ACT Government and Commonwealth Workers Compensation (Comcare Scheme)

Contributed by Ben Mason and current to March 2022.

Reading Guide

A term (a word or expression) used in legislation can have either its normal meaning or a special meaning.

Where a term appears in bold italic in this chapter, such as injury or significant degree, the term has a special meaning. Otherwise, the term has its normal meaning.

The term injury includes a disease, subject to certain rules.

For information about a special or defined term used in this chapter, see Glossary of Terms.

If you follow a link from one section to another section in this chapter, you can click back on your browser to return to the first section.

This chapter is intended as a general guide. Do not rely on any of the following information in place of independent legal advice.

The Comcare Scheme

The Commonwealth’s workers’ compensation scheme is known as the Comcare Scheme.

The scheme is established by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). It is named after one of the scheme's regulators, Comcare.

The scheme covers employment by the following:

• the Australian Capital Territory (ACT) (for example, employment by an ACT directorate or authority);
• the Commonwealth (for example, employment by a Commonwealth agency, department or authority); and
• a number of licensees (for example, employment by Australia Post or Telstra).

For information about claims under the scheme, see Summary of Eligibility and Entitlements.

Other Commonwealth Schemes

Table 1 contains a summary of other Commonwealth schemes, some of which are covered in other chapters of the ACT Law Handbook.

Table 1—Other Commonwealth Schemes

Ref.	Scheme	Summary of Commonwealth scheme	More information
1.1	Military Rehabilitation and Compensation Scheme	The Commonwealth’s military-specific workers’ compensation scheme is known as the Military Rehabilitation and Compensation Scheme. There are 2 periods of service covered by the Military Rehabilitation and Compensation Scheme: service rendered before 01/07/2004, which may be covered by the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) and Defence Act 1903 (Cth); and service rendered after 30/06/2004, which is covered by the Military Rehabilitation and Compensation Act 2004 (Cth) (subject to transitional rules).	See Overview of Veterans Legislation.
1.2	Veterans' Entitlements	Certain defence service rendered prior to 01/07/2004 is also covered by the Veterans’ Entitlements Act 1986 (Cth).	See Veterans' Entitlements Act 1986.
1.3	Seacare Scheme	Whilst Comcare has some functions under the Seafarers Rehabilitation and Compensation Act 1992 (Cth), employees to whom that Act applies are not covered by the Comcare Scheme. Rather, they are covered by what is known as the Seacare Scheme, which is similar but not identical to the Comcare Scheme. The Seafarers Safety, Rehabilitation and Compensation Authority (also known as the Seacare Authority) oversees the scheme.	See seacare.gov.au.
1.4	Parliamentary Injury Compensation Scheme	Comcare has the function of determining and managing claims for compensation and damages in accordance with the Parliamentary Injury Compensation Scheme, established by the Parliamentary Business Resources Act 2017 (Cth), subject to the Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017 (Cth). The Parliamentary Injury Compensation Scheme is based on some of the provisions in the Comcare Scheme.	See comcare.gov.au.
1.5	Asbestos-related Claims for Compensation and Damages	Comcare also has the function of responding to asbestos-related claims for compensation and damages under the Asbestos-related Claims (Management of Commonwealth Liabilities) Act 2005 (Cth). Certain claims for compensation and damages can affect rights, entitlements and obligations under the Comcare Scheme.	See comcare.gov.au.

Summary of Eligibility and Entitlements

Eligibility and entitlements under the Comcare Scheme do not depend on proving fault on the part of an employee's scheme employer. Instead, access to the scheme depends on the following:

• establishing relevant facts existed before, during and after an injury or accident;
• complying with procedural requirements under the scheme; and
• complying with obligations and timeframes under the scheme.

Facts and Related Procedures

Each row in Table 2 contains a summary of facts and related procedures under the Comcare Scheme. Establishing the facts, and satisfying the procedures, in a particular row may grant access to the scheme.

Table 2—Facts and Related Procedures

Ref.	Relevant facts	Procedural requirements	More information
2.1	An injury suffered by an employee resulting in incapacity for work or impairment.	All of the following must be given to the relevant authority: written notice of the injury (time limits apply); a written claim for compensation (in approved or substantially compliant form); and a certificate by a legally qualified medical practitioner (in approved or substantially compliant form), and the claim for compensation must be made by or on behalf of the employee.	See Injury Not Resulting in Death, to help you establish relevant facts and assess what may be available under the Comcare Scheme.
2.2	Medical treatment reasonably obtained in relation to an injury suffered by an employee (including the supply, replacement or repair of property used by an employee).	Both of the following must be given to the relevant authority: written notice of the injury (time limits apply); and a written claim for compensation (in approved or substantially compliant form), and the claim for compensation must be made by or on behalf of the employee.
2.3	An injury suffered by an employee resulting in death.	Both of the following must be given to the relevant authority: written notice of the injury (time limits apply); and a written claim for compensation (in approved or substantially compliant form), and: the claim for compensation must be made by or on behalf of at least one dependant; and if there is more than one dependant—a claim for compensation must be made by or on behalf of each dependant that wishes to receive compensation.	See Injury Resulting in Death, to help you establish relevant facts and assess what may be available under the Comcare Scheme.
2.4	An accident (both of the following must be true): resulting in loss or destruction of, or damage to, property used by the employee; and not causing injury to the employee.	Both of the following must be given to the relevant authority: written notice of the accident (time limits apply); and a written claim for compensation (in approved or substantially compliant form), and the claim for compensation must be made by or on behalf of the employee.	See Accident Not Causing Injury, to help you establish relevant facts and assess what may be available under the Comcare Scheme.
2.5	An injury suffered by an employee in respect of which certain compensation is payable.	A written claim for compensation (in approved or substantially compliant form) must be given to the relevant authority and the claim must be made by or on behalf of the person who: provided medical treatment in relation to the injury; incurred expenses transporting employee: provided household services or attendant care services; provided alteration or modification services; supplied, replaced or repaired aids or appliances; or paid for or carried out a funeral.	See Non-Employee/Dependant Claims, to help you assess what may be available under the Comcare Scheme.

Injury Not Resulting in Death

The following questions may help you to:

• identify relevant facts;
• assess whether compensation, rehabilitation or other benefits are available under the Comcare Scheme to, or for the benefit of, an injured person; and
• identify initial procedural requirements.

These questions are a general guide and the answer to any question should not be relied on in place of independent legal advice.

1. Was the injured person an employee at the relevant time?
   
   See Employee and Employment, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
2. Did the employee suffer an injury?
   
   See Ailment, Injury and Aggravation, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.

3. Is compensation payable for the injury?
   
   For example: Has the injury resulted in incapacity for work or impairment? Has medical treatment been obtained in relation to the injury? See Compensation, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.

4. Is the relevant authority prevented from paying any or all compensation?
   
   For example: Was the injury intentionally self-inflicted or caused by the serious and wilful misconduct of the employee? Has the employee recovered damages or other compensation in respect of the injury? See Preclusion, Suspension and Repayment, then return to this question.
   
   If 'yes'—the person may not be entitled to compensation under the scheme.
   If 'no'—go to the next question.
   
   
5. Has valid notice of the injury been given to the relevant authority?
   
   For example: Was written notice of the injury given to the relevant authority as soon as reasonably practicable after the employee became aware of the injury? See Notice of Injury or Accident, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the scheme does not apply in relation to an injury to an employee unless there is valid notice (time limits apply).
   
   
6. Has a valid claim for compensation been given to the relevant authority?
   
   See Claims for Compensation, then return to this question.
   
   If 'yes'—see Table 3 for a summary of entitlements and conditions under the scheme.
   If 'no'—compensation is not payable to a person under the scheme unless a valid claim for compensation is made by or on behalf of that person.

Table 3—Summary of Entitlements and Conditions (Injury Not Resulting in Death)

Ref.	Compensation or benefit	How paid or provided	Summary of conditions	More information
3.1	Medical treatment expenses.	Paid or reimbursed by the relevant authority to the employee.	This compensation is only payable if the medical treatment was (both of the following must be true): obtained in relation to an injury; and reasonable for the employee to obtain in the circumstances and the amount of compensation payable is an amount determined by the relevant authority to be appropriate to that treatment.	See Medical Treatment, including for: the meaning of medical treatment.
3.2	Compensation for incapacity for work.	Paid as a weekly amount by the relevant authority to either: the employee; or the current scheme employer as reimbursement in some cases.	This compensation is payable either: until the injury no longer results in incapacity for work or otherwise until pension age; or if the employee reached the age that was 2 years before pension age when injured—for a maximum of 104 weeks (whether consecutive or not) and the amount of compensation is calculated on the following basis: for the first 45 weeks—100% of pre-injury normal weekly earnings; and after the first 45 weeks—whichever is greater: a minimum weekly compensation amount, which is increased if there are one or more prescribed children or prescribed persons dependent for economic support on the employee, if any; or 75%, 80%, 85%, 90%, 95% or 100% of pre-injury normal weekly earnings depending on the percentage of normal weekly hours worked by the employee that week, less the greater of the amount per week the employee: is able to earn in suitable employment; or actually earns from any employment (including self-employment and less a further amount or amounts if: in relation to an employee of the Commonwealth or a Commonwealth authority—salary, wages or pay was paid before the claim for compensation for incapacity for work was determined; the amount of compensation payable after 45 weeks would exceed the maximum weekly compensation amount; and the employee is both retired and receiving a lump sum benefit, pension or both under a superannuation scheme as a result of the employee's retirement.	See Incapacity for Work, including for: how the step-down at 45 weeks works; the meaning of normal weekly earnings, normal weekly hours and relevant period, and how to calculate each; adjustments to normal weekly earnings; adjustments to the weekly compensation amount; and redemption of weekly compensation. See comcare.gov.au for current: minimum weekly compensation amounts; and maximum weekly compensation amounts. See dss.gov.au for how to calculate pension age.
3.3	Compensation for household services.	Paid or reimbursed by the relevant authority to the employee.	This compensation is only payable if the services were (all of the following must be true): obtained as a result of an injury; of a domestic nature (including cooking, house cleaning, laundry and gardening services); reasonably required for the proper running and maintenance of the employee's household; and obtained after 28 days from the date of the injury (unless there is financial hardship or the need to provide for adequate supervision of children who are dependent for economic support on the employee), and the amount of compensation is an amount that is both: reasonable in the circumstances; and no less than 50% of the cost of the services and no more than the maximum weekly compensation amount.	See Household Services, including for: the prescribed matters the relevant authority may take into account in determining if services were reasonably required. See comcare.gov.au for current maximum weekly compensation amounts.
3.4	Compensation for attendant care services.	Paid or reimbursed by the relevant authority to the employee.	This compensation is only payable if the services were (all of the following must be true): obtained as a result of an injury; reasonably required for the essential and regular personal care of the employee; not household services (which may be compensable as household services compensation); and not medical or surgical services or nursing care (which may be compensable as medical treatment expenses), and the amount of compensation is an amount that is the lesser of: the amount paid or payable by the employee for the services; or the maximum weekly compensation amount.	See Attendant Care Services, including for: the prescribed matters the relevant authority may take into account in determining if services were reasonably required. See comcare.gov.au for current maximum weekly compensation amounts.
3.5	Compensation for: alteration of the employee's place of residence or place of work; modifications of a vehicle or article used by the employee; and aids or appliances for the use of the employee (or repair or replacement of such aids or appliances).	Paid by the relevant authority to, or in accordance with, the directions of the employee.	This compensation is only payable if the injury results in impairment and the employee (one of the following must be true): is undertaking a rehabilitation program; has completed a rehabilitation program; or has been assessed as not capable of undertaking a rehabilitation program, and the alteration, modification, aid or appliance is reasonably required by the employee, having regard to both: the nature of the employee's impairment; and the requirements of the rehabilitation program (where appropriate), and the amount of compensation is an amount that is reasonable in light of prescribed matters.	See Alterations, Modifications, Aids and Appliances, including for: the prescribed matters the relevant authority may take into account in determining the amount of compensation.
3.6	Compensation for: permanent impairment; and non-economic loss.	Paid as a lump sum by the relevant authority to the employee within 30 days after the date of the assessment of the amount payable (unless the determination of the amount is challenged).	This compensation is only payable if the injury results in impairment that is both: permanent; and assessed at or above the prescribed permanent impairment threshold under the approved guide, and the amount of compensation is calculated on the basis of: the degree of permanent impairment of the employee resulting from the injury as assessed under the approved guide; any non-economic loss suffered by the employee as a result of the injury or impairment as assessed under the approved guide ; and the maximum lump sum amounts for permanent impairment and non-economic loss.	See Impairment, including for: the meaning of permanent impairment and non-economic loss; assessments under the approved guide; the prescribed thresholds for compensation; and an alternative claim for damages. See comcare.gov.au for current maximum lump sum amounts.
3.7	Compensation for: journey expenses; and accommodation expenses.	Paid by the relevant authority to the employee.	This compensation is only payable if the employee reasonably incurs expenses either: making a necessary journey in connection with obtaining compensable medical treatment, undergoing an examination for a rehabilitation assessment or undergoing a medical examination; or remaining, for the purpose of the treatment or examination, at a place to which the employee has made a journey for that purpose, and the amount of the compensation is determined by the relevant authority with reference to all of the following: the means of transport available to the employee for the journey; the route or routes by which the employee could have travelled; and the accommodation available to the employee, and, in relation to a journey in connection with obtaining compensable medical treatment, the following also apply: additional prescribed conditions and considerations; and maximum rates of compensation.	See one of the following: Medical Treatment, in relation to obtaining compensable medical treatment; Rehabilitation, in relation to undergoing an examination for a rehabilitation assessment; or Investigation of Claim, in relation to undergoing a medical examination.
3.8	Rehabilitation program.	Provided by the rehabilitation authority (or an approved program provider on behalf of the rehabilitation authority) and paid for by the relevant authority .	A rehabilitation program is only available if the injury results in either: incapacity for work; or impairment, and the rehabilitation authority exercises its discretion to make a determination that the employee should undertake a rehabilitation program, having regard to: any written rehabilitation assessment; and other prescribed matters.	See Rehabilitation Programs, including for: how to request a rehabilitation assessment; and the other prescribed matters to which the rehabilitation authority must have regard.
3.9	Suitable employment.	Provided by the relevant employer.	The relevant employer must take all reasonable steps to either: provide the employee with suitable employment; or assist the employee to find suitable employment, but only if the employee (one of the following must be true): is undertaking a rehabilitation program; or has completed a rehabilitation program.	See Suitable Employment, for what is meant by suitable employment.

If a claim for compensation has been made and no decision has been made in relation to the claim, see Investigation and Determination.

If a decision has been made in relation to a claim for compensation, and you are not satisfied with the decision, you may have options (subject to time limits). If the decision is:

• a determination, see Reconsideration;
• a reviewable decision, see Merits Review; or
• any other kind of decision, see Other Forms of Review and Assistance.

If you require independent advice or assistance in relation to a claim for compensation under the scheme, see Other Assistance.

Injury Resulting in Death

The following questions may help you to:

• identify relevant facts;
• assess whether compensation or other benefits are available under the Comcare Scheme to, or for the benefit of, a child, spouse or other dependant of a deceased person; and
• identify initial procedural requirements.

These questions are a general guide and the answer to any question should not be relied on in place of independent legal advice.

1. Was the deceased person an employee at the relevant time?
   
   See Employee and Employment, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
2. Did the deceased employee suffer an injury resulting in death?
   
   See Ailment, Injury and Aggravation, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
3. Is the dependent person a dependant of the deceased employee?
   
   See Dependency, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
4. Is the relevant authority prevented from paying any or all compensation?
   
   For example: Was the injury intentionally self-inflicted? Has one or more dependants recovered damages or other compensation in respect of the injury? See Preclusion, Suspension and Repayment, then return to this question.
   
   If 'yes'—the person may not be entitled to compensation under the scheme.
   If 'no'—go to the next question.
   
   
5. Has valid notice of the injury been given to the relevant authority?
   
   For example: Was written notice of the injury given to the relevant authority as soon as reasonably practicable after the employee died (if not before)? See Notice of Injury or Accident, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the scheme does not apply in relation to an injury to an employee unless there is valid notice (time limits apply).
   
   
6. Has a valid claim for compensation been given to the relevant authority?
   
   See Claims for Compensation, then return to this question.
   
   If 'yes'—see Table 4 for a summary of entitlements and conditions under the scheme.
   If 'no'—compensation is not payable to a person under the scheme unless a valid claim for compensation is made by or on behalf of that person.

Table 4—Summary of Entitlements and Conditions (Injury Resulting in Death)

Ref.	Compensation or benefit	How paid or provided	Summary of conditions	More information
4.1	Death benefit for a dependant wholly dependent for economic support on the employee.	Maximum lump sum amount paid by the relevant authority: if there is one dependant—to that dependant; or if there is more than one dependant—for the benefit of all dependants who are claiming compensation, in shares, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.	This compensation is only payable if there was one or more dependants who were wholly dependent for economic support on the employee at the date of the employee's death.	See Death Benefit. See comcare.gov.au for current maximum lump sum amounts.
4.2	Death benefit for a dependant partly dependent for economic support on the employee.	Up to the maximum lump sum amount paid by the relevant authority: if there is one dependant—to that dependant, having regard to any losses suffered by the dependant as a result of the cessation of the employee's earnings; or if there is more than one dependant—for the benefit of all dependants who are claiming compensation, in shares, having regard to any losses suffered by those dependants as a result of the cessation of the employee's earnings.	This compensation is only payable if (both of the following must be true): there were no dependants who were wholly dependent for economic support on the employee at the date of the employee's death; and there was one or more dependants who were partly dependent for economic support on the employee at the date of the employee's death.	See Death Benefit. See comcare.gov.au for current maximum lump sum amounts.
4.3	Dependency payments for a prescribed child.	Maximum weekly compensation amount paid by the relevant authority to each prescribed child .	This compensation is only payable (both of the following apply): in a period during which the child is a prescribed child; and in the case of a prescribed child who was not wholly or mainly dependent for economic support on the employee at the date of death—in a period during which the child would have been so dependent if the employee had not died	See Death Benefit. See comcare.gov.au for current maximum weekly compensation amounts.
4.4	Paid for or carried out a funeral.	Paid or reimbursed by the relevant authority to the dependant who paid the cost of the funeral. (If another person paid the cost of the funeral, or if a person carried out the funeral and the cost of the funeral has not been paid, see Non-Employee/Dependant Claims.)	This compensation is only payable up to the maximum compensation amount and if the cost of the funeral is reasonable having regard to both of the following: the charges ordinarily made for funerals in the place where the funeral was carried out; and any amount paid or payable in respect of the cost of the funeral under any other law of the Commonwealth.	See comcare.gov.au for current maximum compensation amounts.

If a claim for compensation has been made and no decision has been made in relation to the claim, see Investigation and Determination.

If a decision has been made in relation to a claim for compensation, and you are not satisfied with the decision, you may have options (subject to time limits). If the decision is:

• a determination, see Reconsideration;
• a reviewable decision, see Merits Review; or
• any other kind of decision, see Other Forms of Review and Assistance.

If you require independent advice or assistance in relation to a claim for compensation under the scheme, see Other Assistance.

Accident Not Causing Injury

Compensation may be available under the Comcare Scheme to a person in relation to the supply, replacement or repair of an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by a person (property used by a person).

If the person either:

• reasonably obtained or requires such property in relation to an injury, see Injury Not Resulting in Death; or
• had an accident that did not cause injury to the person, but did result in the loss or destruction of, or damage to, such property, keep reading.

The following questions may help you to:

• identify relevant facts;
• assess whether compensation is available under the scheme to a person; and
• identify initial procedural requirements.

These questions are a general guide and the answer to any question should not be relied on in place of independent legal advice.

1. Was the person an employee at the time of the accident?
   
   See Employee and Employment, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
2. Did the accident arise out of and in the course of the employee's employment?
   
   See Accident, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
3. Did the accident result in the loss or destruction of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee (property used by the employee)?
   
   If 'yes'—go to the next question.
   If 'no'—the person may not be entitled to compensation under the scheme.
   
   
4. Is the relevant authority prevented from paying any or all compensation?
   
   For example: Was the loss, destruction or damage attributable to the serious and wilful misconduct of the employee? Has the employee recovered damages or other compensation in respect of the loss, destruction or damage? See Preclusion, Suspension and Repayment, then return to this question.
   
   If 'yes'—the person may not be entitled to compensation under the scheme.
   If 'no'—go to the next question.
   
