ACT Workers Compensation Scheme

Contributed by Walter Hawkins, Principal/Practice Leader at Maurice Blackburn and Kahlia Jenkins, Associate at Maurice Blackburn and current to March 2022.

Work related injury

Workers Compensation can be claimed for an injury that arises out of or in the course of, employment. If you can prove negligence or fault of another party, then you may also be able to make a common law claim for damages against your employer or a third party. Ordinarily you have three years from the date of injury to commence a common law claim, so you should seek legal advice as soon as possible following the injury to ensure your rights are protected.

Australian Capital Territory legislation

The Workers Compensation scheme in the Australian Capital Territory is governed by the Workers Compensation Act 1951.

All references in this section are references to sections of the Workers Compensation Act 1951.

Connection to the Australian Capital Territory

Workers compensation may still be payable even if a worker is injured outside of the ACT, if it can be shown that the worker’s employment is connected with the ACT (s 35A). The law can be complicated and a connection to the ACT can be shown if the ACT is where the worker usually works, or if the ACT is where the worker is usually based for their employment, or if the ACT is where the employer’s principal place of business is located in Australia (s 36B).

Illness and Injury

What is an injury?

Injury means a physical or mental injury, and includes a recurrence, aggravation, or acceleration of a pre-existing injury. Injury also includes disease contracted in the course of employment, such as arthritis, asthma, or some cancers (s 4).

Mental Injury

Mental injury includes stress. However, a mental injury is not compensable if it was completely or mostly caused by reasonable action taken by an employer, in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker, or the provision or an employment benefit (s 4).

Journey Claims

Injuries suffered while travelling to or from work, or while travelling in the course of your employment, are also covered. This includes injuries suffered while travelling to or from trade school, an education course, a medical appointment or rehabilitation. If these injuries arise from a motor vehicle accident, then depending upon the circumstances there might also be a claim against the driver at fault (s 36).

Worker

Who is a ‘worker’?

A worker is an individual who works under a contract of service, which can be oral or written. A worker also includes casuals, labour hire workers, trainers, and workers from home (s 8).

Who is not a ‘worker’?

A worker does not include public servants or an employee within the meaning of the Safety, Rehabilitation and Compensation Act 1988(Cth) (s 9). Those workers are covered by Comcare (see ACT Government and Commonwealth Workers Compensation (Comcare Scheme)).

The law can be complicated so it is important to obtain legal advice.

Making a claim

Notice of injury

If you suffer an injury at work you must notify your employer as soon as possible and even if you do not immediately require treatment (s 93). You can either notify your employer verbally or in writing, by completing the employee injury register notification form which should then be given to your employer. If you notify your employer in writing, keep a copy of your injury notification (s 94).

Claim form

If you need medical treatment or time off from work, you must complete a workers compensation claim form as soon as possible. If you need time off from work, you will have to go to your doctor and get an ACT Workers Compensation medical certificate. You should make a copy of these documents, and give the originals to your employer. They should then give them to their workers compensation insurer. You should send a copy of the claim form and medical certificate to the workers compensation insurer as well (s 116).

How a claim is determined

Once your claim form and medical certificate are submitted the insurer has 28 days from the day they receive your claim to decide whether they will accept or reject your claim.

1. Deemed acceptance – The insurer is ‘deemed’ to have accepted a claim for an injury other than imminently fatal asbestos-related disease if they don’t reject your claim within 28 days from the date they received your claim (s 128). For an imminently fatal asbestos-related disease, if after 28 days after receiving the claim the insurer has not decided to reject the claim, the insurer must tell the worker that the claim is still being considered by the insurer and the reason why the claim is still under consideration (s 128A).
2. Independent Medical Examiners – A workers compensation insurer may request that you attend one or more medical examinations. If you unreasonably refuse to attend, then the insurer may refuse to pay compensation or even suspend your payments.

