence of unlawful discrimination and
that trauma can manifest in many ways including in a personal injury to a person of the kinds
Ms Friend complained of.

I reject Comcare’s argument that s 48 of the SRCA is intended to apply to any remedy for
“damages”. Crucially, s 48(1) is intended to prevent double recovery or “double dipping”.
That begs the question as to what the second dip is. It must be in respect of the causes
of action or other proceedings for damages that s 44(1) provides do not lie against a
Commonwealth employer in respect of an injury sustained by an employee in the course
of which the employer would be liable (including vicariously) for damages. The DDA and
SDA create just such causes of action for employees against their Commonwealth
employers. Moreover, the DDA was enacted after the SRCA yet the Parliament did not
limit the remedies under s 46PO(4) of the AHRC Act to “loss or damage suffered because
of conduct of the respondent” by excluding injury within the meaning of the SRCA.

41. At [75], Rares J identifies the importance of the terms of settlement in identifying whether
damages are caught by s 48. His Honour states:

Comcare asserted that, as a result, some of the undivided lump sum paid to Ms Friend under
the deed must have been in respect of the injury for which it paid her compensation and that s
48(7) threw the onus on her to satisfy it about how much was so paid. The assertion failed to
come to grips with the fact that the deed required payment of a lump sum without attribution to
any particular claim, none of which the respondents admitted. As I explain below, there is no
evidence that identifies how the lump sum was made up or that Ms Friend or the AFP agreed
to its attribution to any claim or head of damage. The terms of the deed do not give rise to any
clear or definite inference about its basis, beyond that it was to resolve Ms Friend’s unadmitted
claims and did not deal with her admitted claim for workers’ compensation.

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42. The first instance Friend decision had the consequence that Comcare could not just assert
that compensation for discrimination was caught by s 48. Rather, there must be evidence
that compensation for discrimination included compensation which is also payable under
the SRC Act. This would ordinarily be medical treatment and lost income. Ms Friend
claimed both of these. Comcare were nonetheless unsuccessful because the deed did not
particularise what the discrimination compensation comprised, even though it plainly
included more than just general damages. However, the SRC Act does not contain a
deeming provision of the like seen in the Social Security Act for compensation recovery,10
and therefore there was no evidence as to the composition of the discrimination
compensation.

43. Comcare appealed and were unsuccessful (Comcare v Friend [2024] FCAFC 4). The
appeal was decided by Rangiah, Wheelahan and Goodman JJ, with Wheelahan J
delivering the primary reasons. His Honour’s reasons from [75]-[84] are particularly
relevant in this context. Wheelahan J agreed with Rares J, and provided analysis as to
why. His Honour concluded that s 44 of the SRC Act only applied to common law claims
and therefore did not prevent a discrimination claim [77]. At [79], His Honour found that the
recovery at s 48 of the SRC Act was in relation to common law damages (our emphasis):

But in my view, coherence requires that the references to “damages” in s 48 and in the definition
of “damages” in s 4(1) are to damages of the type with which the other provisions of Part IV of
the SRC Act including ss 44, 46, 47 and 50 are concerned, namely damages recoverable in
common law actions for damages. To put it another way, the recovery of damages in
respect of an injury to an employee is a recovery of damages where the injury is the
subject-matter of the cause of action because damage is the gist of a common law cause
of action in negligence. A complaint to the AHRC alleging unlawful discrimination is
different. Its foundation is not the injury but the unlawful discrimination. This point was
made by Basten JA in Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA
151; 102 NSWLR 599 at [40] in relation to the Anti-Discrimination Act 1977 (NSW) when
considering its operation in the context of the New South Wales workers’ compensation
legislation. That is not to say that an injury as a consequence of unlawful discrimination may not
be the subject of the assessment of statutory damages under s 46PO(4)(d) of the AHRC Act.
But the damages are to be characterised as being in respect of the unlawful discrimination,
because that is the gist of the claim. This was in substance the point made by Marshall J at first
instance in Romero at [52] in reasons with which the Full Court agreed.

44. At [80], His Honour agreed with Rares J and rejected Comcare’s ‘double-dipping’
argument, explaining that the extent to which compensation has been paid under the SRC
Act may nonetheless be relevant in assessing damages for discrimination. His Honour then
stated from [84]-[85] (our emphasis):

I am not to be taken as deciding that compensation paid under the SRC Act must be taken into
account in assessing damages under s 46PO(4) of the AHRC Act. The point was not argued on
this appeal, and it is not an issue that arises directly because the respondent’s claim was
compromised. I am saying no more than that the assessment of damages under s 46PO(4)
is an appropriate point at which any question of over-compensation can be argued and
addressed. That is because there are sound reasons why any question of over-compensation
should be an issue for the assessment of damages under the AHRC Act, rather than a reason
supporting the construction of s 48 of the SRC Act that Comcare advances. An award of
general damages under statute in a case involving unlawful discrimination or sexual
harassment can compensate a claimant for damage that goes well beyond any injury of
the nature that is compensable under the SRC Act or by an award of damages at common