   
5. Has notice of the accident been given to the relevant authority?
   
   For example: Was written notice of the accident given to the relevant authority as soon as reasonably practicable after the employee became aware of the accident? See Notice of Injury or Accident, then return to this question.
   
   If 'yes'—go to the next question.
   If 'no'—the scheme does not apply in relation to the loss or destruction of, or damage to, property used by the employee unless there is valid notice (time limits apply).
   
   
6. Has a valid claim for compensation been given to the relevant authority?
   
   See Claims for Compensation, then return to this question.
   
   If 'yes'—see Table 5 for a summary of entitlements and conditions under the scheme.
   If 'no'—compensation is not payable to a person under the scheme unless a valid claim for compensation is made by or on behalf of that person.

Table 5—Summary of Entitlements and Conditions (Accident Not Causing Injury)

Ref.	Compensation or benefit	How paid or provided	Summary of conditions	More information
5.1	Compensation for either: replacement cost; or repair cost, of property used by an employee.	Paid by the relevant authority to the employee.	This compensation is only payable if the expense was reasonably incurred by the employee in the necessary: repair of the property; or replacement of the property, which is taken to include any fees or charges paid or payable by the employee to any of the following: a legally qualified medical practitioner; a legally qualified dentist; or another qualified person, for a consultation, examination, prescription or other service reasonably rendered in connection with the replacement or repair.	SRC Act: section 15.

If a claim for compensation has been made and no decision has been made in relation to the claim, see Investigation and Determination.

If a decision has been made in relation to a claim for compensation, and you are not satisfied with the decision, you may have options (subject to time limits). If the decision is:

• a determination, see Reconsideration;
• a reviewable decision, see Merits Review; or
• any other kind of decision, see Other Forms of Review and Assistance.

If you require independent advice or assistance in relation to a claim for compensation under the scheme, see Other Assistance.

Non-Employee/Dependant Claims

A person may be entitled to payment or reimbursement under the Comcare Scheme if they either provided a service, or incurred an expense, in connection with an employee who has suffered an injury. Table 6 contains a summary of entitlements and conditions under the scheme.

Table 6—Summary of Entitlements and Conditions (Non-Employee/Dependant Claims)

Ref.	Service or expense	How paid or provided	Summary of conditions	More information
6.1	A person provided, or paid the cost of, medical treatment (including the supply, replacement or repair of property used by the employee).	Paid or reimbursed by the relevant authority to: if a person (other than the employee) paid the cost and the employee has not died—that person; if a person (other than the employee or the employee's legal personal representative) paid the cost and the employee has died—that person; or if the cost has not been paid—the person to whom the cost is payable.	This compensation is only payable if (both of the following must be true): the medical treatment is compensable under the Comcare Scheme; and the cost of the treatment has not already been paid by the relevant authority.	See Injury Not Resulting in Death, to assess whether the medical treatment is compensable under the Comcare Scheme.
6.2	A person incurred an expense transporting the employee.	Paid or reimbursed by the relevant authority to the person.	This compensation is only payable if the person reasonably incurred expenditure in connection with the transportation of the employee from the place where the injury was sustained to either: a hospital or similar place; or if the employee has died—a hospital or similar place, or a mortuary, and the employee or their legal personal representative must not have already made a claim for compensation in respect of that expenditure.	See Note 1 for when an employee has died. See Injury Not Resulting in Death, to assess whether the employee suffered an injury in respect of which compensation is payable.
6.3	A person provided: household services; or attendant care services	Paid or reimbursed by the relevant authority to the person.	This compensation is only payable if either: the household services are compensable under the Comcare Scheme, subject to the maximum weekly compensation amount; or the attendant care services are compensable under the Comcare Scheme, subject to the maximum weekly compensation amount, and the employee must not have already paid for the services.	See Injury Not Resulting in Death, to assess whether the household services or attendant care services are compensable under the Comcare Scheme. See comcare.gov.au for current compensation rates.
6.4	A person provided one of the following services: alteration of the employee's place of residence or place of work; modifications of a vehicle or article used by the employee; or the supply, replacement or repair of aids or appliances for the use of the employee.	Paid or reimbursed by the relevant authority to: if a person (other than the employee or the employee's legal personal representative) paid the cost and the employee has died—that person; or if the employee, or the employee's legal personal representative, is unable, or refuses or fails, to make a claim for the compensation—the person to whom the cost of the service is payable.	This compensation is only payable if (both of the following must be true): the relevant service is compensable under the Comcare Scheme; and the cost of the service has not already been paid by the relevant authority.	See Injury Not Resulting in Death, to assess whether the alterations, modifications, aids or appliances are compensable under the Comcare Scheme.
6.5	A person paid for or carried out a funeral.	Paid or reimbursed by the relevant authority to: if the person paid the cost of the funeral—that person; or if the person carried out the funeral and the cost of the funeral has not been paid—that person.	This compensation is only payable: if the injury resulting in death is compensable under the Comcare Scheme; and up to the maximum compensation amount, and if the cost of the funeral is reasonable having regard to both of the following: the charges ordinarily made for funerals in the place where the funeral was carried out; and any amount paid or payable in respect of the cost of the funeral under any other law of the Commonwealth.	See Injury Resulting in Death, to assess whether the injury resulting in death is compensable under the Comcare Scheme. See comcare.gov.au for current maximum compensation amounts.
Note 1: If the employee has died, it is not necessary for the injury to have resulted in the death of the employee for this compensation to be payable under the Comcare Scheme.

If a claim for compensation has been made and no decision has been made in relation to the claim, see Investigation and Determination.

If a decision has been made in relation to a claim for compensation, and you are not satisfied with the decision, you may have options (subject to time limits). If the decision is:

• a determination, see Reconsideration;
• a reviewable decision, see Merits Review; or
• any other kind of decision, see Other Forms of Review and Assistance.

If you require independent advice or assistance in relation to a claim for compensation under the scheme, see Other Assistance.

Employee and Employment

This section contains a summary of provisions relating to employees and employment covered by the Comcare Scheme. The following information may help you answer these questions:

Was the person an employee at the relevant time?
Was the deceased person an employee at the relevant time?

Who is an Employee?

The term employee means a person of any age who satisfies the criteria in one of the rows in Table 7.

Table 7—Summary of Employee Provisions

Ref.	Employed by	Summary of conditions	More information
7.1	A person employed by the ACT.	A person is an employee of the ACT, the Commonwealth or a Commonwealth authority if either: the person is employed under one of the following: a law of the Commonwealth; a law of a Territory; a contract of service (as distinct from a contract for service); an apprenticeship; or the person is deemed to be an employee of the ACT, the Commonwealth or a Commonwealth authority.	See Note 1 for employment by a licensed corporation. See Scheme Employers, including for details and examples of employment by: the ACT; the Commonwealth; a Commonwealth authority (including a licensed authority); and a licensed corporation. See Deemed Employees, for persons who are deemed to be, or not to be, an employee under the Comcare Scheme.
7.2	A person employed by the Commonwealth other than a person who is declared not to be an employee of the Commonwealth.
7.3	A person employed by a Commonwealth authority (including a licensed authority) other than a person who is declared not to be an employee of a Commonwealth authority.
7.4	A person employed by a licensed corporation.	A person is an employee of a licensed corporation if either: the person performs work for a licensed corporation under either: a law; or a contract, and pursuant to that law, or pursuant to the law that is the proper law of that contract, the person would, if that corporation were not a licensed corporation, be entitled to compensation in respect of any of the following: injury, loss or damage suffered by the person in connection with that work; or the death of the person in connection with that work; or the person is deemed to be an employee of a licensed corporation.
Note 1: In relation to employment by a licensed corporation, the person does not need to prove an entitlement to workers’ compensation under a relevant law of a State or Territory for the claimed injury, loss, damage or death. Rather, the relevant authority need only be satisfied that the person would be entitled to compensation in respect of injury, loss or damage suffered by, or in respect of the death of, the person in connection with that work, if the corporation were not a licensed corporation.

Employment at the Relevant Time

The relevant time for assessing whether a person's employment is covered by the Comcare Scheme is:

• if an injury was sustained in the course of the person's employment—the employment at time the injury was sustained;
• if an injury was caused or contributed to by the person's employment—the employment at the time of incident or state of affairs that caused or contributed to the injury; or
• in the case of loss or destruction of, or damage to, property used by the person—the employment at the time of the accident.

Consider if there was a connection between what the person was doing at the relevant time and the person's employment? For example, was the person performing a duty or function of their employment? Or is there a deemed connection between what the person was doing at the relevant time and the person's employment?

For more information about deemed connections with employment after 30/11/1988, see Rules for Ailments, Rules for Injuries and Deemed Employees.

It is not necessary for the person to continue to be employed in that employment in order to make a claim for compensation under the scheme. However, some entitlements may be affected by a person's employment status, current employer, actual earnings and earning capacity. For more information, see Incapacity for Work.

Once the relevant authority has incurred a liability under the scheme in relation to a person who was an employee, a reference to an 'employee' in the SRC Act is generally taken to include a reference to a person who has ceased to be an employee.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Ailment, Injury and Aggravation

This section contains a summary of provisions relating to an injury under the Comcare Scheme. The following information may help you answer these questions:

Did the employee suffer an injury?
Did the deceased employee suffer an injury resulting in death?

What is a Compensable Injury?

For the purposes of the Comcare Scheme, the term injury has a specific meaning. It means an ailment, or an injury in the primary sense, that is related to employment in a specific way. The relevant legal test for that relationship depends on how and when the ailment or injury was suffered.

For example, the term injury may be any of the following:

• an ailment (or the aggravation of an ailment) suffered by an employee, depending on the degree of contribution to that ailment or aggravation from the employee's employment;
• an injury in the primary sense suffered by an employee (or the aggravation of such an injury) that arose out of, or in the course of, the employee's employment; or
• an injury in the primary sense (but not the aggravation of such an injury) that results from medical treatment of an earlier injury, subject to certain conditions.

What is an Ailment?

The term ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

A formal diagnosis is not usually required. However, it is necessary to establish that, having regard to the employee's circumstances, the employee is in a condition that is outside the boundaries of normal mental functioning and behavior.

An ailment will generally include a disease in the ordinary sense. In some cases, an ailment can also be an injury in the primary sense.

What is an Injury in the Primary Sense?

An injury in the primary sense is a change or disturbance in the normal functioning of a person (a physiological change or disturbance). The change or disturbance, and the cause of that change or disturbance, may be internal or external to the body of a person.

The change may be sudden, or even dramatic, but does not have to be. Suddenness, however, may help distinguish a physiological change from the natural progress of an underlying disease.

When assessing whether a person has suffered an injury in the primary sense, the most important thing to consider is the nature and incidents of the physiological change. In other words, you should consider the character of the change and what caused it.

An injury in the primary sense may include a disturbance of the normal psychological or psychiatric state. That is, the injury may be physical or mental.

What is an Aggravation?

An aggravation of an earlier ailment, or injury in the primary sense, can be temporary or permanent.

For an aggravation to be considered an injury, the signs or symptoms of the earlier ailment or injury will usually be made worse in some measurable way. Generally:

• signs are the objective indications of an ailment or injury, which may or may not be noticed by a person; and
• symptoms are the subjective indications of an ailment or injury of which a person is usually aware.

It can be difficult to assess if there has been an aggravation, acceleration or recurrence of an earlier ailment or injury. The opinion of a medical or other relevant expert may be required. In some cases, the aggravation may be identified or measured by the effect it has on any of the following:

• the nature or extent of any medical treatment in relation to the earlier ailment or injury;
• the nature or extent of any incapacity for work or impairment resulting from the earlier ailment or injury; or
• the timing of death as a result of the earlier ailment or injury.

For information about deeming provisions in relation to the aggravation of ailments, see Rules for Ailments.

When is an Ailment, Injury or Aggravation Suffered?

Assessing Liability and Entitlements

An ailment that develops gradually (such as an asbestos-related disease) may be suffered long after the employee experienced the incident or state of affairs necessary for the development of the ailment (for example, inhalation of asbestos fibres in the course of employment). It is therefore possible for employment to occur before the Comcare Scheme commenced on 01/12/1988 and for the ailment (or the aggravation of an ailment) to be suffered as a result of that employment some time after 01/12/1988.

If an injury in the primary sense (or the aggravation of such an injury) is suffered as a direct result of an incident or accident, the injury or aggravation is often suffered at the time the incident or accident occurred.

Assessing when an ailment, injury or aggravation was suffered can be more difficult if either:

• the ailment, injury or aggravation is suffered as a result of multiple incidents or a state of affairs
• the ailment or injury is suffered as a consequence of, or secondary to, an earlier injury.

In these cases, the ailment, injury or aggravation may be suffered when it was first noticed by the employee or by someone else, or when it was first diagnosed or treated. The opinion of a medical or other relevant expert may be required to help in these cases.

If a claimed injury (however described) was suffered:

• before 01/12/1988, see Injured before 01/12/1988, this section; or
• after 30/11/1988, see Injured after 30/11/1988, this section.

Assessing Entitlements Only (Ailments)

For the purposes of assessing entitlements under the Comcare Scheme in relation to an ailment (or the aggravation of an ailment) that was suffered after 30/11/1988 and satisfies the definition of injury—the ailment or aggravation is taken to have been sustained on the earliest of the following days:

• when the employee first sought medical treatment for the ailment or aggravation;
• when the ailment or aggravation first resulted in the incapacity for work or impairment of the employee; or
• when the ailment or aggravation resulted in the death of the employee.

Injured before 01/12/1988

If an injury or a disease was suffered before 01/12/1988, compensation may still payable under the Comcare Scheme if compensation was, or would have been, payable under earlier Commonwealth workers’ compensation legislation.

To assess whether Commonwealth workers’ compensation was, or would have been, payable before 01/12/1988, the injury or disease must satisfy the relevant definitions and conditions in the legislation in Table 8, as amended and in force when the injury or disease was suffered:

Table 8—Relevant Legislation if Injured before 01/12/1988

If suffered in the period	The relevant definitions and conditions are in the
01/09/1971 to 30/11/1988 (inclusive)	Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act)
05/02/1913 to 09/11/1930 (inclusive)	Commonwealth Workmen’s Compensation Act 1912 (Cth) (1912 Act)
10/11/1930 to 31/08/1971 (inclusive)	Commonwealth Employees’ Compensation Act 1930 (Cth) (1930 Act)

If Commonwealth workers’ compensation was, or would have been, payable before 01/12/1988, the injury or disease is taken to be an injury in respect of which compensation is payable under the Comcare Scheme.

However, some entitlements have been modified, as summarised in Table 9.

Table 9—Summary of Transitional Provisions

Ref.	Event	Entitlements under earlier Acts	Entitlements under the Comcare Scheme	More information
9.1	Permanent impairment or death occurring before 01/12/1988.	A person received, or was not entitled to receive, lump sum compensation for that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	The person is not entitled to lump sum compensation for that impairment or death under the Comcare Scheme.	SRC Act: subsection 124(3).
9.2		A person did not receive, but would have been entitled to receive, lump sum compensation for that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	If the person is entitled to lump sum compensation for that impairment or death under the Comcare Scheme—the amount of compensation is the same as the amount that would have been payable under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	SRC Act: subsection 124(4).
9.3	Death or incapacity for work occurring before 01/12/1988.	A person received, or was not entitled to receive, weekly payments in relation to that death or incapacity under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	The person is not entitled to weekly payments in relation to that death or incapacity under the Comcare Scheme.	SRC Act: subsection 124(6).
9.4		A person did not receive, but would have been entitled to receive, weekly payments in relation to that death or incapacity under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	If the person is entitled to weekly payments in relation to that death or incapacity under the Comcare Scheme—the rate of compensation is the same as the rate that would have been payable under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	SRC Act: subsection 124(7).
9.5	Medical treatment expense or funeral expense paid or payable before 01/12/1988.	An amount of compensation was paid, or was not payable, in respect of such an expense under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	An amount of compensation in respect of that expense is not payable under the Comcare Scheme.	SRC Act: subsection 124(8).
9.6		An amount of compensation was not paid, but would have been payable, in respect of such an expense under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	If an amount of compensation is payable in respect of such an expense under the Comcare Scheme—the amount of compensation is the same as the amount that would have been payable under the 1912 Act, the 1930 Act or the 1971 Act, whichever applied.	SRC Act: subsection 124(9).
9.7	Household services or attendant care service provided before 01/12/1988.		A person is not entitled to compensation for any such services provided before 01/12/1988 under the Comcare Scheme.	SRC Act: subsection 124(5).

Injured after 30/11/1988

The following questions may help you assess whether an employee has suffered an injury under the Comcare Scheme.

These questions are a general guide and the answer to any question should not be relied on in place of independent legal advice.

1. Does the employee suffer something that can be described as a physical or mental ailment, disorder, defect or morbid condition disorder, defect or condition (whether of sudden onset or gradual development)?
   
   If 'yes', the employee may suffer an ailment—go to the next question.
   If 'no'—go to Question 3.
   
   
2. Was the ailment (or the aggravation of that ailment) contributed to, to a material degree (if suffered before 13/04/2007) or to a significant degree (if suffered after 12/04/2007), by the employee’s employment (with or without the benefit of any applicable deeming provisions)?
   
   For a summary of deeming provisions, see Rules for Ailments, this section, then return to this question.
   
   If 'yes', the employee may suffer a disease—go to Question 5.
   If 'no'—go to the next question.
   
   
3. Does the employee suffer something that can be described as a physical or mental injury in the primary sense?
   
   If 'yes'—go to the next question.
   If 'no', the employee may not suffer a compensable injury under the scheme.
   
   
4. Did the injury (or the aggravation of that injury) arise out of, or in the course of, the employee’s employment (with or without the benefit of any applicable deeming provisions)?
   
   For a summary of deeming provisions, see Rules for Injuries, this section, then return to this question.
   
   If 'yes'—go to Question 5.
   If 'no'—go to Question 6.
   
   
5. Is the disease, injury or aggravation, excluded from the definition of injury?
   
   See What is not a Compensable Injury?, this section, then return to this question.
   
   If 'yes', the employee may not suffer a compensable injury under the scheme.
   If 'no', the employee may suffer an injury in respect of which compensation is payable under the scheme.
   
   
6. Was the ailment or injury suffered as a result of medical treatment of an earlier injury (that is, in circumstances where compensation was payable under the scheme in respect of both the medical treatment and the earlier injury)?
   
   If 'yes', the employee may suffer an injury in respect of which compensation is payable under the scheme.
   If 'no'—go to Question 7.
   
   
7. Did the ailment or injury arise as a consequence of, or secondary to, an earlier injury (that is, in circumstances where compensation was payable under the scheme in respect of the earlier injury) such that the answer to Questions 2 or 4 (whichever is relevant) may be answered 'yes'?
   
   If 'yes', the employee may suffer an injury in respect of which compensation is payable under the scheme.
   If 'no', the employee may not suffer a compensable injury under the scheme.

If you require independent advice or assistance in relation to a claim for compensation under the scheme, see Other Assistance.

Rules for Ailments

The following information applies to an ailment (or the aggravation of an ailment) suffered by an employee after 30/11/1988. The following may help you answer the question:

Was the ailment (or the aggravation of that ailment) contributed to, to a material degree (if suffered before 13/04/2007) or to a significant degree (if suffered after 12/04/2007), by the employee’s employment (with or without the benefit of any applicable deeming provisions)?

An opinion from a medical or other relevant expert may be required to help you answer this question.

Material Degree

The degree of contribution required for ailments and aggravations suffered before 13/04/2007 is material degree. To help you identify when an ailment or aggravation is suffered, see When is an Ailment, Injury or Aggravation Suffered?.

An ailment or aggravation is likely to be contributed to, to a material degree, by an employee's employment if it can be established that:

• it is probable (more likely than not) that the employee's employment made a material, considerable or substantial contribution to the causation, aggravation, acceleration or recurrence of the ailment; or
• the causal connection between the employee's employment and the ailment or aggravation is unbroken, whether or not that connection is direct or indirect.

If it is claimed that the employee's perception of a work-related incident or state of affairs contributed to the ailment or aggravation, there is no requirement that the employee's interpretation or perception of that incident or state of affairs be reasonable. However, it will be necessary to establish that the incident or state of affairs actually occurred and created the perception in the mind of the employee.

The employee's employment does not need to be the only, or the most significant, cause or contributing factor. However, the degree of contribution must be material in light of all relevant contributing factors. You should therefore consider both employment and non-employment factors when assessing the degree of contribution from employment.

