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2.1 Format of an incapacity claim
Most commonly claims for incapacity payments are received via the form ‘D1360 - Claim for Incapacity for Service/Work’, however there is no legislative requirement for a claim to be on this form and a claim cannot be refused because it is not on the ‘claim form’.
Section 54 prescribes that 'a claim for compensation' is not payable unless the person applies in writing on the form approved by Comcare, 'a claim' in the S54 context means primarily a claim for liability. Following a determination accepting liability, access to payments does not require a further Comcare-approved form (or any form). This was confirmed by the Federal Court in Commonwealth v Ford (1986) in which the Court found:
- The Act did not require that a claim for compensation specify the particular type of compensation sought by the employee, it is the obligation of the Commissioner to decide the compensation to which the employee is entitled.
- Once a claim has been made, the Commissioner should make further determinations without a fresh claim once it becomes clear that additional benefits are payable.
Note: Though a decision on a 1971 Act case, Ford applies equally to the SRCA.
Where initial liability for the injury has already been accepted and incapacity occurs at a later date, claims for payments do not need to be made on any particular form. The actual request for incapacity payments may be made in any format, i.e. in writing, by e-mail or even verbally (e.g. by telephone).
Alternatively, a request may be made via the needs assessment process.
Section 319 prescribes that claims for compensation (in addition to claims for liability) must be in writing. This requirement may be satisfied in one of the following ways:
A tick in one of the boxes at question 23 on the MRCA claim form D2051; or
The claimant's signature on a needs assessment; or
A written request for compensation.
Section 324 imposes an obligation on the delegate to investigate a claim that is made in writing.