Australia: Help! I have sustained an injury at work and I am unable to work – as a member of the AFP, what can I do?

Last Updated: 2 October 2019
Article by Nadia Baker

Unfortunately several members of the AFP will suffer injuries during their employment with the AFP. You have certain rights and entitlements against your employer under the Commonwealth Safety, Rehabilitation and Compensation Act (1988) (The Federal Worker's Compensation scheme).

What can I claim?

You may have an entitlement to claim the following:

  • Payment of your reasonable medical treatment and rehabilitation.
  • Payment of weekly payments of compensation where you are suffering a total or partial incapacity to undertake your pre-injury work.
  • A lump sum for permanent impairment and non-economic loss, where the work injury results in a whole person permanent impairment of 10% as medically assessed under the Comcare guidelines. This assessment cannot be made until your injuries have stabilised.
  • In rarer cases, benefits such as the cost of domestic care.

How is a claim made?

A claim for compensation is made under the Commonwealth Safety, Rehabilitation and Compensation Act (1988) to Comcare by completing the Workers' Compensation Claim Form and your doctor completing a Certificate of Incapacity. Both forms are available on the Comcare website.

If you are claiming compensation for a psychological injury you must also prepare a statement outlining the events that contributed to your injury.

Both forms and any attached documents should then be submitted to the AFP, who will lodge your claim with Comcare.

Comcare will then start investigating your claim and will likely require you to attend an independent medical examination prior to a determination being made.

Comcare declined my claim – what happens next?

Once you receive a determination from Comcare you have 30 days to submit a Reconsideration Request Form to Comcare. The form is available on the Comcare website. You must include reasons for requesting the reconsideration, and any supporting documents.

Reconsideration requests are generally made on the following grounds:

  • Insufficient investigation of the claim
  • Comcare did not consider relevant information
  • You did not have the opportunity to respond to adverse information
  • You have new information to provide at review

In the request for reconsideration it may be necessary to submit your own independent medical report.

If you intend to submit further documents which you are unable to obtain within the 30 day period, you should lodge the Reconsideration Request Form and in your covering letter request further time to obtain the outstanding documents.

Comcare will then consider your request for reconsideration and issue a Reviewable decision. The Reviewable decision may confirm the initial determination or replace it with a new decision.

I am still not satisfied with the Reviewable decision – what do I do next?

Once you have received the Reviewable Decision from Comcare you have 60 days to file an Application for Review of Decision Form in the Administrative Appeals Tribunal (AAT). This form is available on the AAT website.

If you have not already done so you will need to engage a lawyer to advise and appear for you in the AAT.

The AAT will list your matter for a telephone conference. You will be represented by your lawyer and will not need to attend the telephone conference. Comcare would also be represented by a lawyer.

During the telephone conference the AAT Conference Registrar may make orders for the production of documents under Summons, filing of witness statements and service of other evidence. It is usual practice for there to be more than one telephone conference.

In a later telephone conference the AAT Conference Registrar may list the matter for a Conciliation Conference (if appropriate) prior to listing the matter for hearing before a Member of the AAT. The hearing will be at the AAT venue closest to your residential address.

A Conciliation Conference is an informal meeting to discuss resolution of your claim with Comcare's legal representative. You will attend the Conciliation Conference with your solicitor and barrister. A Registrar of the AAT will also attend. Any discussions between the parties are confidential.

You will attend conferences with your solicitor and barrister to prepare you for the hearing.

You will need to attend every day of the AAT Hearing and you will likely be required to give evidence and be cross examined by Comcare's Barrister.

The AAT member will give a decision. The decision may be given orally at the time of the hearing or it may be a written decision. Unfortunately there is no prescribed time limit for written decisions to be made.

If you receive a decision in your favour from the AAT you will be entitled to claim part of your costs from Comcare. These costs are known as Party/Party costs. In most cases there will be a gap between the Solicitor/Client costs and the Party/party costs, which will be payable by you.

I was not successful in the AAT – what do I do now?

Once you receive a decision from the AAT you have 28 days to file an appeal in the Federal Court of Australia (FCA). An appeal to the FCA can only be made on a question of law. Your solicitor and barrister will advise you whether an appeal of the AAT decision has reasonable prospects of success.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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