Significant Degree

The degree of contribution required for ailments and aggravations suffered after 12/04/2007 is significant degree. To help you identify when an ailment or aggravation is suffered, see When is an Ailment, Injury or Aggravation Suffered?.

The term significant degree means a degree that is substantially more than material. For what is meant by material degree, see Material Degree.

To assess whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, the following matters may be taken into account by the relevant authority (this is not an exhaustive list):

• the duration of the employment;
• the nature of, and particular tasks involved in, the employment;
• any predisposition of the employee to the ailment;
• any predisposition of the employee to the aggravation of the ailment;
• any activities of the employee not related to the employment; and
• any other matters affecting the employee’s health.

If it is claimed that the employee's perception of a work-related incident or state of affairs contributed to the ailment or aggravation, there is no requirement that the employee's interpretation or perception of that incident or state of affairs be reasonable. However, it will be necessary to establish that the incident or state of affairs actually occurred and created the perception in the mind of the employee.

The employee's employment does not need to be the only, or the most significant, cause or contributing factor. However, the degree of contribution must be substantially more than material in light of all relevant contributing factors. You should therefore consider both employment and non-employment factors when assessing the degree of contribution from employment.

Deeming Provisions (Ailments)

Table 10 contains a summary of the contribution tests and deeming provisions that apply to an ailment (or in some cases the aggravation of an ailment) suffered after 30/11/1988.

Table 10—Summary of Deeming Provisions (Ailments)

Ref.	Date suffered	Contribution test	Deeming provisions	More information
10.1	Suffered after 30/11/1988 and before 13/04/2007.	Was the ailment (or the aggravation of the ailment) contributed to, to a material degree, by the employee's employment? (Includes firefighters.)	The employee's employment is taken to have contributed, to a material degree, to the contraction of an ailment if either: both of the following are true: the ailment is of a kind specified in a notice as an ailment related to employment of a kind specified in that notice; and the employee was, at any time before symptoms of the ailment first became apparent, engaged in employment of that kind; or both of the following are true: the employee was, at any time before symptoms of the ailment first became apparent, engaged in employment; and the incidence of the ailment (or the aggravation of the ailment) among persons who have engaged in such employment is significantly greater than the incidence of the ailment (or the aggravation of the ailment) among persons who have engaged in other employment in the place where the employee is ordinarily employed, unless the relevant authority establishes that the employee's employment probably did not contribute, to a material degree, to the contraction of the ailment or aggravation.	See Note 1 for use of the term ailment in the summary of this deeming provision. See Notice of Declarations and Specifications (made on 28/11/1988, published in Gazette S365 on 30/11/1988, and amended by Notice No 1 of 1989, published in in Gazette GN 32 on 23/08/1989), to assess whether the ailment is of a kind specified in a notice as an ailment related to employment of a kind specified in that notice. SRC Act: subsections 7(1) and (2).
10.2	Suffered after 12/04/2007.	Was the ailment (or the aggravation of the ailment) contributed to, to a significant degree, by the employee's employment? (Includes firefighters.)	The employee's employment is taken to have contributed, to a significant degree, to the contraction of an ailment if either: both of the following are true: the ailment is of a kind specified in a legislative instrument as an ailment related to employment of a kind specified in that instrument; and the employee was, at any time before symptoms of the ailment first became apparent, engaged in employment of that kind; or both of the following are true: the employee was, at any time before symptoms of the ailment first became apparent, engaged in employment; and the incidence of the ailment (or the aggravation of the ailment) among persons who have engaged in such employment is significantly greater than the incidence of the ailment (or the aggravation of the ailment) among persons who have engaged in other employment in the place where the employee is ordinarily employed, unless the relevant authority establishes that the employee's employment probably did not contribute, to a significant degree, to the contraction of the ailment or aggravation .	See Note 1 for use of the term ailment in the summary of this deeming provision. See one of the following to assess whether the ailment is of a kind specified in a legislative instrument as an ailment related to employment of a kind specified in that instrument: Safety, Rehabilitation and Compensation (Specified Diseases) Notice 2007 (1) for an ailment or aggravation suffered after 12/04/2007 and before 01/10/2017; or Safety, Rehabilitation and Compensation (Specified Diseases and Employment) Instrument 2017 for an ailment or aggravation suffered after 30/09/2017. SRC Act: subsections 7(1) and (2).
10.3	Suffered after 03/11/2011.	Was the ailment (or the aggravation of the ailment) contributed to, to a significant degree, by the employee's employment? (Firefighters only.)	The employee's employment is taken to have contributed, to a significant degree, to the contraction of an ailment if all of the following are true: the ailment is specified in the SRC Act; before the ailment was sustained, the employee was employed as a firefighter for the qualifying period specified in the SRC Act for that ailment; and the employee was exposed to the hazards of a fire scene during that period, unless the relevant authority establishes that the employee's employment probably did not contribute, to a significant degree, to the contraction of the ailment.	See the following: Note 1 for use of the term ailment in the summary of this deeming provision; and Note 2 for when an employee is taken to be employed as a firefighter for the qualifying period. SRC Act: subsection 7(8) (for specified ailments and qualifying periods), (9) and (10).
10.4	Suffered after 30/11/1988.	Did the injury to the employee result in incapacity for work or impairment? (For disease only.)	Incapacity for work or impairment is taken to have resulted from an ailment (or the aggravation of an ailment) if, but for that ailment (or that aggravation), any of the following are true: the incapacity for work or impairment would not have occurred; the incapacity for work or impairment would have commenced at a significantly later time; or the extent of the incapacity for work or impairment would have been significantly less.	See Note 1 for use of the term ailment in the summary of this deeming provision.
10.5	Suffered after 30/11/1988.	Did the injury to the employee result in death? (For disease only.)	The death of an employee is taken to have resulted from an ailment (or the aggravation of an ailment) if, but for that ailment (or that aggravation), the employee would have died at a significantly later time.	See Note 1 for use of the term ailment in the summary of this deeming provision. SRC Act: subsection 7(5).
Note 1: The deeming provisions in section 7 of the SRC Act, and instruments made under that section, use the term 'disease' in its ordinary sense. However, the defined term disease only refers to an ailment and the aggravation of an ailment. The ordinary meaning of disease and the defined meaning of ailment are substantially similar. In most cases, a disease will also be an ailment. For these reasons, this table uses the term ailment when summarising the deeming provisions in section 7.
Note 2: An employee is taken to have been employed: as a firefighter—if firefighting duties made up a substantial portion of their duties, and only if they were actually employed as a firefighter and not deemed to be employed as a firefighter; and for the qualifying period—if they were employed as a firefighter for 2 or more periods that add up to the qualifying period.

Rules for Injuries

The following information applies to an injury in the primary sense (or the aggravation of such an injury) suffered by an employee after 30/11/1988. The following may help you answer the question:

Did the injury (or the aggravation of that injury) arise out of, or in the course of, the employee’s employment (with or without the benefit of any applicable deeming provisions)?

An opinion from a medical or other relevant expert may be required to help you answer this question.

Arising Out of, or in the Course of, Employment

The term 'arising out of employment' requires a causal connection with employment. That is, it must be probable (more likely than not) that the employee's employment caused or materially contributed to the injury or aggravation.

The employee's employment does not need to be the only, or the most significant, cause or contributing factor. However, the contribution must be material in light of all relevant contributing factors. You should therefore consider both employment and non-employment factors when assessing the contribution from employment.

The term 'arising in the course of employment' requires a temporal connection with employment. That is, it must be probable (more likely than not) that the employment and the injury or aggravation occurred at the same time.

An injury or aggravation may arise both out of and in the course of the employee’s employment, but this is not a requirement.

Interval or Interlude in Employment

An employee may still be ‘in the course of employment’ during an interval or interlude in a single period of employment (as distinct from the break between two periods of employment).

Take for example an employee on an overnight work trip where the whole trip is taken to be one period of employment. The interval or interlude may be the period between the end of work on day one and the start of work on day two.

The arising ‘in the course of employment’ test may be satisfied if the employee's employer (expressly or impliedly) induces or encourages the employee either:

• to be at a place during the interval or interlude in employment and the employee suffers an injury or aggravation at and by reference to that place (that is, the place in some way caused the injury or aggravation); or
• to engage in an activity (whether or not the employer induced or encouraged the employee to be present at a place) during the interval or interlude in employment and the employee suffers an injury or aggravation whilst engaged in that activity.

Deeming Provisions (Injuries)

In considering whether an injury (but not the aggravation of that injury) arose out of, or in the course of, the employee’s employment, consider whether any relevant deeming provisions apply.

The following is a summary of deeming provisions, which add to and do not limit the circumstances in which an injury may have arisen out of, or in the course of, employment.

An injury may be taken to have arisen out of, or in the course of, the employee's employment if it satisfies the criteria in one of the rows in Table 11.

Table 11—Summary of Deeming Provisions (Injuries)

Ref.	Date suffered	Deeming provisions	Exceptions to deeming	More information
11.1	Suffered after 30/11/1988.	The injury was sustained as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of their employment.	No exceptions.	SRC Act: paragraph 6(1)(a).
11.2	Suffered after 30/11/1988.	The injury was sustained while the employee was at the employee’s place of work, for the purposes of their employment	This deeming provision does not apply if the injury was sustained because the employee voluntarily and unreasonably submitted to an abnormal risk of injury.	SRC Act: paragraph 6(1)(b).
11.3	Suffered either: after 30/11/1988 and before 13/04/2007; or after 06/12/2011.	The injury was sustained while the employee was temporarily absent from their place of work during an ordinary recess in their employment.	This deeming provision does not apply if the injury was sustained because the employee voluntarily and unreasonably submitted to an abnormal risk of injury.	SRC Act: paragraph 6(1)(b).
11.4	Suffered after 30/11/1988.	The injury was sustained while the employee was temporarily absent from their place of work undertaking an activity (either of the following): associated with their employment; or at the direction or request of their employer.	No exceptions.	SRC Act: paragraph 6(1)(c).
11.5	Suffered after 06/12/2011.	The injury was sustained while the employee was, at the direction or request of their employer (either of the following): at a declared place outside Australia and the external Territories (this is intended to cover areas which are ‘significantly dangerous and have a higher risk of injury’ and currently includes Iraq and Afghanistan since 16/08/2013); or at a place outside Australia and the external Territories and a member of a declared class of employees (currently includes persons engaged under the Australian Civilian Corps Act 2011 (Cth) since 22/12/2011).	This deeming provision does not apply if the injury was sustained because the employee voluntarily and unreasonably submitted to an abnormal risk of injury.	SRC Act: paragraph 6(1)(h).
11.6	Suffered after 30/11/1988.	The injury was sustained while the employee was at a place of education (except while on leave without pay) in accordance with (any of the following): a condition of the employee’s employment; a request or direction of the employee's employer; or the approval of the employee's employer.	This deeming provision does not apply if the injury was sustained because the employee voluntarily and unreasonably submitted to an abnormal risk of injury.	SRC Act: paragraph 6(1)(e).
11.7	Suffered after 30/11/1988.	The injury was sustained while the employee was at a place for any of the purposes listed in Note 2.	This deeming provision does not apply if the injury was sustained because the employee voluntarily and unreasonably submitted to an abnormal risk of injury.	See Note 2 for purposes covered by this deeming provision. SRC Act: paragraph 6(1)(f).
11.8	Suffered after 12/04/2007.	The injury was sustained while the employee was, at the direction or request of their employer, travelling for the purpose of their employment.	Travel between the employee’s place of residence and the employee's usual place of work is taken not to be at the direction or request of the employee's employer.	See Note 1 for journeys to or from a place of residence. SRC Act: paragraph 6(1)(d).
11.9	Suffered after 30/11/1988.	The injury was sustained while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with (any of the following): a condition of the employee’s employment; a request or direction of the employee's employer; or the approval of the employee's employer.	No exceptions.	SRC Act: paragraph 6(1)(ea).
11.10	Suffered after 30/11/1988.	The injury was sustained while the employee was travelling between the employee’s place of work and another place for any of the purposes listed in Note 2.	No exceptions.	See Note 2 for purposes covered by this deeming provision. SRC Act: paragraph 6(1)(g).
11.11	Suffered after 30/11/1988 and before 13/04/2007.	The injury was sustained while the employee was either: travelling between any of the following places: their place of residence and place of work, other than during an ordinary recess in the employee's employment; the place where they normally reside and another place, being a place where they reside temporarily, as a matter of necessity or convenience, for the purposes of their employment; one of their places of work and another of their places of work; their place of residence and any other place for any of the purposes listed in Note 2; or travelling (unless travelling while on leave without pay) between their place of residence and a place of education for the purpose of attending that place in accordance with (any of the following): a condition of the employee’s employment; a request or direction of the employee's employer; or the approval of the employee's employer.	This deeming provision does not apply to travel after 12/04/2007 or where the travel was either: by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or interrupted in a way that substantially increased the risk of sustaining an injury.	See Note 2 for purposes covered by this deeming provision. SRC Act (as in force before 13/04/2007): paragraph 6(1)(b).
Note 1: For injuries suffered after 14/01/1996, it was clarified that: a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; a journey to a place of residence is taken to end at the boundary of the land where the place of residence is situated; and if an employee owns or occupies a parcel of land contiguous with (that is, touching or near to) the land on which the employee’s place of residence is situated, the boundary referred to in the preceding points is the external boundary of all of the contiguous parcels of land if treated as a single parcel.
Note 2: The following purposes are covered by the relevant deeming provision: obtaining a medical certificate for the purposes of the SRC Act; receiving medical treatment for an injury; undergoing a rehabilitation program; receiving a payment of compensation under the SRC Act; undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under the SRC Act; and receiving money due to the employee under the terms of their employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and their employer, is available, or reasonably expected by the employee to be available, for collection at that place.

What is not a Compensable Injury?

This subsection applies to a disease or injury in the primary sense (or the aggravation of such an injury) suffered by an employee after 30/11/1988. The following may help you answer the question:

Is the disease, injury or aggravation, excluded from the definition of injury?

The conditions in Table 12 are excluded from the definition of injury for the purposes of the Comcare Scheme.

Table 12—Summary of Excluded Ailments, Injuries and Aggravations

Ref.	Date suffered	Type of injury	Exclusionary provision	More information
12.1	Suffered after 30/11/1988.	Either of the following: ailment; or aggravation of an ailment.	Excluded from the definition of injury if (all of the following must be true): the employee previously suffered from the ailment; at any time, for purposes connected with the employee's employment or proposed employment, the employee made a representation that they did not suffer, or had not previously suffered, from that ailment; and that representation was both wilful and false.	See Note 1 for use of the term ailment in the summary of this exclusionary provision. SRC Act: subsection 7(7).
12.2	Suffered after 30/11/1988 and before 13/04/2007.	Either of the following: ailment; or aggravation of an ailment.	A disease is excluded from the definition of injury if the ailment or aggravation (both of the following must be true): was contributed to, in a material degree, by the employee’s employment; and would not have been contributed to, to a material degree, by the employee’s employment without either: the taking of reasonable disciplinary action against the employee; or failure by the employee to obtain a promotion, transfer or benefit in connection with their employment.	See Note 2 for whether the disciplinary action or failure needs to be the sole cause. SRC Act (as in force before 13/04/2007): see definition of injury in subsection 4(1).
12.3	Suffered after 30/11/1988 and before 13/04/2007.	Either of the following: injury (other than a disease); or aggravation of an injury (other than a disease).	Excluded from the definition of injury if the injury or aggravation (both of the following must be true): arose out of, or in the course of, the employee’s employment; and would not have arisen out of, or in the course of, the employee’s employment without either: the taking of reasonable disciplinary action against the employee; or failure by the employee to obtain a promotion, transfer or benefit in connection with their employment.
12.4	Suffered after 12/04/2007.	Either of the following: ailment; or aggravation of an ailment.	A disease is excluded from the definition of injury if the ailment or aggravation (both of the following must be true): was contributed to, in a significant degree, by the employee’s employment; and would not have been contributed to, to a significant degree, by the employee’s employment without the taking of reasonable administrative action in a reasonable manner in respect of the employee’s employment.	See the following: Note 3 for what is taken to be reasonable administrative action; Note 4 for perceived consequence of the administrative action; and Note 5 for whether the administrative action needs to be the sole cause. SRC Act: section 5A.
12.5	Suffered after 12/04/2007.	Either of the following: injury (other than a disease); or aggravation of an injury (other than a disease).	Excluded from the definition of injury if the injury or aggravation (both of the following must be true): arose out of, or in the course of, the employee’s employment; and would not have arisen out of, or in the course of, the employee’s employment without the taking of reasonable administrative action in a reasonable manner in respect of the employee’s employment.
Note 1: The exclusionary provisions in section 7 of the SRC Act use the term 'disease' in its ordinary sense. However, the defined term disease only refers to an ailment and the aggravation of an ailment. The ordinary meaning of disease and the defined meaning of ailment are substantially similar. In most cases, a disease will also be an ailment. For these reasons, this table uses the term ailment when summarising the exclusionary provisions in section 7.
Note 2: The disciplinary action, or failure to obtain a promotion, transfer or benefit in connection with employment, need not be the sole cause of the ailment, injury or aggravation. That is, there may be multiple causes, some of which may be related to other aspects of the employee’s employment.
Note 3: Reasonable administrative action is taken to include (but is not limited to): a reasonable appraisal of the employee's performance; a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment; a reasonable suspension action in respect of the employee's employment; a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment; anything reasonable done in connection with an action mentioned in the preceding points; and anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with their employment. However, for the exclusionary provision to apply, the relevant authority will need to be satisfied that the administrative action was all of the following: reasonable in the circumstances; not inconsistent with: applicable Australian law, including any relevant agreement or award made under such law; or the terms of the employee's engagement; taken in respect of the employee’s employment, where such employment may: include the conditions in which the employee works, the terms of the employee's engagement or the employee's duties; and exclude (depending on the circumstances) matters of general administration, management and implementation of policy; and taken in a reasonable manner.
Note 4: The nature of the perceived consequence of the administrative action may not be relevant for the purpose of determining whether the injury was suffered as a result of the administrative action. That is, it may not matter whether the employee believed the administrative action would have a personal or professional, direct or indirect, real or imagined consequence.
Note 5: The administrative action need not be the sole cause of the ailment, injury or aggravation. That is, there may be multiple causes, some of which may be related to other aspects of the employee’s employment.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Accident

This section contains a summary of provisions relating to an accident occurring after 30/11/1988 and in the course of employment covered by the Comcare Scheme. The following information may help you answer the question:

Did the accident arise out of and in the course of the employee's employment?

For an accident to arise out of and in the course of employment (both of the following must be true):

• the employment must have caused or contributed to the accident (but the employment does not need to be the only, or the most significant, cause or contributing factor); and
• the employment and the accident must have occurred at the same time.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Dependency

This section contains a summary of provisions relating to the death of an employee after 30/11/1988. The following information may help you answer the question:

Is the dependent person a dependant of the deceased employee?

The law concerning dependency can be complex. The following is a general guide as to who may be a dependant entitled to compensation under the Comcare Scheme.

A dependant, in relation to a deceased employee, is a person who satisfies the criteria in one of the rows in Table 13.

Table 13—Summary of Dependant Provisions

Ref.	Person	Summary of conditions	More information
13.1	A child of the employee (unborn at the date of death).	The child must have been born alive after the employee's death.	SRC Act: sections 4 and 17.
13.2	A child of the employee (under 16 at the date of death).	One of the following must be true: immediately before the employee's death—the child was living with the employee; or at the date of the employee's death—the child was wholly or partly dependent for economic support on the employee, or would have been so dependent but for an incapacity of the employee that resulted from an injury.
13.3	A child of the employee (16 or more but under 25 at the date of death).	One of the following must be true: immediately before the employee's death—the child was living with the employee, receiving full-time education at a school, college, university or other educational institution and not ordinarily in employment or engaged in work on their own account; or at the date of the employee's death—the child was wholly or partly dependent for economic support on the employee, or would have been so dependent but for an incapacity of the employee that resulted from an injury.
13.4	The spouse of the employee, including: a de facto partner; and if the employee was a member of the Aboriginal race of Australia or a descendant of indigenous inhabitants of the Torres Strait Islands—a person who is or was recognised as the employee's husband, wife or spouse by the custom prevailing in the tribe or group to which the employee belongs or belonged.	One of the following must be true: immediately before the employee's death—the spouse was living with the employee; or at the date of the employee's death—the spouse was wholly or partly dependent for economic support on the employee, or would have been so dependent but for an incapacity of the employee that resulted from an injury.
13.5	The parent, step-parent, father-in-law, mother-in-law, grandparent, stepchild, grandchild, sibling or half-sibling of the employee .	The person must have been wholly or partly dependent for economic support on the employee at the date of the employee's death or would have been so dependent but for an incapacity of the employee that resulted from an injury .
13.6	A person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee .

