Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In an important update to Australia’s safety laws, the federal government has introduced a definition of “catastrophic injury” in the new Safety, Rehabilitation and Compensation (Catastrophic Injury) Rules 2018 (Rules). Covered employers1 should be aware of this alteration to Australia’s safety laws because it may impact their duties when responding to employee workers’ compensation filings.
Section 4(1) of the Rules defines “catastrophic injury” as any of the following:
(a) a catastrophic spinal cord injury;
(b) a catastrophic brain injury;
(c) a catastrophic amputation injury;
(d) a catastrophic burn injury; or
(e) a catastrophic blindness injury.
The Rules contain further details on each of these injury classifications, including the effects of the injury and a Functional Independent Measure (FIM) score sheet2 that needs to be completed to assess the severity of the injury for Comcare coverage purposes. By way of background, Comcare is a government system dedicated to minimizing the effects of harm in workplaces. Like workers’ compensation systems found in the United States, Comcare partners with employers to help prevent workplace injuries and provide compensation to victims of catastrophic injuries at work.
The FIM now required by the Rules is an instrument completed by the patient’s treating doctor or a medical professional who is FIM-trained to evaluate the severity of a patient’s disability, and it tracks changes in the functional ability of the patient during hospital rehabilitation. The FIM assessment is submitted to Comcare for its case managers to consider and determine whether it will accept liability of the catastrophic injury claim.3 Compensation under Comcare may include income during a worker’s period of incapacity, as well as payments for medical expenses, death or funeral benefits, household and attendant care, travel costs, and necessary aids or modifications.
Additionally, under section 29A of the Safety, Rehabilitation and Compensation Act, in situations where an employee suffers a “catastrophic injury,” the Australian Government statutory authority that administers Comcare is immediately obligated to pay compensation for household and attendant care services if the worker is no longer able to maintain or manage day-to-day activities at home due to the injury. These services include, but are not limited to, assistance with cooking, cleaning, laundry and gardening.
In order to minimize catastrophic injury claims, employers are urged to continue to make all reasonably practicable changes to the workplace to prevent accidents. In the event that an employee is injured, employers should assist the worker in finding appropriate support and provide him or her with information regarding Comcare’s services and the procedure on how to submit a claim. Employers should also provide Comcare with accurate, timely and complete information about any claim while ensuring confidentiality. Employers should submit an employer statement of facts of the injury and any supporting documents to Comcare for the determination of the claim.4
These changes in the Rules apply to any covered catastrophic injuries occurring on or after August 25, 2018. The new laws do not apply retroactively to any injuries that pre-date commencement of the Rules.
1 Employers with employees covered by Comcare generally include government agencies, statutory authorities, and corporations that have been granted authority to self-insure, called “licensees.”
2 A sample FIM sheet and additional information are available here.
3 For example, for a worker to qualify for compensation for suffering from a catastrophic brain injury, the injury would need to be assessed by a FIM-trained medical or health professional at a score of 5 or less on any of the items in the FIM score sheet. Some items in the FIM score sheet would include the patient’s capabilities for self-care (i.e., eating, grooming, bathing etc.) and ability to communicate, along with any cognition issues. More information can be found in the sample FIM sheet. In this example, the Comcare determination would be based on the FIM score as well as on the worker’s demonstration that he or she is suffering from cognitive, physical, or psychosocial function impairments, such as post-traumatic amnesia or a brain imaging abnormality.
4 Comcare’s Guide for Submission of Employer Statements is available here.