Compensation

1. Calculating weekly payments – Weekly compensation payments are calculated based upon your average pre-injury earnings (including regular overtime and allowances) over the 12 months prior to your injury (s 21).
2. Weekly payments – first 26 weeks of incapacity – For the first 26 weeks that you are incapacitated for work you are entitled to 100% of your average pre-injury income (s 39).
3. Weekly payments – after 26 weeks and long term incapacity – If you remain fully incapacitated for work for more than 26 weeks, you will be entitled to 65% of your pre-injury weekly rate of pay. However, if you are able to return to work in some capacity, even with a different employer, then you will be entitled to between 65%-100% of your average pre-injury rate of pay depending on your level of capacity for work on a sliding scale (s 40, s 41 and s 42).
4. Medical treatment, damage and other costs – You are entitled to treatment from a doctor of your choice and do not have to be treated by your employer’s doctor. If your claim is accepted, the insurer will pay for your reasonable costs of medical treatment including medication, occupation rehabilitation, ambulance services, and travel expenses. If you claim these expenses, you will need to submit the details to the insurer in writing, along with any invoices or receipts. You should keep copies of everything you submit. You can obtain medical treatment during work hours, however this should be arranged by agreement with your employer. You can also claim for transport costs, alterations to your home, and in some circumstances, the costs of accommodation and meals (s 70).
5. Permanent Impairment – If you suffer from a permanent impairment arising from your injury, then you may be entitled to claim a lump sum payment in addition to any weekly compensation and medical expenses that you have claimed. A lump sum claim for permanent impairment is measured by assessing the loss of efficient use of the injured parts of the body. However, you cannot lodge a claim for permanent impairment within two years of the date of injury unless the injury has stabilised or you have the leave or permission of the Court. Not all permanent injuries are compensated. To be eligible they must be listed in the first schedule to the Act. For example, there are no permanent impairment claims for psychiatric or psychological injuries (s 51).
6. Death Benefits – If someone you are dependent upon dies during the course of their employment, you can claim compensation. A dependent is someone who can show that they were wholly, mainly or partially dependent upon the deceased’s earnings, or they would have been dependent but for the deceased’s injury.
   The dependants of a deceased worker are entitled to:
   - a single lump sum divided between the dependants;
   - funeral expenses; and
   - weekly compensation for each dependant child.
   Any payments to dependants must be approved by the ACT Industrial Court. If a worker dies due to their employer’s negligence, their dependants may also have a right to claim damages from the employer to compensate them for their loss of dependency which includes income and home help and assistance (s 77).

Return to work

Your right to receive compensation depends upon you making a reasonable effort to return to work, or making a reasonable effort to obtain suitable alternative work (s 104). Your employer is responsible for establishing an occupational rehabilitation program and a written return to work plan. You should consult with your treating doctor as to whether or not you should accept or reject a return to work plan.

Rejection of Claims

If an insurer decides to reject a claim they must do so by written notice and give the reason(s) they are rejecting the claim. If an insurer rejects a claim within 28 days of receiving the claim, they may stop payment of weekly compensation and treatment expenses two weeks or later after they reject the claim (s 130). If an insurer rejects a claim after 28 days, but not later than one year, after receiving the claim, then the insurer may stop weekly compensation and treatment expenses but only after 8 weeks or later after the worker receives the rejection of their claim (s 131). If it has been more than one year since the insurer received the claim, they may only reject the claim with the leave or permission of the Magistrates Court (s 132)..

The Industrial Court

Applying for Arbitration

If an insurer denies liability for compensation, or rejects a claim, you may apply to the ACT Industrial Court for Arbitration (s 195).

Dispute Resolution Conferences

Once you file an Application for Arbitration in the Industrial Court, your matter will be listed for a Dispute Resolution Conference (‘DRC’). The DRC will provide an opportunity for you and your lawyer, with the assistance of a Court Registrar, to see if negotiations with the Insurer and their lawyers might resolve your claim. If the matter does not resolve it will be listed for hearing in the weeks or months following the DRC.

Registration of Agreement for Compensation

If you agree to settle or commute your rights to workers compensation, your lawyer must apply to the Industrial Court for registration of the agreement. Once the Industrial Court has approved a registration of agreement, you are not entitled to receive any additional compensation. There can be preclusion periods and paybacks relating to Centrelink benefits. There may also be paybacks to Medicare. These will have to be known as much as possible before you commute your claim (s 79).