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Compensation

This section contains a summary of provisions relating to compensation under the Comcare Scheme.

The information is presented on the basis that compensation is payable under the scheme in respect of an injury suffered by an employee.

The following information, together with the summary of eligibility and entitlements in Injury Not Resulting in Death and Injury Resulting in Death, may help you answer the question:

Is compensation payable for the injury?

The following different kinds of compensation are available under the scheme in relation to an injury:

• Medical Treatment;
• Incapacity for Work;
• Household Services;
• Attendant Care Services;
• Alterations, Modifications, Aids and Appliances;
• Permanent Impairment and Non-Economic Loss;
• Death Benefit; and
• Funeral Expenses.

Medical Treatment

If medical treatment is obtained in relation to an injury, being treatment that it was reasonable for the employee to obtain in the circumstances, the relevant authority must pay an amount of compensation that it determines is appropriate to that treatment.

That is the case whether or not the injury results in death, incapacity for work or impairment.

SRC Act: section 16.

Meaning of Medical Treatment

Not all forms of treatment are covered by the Comcare Scheme.

The term medical treatment means any of the following:

• medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner;
• certain therapeutic treatment, including an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury—conditions apply to therapeutic treatment, discussed in the next paragraph;
• dental treatment by, or under the supervision of, a legally qualified dentist;
• an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis;
• the supply, replacement or repair of property used by the employee;
• treatment and maintenance as a patient at a hospital; and
• nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise.

Only the following therapeutic treatment is included in the term medical treatment:

• therapeutic treatment obtained at the direction of a legally qualified medical practitioner;
• therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of persons of that kind; and
• after 31/03/2002—therapeutic treatment by, or under the supervision of, an occupational therapist, optometrist, podiatrist, psychologist or speech therapist registered under the law of a State or Territory providing for the registration of persons of that kind or, if there is no such law, a member of a relevant professional association.

You may be unsure whether a particular form of treatment is compensable under the scheme. If so, or if the treatment is expensive or unusual, but not urgent, you could contact the relevant authority before obtaining, or incurring an expense in relation to, that treatment.

Whether or not a treatment is compensable, you should follow the advice of your treating medical practitioner.

SRC Act: section 4.

Journey and Accommodation Expenses

Additional compensation may be payable if the employee reasonably incurs an expense making a necessary journey, or remaining at a place to which they had made such a journey, for the purpose of obtaining compensable medical treatment.

In summary, the relevant authority is required to pay:

• if the journey commenced before 24/12/1992 and covered a substantial distance—an amount of compensation equal to the expenditure;
• if the journey commenced after 23/12/1992 and was more than 50 kilometres return—an amount of compensation based on a specified rate per kilometre multiplied by the number of kilometres the relevant authority determines to have been reasonable for that journey (for current specified rates, see comcare.gov.au);
• if the journey involved the use of public transport or ambulance services, and the employee's injury reasonably required the use of such transport or services regardless of the distance—an amount of compensation equal to the expenditure; and
• if the employee remained at a place to which they had made such a journey—an amount of compensation equal to the expenditure.

When assessing the entitlement to journey and accommodation compensation, the relevant authority must consider the place or places where appropriate medical treatment was available to the employee, the means of transport available to the employee for the journey, the route or routes by which the employee could have travelled, and the accommodation available to the employee.

SRC Act: section 16.

Incapacity for Work

The relevant authority must pay compensation in respect of an injury resulting in incapacity for work. However, the amount of compensation may be nil depending on several factors.

For a summary of eligibility and entitlements relating to incapacity for work, see Injury Not Resulting in Death. For additional information relating to the calculation of entitlements, keep reading.

Step-Down at 45 Weeks

Weekly compensation is payable if the employee's incapacity for work prevents them working their normal weekly hours in a particular week because they are either:

• unable to work; or
• unable to work at the level at which they worked before the injury.

The term normal weekly hours means the average number of hours including overtime (which includes any duty on shifts or on Saturdays, Sundays or other holidays, and excess travelling time) worked during the relevant period.

Compensation is payable at 100% of the employee's normal weekly earnings (before deductions) until the total number of hours that the employee has been prevented from working, or working at that level, equals 45 times the employee's normal weekly hours.

For example, if the employee is unable to do any work, the 45-week period will run for 45 calendar weeks. However, if the employee is able to work a few hours per day or a few days per week, the 45-week period could run for more than 45 calendar weeks.

After the 45-week period, compensation is payable as a percentage of normal weekly earnings (before deductions) depending on how many hours the employee worked in a particular week. Generally, as shown in Table 14, the more hours worked, the more compensation is payable.

Table 14—Summary of Step-down Provisions

Percentage of normal weekly hours worked in a week	Percentage of normal weekly earnings after 45 weeks
Nil	75%
Up to 25%	80%
26% to 50%	85%
51% to 75%	90%
76% to less than 100%	95%
100%	100%

Normal Weekly Earnings

These are the employee's earnings prior to the date of the injury. To help you identify the date of the injury, see When is an Ailment, Injury or Aggravation Suffered?.

Subject to certain exceptions, the normal weekly earnings of an employee are generally calculated as follows:

1. Multiply the average number of hours worked in each week by the employee in their employment during the relevant period by the employee's average hourly ordinary time rate of pay during that period.
   
   
2. Add to the first amount the average amount of any allowance payable to the employee in each week in respect of their employment during the relevant period, other than an allowance payable in respect of special expenses incurred, or likely to be incurred, by the employee in respect of that employment.
   
   
3. If the employee was required to work overtime (including any duty on shifts or on Saturdays, Sundays or other holidays, and excess travelling time) on a regular basis—multiply the average number of hours of overtime worked in each week by the employee in their employment during the relevant period by the employee's average hourly overtime rate of pay during that period and add that amount to the first amount.
   
   
4. If the employee' s employment by a scheme employer was, at the date of the injury, part-time or unpaid employment—add any earnings of the employee from any other employment during the relevant period to the first amount.

The exceptions to the general rules are:

• if, at the date of the injury, either:
  
  
  • the employee' s employment by a scheme employer was part-time or unpaid employment, and the employee was not receiving earnings from any other employment; or
  • the employee was a deemed employee of a scheme employer (other than the ACT), and the employee was not receiving earnings from any other employment,

• if the relevant period is too short and it is therefore not practical to calculate normal weekly earnings—the normal weekly earnings of another employee of the same employer performing comparable work may be used.

SRC Act: section 8.

Adjustments to Normal Weekly Earnings Amount

If the minimum amount per week payable to the employee in respect of their employment by a scheme employer at the date of the injury is (or would have) increased either:

• because the employee has reached a particular age or completed a particular period of service; or
• because of an increment in a range of salary, wages or pay applicable to the employee or to their office, position or appointment,
  
  the normal weekly earnings amount is increased by the same percentage as the percentage by which that minimum amount per week is (or would have) increased.

If the employee continues to be employed by a scheme employer after the date of the injury, the normal weekly earnings amount is increased or decreased by the same percentage as the percentage by which the minimum amount per week payable to:

• the employee is increased because of the promotion of the employee; or
• if the employee was a member of a class of employees at the date of the injury—the class of employees to which the employee was a member is increased or decreased by law or agreement.

The normal weekly earnings amount is further increased on 1 July each year by reference to a prescribed percentage (see comcare.gov.au) and a prescribed formula if either:

• the employee has ceased (or ceases to be) to be employed by a scheme employer after the date of the injury; or
• in the prior 12 months there was no increase in earnings by operation of the rules above.

Finally, the normal weekly earnings amount calculated using all of the above rules must be reduced in the following cases:

• if the employee continues to be employed by a scheme employer—the amount is reduced to equal the weekly amount the employee would receive if they were not incapacitated for work; or
• if the employee has ceased to be employed by a scheme employer—the amount is reduced to equal the weekly amount the employee would receive if they had continued to be employed by their scheme employer (whichever is greater):
  
  
  • in the employment in which they were engaged at the date of the injury ; or
  • at the date on which the employment ceased.

SRC Act: section 8.

Relevant Period

The relevant period is the last period of two weeks before the date of the injury during which the employee was continuously employed by a scheme employer unless:

• the minimum amount per week payable to an employee in this period was varied by law or agreement—in which case, ignore any part of the period before the last variation (but if this means it would not be practical to calculate normal weekly earnings, or the earnings so calculated would not be a fair representation of the employee's pre-injury weekly earnings, assume the variation had occurred at the beginning of the period);
• during any part of this period, the employee's earnings were reduced, or were nil, due to absence from employment for any reason—in which case, ignore that part of the period; or
• the normal weekly earnings calculated using this period would not be a fair representation of the employee's pre-injury weekly earnings because the relevant period is too short—the relevant authority must use another reasonable period that fairly represents what the employee was being paid.

SRC Act: section 9.

Adjustments to Weekly Compensation Amount

When assessing the amount per week an employee is able to earn in suitable employment, the relevant authority must take into account all relevant matters. Some of those matters are prescribed in the SRC Act.

For example, if the employee unreasonably fails to undertake or complete one of the following activities, the relevant authority must have regard to the amount per week the employee would be earning if the employee had not unreasonably failed to undertake or complete that activity:

• accept an offer of suitable employment;
• engage and continue to continue to engage in suitable employment;
• complete a reasonable rehabilitation program or vocational retraining program if completion of such a program is a condition to an offer of suitable employment; or
• seek suitable employment.
  

If the employee is retired from their employment (whether voluntarily or compulsorily) and the employee receives a pension, lump sum or both, under a superannuation scheme as a result of their retirement, the relevant authority must also reduce the weekly compensation amount in accordance with a formula prescribed in the SRC Act.

If the employee is not retired from their employment or not in receipt of a pension, lump sum or both, under a superannuation scheme as a result of their retirement, the weekly compensation amount may be reduced by up to half for each week the employee is maintained as a patient in a hospital, nursing home or similar place as a result of an injury. This can only happen if both of the following are true:

• the employee has been so maintained continuously for one or more years; and
• there are no prescribed persons or prescribed children who are dependent for economic support on the employee.

SRC Act: sections 19-23A.

Redemption of Weekly Compensation

If the weekly compensation amount is equal to or less than a prescribed amount (for current amount, see comcare.gov.au) and the relevant authority is satisfied that the degree of the employee's incapacity is unlikely to change, the relevant authority must make a determination redeeming the weekly compensation amount as a lump sum in accordance with a formula prescribed in the SRC Act.

Weekly compensation is then not payable unless the injury results in the employee being incapacitated for work to the extent that the employee is not able to engage in suitable employment and the incapacity is likely to continue indefinitely. In this case, the relevant authority is liable to pay weekly compensation to the employee taking into account the prior lump sum.

SRC Act: sections 23, 30 and 31.

Household Services

If, as a result of an injury, an employee obtains services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are reasonably required for the proper running and maintenance of the employee's household, the relevant authority must pay an amount that is both:

• reasonable in the circumstances; and
• no less than 50% of the cost of the services and no more than the maximum weekly compensation amount (for current amount, see comcare.gov.au).

If, as a result of a catastrophic injury, an employee obtains services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are reasonably required for the proper running and maintenance of the employee's household, the relevant authority must pay an amount per week that it considers reasonable in the circumstances.

The matters that the relevant authority may take into account in determining if household services were reasonably required include:

• the extent to which household services were provided by the employee before the date of the injury or catastrophic injury, as the case may be, and the extent to which they are able to provide those services after that date;
• in relation to any persons living with the employee as members of the employee's household:
  
  
  • the number of such persons, their ages and their need for household services;
  • the extent to which household services were provided by such persons before the injury or catastrophic injury, as the case may be;
  • the extent to which such persons might reasonably be expected to provide household services for themselves and for the employee after the injury or catastrophic injury, as the case may be; and
  • the need to avoid substantial disruption to the employment or other activities of such persons; and
    
    
• the extent to which any other members of the employee's family might reasonably be expected to provide household services for themselves and for the employee after the injury or catastrophic injury, as the case may be.

In the case of an injury other than a catastrophic injury, compensation is only payable in relation to household services obtained after 28 days from the date of the injury. However, the relevant authority may make a determination that compensation is payable in that period on either of the following grounds:

• financial hardship; or
• the need to provide for adequate supervision of children who are dependent for economic support on the employee.

SRC Act: sections 4, 29 and 29A.

Attendant Care Services

If, as a result of an injury, an employee obtains services (other than household services, medical or surgical services or nursing care) that are reasonably required for the essential and regular personal care of the employee, the relevant authority must pay an amount that is the lesser of:

• the amount paid or payable by the employee for the services; or
• the maximum weekly compensation amount (for current amount, see comcare.gov.au).

If, as a result of a catastrophic injury, an employee obtains services (other than household services, medical or surgical services or nursing care) that are reasonably required for the essential and regular personal care of the employee, the relevant authority must pay an amount per week that it considers reasonable in the circumstances.

The matters that the relevant authority may take into account in determining if attendant care services were reasonably required include:

• the nature of the employee's injury or catastrophic injury, as the case may be, and the degree to which that injury impairs their ability to provide for their personal care;
• the extent to which any medical service or nursing care received by the employee provides for their essential and regular personal care;
• the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
• the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
• any assessment made in relation to the rehabilitation of the employee; and
• the extent to which a relative of the employee might reasonably be expected to provide attendant care services.

SRC Act: sections 4, 29 and 29A.

Alterations, Modifications, Aids and Appliances

This form of compensation is only available if an employee suffers an injury resulting in an impairment, and the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program.

If that is the case, the relevant authority must pay a reasonable amount of compensation for:

• any alteration of the employee's place of residence or place of work;
• any modifications of a vehicle (a means of transport) used by the employee;
• any modifications of an article (an item or thing) used by the employee;
• any aids (something that provides assistance) for the use of the employee, or the repair or replacement of such aids; and
• any appliances (usually a mechanical device designed to assist a disabled person) for the use of the employee, or the repair or replacement of such appliances,
  
  being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.

In determining the amount of compensation payable, the relevant authority must consider:

• the likely period during which the alteration, modification, aid or appliance will be required;
• any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, their place of residence or place work;
• any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;
• any alternative means of transport available to the employee; and
• whether arrangements can be made for hiring the relevant aid or appliance.

If the employee has previously received compensation under the Comcare Scheme in respect of an alteration of their place of residence, or a modification of a vehicle, and the employee later disposed of that place of residence or vehicle, the relevant authority must also consider whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.

SRC Act: section 39.

Impairment

The relevant authority must pay compensation in respect of an injury resulting in permanent impairment unless the degree of that impairment is less than the relevant prescribed threshold (see Prescribed Thresholds).

The degree of impairment must be assessed under the approved guide.

If the relevant authority is liable to pay permanent impairment compensation, it must pay an extra amount for any non-economic loss suffered by the employee as a result of that injury or impairment (unless the permanent impairment commenced before 01/12/1988).

The degree of non-economic loss must also be assessed under the approved guide.

The permanent impairment and non-economic loss amounts are calculated with reference to maximum lump sum amounts. For current maximum amounts, see comcare.gov.au.

SRC Act: sections 24-28.

Permanent Impairment

For the purposes of the Comcare Scheme:

• impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function; and
• permanent impairment means an impairment that is likely to continue indefinitely in light of all relevant matters including the duration of the impairment, the likelihood of improvement in the employee's condition and whether the employee has undertaken all reasonable rehabilitative treatment for the impairment.

According to the approved guide:

• the degree of impairment is assessed by reference to the impact of that loss by reference to the functional capacities of a normal healthy person;
• impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person;
• the measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function; and
• 'activities of daily living' are the ability to receive and respond to incoming stimuli, standing, moving, feeding (includes eating but not the preparation of food), control of bladder and bowel, self care (bathing, dressing and the like) and sexual function.

For more information, see the principles of assessment in Part 1 of the approved guide.

SRC Act: sections 4 and 24.

Non-Economic Loss

For the purposes of the Comcare Scheme, non-economic loss means, in relation to an employee who has suffered an injury resulting in a permanent impairment, loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.

According to the approved guide:

• non-economic loss is a subjective concept of the effects of the impairment on the employee’s life;
• 'loss of amenities' means the effects on mobility, social relationships and recreation and leisure activities;
• 'pain' means physical pain; and
• 'suffering' means the mental distress resulting from the injury or impairment.

For more information, see the principles of assessment in Part 1 of the approved guide.

SRC Act: sections 4 and 27.

Interim, Final and Reassessment Determinations

If the relevant authority makes a determination that an employee is suffering from a permanent impairment as a result of an injury, but has not made a final determination of the degree of impairment (for example, because the impairment has not stabilised), the employee may write to the relevant authority asking for an interim determination of the degree of permanent impairment and the amount of compensation payable.

Prescribed thresholds apply to interim determination (see Prescribed Thresholds), and only the permanent impairment amount is payable. That is, the non-economic loss amount is not payable until the final determination is made.

The relevant authority must then deduct the amount paid under any interim determination from the amount payable under the final determination.

Once a final determination is made, no further amounts of permanent impairment compensation are payable unless there is a subsequent increase in the degree of permanent impairment of at least the relevant prescribed threshold (see Prescribed Thresholds).

SRC Act: section 26.

Prescribed Thresholds

Table 15 contains a summary of the thresholds prescribed for the scheme.

Table 15—Summary of Prescribed Thresholds

Ref.	Permanent impairment	Prescribed threshold	More information
15.1	The loss, or the loss of the use, of a finger or toe.	Type of determination: interim—10%; final—no threshold; or after final—increase of 10%.	SRC Act: subsections 24(8), 25(1) and 25(4).
15.2	The loss of the sense of taste or smell.	Type of determination: interim—10%; final—no threshold; or after final—increase of 10%.	SRC Act: subsections 24(8), 25(1) and 25(4).
15.3	Hearing loss.	Type of determination: interim—10%; final—5% binaural; or after final—increase of 5% binaural.	See Note 1 for meaning of binaural hearing loss. SRC Act: subsections 24(7A), 25(1) and 25(5).
15.4	Anything else.	Type of determination: interim—10%; final—10%; or after final—increase of 10%.	See Note 2 for what is included in this category. SRC Act: subsections 24(7), 25(1) and 25(4).
Note 1: Binaural hearing loss means hearing loss from both ears. Under the approved guide, 5% binaural hearing loss equals 2.5% impairment of the whole person.
Note 2: This includes any permanent impairment not covered above, including any permanent impairment resulting from a psychiatric or psychological injury suffered as a consequence of, or secondary to, an earlier injury. However, each injury is subject to the relevant prescribed threshold. That is, you cannot combine impairments from different injuries to reach the relevant prescribed threshold. If a single injury results in multiple impairments, in some cases you may combine those impairments or choose the higher impairment, subject to the rules in the approved guide.

Approved Guide

The current approved guide is the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1.

If the injury results in an impairment of a kind that cannot be assessed under the approved guide, the impairment may be assessed under the fifth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5).

However, the following impairments may not be assessed under the AMA5:

• mental and behavioural impairments (psychiatric conditions);
• impairments of the visual system;
• hearing impairment; and
• chronic pain conditions, except in the case of migraine or tension headaches.

An assessment under the AMA5 must still be consistent with the SRC Act (that is, it must provide an assessment of the permanent impairment resulting from an injury).

If, prior to an injury, an employee suffered a degree of permanent impairment (for any reason) and the degree of that impairment increases as a result of an injury, the pre-injury permanent impairment:

• should be deducted from the post-injury permanent impairment assessed under the approved guide; and
• will generally not be deducted unless it can be assessed under the approved guide.

Depending on the nature and effect of an injury, the degree of impairment or non-economic loss determined under the approved guide may be 0%.

The opinion of a legally qualified medical practitioner with relevant specialist training is usually required to assess the degree of permanent impairment and non-economic loss.

There is no accreditation of assessors under the Comcare Scheme. You could therefore make enquiries to find an assessor who is trained to use the approved guide, or the AMA5 on which the approved guide is based.

In the case of non-economic loss, the employee's treating general practitioner may be able to provide an assessment using an approved form. For approved forms, see comcare.gov.au.