10 Social Security Act 1991 (Cth) s 17(3).

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law. This is illustrated by the leading cases on the assessment of damages under the AHRC
Act, such as Oracle, and Hughes v Hill. The insult, distress, anxiety, unhappiness, and
humiliation suffered by a claimant as a result of an act of discrimination or sexual
harassment are compensable in addition to any mental or physical injury that might
result from the unlawful acts. The existence of a power differential between a claimant and a
respondent may be relevant to the assessment, and the objects of the discrimination legislation
may be relevant: Oracle at [130] (Besanko and Perram JJ); Hughes v Hill at [51] [52] (Perram
J).

What follows from the above is that there will be no necessary correlation between
damages assessed under the AHRC Act, and compensation paid under the SRC Act. This
was accepted by Comcare. In its written submissions Comcare said that, “s 48 applies if an
employee recovers any damages in respect of an injury being an injury, loss or damage in
respect of which compensation is payable under the SRC Act, whether or not the precise
amount of such damages can be determined: see s 48(1)(a)” (emphasis in original). Comcare
submitted that this effect was ameliorated by s 48(7). But s 48(7) is a very blunt tool. In the
case of an injury (as distinct from loss of or damage to property used by an employee
that is also covered by s 48(1)), s 48(7) requires an employee to establish to the
satisfaction of Comcare that a part of the damages did not relate to the injury. This will
likely be a difficult task in the case of an indivisible award of general damages. The result
is that on Comcare’s construction of s 48, any award of damages under the AHRC Act,
provided that it is in respect of a compensable injury, will trigger an obligation to repay
all compensation without regard to whether the compensation was on account of
incapacity for work, medical expenses, or non-economic loss, and will result in the
termination of any further compensation entitlements.

45. Wheelahan J concluded at [89]:

the recovery of a payment made in compromise of a discrimination or sexual harassment
complaint made under the AHRC Act, or in satisfaction of an order for the payment of damages
under s 46PO(4) of the AHRC Act is outside the terms of s 48.

46. The reasons in Friend at first instances and on appeal are consistent with NSW authority.
In Gardiner v Laing O’Rourke Australia Construction Pty Ltd [2020] NSWCA 151, a
unanimous decision, the Court of Appeal distinguished compensation for discrimination
from damages repayable under NSW workers compensation law. From [50]-[51], the court
stated:

The Anti-Discrimination Act operates in many areas of public activity, including employment,
goods and services, accommodation, education and clubs. Approximately half of all complaints
arise in the area of employment. Although the Anti-Discrimination Act has been in force in this
State for more than 40 years, the parties were not able to identify any case in which the issue
of its interrelationship with the workers’ compensation legislation had been determined, or even
raised. Each being a self-contained statutory scheme which allows for the payment of
compensation with respect to aspects of an employment relationship, the possibility that
compensation has been paid for discriminatory conduct which has resulted in personal injury to
an employee cannot be a novel situation.

While it may be conceded that the primary purpose of s 151A(1) of the Workers Compensation
Act is to avoid double compensation, it is also apparent that its main area of operation is the
interrelationship of workers’ compensation and what is now referred to as work injury damages
[common law]. Prior to the Workplace Injury Act, it was the interrelationship between workers’
compensation and damages for a personal injury arising out of or in the course of employment.
That interrelationship long predated the existence of the statutory scheme creating unlawful
discrimination and providing for relief for contraventions. A purposive construction of the two
separate and independent schemes of regulation does not support the proposition that

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a payment resulting from a complaint of discriminatory conduct, even if the
discrimination gave rise to a personal injury within the meaning of the workers’
compensation legislation, should foreclose any claim for workers’ compensation or work
injury damages. (There is not even an arguable basis for the foreclosure of relief for
discriminatory conduct if workers’ compensation were to be obtained first.)

47. The effect of these cases is that compensation under statutory schemes, such as the
Discrimination Act 1991, is distinct from compensation payable under the SRC Act.

48. We urge this review to not suggest any legislative change that would bring compensation
for discrimination of any form, or an adverse action claimed under the Fair Work Act, or
any form of compensation that is distinct from work compensation for an injury, within the
callback provisions of the SRC Act.

49. We also draw your attention to the operation of s 19 of the SRC Act for those who are
totally incapacitated for work. By s 19, where a worker’s total incapacity for work exceeds
45 weeks, they are only entitled to 75% of their average pre-injury normal weekly earnings.
For workers who suffer serious injury and who are unable to work, this is a significant deficit
in their income.

50. Further, we have experience with a client who was totally incapacitated for work over 45
weeks, partly due to Comcare. In this matter, first Comcare delayed approving surgery,
and subsequently approved it on reviewable decision. This delayed the surgery by an
estimated 12 weeks and made the surgery more complicated than it would have been had
it been received immediately. The result was that the client returned to work in about 52
weeks, rather than about 40 weeks. Our submission is that the 45 weeks is arbitrary for
some workers.

