The vast majority of eligible former employees were identified as such and recorded in December 1988. Occasionally, however, special cases arise and must be considered by delegates.
Former employees who cease to receive incapacity payments and later re-establish entitlement
If a former employee ceased receiving incapacity payments (eg. because of improvement in their condition) and subsequently re-establishes an entitlement to compensation, whether for the original injury or a fresh injury, they must continue to be treated as a former employee. The rule is: "once a former, always a former".
Benefits were suspended or wrongly cancelled as at 1 December 1988
If weekly compensation was suspended or cancelled as at 30 November 1988, and it was later reinstated (in respect of that day) by the Administrative Appeals Tribunal, or on a reconsideration, the client is to be treated as "receiving compensation" for the purposes of the definition of former employee.
Compensation entitlements affected by damages
Under s 99 of the 1971 Act, weekly compensation for incapacity was not payable to an employee who recovered lump sum damages until the amount of compensation foregone equalled the amount of damages received. Where the lump sum was large, this suspension of compensation payments could extend for 10 - 20 years.
In these cases, when compensation once again becomes payable, the client may be entitled to be treated as a former employee.
The client should be treated as a former employee if investigation clearly shows that:
- they retired from Commonwealth employment before 1 December 1988; and
- their entitlement to payment of weekly compensation was suspended under s 99 of the 1971 Act, before 1 December 1988, because of the recovery of damages.
Note: This does NOT include situations where compensation was redeemed in a lump sum.
Before compensation is paid, evidence must be obtained which demonstrates that the compensation which would have been paid during the intervening period equals or exceeds the common law award. The following points should be noted:
- contemporaneous medical evidence must support the proposition that the client was incapacitated and identify the period or periods of incapacity;
- medical expenses should be supported by receipts or accounts;
- rates of compensation should be calculated at the applicable rate under the legislation applying at the time for each period of proven incapacity;
- periods of incapacity before 1/12/1988 should be calculated under the 1971 Act (usually ss 45 or 46). Under the 1971 Act, generally the first 26 weeks of incapacity were paid at 100% of NWE and thereafter statutory rates applied;
References
- DCA 66 : "Former employee"
- Comcare v Neil (1993) 41 FCR 517 : Definition of former employee; "was receiving weekly payments" of compensation
- Re Delaney and Comcare [2002] AATA 110 (21 February 2002) : "was receiving weekly payments" of compensation
- Reserve Bank & Comcare and Wheeler (1990) 12 AAR 160 : Compensation wrongly cancelled