SRC Act: section 28.

Alternative Claim for Damages

The general right of an employee to institute an action or other proceeding for damages against (that is, the general right to sue) their scheme employer, or another an employee of that employer, in respect of an injury sustained by the employee in the course of their employment was abolished when the Comcare Scheme commenced on 01/12/1988.

However, there is a limited exception to this rule.

If interim or final permanent impairment or non-economic loss compensation is payable, and the employee's employer would otherwise be liable (including for the acts or omissions of its employees) for damages for any non-economic loss suffered by the employee as a result of the injury, the employee may choose instead to pursue a limited claim for damages.

At any time before the first amount of permanent impairment or non-economic loss compensation is paid to the employee, the employee may elect to sue their employer, or another an employee of that employer, for damages for that non-economic loss. That is, the employee may elect to pursue a claim based on fault (among other things) rather than to accept a no-fault lump sum under the Comcare Scheme.

The election to institute an action or other proceeding for damages (all of the following apply):

• must be in writing (for approved forms, see comcare.gov.au);
• cannot later be revoked; and
• does not prevent the employee doing any other thing that constitutes an action for non-economic loss.

The maximum damages a court may award the employee is $110,000 for any non-economic loss (this amount is not indexed). There are strict time limits that apply to most claims for damages and the rules can vary between States and Territories. In addition, the scheme has strict liability criminal offences in relation to the failure to notify the relevant authority of a claim for damages or the recovery of damages.

Given the range of issues to be considered before making such an election, independent legal advice should be sought at the earliest opportunity.

SRC Act: sections 4, 44, 45, 47 and 48.

Death Benefit

If an injury to an employee results in death, and there was at least one dependant who was wholly or partly dependent for economic support on the employee at the date of the employee's death, the relevant authority may be liable to pay compensation under the Comcare Scheme. This may include:

• unclaimed or unpaid compensation entitlements to the employee's estate (for example, medical treatment expenses, compensation for incapacity to work prior to death, and the like (see Survival of Claims);
• weekly dependency payments, for any prescribed child; and
• a lump sum death benefit.

Once a lump sum death benefit is paid, no other dependant is entitled to claim a lump sum death benefit under the scheme.

If an injury to an employee results in death, and there were no dependants who were wholly or partly dependent for economic support on the employee at the date of the employee's death, only the following compensation may be payable under the scheme in respect of the injury after the employee's death:

• if medical treatment was provided in relation to the injury;
• if expenses were incurred transporting the employee or their body from the place where the injury was sustained to a hospital or similar place, or to a mortuary;
• if someone paid for or carried out the employee's funeral; and
• an amount of compensation was payable to the employee under the scheme, but not yet paid, before the employee's death.

SRC Act: sections 4, 16-18, 39 and 56.

Funeral Expenses

For a summary of eligibility and entitlements in relation to funeral expenses under the Comcare Scheme, see Injury Resulting in Death.

SRC Act: section 18.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Rehabilitation

This section contains a summary of provisions relating to rehabilitation under the Comcare Scheme.

The information is presented on the basis that compensation is payable under the scheme in respect of an injury suffered by an employee.

The following kinds of rehabilitation may be available under the scheme in relation to an injury:

• Rehabilitation Programs; and
• Suitable Employment.

Rehabilitation Programs

If an employee suffers an injury resulting in incapacity for work or impairment, the rehabilitation authority (not the relevant authority) may provide or arrange a rehabilitation program.

A rehabilitation program under the Comcare Scheme includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.

Before making a determination that the employee should undertake such a program, the rehabilitation authority may arrange for a rehabilitation assessment.

If the employee requests a rehabilitation assessment in writing, the rehabilitation authority must arrange one, but only if satisfied that the employee's injury results in incapacity for work or impairment at the time of the request.

Rehabilitation Assessment

In this chapter, rehabilitation assessment means an assessment of the employee's capability of undertaking a rehabilitation program.

A rehabilitation assessment must be made by a legally qualified medical practitioner or other suitably qualified person, or a panel of such persons, nominated by the rehabilitation authority.

The rehabilitation authority may require the employee to undergo an examination by the nominated person or persons for the purpose of the assessment. A written rehabilitation assessment must be given to the rehabilitation authority following the examination.

If the employee is required to undergo an examination for the purpose of a rehabilitation assessment, the employee must not refuse or fail to do so unless they have a reasonable excuse. If the employee undergoes such an examination, they must not in any way obstruct the examination. Otherwise, some of the employee's rights and entitlements under the Comcare Scheme may be suspended (see Preclusion, Suspension and Repayment).

The relevant authority must pay the cost of the examination, and any necessary and reasonable journey and accommodation expenses incurred by the employee (see Injury Not Resulting in Death).

SRC Act: sections 4 and 36.

Rehabilitation Program

The rehabilitation authority may provide a rehabilitation program for the employee itself, or it may make arrangements with an approved program provider to do so.

When making a determination that the employee should undertake a rehabilitation program, the rehabilitation authority must consider all relevant matters, including all of the following:

• any written rehabilitation assessment;
• any reduction in the future liability to pay compensation if the program is undertaken;
• the cost of the program;
• any improvement in the employee's opportunity to be employed after completing the program;
• the likely psychological effect on the employee of not providing the program;
• the employee's attitude to the program; and
• the relative merits of any alternative and appropriate rehabilitation program.

If the employee was entitled to receive compensation for incapacity work at the commencement of:

• a full-time rehabilitation program—they should continue to receive the same amount of compensation they would have received if it were assumed that the employee's incapacity had continued throughout the program; or
• a part-time rehabilitation program—they should receive no less than what they would have received if they were not undertaking the program.

If the rehabilitation authority makes a determination that the employee should undertake a rehabilitation program:

• if the employee is not happy with the determination—they may request that the relevant authority (not the rehabilitation authority) reconsider the determination (time limits apply) (see Reconsideration); or
• if the employee otherwise refuses or fails to undertake the rehabilitation program without a reasonable excuse—some of the employee's rights and entitlements under the Comcare Scheme may be suspended (see Preclusion, Suspension and Repayment).

SRC Act: sections 37 and 38.

Suitable Employment

Duty to Provide or Assist to Find Suitable Employment

If an employee is undertaking a rehabilitation program, or has completed a rehabilitation program (and continues to suffer an injury in respect of which compensation is payable under the Comcare Scheme), the relevant employer must take all reasonable steps to either:

• provide the employee with suitable employment; or
• assist the employee to find suitable employment.

SRC Act: section 40.

Who is the Relevant Employer?

Subject to the following exceptions, the relevant employer is:

• if the employee is currently employed by a scheme employer—the employee's current scheme employee; or
• if the employee is no longer employed by a scheme employer—the employee's last scheme employer (although you should confirm this with Comcare).

If a licensed authority is the relevant employer and that authority ceases to be a licensee under the scheme (but continues in existence as a Commonwealth authority), Comcare can arrange for the relevant employer function to be performed by a suitable and willing person. If there is no such arrangement, the Commonwealth authority remains the relevant employer.

If an employee of a Commonwealth authority suffered an injury resulting in an incapacity for work or an impairment and that authority ceases to be a Commonwealth authority:

• if the authority continues in existence—the relevant employer is the former Commonwealth authority; or
• if the authority ceases to exist—the relevant employer is the scheme employer, body, person, organisation or group of persons specified by the Minister to be successor to the former Commonwealth authority (there are currently no specified successors).

If a licensed corporation ceases to be a licensee under the scheme (but continues in existence), Comcare can arrange for the relevant employer function to be performed by a suitable and willing person. If there is no such arrangement, the corporation remains the relevant employer.

SRC Regs: regulations 14B and 15B.

SRC Act: sections 40, 41B and 41C.

What is Suitable Employment?

The term suitable employment means:

• if the employee was a permanent employee of a scheme employer on the date of the injury, and they continue to be so employed—employment by that employer in work for which the employee is suited having regard to all relevant matters, including the prescribed matters in the next paragraph; or
• in any other case—any employment (including self-employment), having regard to all relevant matters, including the prescribed matters in the next paragraph.

The prescribed matters are:

• the employee's age, experience, training, language and other skills;
• the employee's suitability for rehabilitation or vocational retraining; and
• where employment is available in a place that would require the employee to change their place of residence—whether it is reasonable to expect the employee to change his or her place of residence.

Comcare's mandatory guidelines provide that the rehabilitation authority must:

• ensure that the return to work hierarchy is followed so as to support the employee to return to work with the same scheme employer wherever practicable, and consider retraining and redeployment alternatives where a return to work with the same employer is not practicable; and
• recognise that the employee’s injury may be a disability as defined by the Disability Discrimination Act 1992 (Cth) and that discrimination in employment on the basis of that disability is unlawful.

The return to work hierarchy means the following descending order of goals:

• same duties and role in the same workplace;
• modified duties and role in the same workplace;
• different duties and role in the same workplace;
• same or modified duties and role in a different workplace; and
• different duties and role in a different workplace.

For more information, see Comcare's Guidelines for Rehabilitation Authorities 2012.

SRC Act: sections 4 and 40.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Preclusion, Suspension and Repayment

This section contains a summary of provisions relating to preclusion, suspension and repayment under the Comcare Scheme.

The following information may help you answer the question:

Is the relevant authority prevented from paying any or all compensation?

Summary of Provisions

Table 16 contains a summary of preclusion, suspension and repayment provisions.

Table 16—Summary of Preclusion, Suspension and Repayment Provisions

Ref.	Event	Summary of preclusion, suspension and repayment provisions	More information
16.1	Intentionally self-inflicted injury. (Permanent preclusion.)	Compensation is not payable under the Comcare Scheme in respect of an injury that is intentionally self-inflicted.	SRC Act: subsection 14(2).
16.2	Serious and wilful misconduct. (Permanent preclusion.)	Compensation is not payable under the Comcare Scheme in respect of either: an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment; or loss or destruction of, or damage to, property used by the employee if the loss, destruction or damage is attributable to the serious and wilful misconduct of the employee, and an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) is taken to be guilty of serious and wilful misconduct.	SRC Act: subsections 4(13), 14(3) and 15(3).
16.3	Imprisonment. (Temporary preclusion.)	Compensation is not payable under the Comcare Scheme to an employee for incapacity for work as a result of an injury in respect of any period during which the employee is imprisoned in connection with their conviction of an offence.	SRC Act: sections 19-21A and subsection 23(2).
16.4	Injury results in death of an employee who does not leave dependants. (Permanent preclusion.)	If both of the following are true: the employee dies without leaving dependants; and the death occurred before any amount of compensation was payable under a determination, then compensation is not payable under the Comcare Scheme in respect of the injury that resulted in the death of the employee (except in relation to medical treatment expenses, certain transport costs and funeral expenses).	See Survival of Claims, including for where any amount of compensation was payable under a determination before death. SRC Act: sections 16-18.
16.5	Refuse or fail to undergo, or obstruct, an examination for a rehabilitation assessment. (Temporary suspension and preclusion.)	If both of the following are true: the rehabilitation authority requires an employee to undergo an examination for the purpose of a rehabilitation assessment; and the employee refuses or fails, without reasonable excuse, to undergo the examination, or in any way obstructs the examination, then the employee's rights to both of the following: compensation (other than for the cost of medical treatment) under the Comcare Scheme; and institute or continue any proceedings under the scheme in the Administrative Appeals Tribunal in relation to compensation, are suspended until the examination takes place, and compensation is not payable in respect of the period of the suspension	SRC Act: section 36.
16.6	Refuse or fail to undertake a rehabilitation program. (Temporary suspension and preclusion.)	If an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee, the employee's rights to both of the following: compensation (other than for the cost of medical treatment) under the Comcare Scheme; and institute or continue any proceedings under the scheme in the Administrative Appeals Tribunal in relation to compensation, are suspended until the employee begins to undertake the program, and compensation is not payable in respect of the period of the suspension.	SRC Act: section 37.
16.7	Revocable election to receive compensation under the Veterans' Entitlements Act 1986 (Cth). (Suspension and preclusion.)	An election (that may be revoked) may be made by a person with entitlements under the Comcare Scheme the Veterans' Entitlements Act 1986 (Cth)—compensation is not payable during the period of the election.	See Veterans' Entitlements Act 1986. SRC Act: section 43.
16.8	Irrevocable election to sue for damages for non-economic loss. (Permanent limited preclusion.)	At any time before the first amount of permanent impairment or non-economic loss compensation is paid to an employee, the employee may make an election (that cannot be revoked) to sue their employer, or another employee of that employer, for damages for that non-economic loss—permanent impairment and non-economic loss compensation is not payable under the Comcare Scheme after the election is made.	SRC Act: section 45.
16.9	Recovery of damages by employee or dependant. (Permanent preclusion after 30/11/1988.)	Compensation is not payable under the Comcare Scheme (all of the following apply): to an employee in respect of an injury after the date on which damages were recovered by the employee in respect of the injury; to an employee in respect of the loss or destruction of, or damage to, property used by the employee, after the date on which damages were recovered by the employee in respect of the loss, destruction or damage; and to, or for the benefit of, a dependant of an employee in respect of the death of the employee, after the date on which damages were recovered by, or for the benefit of, the dependant in respect of the death, unless the damages were recovered in any of the following circumstances: by the employee in an action for non-economic loss—no preclusion because the employee will have elected not to receive compensation under the scheme for permanent impairment and non-economic loss; by the employee or dependant as a result of a claim to recover damages from a third party that is made, or taken over, by the relevant authority (also called a subrogation claim)—the employee or dependant is not entitled to further compensation under the scheme until the amount of compensation that would have been payable equals the amount of damages paid to the employee or dependant; by the employee or dependant before 01/12/1988—the preclusion provisions in section 99 of the 1971 Act apply; or by the employee or dependant after 30/11/1988 in respect of a claim for damages made before that day—a modified version of the preclusion provisions in section 99 of the 1971 Act apply.	See the following: Note 1 for the right to sue; and Note 2 for when damages are taken to be recovered. SRC Act: sections 4, 10, 48, 124. 1971 Act: section 99.
16.10	Recovery of damages by employee or dependant. (Repayment.)	If any compensation was paid under the Comcare Scheme (all of the following apply): to an employee in respect of an injury, and the employee later recovers damages in respect of that injury; to an employee in respect of an the loss or destruction of, or damage to, property used by the employee, and the employee later recovers damages in respect of that loss, destruction or damage; and to, or on behalf of, a dependant of a deceased employee respect of the injury that resulted in the death of the employee, and the dependant later recovers damages in respect of the death, then the employee or dependant, as the case may be, must pay to the relevant authority the lesser of: the amount of that compensation; the amount of the damages; or the amount of the damages that the employee or dependant establishes (to the satisfaction of the relevant authority) relates to the injury, loss, destruction or damage in respect of which compensation is payable under the scheme, unless the damages were recovered in any of the following circumstances: by the employee in an action for non-economic loss—no repayment because the employee will have elected not to receive compensation under the scheme for permanent impairment and non-economic loss; as a result of a claim to recover damages from a third party that is made, or taken over, by the relevant authority (also called a subrogation claim)—no repayment but the employee or dependant is not entitled to further compensation under the scheme until the amount of compensation that would have been payable equals the amount of damages paid to the employee or dependant; by the employee or dependant before 01/12/1988—the repayment provisions in section 99 of the 1971 Act apply; or by the employee or dependant after 01/12/1988 in respect of a claim for damages made before that day—a modified version of the repayment provisions in section 99 of the 1971 Act apply.
16.11	Recovery of damages by a dependant not claiming compensation. (Repayment.)	If both of the following are true: a dependant of a deceased employee who has not made a claim for compensation under the Comcare Scheme recovers damages in respect of the employee's death (that is, a dependant not claiming compensation); and a dependant of a deceased employee has made a claim for compensation under the scheme and compensation is payable to that dependant under the scheme in respect of the injury resulting in the death of the employee (that is, a dependant entitled to compensation), then the dependant not claiming compensation must pay to the relevant authority the lesser of: the amount of the damages; that dependant's share of the amount of the damages (if there was more than one dependant not claiming compensation who recovered damages in respect of the employee's death); or the prescribed amount, where the prescribed amount is the amount of compensation payable under the scheme to, or for the benefit of, every dependant entitled to compensation, subject to all of the following: the amount does not include any amount of compensation payable to a dependant entitled to compensation who, for whatever reason, is not entitled to recover damages in respect of the death of the employee (for example, due to a statute of limitations); the amount does not include any weekly dependency payments payable to a prescribed child; and if a dependant entitled to compensation also recovered damages in respect of the employee's death—the amount must be reduced by any amount that that dependant is liable to pay to the relevant authority under the preceding recovery provision (at [16.10]).	See Note 2, for when damages are taken to be recovered. See Injury Resulting in Death. SRC Act: sections 4, 10 and 49.
16.12	Fail to comply with a reasonable requirement in relation to a subrogation claim. (Temporary suspension and preclusion.)	If both of the following are true: the relevant authority makes, or takes over, a claim to recover damages from a third party (also called a subrogation claim); and the employee or dependant fails to comply with any reasonable requirement of the relevant authority for the purposes of the claim, then: the employee's rights to compensation (other than for the cost of medical treatment) under the Comcare Scheme in respect of the injury to which the claim relates; the employee's rights to compensation under the scheme in respect of the loss, destruction or damage to property used by the employee to which the claim relates; and the dependant's rights to compensation under the scheme in respect of the death to which the claim relates, are suspended until the employee or dependant, as the case may be, complies with the requirement, and compensation is not payable in respect of the period of the suspension	SRC Act: section 50
16.13	Irrevocable election to receive compensation under the Comcare Scheme or under an award, determination, order or agreement. (Permanent preclusion.)	An employee who would be entitled to compensation under the Comcare Scheme and under an award, determination or order made, or agreement entered into, under either: a law of the Commonwealth relating to workplace relations; or a law of a State or Territory, cannot receive compensation under both and must make an election (that cannot be revoked) and the election: has no effect if the employee is ultimately not entitled to receive compensation either under the scheme or under an award, determination, order or agreement; and does not affect entitlements of dependants of the employee under the scheme.	SRC Act: section 52.
16.14	Refuse or fail to undergo, or obstruct, a medical examination. (Temporary suspension and preclusion.)	If all of the following are true: the relevant authority has received a valid notice or valid claim for compensation under the Comcare Scheme; the relevant authority requires an employee to undergo a medical examination; if the employee was previously required to undergo such an examination—the minimum interval between such examinations specified in a legislative instrument has lapsed; and the employee refuses or fails, without reasonable excuse, to undergo the examination, or in any way obstructs the examination, then the employee's rights to both of the following: compensation (including for the cost of medical treatment) under the scheme; and institute or continue any proceedings under the scheme in the Administrative Appeals Tribunal in relation to compensation, are suspended until the examination takes place, and compensation is not payable in respect of the period of the suspension.	See one of the following for the minimum interval between medical examinations: Notice of Declarations and Specifications(made on 28/11/1988, published in Gazette S365 on 30/11/1988, and amended by Notice No 1 of 1989, published in in Gazette GN 32 on 23/08/1989), for requirements made after 30/11/1988 and before 01/07/2007; or Safety, Rehabilitation and Compensation (Declaration and Specification) Notice 2007 (1), for requirements made after 30/06/2007 and before 01/10/2017. SRC Act: section 57.
16.15	Refuse or fail to comply with a request for relevant information or a relevant document. (Temporary suspension.)	If all of the following are true: the relevant authority has received a valid claim for compensation under the Comcare Scheme; the relevant authority has given the claimant a written request for information or a document that is relevant to the claim; and the claimant refuses or fails, without reasonable excuse, to comply with the request within 28 days after the date of the written request, then the relevant authority may either: refuse to deal with the claim until the claimant complies with the request; or continue dealing with the claim, but if the relevant authority continues to deal with the claim and all of the following are true: the relevant authority makes a determination in relation to the claim; the relevant authority makes a reviewable decision following a reconsideration of the determination; an application for review of the reviewable decision is made to the Administrative Appeals Tribunal; the claimant later discloses the information, or gives the document (or a copy of the document), to the relevant authority or the Tribunal; and the relevant authority would have made a more favourable determination or reviewable decision if it had the information or document when making the determination or reviewable decision , as the case may be, then both of the following apply: the information or document (or copy of the document) may not be admissible as evidence in the proceeding; and in certain circumstances, legal costs may not be payable by the relevant authority to the claimant in relation to the proceeding.	If the claimant is unable to: obtain and/or provide the requested information or document within 28 days—the claimant may request an extension of time to comply with the request (which the relevant authority may or may not grant, depending on the reasons); or obtain and provide the requested information or document (or a copy of the document) without unreasonable expense or inconvenience—the claimant should notify the relevant authority as soon as possible. SRC Act: sections 58, 66 and 67.
16.16	Recovery of State workers' compensation. (Permanent preclusion.)	Compensation is not payable under the Comcare Scheme: if an employee recovers State workers’ compensation in respect of an injury—to the employee in respect of that injury; if an employee recovers State workers’ compensation in respect of the loss or destruction of, or damage to, property used by the employee—to the employee in respect of that loss, destruction or damage; or if State workers’ compensation is recovered by, or on behalf of, a dependant of a deceased employee—to, or for the benefit of, the dependant in respect of the injury that resulted in the death.	SRC Act: section 118.
16.17	Recovery of State workers' compensation. (Repayment.)	If any compensation was paid under the Comcare Scheme: to an employee in respect of an injury, and the employee later recovers State workers’ compensation in respect of that injury; to an employee in respect of an the loss or destruction of, or damage to, property used by the employee, and the employee later recovers State workers’ compensation in respect of that loss, destruction or damage; or to, or on behalf of, a dependant of a deceased employee and the dependant later recovers State workers' compensation in respect of the injury that resulted in the death, then the relevant authority may recover the scheme compensation from the employee or dependant, as the case may be, in a court as a debt.
16.18	Refuse or fail to give statutory declaration. (Temporary suspension and preclusion.)	If a claimant refuses or fails, without reasonable excuse, to give a statutory declaration concerning whether the claimant has been paid State workers' compensation in respect of the injury, or loss or destruction of, or damage to property used by the employee, to which the claim relates, then the claimant's rights to both of the following: compensation under the Comcare Scheme in respect of the injury, loss, destruction or damage to which the claim relates; and institute or continue any proceedings under the scheme in the Administrative Appeals Tribunal in relation to that compensation, are suspended until the statutory declaration is given, and compensation is not payable in respect of the period of the suspension.
16.19	Recovery of State compensation. (Temporary preclusion.)	If State compensation is recovered: by an employee in respect of an injury; by an employee in respect of the loss or destruction of, or damage to, property used by the employee; or by, or on behalf of, a dependant of a deceased employee, then the compensation payable under the Comcare Scheme in respect of the injury, loss, destruction, damage or death is the amount that exceeds the amount of State compensation recovered by the employee or by, or for the benefit of, the dependant, as the case may be.	See one of the following to assess whether State compensation was recovered under a specified law: Notice of Declarations and Specifications(made on 28/11/1988, published in Gazette S365 on 30/11/1988, and amended by Notice No 1 of 1989, published in in Gazette GN 32 on 23/08/1989) for compensation recovered after 30/11/1988 and before 01/07/2007; Safety, Rehabilitation and Compensation (Specified Law) Notice 2007 (1) for compensation recovered after 30/06/2007 and before 20/10/2017; or Safety, Rehabilitation and Compensation (Specified Laws) Declaration 2017 for compensation recovered after 19/09/2017. SRC Act: section 119.
16.20	Recovery of State compensation. (Repayment)	If compensation was paid under the Comcare Scheme: to an employee in respect of an injury, and the employee later recovers State compensation in respect of that injury; to an employee in respect of an the loss or destruction of, or damage to, property used by the employee, and the employee later recovers State compensation in respect of that loss, destruction or damage; or to, or on behalf of, a dependant of a deceased employee and the dependant later recovers State compensation in respect of the injury that resulted in the death, then the employee or dependant, as the case may be, must pay to the relevant authority the lesser of: the amount of that compensation (not including any weekly dependency payments paid in relation to a prescribed child); the amount of the State compensation; or the amount of the State compensation that the employee or dependant establishes (to the satisfaction of the relevant authority) relates to the injury, loss, destruction or damage in respect of which compensation is payable under the scheme.
Note 1: The general right of an employee to institute an action or other proceeding for damages against (that is, the general right to sue) their scheme employer, or another an employee of that employer, in respect of an injury sustained by the employee in the course of their employment was abolished when the Comcare Scheme commenced on 01/12/1988. However: if an injury results in the employee's death, the employee's dependants are not prevented by the Comcare Scheme from making a claim for damages in respect of the death; the scheme does not prevent an employee from making a claim for damages in respect of an injury that was not sustained by the employee in the course of their employment; and the scheme does not prevent an employee or their dependants making a claim to recover damages from a third party. There are strict time limits that apply to most claims for damages and the rules can vary between States and Territories. In addition, the scheme has strict liability criminal offences in relation to the failure to notify the relevant authority of a claim for damages and recovery of damages. Independent legal advice should be sought at the earliest opportunity.
Note 2: For the purposes of the Comcare Scheme, damages are taken to have been recovered by an employee, or by or for the benefit of a dependant of a deceased employee, when the amount of the damages was paid to or for the benefit of the employee or dependant, as the case may be.