51. We also note that s 21 of the SRC Act has produced unfair outcomes for clients of our. We
have represented clients who had no presently liability determinations made and affirmed
at reviewable decision, acting for clients before the former Administrative Appeals tribunal,
and then the Administrative Review Tribunal. These clients have been women in their 60s,
who have also been medically returned from employment. They have accessed lump sum
superannuation to pay for basic goods and services and support family. Comcare’s
decisions were ultimately reversed at the Tribunal, meaning the clients were retrospectively
entitled to compensation for incapacity. However, as they had accessed an amount of
superannuation, s 20 applied to permanently reduce their incapacity payments. This is
despite the only reason for them access superannuation was financial hardship caused by
Comcare. The clients are disadvantaged by having less superannuation in their balance
for retirement, and then receiving reduced incapacity payments. This is an unfair operation
of s 20. Amendment should be made to permit a lump sum superannuation amount to be
disregarded, where that amount was accessed during a period when liability was disputed
but was then reinstated, and the worker can provide evidence they are not receiving
financial benefit from the lump sum when incapacity payments are reinstated.

TERM 6: RESOLVING DISPUTES IN SCHEME

52. When acting for workers in external review, , it is our experience that at times, Comcare
will be particularly slow in deciding what it wishes to do. It is a common experience in
matters involving Victorian residents managed out of the Melbourne Registry, in which it is

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infrequent for directions to be provided by the Tribunal, instead relying on the parties to
organise their affairs. This differs from other State and Territory registries.

53. We have one such matter at the moment where Comcare are alleging a jurisdictional issue
in which it is alleged that our client has made the same work0injury claim before. This
person is a former Australian Federal Police officer who suffers from Post-Traumatic Stress
Disorder. The person is presently unable to work. He commenced proceedings in the
Administrative Appeals Tribunal in January of 2024. At the time of writing, Comcare has
still not made a decision as to whether or not it wishes to press its jurisdictional issue, nor
has it obtained any expert evidence in relation to the application. Meanwhile, we have
provided a witness statement and medical evidence in the matter, and for all intents and
purposes are prepared to proceed to hearing. It is not ideal that Comcare’s decision
making at the Tribunal will take so long. While this is a matter managed by the
Administrative Review Tribunal, the conduct of matters is heavily reliant on the prompt
attention of the parties involved. For injured workers, matters are personal. They affect
their health. Often, their financial security is implicated. Time is always of the essence.

54. While proceedings before the Administrative Review Tribunal are controlled by that
Tribunal, the SRC Act may confer further procedural rules. For example, s 66(1) prohibits
a worker from relying on evidence before the Tribunal if they provide that evidence for the
first time 28 days or less before the hearing date. If they do this, the Tribunal can give leave
for the worker to be able to rely on it. Curiously, the same exclusion does not apply to
Comcare or self-insurers.

55. We recommend that standard directions for SRC Act matters be included in the SRC Act,
which may be departed from if the Tribunal considers it appropriate. This would be
analogous to standard Court practices.11 For a medical or liability dispute, such directions
could require:

a. The filing of summons two weeks after Tdocs are provided.

b. The Applicant provide a witness statement prior to the first directions hearing.

c. The Applicant provide expert evidence no later than 16 weeks after filing their
application..

d. The Respondent provide expert evidence no later than 20 weeks after the Applicant
files their application.

56. Such a timetable will likely see all evidence being provided within 6 months of the
application being filed at the Tribunal.

CONCLUDING REMARKS

57. Overall, we consider the Comcare scheme operates well in many respects. The
amendments that are suggested would certainly improve the ability of workers to access

11
For example see the ACT Supreme Court Practice-Direction-2-of-2014-Update-September-2024-
PD.pdf.

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timely support from the scheme, and also to access fair results in circumstances where
someone suffers injury.

58. We live in a society where everyone must work. Work plays an important role in providing
economic security and fulfilment. In our experience, those who are injured and are unable
to continue on in their career go through significant stages of loss and grief. While, we are
biased in that people will only come to us if there is a dispute, we have too much experience
in working with people for whom the system has not operated in a fashion which has
provided them with recovery and support.

59. We urge the recommendations in this letter as ways in which the scheme could be
bolstered in order to provide injured workers with more timely support, and with support
that is more appropriately tailored to their needs. While we accept that there is a need for
viability, the focus must be fair and respectful of an injured worker’s particular needs.

60. We would be very happy to provide further submissions or clarification as necessary. We
thank you in advance for the important work you are undertaking. Should you wish to speak
with any of our clients, please advise.

Yours faithfully
ELRINGTONS LAWYERS

Thomas Maling
Partner
Telephone: [redacted]
Email: [redacted]
Reply to: Canberra Office

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