Comcare and EML ‘cease effects’ decisions

We specialise in Comcare and ACT Government workers compensation claims and have acted for many workers who have a ‘cease effects’ decision made about their claims.

These are usually distressing and frustrating for workers, many of whom have been unable to work for a long time because of their injuries.  However, with the right evidence and strategy, these types of Comcare or EML decisions can be successfully overturned at the Administrative Appeals Tribunal.

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What is a ‘cease effects’ decision?
A ‘cease effects’ decision is one which states that a worker is no longer entitled to any form of workers compensation. The decision can only be made where liability for an injury was previously accepted by Comcare or EML. The effect of the decision is to cease payment of benefits such as incapacity payments and/or medical treatment expenses.
Reasons for decision

The common reasons for a ‘cease effects’ decision are:

  1. The worker has recovered and no longer suffers from the effects/symptoms of the injury.
  2. Even though the worker may suffer similar symptoms to their work injury, these symptoms are not caused by the worker’s injury, but something else.
  3. Liability for the injury was accepted in error in the first place.
Injuries, not conditions, are compensated

You will notice that when Comcare or EML accept liability for a workplace injury, they identify the accepted condition.  This makes sense from a practical point of view, as it identifies what condition compensation will be paid for.  This is particularly important where a worker may suffer from many medical conditions, but only one is work-caused.

We act for clients who may have been injured at work many years ago (we have recently acted for clients injured in the 1980’s).  Over time, there are advances in medicine.  A worker’s diagnosis of their injury may change.  Sometimes Comcare/EML use a changed diagnosis to decide that the worker suffers from a different condition to that which they accepted liability for.

However, when this occurs, a mistake may have been made. The Safety, Rehabilitation and Compensation Act 1988 (SRC Act), the law establishing workers compensation entitlements, is not interested in diagnoses or conditions.  It is only interested in work-caused injuries and the effects or symptoms of the injuries.  This is illustrated by the following example:

  • Greg suffers a psychological injury at work. His doctor diagnoses him as suffering from an Adjustment Disorder. Comcare accept liability for the Adjustment Disorder. Greg’s doctor later changes the diagnosis of his work injury to Major Depressive Disorder.

In Greg’s case, the cause of his Major Depressive Disorder is still work, his doctor has just updated the diagnosis.  If Comcare made a ‘cease effects’ decision based on the change of diagnosis, they would be in error and Greg could get this decision overturned at the Administrative Appeals Tribunal.

Liability should never have been accepted

These types of decisions are usually upsetting and frustrating for our client’s. Just because Comcare or EML have previously made a decision accepting liability for an injury, it doesn’t mean they cannot later change their mind. Sometimes they do this in ‘cease effects’ decisions.

If Comcare or EML do this, they have the burden of showing the decision should never have been accepted. In practical terms, the worker still needs to provide evidence that they suffered a work-cased injury. In tackling these types of claims, great reliance is placed on documents from the time of the initial claim, such as statements and clinical records.

More than one injury can be suffered

A worker can suffer more than one injury from a workplace event. Sometimes a worker suffers from a physical and psychological injury. Sometimes a worker may develop a secondary or consequential injury, such as a chronic pain condition, as a result of their initial injury.

When we act for clients with a long-standing physical injury and chronic pain, often we need to consider whether a new claim for injury must be made. This is quite a technical area of law to do with the SRC Act and the amount of power the Tribunal has. Take the following example:

  • In 2000, Greg has a fall at work and suffers soft tissue injuries to a shoulder, wrist and knee. Unfortunately he suffers chronic pain which impacts on his capacity to work. He also requires ongoing treatment. Greg puts in a workers compensation claim and Comcare accept liability for the soft tissue injuries. In 2010 Greg is diagnosed with a chronic pain syndrome which is caused by the initial work injury. In 2020 Comcare make a ‘cease effects’decision in relation to the soft tissue conditions.

In this example, Greg has two options:

  1. Submit a review at the Administrative Appeals Tribunal for the ‘cease effects’ decision; and
  2. Submit a claim for the chronic pain syndrome.

Greg can do both options, as you can suffer more than one injury for a work event, even if the second (or even third of more) injury is not apparent until some years later. If Greg does not submit a claim for the chronic pain syndrome, but the Administrative Appeals Tribunal finds that he suffers from this condition and it is work-caused, he would lose at the Tribunal. This is because the SRC Act requires all claims be made on Comcare or EML, before the Tribunal has power to make a decision about a particular injury.

It is complicated (which is why you need a specialist Comcare lawyer)! In most cases we run at the Tribunal involving long-standing workplace injuries, we have multiple claims for multiple injuries arising from one workplace event.

Specialist Comcare Lawyers

We have succeeded in helping clients with matters such as:

  • Depression, anxiety, PTSD and other mental injury claims;
  • Back claims;
  • Shoulder claims;
  • Pain condition claims;
  • Knee and foot claims;
  • Debt reviews; and
  • Drafting statements, collecting evidence and doing submissions for reconsiderations.

Comcare claims are different to other workers compensation claims.  This is not just because it involves a different piece of legislation.  As Comcare is a government body, their decisions come under a branch of law call ‘administrative law’.  This differs from ACT and NSW workers compensation systems where decisions are made by private insurance companies.  Therefore you need lawyers with knowledge and experience in administrative law.

We understand administrative decision making and use this to seek remedies for our clients where:

  • Comcare has failed to take into account relevant information when making a decision.
  • Comcare takes into account irrelevant information when making a decision.
  • Comcare makes a decision which is not based on evidence.
  • Comcare incorrectly applies law when making a decision.
  • Comcare makes a decision which is not the correct or preferable decision.
  • Comcare fails to make a decision when they are required to.

Who you will work with

Tom Maling is the primary lawyer who supports clients with Comcare claims, however Matt Bridger, Cecilia Pascoe and Gabby Bridger also act for clients in Comcare matters.

We understand the impact a workplace injury has on your life:   physically, emotionally, and financially.  Our experience, expertise and approach enable us to build a rapport with clients and ensure they access the support they are entitled to.

Health and personal injury law experts

Health and injury are complex areas of law.  Elringtons provide Canberra, Queanbeyan and South-Eastern NSW with specialist legal services in these complex areas.  We have genuine industry knowledge and experience when it comes to health and medical care, which enables us to think differently about health and medical issues.  Our in-depth understanding enables us to better understand our clients’ needs, meaning we are better positioned to achieve our clients’ desired outcomes, whether this is accessing a particular treatment, having an injury recognised as being caused by work, or simply working with our clients in an empathetic and genuine manner.

For Comcare clients, this means better understanding of your situation, your injury and how to get the best evidence to win your case.

For ACT Government Workers, see our dedicated page on ACT Government Workers Compensation.

To contact Matt or Tom or to make an appointment in either our Canberra or Queanbeyan office:

p: +61 2 6206 1300 | e: Info@elringtons.com.au

Further Reading