Recovery of Overpayments

An amount of compensation that has been paid under the Comcare Scheme to a person may be recovered as a debt if the amount was paid in consequence of:

• a false statement or representation;
• a misleading statement or representation; or
• a failure or omission to comply with a provision of the SRC Act.

An amount of compensation that has been paid under the scheme to a person may also be recovered as a debt if the amount should not have been paid. This does not include an amount the relevant authority is entitled to recover from the administrator of a superannuation scheme as a result of an overpayment to a retired employee.

The relevant authority may do any of the following in relation to the debt:

• recover the debt from the person in a court;
• deduct the amount of the debt from any other amount of compensation payable under the scheme to, or for the benefit of, that person;
• write off the debt (however the debt still exists and may be recovered later);
• waive the debt in part (the waived part of the debt effectively ceases to exist, the balance may be recovered later); or
• waive the debt in whole (the debt effectively ceases to exist).

A decision to write off or waive a debt is not a determination and therefore not subject to reconsideration by the relevant authority or review by the Administrative Appeals Tribunal.

SRC Act: sections 114-114D.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Notice of Injury or Accident

This section contains a summary of provisions relating to the giving of notice under the Comcare Scheme.

The following information may help you answer these questions:

Has valid notice of the injury been given to the relevant authority?
Has valid notice of the accident been given to the relevant authority?

The scheme does not apply in relation to an injury to an employee unless notice of the injury is given to the relevant authority.

Similarly, the scheme does not apply in relation to the loss or destruction of, or damage to, property used by an employee unless notice of the accident that resulted in the loss, destruction or damage is given to the relevant authority.

There is no prescribed form for the notice, but it must be in writing. In some cases, a valid claim for compensation also constitutes valid notice (see Claims for Compensation).

The notice must also be given to the relevant authority as soon as practicable after the employee became aware of the injury or accident. The notice may be given by means of an electronic communication.

If the employee died before they became aware of the injury or accident, or before it was practicable to give a written notice, the notice must be given to the relevant authority as soon as practicable after the employee died.

If the notice was not given notice as soon as practicable, the scheme may still apply if any of the following can be established:

• the relevant authority would not be prejudiced if the notice were treated as a sufficient notice; or
• the failure resulted from any of the following:
  
  
  • the death of a person;
  • the absence from Australia of a person;
  • ignorance or a mistake; or
  • any other reasonable cause.

The notice requirements under the 1930 Act, and the 1971 Act as in force before 01/07/1986, were substantially different in that they imposed timeframes and did not allow ignorance of the requirements as an excuse. The 1930 Act did not expressly provide compensation for property used by an employee.

In light of the above, you should give a written notice of the injury or accident to the relevant authority as soon as possible. If you gave the notice to your scheme employer instead, ask your employer to forward the notice to the relevant authority if it has not already done so.

SRC Act: section 53.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Claims for Compensation

This section contains a summary of provisions relating to claims for compensation under the Comcare Scheme.

The following information may help you answer the question:

Has a valid claim for compensation been given to the relevant authority?

A claim for compensation must comply with certain requirements to be valid and before it can be considered by the relevant authority.

The claim for compensation must be:

• in writing;
• made by giving it to the relevant authority;
• in accordance with the form approved by Comcare, or in another form that substantially complies with the approved form; and
• accompanied by a certificate from a legally qualified medical practitioner in accordance with the form approved by Comcare (except where the claim is for compensation for medical treatment, a death benefit or dependency payments), or in another form that substantially complies with the approved form.

The claim for compensation may be given by means of an electronic communication.

Compensation is not payable to a person under the scheme unless a valid claim for compensation is made by or on behalf of that person.

There may be different forms for claiming different types of compensation. For a list of forms approved by Comcare, see comcare.gov.au.

The current approved initial claim for compensation form for an injury indicates that you should complete the form with your scheme employer. In some cases, this may not be possible so you should contact the relevant authority for guidance on how to make a valid claim for compensation.

SRC Act: section 54.

Types of Claims

An initial claim for compensation can be for a declaration of liability (injury claims only).

For example, you may ask the relevant authority to make a determination that it is liable to pay compensation under the Comcare Scheme in respect of an injury suffered by an employee because the injury results in incapacity for work, impairment or death.

Alternatively, an initial claim for compensation can be for one or more forms of compensation under the scheme.

Some forms of compensation have pre-conditions (for example, an employee must be undertaking a rehabilitation program before they are entitled to compensation for an aid or appliance) but others do not. For more information, see Compensation.

If an initial claim for compensation was limited to a request for a declaration of liability, a further claim for one or more forms of compensation can subsequently be made. This can be done before or after the relevant authority has made a determination in relation to the initial claim.

A claim for compensation can be made by, or on behalf of, any of the following:

• an employee;
• a dependant of a deceased employee; or
• a service provider.

If a claim for compensation is made on behalf of another person, the person making the claim will need to establish that they have legal authority to make the claim.

Survival of Claims

If a person who is entitled to make a claim for compensation under the Comcare Scheme dies without making a claim, the right to make a claim survives, subject to the following:

• if the claim was for non-economic loss compensation—the right to make the claim does not survive; and
• if the claim was for any other form of compensation, including permanent impairment compensation—the claim may be made by the deceased person's legal personal representative.

If a person who has made a valid claim for compensation under the scheme dies after the claim is served, the claim survives, subject to the following:

• if the claim was for non-economic loss compensation—the claim does not survive;
• if the claim was for any other form of compensation, including permanent impairment compensation—the claim is not affected by the person's death; and
• the claimant is taken to be the person's legal personal representative.

A legal personal representative may be a person who is, for example, an executor of the deceased person's will or the administrator of the deceased person's estate.

Subject to the following, if a claim for compensation has survived, and an amount of compensation is subsequently payable under a determination, the amount of compensation forms part of the deceased person's estate.

If the deceased person was an employee who suffered an injury that resulted in death and who did not leave dependants:

• if the death occurred before any amount of compensation was payable under a determination—compensation is not payable under the scheme in respect of the injury that resulted in the death of the employee (except in relation to medical treatment expenses, certain travel costs and funeral expenses); or
• the death occurred after any amount of compensation was payable under a determination—that amount of compensation remains payable and forms part of the deceased employee's estate.

If the deceased person died intestate (and there is no other person apparently entitled to claim the deceased person's estate, including the amount of compensation payable under a determination), then the amount of compensation is either:

• paid to the Commonwealth (if the relevant authority is Comcare or a licensed authority); or
• payable in accordance with applicable State or Territory laws concerning intestacy (if the relevant authority is a licensed corporation).

SRC Act: sections 16-18, 27, 55 and 111.

Requesting Claim Documents

A claimant may request any document held by the relevant authority that relates to the claimant's claim for compensation without charge by the relevant authority.

This right may exercised at any time before or after a determination is made, and is in addition to any right under the Freedom of Information Act 1982 (Cth) (see What is Freedom of Information?).

A request should be in writing to avoid confusion over what is being requested, when the request was made and by whom.

The relevant authority must comply with the request.

SRC Act: section 59.

[ Injury Not Resulting in Death | Injury Resulting in Death | Accident Not Causing Injury | Non-Employee/Dependant Claims ]

Investigation and Determination

This section contains a summary of provisions relating to the investigation and determination of claims for compensation under the Comcare Scheme.

Investigation of Claim

Once a valid claim for compensation has been made under the Comcare Scheme, the relevant authority must make a determination in relation to the claim.

Before making a determination, the relevant authority may undertake investigations. For example, it may:

• request relevant information or a relevant document from:
  
  
  • the claimant (there may be consequences if a claimant refuses or fails, without reasonable excuse, to comply with certain written requests in a specified time (see Preclusion, Suspension and Repayment);
  • the employee's scheme employer and/or current employer;
  • the employee's treating medical practitioner; and
  • any relevant third party or insurer; and
    
    
• arrange for a medical examination of the employee (see Preclusion, Suspension and Repayment for possible consequences if the employee refuses or fails, without reasonable excuse, to undergo the examination, or in any way obstructs the examination).

In some cases, the relevant authority may make a determination without undertaking the above investigations.

In all cases, the relevant authority:

• must make a determination accurately and quickly in relation to a valid claim for compensation;
• must be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;
• is not required to conduct a hearing; and
• is not bound by the rules of evidence.

In addition, some relevant authorities are required to comply with the Commonwealth's model litigant obligations, which include the requirement to deal with claims promptly and not cause unnecessary delay in the handling of claims (see sections 4 and 12, and Appendix B, of the Legal Services Directions 2017 (Cth)).

Whilst there may be a duty to make a determination quickly, there is no timeframe in which the determination must be made. If there is an unreasonable delay, there may be options (see Other Forms of Review and Assistance).

SRC Act: sections 69, 72, 108E

Decision on Claim (Determination)

A relevant authority or rehabilitation authority that makes a determination must give the claimant the following in writing:

• the terms of the determination;
• the reasons for the determination, which must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based; and
• a notice of rights stating the claimant may a request a reconsideration of the determination,
  
  unless the determination is that the full cost of medical treatment obtained by an employee is payable to a person other than the employee.

If the relevant authority makes a determination:

• that an amount of permanent impairment compensation is payable—the amount must be paid to the employee within 30 days, otherwise interest is payable on the amount (unless the determination of the amount is challenged);
• that any other amount of compensation is payable—the relevant authority must make the payment accurately and quickly; or
• denying liability under the scheme in respect of a claimed injury, loss, destruction, damage or death—all claims for compensation made by the claimant in relation to that injury, loss, destruction, damage or death are taken to be denied.

SRC Act: sections 13, 26, 61, 91 and 108E.

Right of Appeal (Reconsideration)

If a claimant is unhappy with a determination, they may request that the relevant authority reconsider the determination (including if it was made by the rehabilitation authority).

The employee's scheme employer may also request a reconsideration if that employer is affected by the determination.

For a request to be valid:

• it should be in writing (and must be in writing if the determination was made by a rehabilitation authority other than a relevant authority);
• it must set out the reasons for the request—generally, this will include the identification of any apparent errors of fact, or errors of law, in the determination or the reasons for the determination; and
• it must be given to the relevant authority within 30 days after the day on which the determination first came to the notice of the person making the request—but if the claimant is or was unable to make the request within 30 days, they may request an extension of time to make the request.

Whilst the relevant authority has the power to extend the 30-day period, either before or after it has expired, the power is discretionary. The relevant authority will therefore expect reasons for needing more time, or reasons for the delay, as the case may be. A decision by the relevant authority refusing to extend the 30-day period is usually a reviewable decision (see Right of Appeal (Merits Review)).

SRC Act: section 62.

Other Decisions

Some decisions under the Comcare Scheme are not determinations.

For example, there are several provisions that operate to suspend rights and entitlements under the scheme (see Preclusion, Suspension and Repayment).

A person's rights and entitlements may be suspended if, for example, they:

• refused or failed, without reasonable excuse, to undergo an examination under the SRC Act;
• in any way obstructed an examination under the SRC Act;
• failed to comply with requirement under the SRC Act; or
• failed to provide a statutory declaration in response to a request under the SRC Act.

In these cases, the relevant authority is required to consider whether an excuse was reasonable, or whether the person in fact did or did not do something, in deciding whether or not the suspension provision applies.

If the relevant authority states that a person's rights and entitlements are suspended due to a self-executing decision that is not a determination, you may ask the relevant authority to make a determination in relation to any valid claim for compensation that has been made, or that is subsequently made.

If the relevant authority makes a determination denying liability on the basis of a suspension provision, a request for reconsideration may be made in relation that determination.

The reasons for the request may include, for example, that the person's excuse was reasonable, or that the person did not fail to comply with a requirement, as the case may be.

Reconsideration

This section contains a summary of provisions relating to the reconsideration of a determination by the relevant authority under the Comcare Scheme.

Reconsideration of Determination

The relevant authority must reconsider a determination (or have it reconsidered by a delegate) on receipt of a valid request for reconsideration (see Right of Appeal (Reconsideration)).

A relevant authority may also reconsider its own determination (or have it reconsidered by a delegate) at any time. That is, it may initiate a reconsideration on own motion whether or not:

• the claimant has requested a reconsideration; or
• proceedings in the Administrative Appeals Tribunal have commenced or concluded in relation a reviewable decision concerning the determination.

Whilst the relevant authority must reconsider a determination or have it reconsidered on receipt of a valid request, there is no timeframe in which the determination must be reconsidered. If there is an unreasonable delay, there may be options (see Other Forms of Review and Assistance).

Decision on Reconsideration (Reviewable Decision)

The relevant authority or delegate that makes a reviewable decision must give the claimant the following in writing:

• the terms of the reviewable decision;
• the reasons for the reviewable decision, which must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based; and
• a notice of rights stating the claimant may apply to the Administrative Appeals Tribunal for review of the reviewable decision.

The reviewable decision may do any of the following:

• affirm the determination;
• revoke the determination; or
• vary the determination in such manner as the relevant authority or delegate thinks fit.

SRC Act: sections 62 and 63.

Right of Appeal (Merits Review)

If a claimant is unhappy with a reviewable decision, they may apply to have the decision reviewed by the Administrative Appeals Tribunal (General Division).

The employee's scheme employer may also to have the reviewable decision reviewed if that employer is affected by the decision.

Note that an application for review can only be made in relation to a reviewable decision and not a determination. In other words, you must first go through the reconsideration process (see Right of Appeal (Reconsideration)).

The application for review must:

• be in writing (by completing an online application, completing an application form, writing a letter or sending an email);
• contain a statement of the reasons for the application; and
• be lodged with the Tribunal within 60 days of the day on which the reviewable decision was given to the claimant.

There is no fee for lodging an application for review in relation to a reviewable decision under the Comcare Scheme.

The Tribunal may extend the time for lodging an application for review of the reviewable decision if both of the following are true:

• the claimant applies for an extension of time in writing; and
• the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

The Tribunal's website contains useful information regarding making an application for review and an application for extension of time (see aat.gov.au).

If you need assistance in relation to an application for review, you can contact:

• the Tribunal: aat.gov.au;
• the ACT Law Society: actlawsociety.asn.au; or
• the Legal Aid Commission (ACT): legalaidact.org.au.

For more information, see section 29 of the Administrative Appeals Tribunal Act 1975 (Cth).

SRC Act: sections 64 and 65.

Merits Review

This section contains a summary of provisions relating to the review of a reviewable decision by the Administrative Appeals Tribunal under the Comcare Scheme.

Proceedings in the Administrative Appeals Tribunal

For information about how to commence a proceeding in the Administrative Appeals Tribunal, see Right of Appeal (Merits Review).

Parties to the Proceeding

The parties to a proceeding before the Administrative Appeals Tribunal are the claimant (called the 'applicant') and the relevant authority (called the 'respondent').

If the employee's scheme employer applied to have the reviewable decision reviewed, that employer will also be a party to the proceeding.

SRC Act: section 60.

Steps in the Proceeding

The steps in the proceeding are governed by the Tribunal's legislation, practice directions published by the president of the Tribunal and specific directions given by conference registrars and members of the Tribunal.

The usual steps may include:

• the Tribunal acknowledges the application for review;
• a preliminary hearing is listed (if required, to resolve preliminary issues such as an application for extension of time);
• the relevant authority provides the claimant and Tribunal with a statement of reasons and all documents relevant to the reviewable decision (called the 'Section 37' or 'T' documents) within 28 days of being notified of the application;
• the Tribunal reaches out to the claimant if they are self-represented;
• one or more preliminary conferences are listed (to clarify the reviewable decision, the reasons for the decision, the issues in dispute, and what further evidence may be required before a final hearing);
• a return of summons hearing is listed (if the Tribunal has summonsed a third party to produce information of documents, usually on request by a party to the proceeding);
• a conciliation conference (or another form of dispute resolution process, such as mediation, case appraisal or neutral evaluation) is listed to help the parties reach informal agreement;
• a directions hearing is listed (if required, to ensure the matter is ready for final hearing); then
• a final hearing is listed.

