Do Commonwealth Workers Compensation laws cover Coronavirus (COVID-19)?
Yes. Any eligible Commonwealth worker who contracts the disease as a result of their work duties may have a potential claim.
What can workers claim for under Comcare?
Commonwealth workers who contract COVID-19 may have an entitlement to claim the following:
- Payment of your reasonable medical treatment and rehabilitation.
- Weekly payments of compensation where you are suffering a total or partial incapacity to undertake your pre-injury work.
- A lump sum for permanent impairment and non-economic loss. This assessment cannot be made until your injuries have stabilised.
- In rarer cases, benefits such as the cost of domestic care.
Dependants of a worker who dies as a result of contracting COVID-19 at work may also have an entitlement to claim the following:
- Lump sum death benefit, currently $562,978.81 and which is apportioned between any dependants who were either wholly or partly dependent for support on the Worker.
- Weekly compensation payments to any Dependant Children of the Worker under the age of 16 years.
- Weekly compensation payments to any Dependant Children of the Worker under the age of 21 years who is a student.
- Funeral expenses.
What if I am working from home?
In the case of workers who are working from home who contract the virus, there is potential that the exposure while working at home may be considered to be work related.
How are claims determined?
Comcare will consider each claim on the merits.
The worker must establish that their employment significantly contributed to him or her contracting the virus.
How do I make a claim?
Urgent steps that should be taken by any worker who wants to make a claim are as follows:
- Notify the employer in writing of the incident or exposure once a worker becomes ill or is diagnosed.
- Consult a general practitioner and obtain an Australian Government Certificate of Capacity for Work.
- Submit an Australian Government Comcare Workers Compensation Claim Form with the employer.
Both forms are available on the Comcare website.
Both forms and any attached documents should then be submitted to the AFP who will lodge your claim with Comcare.
Comcare will then start investigating your claim.
Comcare will likely require you to attend an independent medical examination prior to a determination being made on your claim.
What if Comcare declines my claim?
If your claim is declined contact Nadia Baker at Carroll & O'Dea who will advise you regarding requesting a Reconsideration of Comcare's decision.
Once you receive a determination from Comcare you have 30 days to submit a "Reconsideration Request" form to Comcare. The form is available on the Comcare website. You must include reasons for requesting the reconsideration and any supporting documents.
Reconsideration Requests are generally made on the following grounds:
- Insufficient investigation of the claim
- Comcare did not consider relevant information
- You did not have the opportunity to respond to adverse information
- You have new information to provide at review
In the request for reconsideration it may be necessary to submit your own independent medical report.
If you intend to submit further documents which you are unable to obtain within the "30 day period", you should lodge the Reconsideration Request form and in your covering letter request further time to obtain the outstanding documents.
Comcare will then consider your request for reconsideration and issue a Reviewable decision. The Reviewable decision may confirm the initial determination or replace it with a new decision.
Once you receive the Reviewable Decision from Comcare you have 60 days to file an "Application for Review of Decision" in the Administrative Appeals Tribunal (AAT). This form is available on the AAT website.
What is the Administrative Appeals Tribunal (AAT)?
This is an Independent tribunal that determines workers compensation disputes.
If the claim is not resolved with Comcare, it will proceed to a hearing before the AAT.
At the hearing you would be represented by a solicitor and a barrister.
You will attend conferences with your solicitor and barrister to prepare you for the hearing.
If you receive a decision in your favour from the AAT you will be entitled to claim part of your costs from Comcare. These costs are known as "Party/Party" costs. In most cases there will be a gap between the Solicitor/Client costs and the Party/party costs, which will be payable by you.
I was not successful in the AAT – what do I do now?
Once you receive a decision from the AAT you have 28 days to file an appeal in the Federal Court of Australia (FCA). An appeal to the FCA can only be made on a question of law. Your solicitor and barrister will advise you whether an appeal of the AAT decision has reasonable prospects of success.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