If the application proceeds to a final hearing, the Tribunal (comprising one or more members) will review the merits of the reviewable decision from the beginning. That is, the Tribunal will stand in the shoes of the decision-maker and decide all relevant facts and questions of law.

It can take 12 months or more to resolve an application for review.

For more information in relation to the steps in a review proceeding, see aat.gov.au.

Duty to Assist the Tribunal

In a proceeding before the Tribunal:

• the relevant authority must use its best endeavours to assist the Tribunal to make its decision in relation to the proceeding;
• a party to the proceeding, and any person representing such a party, must use their best endeavours to assist the Tribunal to fulfil the Tribunals' objectives (that is, to provide a mechanism of review that is accessible, fair, just, economical, informal, quick, proportionate to the importance and complexity of the matter, and that promotes public trust and confidence in the decision-making of the Tribunal); and
• some relevant authorities are required to comply with the Commonwealth's model litigant obligations.

For more information, see:

• section 2A and 33(1AA) and 33(1AB) of the Administrative Appeals Tribunal Act 1975 (Cth); and
• sections 4 and 12, and Appendix B, of the Legal Services Directions 2017 (Cth).

Bring Forward Evidence 28 Days Before Hearing

If a claimant wants to bring forward any matter in evidence before the Tribunal in the proceeding, they need to do so at least 28 days before the first day of the final hearing.

Otherwise, the claimant will need to ask the Tribunal for permission to bring forward that matter in evidence in the proceeding.

If permission is not granted, that matter is not able to be considered by the Tribunal as part of the evidence.

SRC Act: section 66.

Some Evidence May Not Be Considered

A claimant will need to ask the Tribunal for permission to bring forward information or a document (or a copy of a document) that is relevant to a claim for compensation if all of the following are true:

• the relevant authority gave the claimant a written request for the information or document;
• the claimant refused or failed, without reasonable excuse, to comply with the request within 28 days after the date of the written request (or within such further period as the relevant authority allowed);
• the relevant authority continued to deal with the claim and made a determination in relation to the claim;
• the claimant had the information, document or copy (or could have obtained the information, document or copy without unreasonable expense or inconvenience) before the determination was made; and
• an application for review was made in relation to a reviewable decision concerning the determination.

The Tribunal is not allowed to give permission unless both of the following are true:

• the claimant provides a statement of reasons why they failed to comply with the written request for the information or document; and
• the Tribunal is satisfied that there are special circumstances justifying the admission of the information, document or copy in evidence.

If permission is not granted, that information, document or copy is not able to be considered by the Tribunal as part of the evidence in the proceeding.

In addition, legal costs may not be payable by the relevant authority to the claimant in relation to the proceeding (see Preclusion, Suspension and Repayment).

SRC Act: sections 58, 66 and 67.

Possible Outcomes

Once an application for review has been lodged with the Administrative Appeals Tribunal, there are several possible outcomes to the proceeding.

The Tribunal may make a decision in these circumstances:

• following a review;
• in the course of a dispute resolution process by consent of the parties to the proceeding; or
• at any other time by consent of the parties to the proceeding.

Alternatively, the Tribunal may either:

• remit the reviewable decision at any time to the relevant authority for reconsideration; or
• refer a question of law arising in the proceeding to the Federal Court of Australia for decision (on its own initiative or at the request of a party to the proceeding).

The Tribunal may dismiss the application at any time if any of the following are true:

• all the parties to the proceeding consent;
• the claimant (or their representative) fails to appear at a directions hearing, a dispute resolution process or the final hearing;
• the claimant fails within a reasonable time to proceed with the application or to comply with a direction; or
• the Tribunal is satisfied of any of the following:
  
  
  • the application is frivolous, vexatious, misconceived or lacking in substance;
  • the application has no reasonable prospect of success; or
  • the application is otherwise an abuse of the process of the Tribunal.

The relevant authority may wish to abort the proceeding by varying or revoking the determination (that is, the subject of the reviewable decision). If the Tribunal permits that to happen, the relevant authority is liable to reimburse the claimant for costs reasonably incurred by the claimant in connection with that proceeding, subject to exceptions (see Preclusion, Suspension and Repayment).

The claimant may discontinue or withdraw the application at any time by writing to the Tribunal.

A claimant may be awarded legal costs and disbursements, depending on the outcome and the claimant's conduct in the proceeding. Legal costs are only awarded if the claimant is legally represented. The claimant's legal representative can provide advice in relation to the entitlement to legal costs.

If the Tribunal orders the relevant authority to pay costs incurred by a claimant, the Tribunal may, if the parties cannot agree regarding the amount of the costs, tax (assess) or settle the amount of the costs or order that the costs be taxed (assessed) by a Tribunal registrar or an officer of the Tribunal.

For more information, see:

• sections 34D, 42A-42D and 45 of the Administrative Appeals Tribunal Act 1975 (Cth); and
• the Tribunal's Guide to the Workers Compensation Jurisdiction.

SRC Act: section 67.

Decision on Review

If the Tribunal makes a decision, it may do any of the following:

• affirm the reviewable decision;
• vary the reviewable decision; or
• set aside the reviewable decision and do any of the following:
  
  
  • make a decision in substitution for the reviewable decision; or
  • remit the matter for reconsideration by the relevant authority in accordance with any directions or recommendations of the Tribunal.

The Tribunal must give reasons for its decision, which must set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

The Tribunal's decision:

• is taken to be a decision of the relevant authority; and
• takes effect on and from the day the Tribunal's decision has effect or another day ordered by the Tribunal.

For more information, see section 43 of the Administrative Appeals Tribunal Act 1975 (Cth).

Other Forms of Review and Assistance

This section contains a summary of provisions relating to other forms of review, and an overview of assistance that may be available from Comcare Scheme regulators and other regulators.

Judicial Review

Appeals from the Administrative Appeals Tribunal

A party to a proceeding before the Administrative Appeals Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

In most cases, a finding of fact by the Tribunal will not give rise a question of law. That is, in most cases, a finding of fact by the Tribunal is final.

An appeal must be lodged within 28 days after the day on which a document setting out the terms of the Tribunals' decision is given to the person. Whilst the Court may grant an extension of time, before or after the 28-day appeal period, a grant is discretionary and not guaranteed.

In some cases, the appeal may be heard by a Full Court of the Federal Court (rather than by a single judge). In other cases, the Federal Court may transfer the appeal to the Federal Circuit Court of Australia.

If you are considering this option, you should obtain independent legal advice.

For more information, see sections 44 and 44AA of the Administrative Appeals Tribunal Act 1975 (Cth).

Judicial Review of Administrative Decisions

Subject to limitations, a person may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of either:

• an administrative decision if one or more prescribed grounds are made out; or
• a failure to make a decision on the ground that there has been unreasonable delay in making the decision.

If you are considering this option, you should obtain independent legal advice.

For more information, including the prescribed grounds, see sections 3, 5 and 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Other Forms of Relief

Subject to limitations, a person may apply to the Federal Court or the High Court of Australia for other forms of relief.

If you are considering this option, you should obtain independent legal advice.

For more information, see:

• section 39B of the Judiciary Act 1903 (Cth); and
• subsection 75(v) of the Constitution.

Assistance from Regulators and Administrators

Comcare

If you have a concern regarding:

• the time taken for the relevant authority to make a determination or complete the reconsideration of a determination;
• the performance of an approved program provider in light of mandatory operational standards issued by Comcare; or
• the performance or exercise by the rehabilitation authority of its functions or powers under the SRC Act in light of mandatory guidelines issued by Comcare,
  
  you may contact Comcare (see comcare.gov.au).

For more information, see:

• Comcare's Safety, Rehabilitation and Compensation Act (Operational Standards for Rehabilitation Program Providers) Determination 2020; and
• Comcare's Guidelines for Rehabilitation Authorities 2019.

SRC Act: sections 34E and 41.

Safety, Rehabilitation and Compensation Commission

If you have a concern regarding:

• the equity of outcomes resulting from administrative practices and procedures used by Comcare and a licensee in the performance of their respective functions;
• compliance by a licensee with the SRC Act or with the terms or conditions of its licence;
• compliance by Comcare or a licensee with directions issued by the Safety, Rehabilitation and Compensation Commission; or
• anything relating to the operation of the SRC Act,
  
  you may contact the Safety, Rehabilitation and Compensation Commission (see srcc.gov.au).

SRC Act: section 89B.

Responsible Minister and Department

If you have a concern regarding matters arising under:

• the SRC Act;
• the Work Health and Safety Act 2011 (Cth); or
• any other legislation administered by the Minister for Industrial Relations,
  
  you may contact the Attorney-General's Department (see ag.gov.au).

For more information, see legislation.gov.au for the current Administrative Arrangement Orders, which specify the matters dealt with by a department of state of the Commonwealth and legislation administered by a minister of state of the Commonwealth.

The Minister for Jobs and Industrial Relations may give written directions to the Chief Executive Officer of Comcare with respect to the performance of Comcare's functions or the exercise of its powers under the SRC Act. However, the Minister may not give such directions in relation to a particular case. At the time of writing, there are no directions in force.

SRC Act: section 73.

ACT and Commonwealth Ombudsman

If you feel you have been treated unfairly or unreasonably by an ACT Government authority or an Australian Government department or agency in relation to a claim for compensation under the Comcare Scheme, you may contact the Commonwealth Ombudsman (also the ACT Ombudsman) (see ombudsman.gov.au).

For more information, see:

• Complaining about ACT Government Decision Making; and
• Complaining about Cth Government Decision Making.

Australian Public Service Commission and Parliamentary Service Commission

Australian Public Service and Parliamentary Service employees must comply with a code of conduct, which includes the requirement to comply with all applicable Australian laws when acting in connection with their employment.

If you have a concern regarding compliance with, or exercise of a power or performance of function under, the SRC Act by:

• an Australian Public Service employee—you may contact the Australian Public Service Commission (see apsc.gov.au); or
• a Parliamentary Service employee—you may contact the Parliamentary Service Commissioner (see aph.gov.au).

To assess whether a person may be employed under the Public Service Act 1999 (Cth) (and therefore an Australian Public Service employee) or under the Parliamentary Service Act 1999 (Cth) (and therefore a Parliamentary Service employee), see finance.gov.au.

For more information, see:

• Australian Public Service Commissioner's Directions 2016;
• Part 3 of the Public Service Act 1999 (Cth);
• Parliamentary Service Commissioner’s Direction 2014; and
• Part 3 of the Parliamentary Service Act 1999 (Cth).

Office of Legal Services Coordination

If you have a concern regarding compliance by the relevant authority (or its representative) with the Commonwealth's model litigant obligations (if the relevant authority is bound by the obligations), you may contact the Office of Legal Services Coordination (see ag.gov.au).

For more information, see sections 4 and 12, and Appendix B, of the Legal Services Directions 2017 (Cth).

Other Assistance

If you require independent advice or assistance in relation to:

• your rights, entitlements and obligations, including under the Comcare Scheme;
• a claim for compensation under the Comcare Scheme (including obtaining relevant medical and other evidence to support such a claim);
• a determination or requesting a reconsideration of such a decision;
• a reviewable decision or applying to the Administrative Appeals Tribunal to review such a decision; or
• any other decision under the Comcare Scheme,
  
  you may contact:
  
  
• the ACT Law Society: actlawsociety.asn.au;
• the Legal Aid Commission (ACT): legalaidact.org.au; or
• if you do not reside in the Australian Capital Territory—the relevant law society or institute, or legal aid agency, in your State or Territory.

Scheme Employers

This section contains a summary of provisions relating to:

• Current Comcare Scheme Employers; and
• Former Comcare Scheme Employers.

Current Comcare Scheme Employers

The employers or class of employers identified in Table 17 are considered to be scheme employers for the purposes of this chapter.

Table 17—Summary of Scheme Employers

Ref.	Class of employer	Comcare Scheme status / insurer / relevant authority / rehabilitation authority	More information
17.1	The ACT including the ACT Public Service.	Scheme status: licensed authority. Insurer: self insures. Relevant authority: ACT. Rehabilitation authority: the Head of Service engaged under section 31 of the Public Sector Management Act 1994 (ACT).	See act.gov.au for a list of ACT government directorates. See act.gov.au for a list of ACT public authorities and ACT owned corporations. SRC Act: subsection 4(14) and section 4A.
17.2	A declared body corporate controlled by the ACT.	Scheme status: part of the ACT. Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: the Head of Service engaged under section 31 of the Public Sector Management Act 1994 (ACT).	No current declared bodies corporate in existence. Former declared bodies corporate include: ACTEW Corporation Ltd; ACTTAB Ltd; Australian Capital Territory Gaming and Liquor Authority; Totalcare Industries Ltd; and Rhodium Asset Solutions Ltd. SRC Act: subsections 4(14) and 5(13).
17.3	A Commonwealth department of state.	Scheme status: Commonwealth entity. Insurer: Comcare. Relevant authority: Comcare (or a Comcare delegate, for some departments). Rehabilitation authority: the Secretary of that department.	See australia.gov.au for a list of Commonwealth departments and agencies. See legislation.gov.au for the current Administrative Arrangement Orders, which specifies: matters dealt with by a department of state of the Commonwealth; and legislation administered by a minister of state of the Commonwealth. See finance.gov.au for Commonwealth governance structures and flipchart of Commonwealth entities and companies. SRC Act: subsection 4(1).
17.4	A Commonwealth executive agency established under the Public Service Act 1999 (Cth) (other than a Commonwealth authority).	Scheme status: Commonwealth entity. Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: the Head of that agency.
17.5	A Commonwealth statutory agency declared by a law of the Commonwealth to be a statutory agency for the purposes of Public Service Act 1999 (Cth) (other than a Commonwealth authority).	Scheme status: Commonwealth entity. Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: the Head of that agency.
17.6	A Commonwealth parliamentary department.	Scheme status: Commonwealth entity. Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: the Secretary of that department.	There are currently four Commonwealth parliamentary departments: Department of the Senate; Department of the House of Representatives; Department of Parliamentary Services; and Parliamentary Budget Office. See aph.gov.au. SRC Act: subsection 4(1).
17.7	A prescribed Commonwealth entity.	Scheme status: Commonwealth entity. Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: the person prescribed as the principal officer.	See legislation.gov.au for a list of current prescribed entities and principal officers. SRC Regs: regulation 16 and Schedule 4. SRC Act: subsection 4(1).
17.8	A Commonwealth authority (other than the ACT or a licensed authority).	Scheme status: Commonwealth authority. Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: see Note 1.	See australia.gov.au for a list of Commonwealth departments and agencies. See legislation.gov.au for legislative instruments declaring a body corporate to be a Commonwealth authority (complete list to be included in a later version of this chapter). See finance.gov.au for Commonwealth governance structures and flipchart of Commonwealth entities and companies. See srcc.gov.au for a list of current and former licensees, including: former trading names; and whether covered by the Work Health and Safety Act 2011 (Cth). SRC Regs: regulation 14B. SRC Act: subsection 4(1) and Part VIII.
17.9	A Commonwealth authority that holds a licence under the scheme.	Scheme status: licensed authority. Insurer: third party insurer or self-insures. Relevant authority: that authority (who may have engaged a third party claims manager and/or reviewer, subject to the scope and conditions of the authority’s licence). Rehabilitation authority: see Note 1.
17.10	A Commonwealth authority that formerly held a licence under the scheme.	Scheme status: Commonwealth authority (former licensed authority). Insurer: Comcare. Relevant authority: Comcare. Rehabilitation authority: see Notes 1 and 2.
17.11	A corporation that holds a licence under the scheme.	Scheme status: licensed corporation. Insurer: third party insurer or self-insures. Relevant authority: that corporation (who may have engaged a third party claims manager and/or reviewer, subject to the terms and conditions of the corporation’s licence). Rehabilitation authority: the principal executive officer of that corporation.	See srcc.gov.au for a list of current and former licensees, including: former trading names; and whether covered by the Work Health and Safety Act 2011 (Cth). SRC Act: subsection 4(1) and Part VIII.
Note 1: If the Commonwealth authority is constituted by: a person—the rehabilitation authority is the person who constitutes that authority; or two or more persons or is managed by a board—the rehabilitation authority is the person who is entitled to preside at any meeting of that authority or board at which the person is present.
Note 2: If the Commonwealth authority is a former licensed authority, Comcare has a discretionary power to arrange for the rehabilitation authority function to be performed by a suitable and willing person.

Former Comcare Scheme Employers

The employers or class of employers identified in Table 18 may have functions under the Comcare Scheme but they are not scheme employers for the purposes of this chapter.

Table 18—Summary of Former Scheme Employers

Ref.	Class of employer	Comcare Scheme status / relevant authority / rehabilitation authority	More information
18.1	A body corporate that has ceased to be a Commonwealth authority but continues in existence.	Scheme status: former Commonwealth authority. Relevant authority: Comcare. Rehabilitation authority: the principal officer of the body corporate (to be determined as if the body corporate had not ceased to be a Commonwealth authority).	SRC Act: subsection 4(15) and section 41B.
18.2	A body corporate that has ceased to be a Commonwealth authority and ceases to exist, and there is a specified successor.	Scheme status: former Commonwealth authority Relevant authority: Comcare. Rehabilitation authority: the principal officer of the specified successor.	There are currently no specified successors. SRC Act: section 41C.
18.3	A corporation that formerly held a licence under the scheme.	Scheme status: former licensed corporation. Relevant authority: the principal executive officer of that corporation, but Comcare has a discretionary power to arrange for the relevant authority function to be performed by a suitable and willing person. Rehabilitation authority: the principal executive officer of that corporation, but Comcare has a discretionary power to arrange for the rehabilitation authority function to be performed by a suitable and willing person.	See srcc.gov.au for a list of current and former licensees, including whether covered by the Work Health and Safety Act 2011 (Cth). SRC Regs: regulations 15, 15A and 15B. SRC Act: section 107A and Part VIII.

Deemed Employees

This section contains a summary of provisions relating to persons who are taken to be either:

• Employees Covered by the Comcare Scheme; and
• Persons Not Covered by the Comcare Scheme.

Employees Covered by the Comcare Scheme

The class of persons identified in Table 19 are considered to be deemed employees for the purposes of this chapter.

Table 19—Summary of Deemed Employees

Ref.	Class of deemed employee	Deemed employer / deemed employment / relevant authority / rehabilitation authority	More information
19.1	A person who is an officer or employee of an ACT authority or body established by a law that is either: made by the Legislative Assembly for the ACT; or taken to be an enactment, under the Australian Capital Territory (Self-Government) Act 1988 (Cth).	Employer: the person is taken to be employed by the ACT. Employment: no deeming provisions in relation to employment. Relevant authority: Comcare. Rehabilitation authority: the Head of Service engaged under section 31 of the Public Sector Management Act 1994 (ACT).	See Scheme Employers, including for employment by: the ACT; and a declared body corporate controlled by the ACT. SRC Act: subsections 4(1) and 5(11).
19.2	A person who is an officer or employee of a declared body corporate controlled by the ACT.
19.3	A person who is employed under the Legislative Assembly (Members' Staff) Act 1989 (ACT).
19.4	Any of the following: the Commissioner; a Deputy Commissioner; or a member, of the ACT Fire Brigade under the Fire Brigade (Administration) Act 1974 (ACT).
19.5	A person who either: holds; or is acting in, an office established under a law made under, or by the Legislative Assembly of the ACT under, the Australian Capital Territory (Self-Government) Act 1988 (Cth).
19.6	Any of the following: the Australian Federal Police Commissioner; a Deputy Commissioner of the Australian Federal Police; or an employee of the Australian Federal Police, within the meaning of the Australian Federal Police Act 1979 (Cth).	Employer: the person is taken to be employed by the Australian Federal Police (a Commonwealth statutory agency). Employment: the person's employment is taken to be constituted by the person's performance of duties as the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an employee of the Australian Federal Police. Relevant authority: Comcare. Rehabilitation authority: the Commissioner of Police.	SRC Regs: section 16 and Schedule 4. SRC Act: subsections 4(1) and 5(2).
19.7	A person who is either: the holder of; or acting in, an office established by a law of the Commonwealth.	Employer: the person is taken to be employed the Commonwealth. Employment: the person's employment is taken to be constituted by the person's performance of the duties of that office. Relevant authority: Comcare. Rehabilitation authority: see Note 1.	SRC Act: subsections 4(1) and 5(2).
19.8	A person who is either: the holder of; or acting in, a declared office established by a law of a Territory (other than the ACT or the Northern Territory).
19.9	A person who either: constitutes; or is acting as the person constituting, a Commonwealth authority.	Employer: the person is taken to be employed by that authority. Employment: the person's employment is taken to be constituted by the performance of the duties of that authority. Relevant authority: see Note 2. Rehabilitation authority: see Note 3.	See Scheme Employers, for employment by a Commonwealth authority. SRC Act: subsections 4(1) and 5(3).
19.10	A person who either: is; or is acting as, a member of a Commonwealth authority.	Employer: the person is taken to be employed by that authority. Employment: the person's employment is taken to be constituted by the performance of the person's duties as that member (or acting member). Relevant authority: see Note 2. Rehabilitation authority: see Note 3.
19.11	A person who is a deputy of a person who either: is; or is acting as, a member of a Commonwealth authority.	Employer: the person is taken to be employed by that authority. Employment: the person's employment is taken to be constituted by the performance of the person's duties as such the deputy. Relevant authority: see Note 2. Rehabilitation authority: see Note 3.
19.12	A person who is a member of a specified class of persons who engage in activities or perform acts: at the request or direction of the Commonwealth; for the benefit of the Commonwealth; or under a requirement made by or under a law of the Commonwealth.	Employer: the person is taken to be employed by the Commonwealth. Employment: the person’s employment is taken to be constituted by the person’s performance of specified acts. Relevant authority: Comcare. Rehabilitation authority: see Note 1.	See legislation.gov.au for legislative instruments specifying classes of persons and activities (complete list to be included in a later version of this chapter). SRC Act: subsections 4(1) and 5(6).
19.13	A person who is a member of a specified class of persons who engage in activities or perform acts: at the request or direction; or for the benefit, of a Commonwealth authority.	Employer: the person is taken to be employed by that authority. Employment: the person’s employment is taken to be constituted by the person’s performance of specified acts. Relevant authority: see Note 2. Rehabilitation authority: see Note 3.
19.14	A person who is a member of a specified class of persons who engage in activities or perform acts: at the request or direction; or for the benefit, of a licensed corporation.	Employer: the person is taken to be employed by that corporation. Employment: the person’s employment is taken to be constituted by the person’s performance of specified acts. Relevant authority: that corporation (who may have engaged a third party claims manager and/or reviewer, subject to the terms and conditions of the corporation’s licence). Rehabilitation authority: the principal executive officer of that corporation.
Note 1: If the person is taken to be employed by: a Commonwealth department of state or parliamentary department—the rehabilitation authority is the Secretary of that department; a Commonwealth executive agency or statutory agency—the rehabilitation authority is the Head of that agency; or a prescribed Commonwealth entity—the rehabilitation authority is the person prescribed as the principal officer.
Note 2: If the Commonwealth authority is either: not a licensed authority—the relevant authority is Comcare; or a licensed authority—the relevant authority is that authority (who may have engaged a third party claims manager and/or reviewer, subject to the terms and conditions of the authority’s licence).
Note 3: If the Commonwealth authority is constituted by: a person—the rehabilitation authority is the person who constitutes that authority; or two or more persons or is managed by a board—the rehabilitation authority is the person who is entitled to preside at any meeting of that authority or board at which the person is present.

Persons Not Covered by the Comcare Scheme

Not Employed by the ACT

The following persons or offices are not taken to be employed by the ACT for the purposes of the SRC Act:

• the Chief Minister;
• the Deputy Chief Minister;
• a minister;
• the Presiding Officer of the Legislative Assembly;
• a deputy to the Presiding Officer of the Legislative Assembly; and
• a member of the Legislative Assembly.

SRC Act: subsection 5(14).

Not Employees

The SRC Act does not apply to any of the following persons or offices:

• a member of the Australian Defence Force;
• an employee to whom the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) applies (see Military Rehabilitation and Compensation);
• a veteran to whom the Veterans' Entitlements Act 1986 (Cth) applies (see Veterans' Entitlements);
• an employee to whom the Seafarers Rehabilitation and Compensation Act 1992 (Cth) applies (see Seacare Scheme);
• a member of the Parliament of the Commonwealth or a Minister of State of the Commonwealth (see Parliament Injury Compensation Scheme);
• a person who is a judge as defined by section 4 of the Judges' Pensions Act 1968 (Cth) (that is, a Justice or Judge of a federal court, other than the Federal Circuit Court of Australia); or
• an officer or employee of the public service of an external Territory.

SRC Act: subsection 5(8).

Glossary of Terms

Some of the following terms are adapted from the SRC Act and are subject to a contrary intent. Others are defined terms for the purposes of this chapter.

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Term	Meaning	More information
1912 Act	Commonwealth Workmen’s Compensation Act 1912 (Cth).	See legislation.gov.au.
1930 Act	Commonwealth Employees’ Compensation Act 1930 (Cth).	See legislation.gov.au.
1971 Act	Compensation (Commonwealth Government Employees) Act 1971 (Cth).	See legislation.gov.au.
ACT	Means the Australian Capital Territory, which has been declared a Commonwealth authority for the purposes of the Comcare Scheme since 01/07/1994. Prior to the establishment of the ACT Government Service on 01/07/1994, most ACT public servants were employed as Australian Public Service employees. Persons not covered by the Comcare Scheme may be covered by the Workers Compensation Act 1951 (ACT) (see ACT Private Workers Compensation Scheme).	SRC Act: subsections 4(1) and section 4A.
action for non-economic loss	Means any action (whether or not it involves the formal institution of a proceeding) to recover an amount for damages for non-economic loss sustained by an employee as a result of an injury that is taken by the employee against their scheme employer, or against another employee of that employer, and that follows an election made by the employee under subsection 45(1) of the SRC Act. See discussion of Alternative Claim for Damages in the Compensation section.	SRC Act: subsection 4(1).
aggravation	Includes acceleration or recurrence.	SRC Act: subsection 4(1).
ailment	Means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).	SRC Act: subsection 4(1).
AMA5	Means the American Medical Association’s Guides to the Evaluation of Permanent Impairment (fifth edition).	See ama-asn.org.
approved guide	Means the Guide to the Assessment of the Degree of Permanent Impairment, which is a document prepared by Comcare and approved by the Minister that sets out the criteria and methods for assessing the degree of permanent impairment resulting from an injury and the degree of non-economic loss resulting from an injury or impairment.	See Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1. SRC Act: section 28.
approved program provider	Means a person or body approved by Comcare as a rehabilitation program provider.	SRC Act: Division 2 of Part III.
attendant care services	Means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee.	SRC Act: subsection 4(1).
catastrophic injury	Means an injury, where the conditions specified in the legislative rules are satisfied.	See Safety, Rehabilitation and Compensation (Catastrophic Injury) Rules 2018. SRC Act: subsection 4(1).
child or children	Without limiting who is a child of a person for the purposes of the Comcare Scheme, someone is the child of a person if they are a child of the person within the meaning of the Family Law Act 1975 (Cth).	SRC Act: subsection 4(1).
claimant	Means a person in respect of whom either: a valid claim for compensation has been made under the Comcare Scheme; or a determination is made, and a reference to a claimant in the SRC Act is generally taken to include, after the claimant has died, a reference to the claimant's legal personal representative.	SRC Act: subsections 4(1) and (11).
Commonwealth authority	Means any of the following: the ACT since 01/07/1994; a body corporate that is incorporated for a public purpose by a law of the Commonwealth (unless declared by the Minister to be not covered by the Comcare Scheme); or a body corporate that is declared by the Minister to be covered by the Comcare Scheme, and in relation to a person employed by a Commonwealth authority, references in the SRC Act to the Commonwealth are read as references to that authority.	See Scheme Employers, including for a list of declared bodies corporate. SRC Act: subsections 4(1) and 5(7), and section 4A.
Constitution	See section 9 of the Commonwealth of Australia Constitution Act (Imp).	See legislation.gov.au.
damages	Includes any amount paid under a compromise or settlement of a claim for damages, whether or not legal proceedings have been instituted, but does not include an amount paid in respect of costs incurred in connection with legal proceedings	SRC Act: subsection 4(1).
dependant	In relation to a deceased employee, means any of the following: the spouse, parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee; or a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee, being a person who was wholly or partly dependent for economic support on the employee at the date of the employee's death.	See Note 1 for the meaning of relationships under the Comcare Scheme. SRC Act: subsection 4(1).
de facto partner	A person is the de facto partner of an employee (whether of the same sex or a different sex) if either: the person is in a registered relationship with the employee (that is, the relationship is registered under a prescribed law of a State or Territory as a prescribed kind of relationship); or the person is in a de facto relationship with the employee under section 2F of the Acts Interpretation Act 1901 (Cth).	Acts Interpretations Act 1901 (Cth): sections 2D-2F. See legislation.gov.au SRC Act: subsection 4(1).
determination	Means a determination, decision (which has the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth)) or requirement made under one of the following relevant provisions in the SRC Act: compensation: section 14 (injury); section 15 (property used by employee); section 16 (medical treatment); section 17 (death); section 18 (funeral expenses); sections 8, 19, 20, 21, 21A, 22 (incapacity for work); sections 24, 25, 27 (permanent impairment); section 29 (household services or attendant care services); sections 30, 31 (redemption of compensation); or section 39 (alteration, modification, aid or appliance); rehabilitation: section 36 (rehabilitation assessment); or section 37 (rehabilitation program); or other: paragraph 114B(5)(a) (recovery of overpayment to retired employee); or Division 3 of Part X (transitional provisions relating to certain former employees).	See Note 2, for the meaning of decision under the Administrative Appeals Tribunal Act 1975 (Cth). SRC Act: subsection 60(1).
disease	Means an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to: if suffered before 13/04/2007—to a material degree; or if suffered after 12/04/2007—to a significant degree, by the employee's employment by a scheme employer.	SRC Act (as in force before 13/04/2007): subsection 4(1) for definition of disease before 13/04/2007. SRC Act: section 5B for definition of disease after 12/04/2007.
employee	Generally means a person who is employed, or deemed to be employed, by a scheme employer, but see Employee and Employment, for rules under the Comcare Scheme concerning employees and employment.	SRC Act: section 5.
household services	Means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household.	SRC Act: subsection 4(1).
impairment	Means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.	SRC Act: subsection 4(1).
incapacity for work	Means an incapacity suffered by an employee as a result of an injury, being an incapacity to engage in either: any work; or work at the same level at which the employee was engaged by the employee's scheme employer in that work or any other work immediately before the injury happened.	SRC Act: subsections 4(1) and (9).
injury	Means any of the following: a disease suffered by an employee; an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, the employee's employment, but does not include: if suffered before 13/04/2007—any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with their employment; or if suffered after 12/04/2007—a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.	SRC Act (as in force before 13/04/2007): subsection 4(1) for definition of injury before 13/04/2007. SRC Act: section 5A for definition of injury after 12/04/2007.
law of the Commonwealth	In any Commonwealth Act, a reference to a law, or the law, of the Commonwealth does not include (and is taken never to have included) a reference to a law in force in a Territory so far as the law is so in force because of a Commonwealth Act providing for the acceptance, administration or government of that Territory (subject to a contrary intention).	Acts Interpretations Act 1901 (Cth): sections 2 and 2H. See legislation.gov.au.
licensed authority	Means a Commonwealth authority that is the holder of a licence under Part VIII of the SRC Act that is in force.	SRC Act: subsection 4(1) and Part VIII.
licensed corporation	Means a corporation (other than a Commonwealth authority) that is either: a foreign corporation, financial corporation or trading corporation within the meaning of the Constitution; or a body corporate that is incorporated in a Territory, and the holder of a licence under Part VIII of the SRC Act that is in force.	SRC Act: subsection 4(1) and Part VIII.
licensee	Means a licensed authority or a licensed corporation.	SRC Act: subsection 4(1) and Part VIII.
material degree	See discussion of material degree in Rules for Ailments.	SRC Act (as in force before 13/04/2007): subsection 4(1).
medical examination	Means a medical examination that the employee is required to undergo in accordance with section 57 of the SRC Act.	SRC Act: section 57.
medical treatment	See discussion of Medical Treatment in the Compensation section,	SRC Act: subsection 4(1).
non-economic loss	In relation to an employee who has suffered an injury resulting in a permanent impairment, non-economic loss means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.	SRC Act: subsection 4(1).
normal weekly earnings	See discussion of Normal Weekly Earnings in the Compensation section.	SRC Act: sections 8 and 9.
normal weekly hours	Means the average number of hours including overtime (which includes any duty on shifts or on Saturdays, Sundays or other holidays, and excess travelling time) worked during the relevant period.	SRC Act: subsection 4(1).
parent	Without limiting who is a parent of a person for the purposes of the Comcare Scheme, someone is the parent of a person if the person is their child because of the definition of child under the Comcare Scheme.	See Note 1 for the meaning of relationships under the Comcare Scheme. SRC Act: subsection 4(1).
permanent	Means likely to continue indefinitely.	SRC Act: subsection 4(1).
permanent impairment	Means an impairment that is likely to continue indefinitely in light of all relevant matters including all of the following: the duration of the impairment; the likelihood of improvement in the employee's condition; and whether the employee has undertaken all reasonable rehabilitative treatment for the impairment.	SRC Act: subsections 4(1) and 24(2).
place of residence	In relation to an employee, means any of the following: the place where the employee normally resides; a place, other than the place referred to in the preceding point, where the employee resides temporarily, as a matter of necessity or convenience, for the purposes of their employment; or any other place where the employee stays, or intends to stay, overnight, a journey to which from the employee's place of work does not substantially increase the risk of sustaining an injury when compared with the journey from their place of work to the place referred to the first preceding point.	SRC Act: subsection 4(1).
place of work	In relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of their employment.	SRC Act: subsection 4(1).
prescribed child or prescribed children	Means one of the following: a person under 16; or a person who is 16 or more but under 25, receiving full-time education at a school, college, university or other educational institution and not ordinarily in employment or engaged in work on their own account, and for the purposes of the Comcare Scheme, a prescribed child who, immediately before the date of an employee's death, lived with the employee and was a child of the employee, is taken to wholly dependent for economic support on the employee at that date.	See Note 1 for the meaning of relationships under the Comcare Scheme. SRC Act: subsection 4(1).
prescribed person	Means, in relation to an employee, the spouse of the employee or any of the following persons, being a person who is 16 or more: the parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee; a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to the employee; or a person (other than the spouse of the employee or a person referred to in the preceding points) who is wholly or mainly maintained by the employee and has the care of a prescribed child, being a child who is wholly or mainly dependent for economic support on the employee.	See Note 1 for the meaning of relationships under the Comcare Scheme. SRC Act: subsection 4(1).
property used by an/the employee	Means an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee.	SRC Act: subsection 4(1).
property used by the person	Means an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the person.
rehabilitation assessment	See discussion of Rehabilitation Assessment in the Rehabilitation section.	SRC Act: sections 4 and 36.
rehabilitation authority	Is taken to mean either: in relation to an employee who is currently employed by a scheme employer—the principal officer of that scheme employer; or in relation to an employee who is no longer employed by a scheme employer—the principal officer of the employee's last scheme employee, and if all of the following are true: the employee's last scheme employer was not the ACT or a licensee; the employee's last scheme employer has been abolished; or the relevant function performed by the employee's last scheme employer has been transferred to another scheme employer (other than the ACT or a licensee), then employee's last scheme employer is taken to be the scheme employer to which the relevant function was transferred.	This definition is based on Comcare's Guidelines for Rehabilitation Authorities 2012. See Scheme Employers, to assist you to identify the rehabilitation authority. SRC Act: subsection 4(1) and section 41.
rehabilitation program	Includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.	SRC Act: subsection 4(1).
relevant authority	Is taken to mean either: in relation to an employee who is employed by a licensee at the relevant time—that licensee; or in relation to any other employee—Comcare.	See Employment at the Relevant Time in the Employee and Employment section, to assess whether an employee was employed by a licensee at the relevant time. SRC Act: subsection 4(1).
relevant employer	See discussion of Who is the Relevant Employer? in the Rehabilitation section.	SRC Act: sections 40, 41B-41D.
relevant period	See discussion of Relevant Period in the Compensation section.	SRC Act: subsection 4(1) and section 9.
reviewable decision	Means a decision (which has the same meaning as in the Administrative Appeals Tribunal Act 1975 (Cth)) made by the relevant authority following reconsideration of a determination made by the relevant authority or the rehabilitation authority.	See Note 2, for the meaning of decision under the Administrative Appeals Tribunal Act 1975 (Cth). SRC Act: subsection 60(1) and section 63.
scheme employer	For the purposes of this chapter, means an employer under the Comcare Scheme (see Scheme Employers).	SRC Act: subsection 4(1) and section 5.
significant degree	Means a degree that is substantially more than material (see also discussion of material degree in Rules for Ailments).	SRC Act: subsections 4(1) and 5B(3).
spouse	Includes either: in relation to an employee or a deceased employee—a person who is, or immediately before the employee's death was, a de facto partner of the employee; or in relation to an employee or a deceased employee who is or was a member of the Aboriginal race of Australia or a descendant of indigenous inhabitants of the Torres Strait Islands—a person who is or was recognised as the employee's husband, wife or spouse by the custom prevailing in the tribe or group to which the employee belongs or belonged, and for the purposes of: any Commonwealth Act—a person is the spouse of an employee (whether of the same sex or a different sex) if the person is legally married to the employee; and the Comcare Scheme—a person who, immediately before the date of an employee's death, lived with the employee and was the spouse of the employee is taken to be wholly dependent for economic support on the employee at that date.	See Note 1 for the meaning of relationships under the Comcare Scheme. Acts Interpretations Act 1901 (Cth): sections 2D-2F. See legislation.gov.au. SRC Act: subsection 4(1).
SRC Act	Safety, Rehabilitation and Compensation Act 1988 (Cth). The SRC Act was originally enacted as the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth).	See legislation.gov.au.
SRC Regs	Safety, Rehabilitation and Compensation Regulations 2002.	See legislation.gov.au.
State compensation	Means compensation recoverable under a law of a State or of a Territory that provides for the payment of compensation, other than workers' compensation, and is declared by the Minister to be a specified law.	See Summary of Provisions in the Preclusion, Suspension and Repayment, for legislative instruments containing specified laws. SRC Act: section 119.
State workers' compensation	Means compensation recoverable under a law of a State or of a Territory, or of a foreign country, relating to workers' compensation.	SRC Act: section 118.
stepchild	Without limiting who is a stepchild of a person for the purposes of the Comcare Scheme, someone who is a child of a de facto partner of the person is the stepchild of the person if they would be the person's stepchild except that the person is not legally married to the partner.	See Note 1 for the meaning of relationships under the Comcare Scheme. SRC Act: subsection 4(1).
step-parent	Without limiting who is a step-parent of a person for the purposes of the Comcare Scheme, someone who is a de facto partner of a parent of the person is the step-parent of the person if they would be the person's step-parent except that they are not legally married to the person's parent.	See Note 1 for the meaning of relationships under the Comcare Scheme. SRC Act: subsection 4(1).
suitable employment	See discussion of Suitable Employment in the Rehabilitation section.	SRC Act: subsection 4(1) and section 40.
superannuation scheme	Means any superannuation scheme under which, or retirement savings account to which, the employee's scheme employer makes contributions on behalf of the employee.	SRC Act: subsection 4(1) and sections 19-21A.
Note 1: For the purposes of the Comcare Scheme, relationships (including the relationship of being family or being relatives) are taken to include (without limitation): relationships between de facto partners; relationships of child and parent that arise if someone is an exnuptial child of a person; relationships of child and parent that arise if someone is an adoptive child of a person (whether adopted under a law of a State or Territory or of a foreign country); relationships of child and parent that arise because of the definitions of child and parent under the Comcare Scheme (see defined terms child and parent in this table); and relationships traced through relationships referred to in the preceding points.
Note 2: Unless the contrary intention appears, a reference in Administrative Appeals Tribunal Act 1975 (Cth) to a decision includes a reference to any of the following: making, suspending, revoking or refusing to make an order or determination; giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; imposing a condition or restriction; making a declaration, demand or requirement; retaining, or refusing to deliver up, an article; or doing or refusing to do any other act or thing.