Guide for submission of Employer Statements

Purpose of Guide

Under Section 54 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) a claim for workers’ compensation must be made on the form approved by Comcare for this purpose - the Claim for Workers’ Compensation (SRC16) (the Claim Form). Part 2 of the Claim Form requires certain information to be provided by the employer for whom the employee works, or worked. Within Part 2 there is the option, at Question 12, for the employer to provide a statement of facts about this claim.

This Guide is designed to provide advice to employers who wish to provide a Statement of Facts about a claim.

It should be noted that the SRC Act does not require a statement be provided by the employer however Comcare has the power, under Section 71 of the SRC Act, to obtain documents and information from the employer. The provision of a statement of facts by an employer may therefore pre-empt the need for further investigation of the claim by Comcare and lead to a more accurate and timely determination of the claim.  However, it is important to note that a statement of facts, once submitted by the employer, forms part of the claim file, and therefore may be released to the claimant under s59 of the SRC Act.

Why submit a Statement of Facts?

The need for and the extent of any statement of facts is a matter for the employer’s judgement.

A statement of facts should be submitted at the time of lodgement of a Claim for Workers’ Compensation (SRC16). The claim form does not ask the employer whether or not it supports the claim. Where no statement of facts is provided by an employer in relation to any aspect of the claim, then the position taken by Comcare in determining the claim is that the facts as detailed by the employee are ‘not disputed’ by the employer. This may also apply to particular assertions/allegations made within the claimant’s statement and these assertions/allegations should be assessed by the employer in deciding whether or not to lodge a statement of facts in relation to the claim. However, whether or not a statement is provided by an employer does not negate nor remove Comcare’s responsibility to appropriately investigate a claim.

Submission of a statement should not delay the early lodgement of a claim. Where an employer wishes to provide a statement but needs time to complete it, the employer should note this at the relevant section of the claim form and lodge the claim with Comcare as soon as possible after receiving it from the injured employee.

Further, action to assist an injured employee to stay at work or return to work quickly and safely should be taken by an employer as soon as it becomes aware that the employee has suffered an injury (whether or not that injury is work related), as any absence from work costs both the employer and employee. Such assistance should be provided as soon as possible after becoming aware of an injury, without waiting for a decision on liability by Comcare.

Information Sheet for Rehabilitation Authorities about Early Intervention Rehabilitation

What is a Statement of Facts?

A statement of facts can be in any written form (a covering letter forwarded with the claim; an attachment to the claim, etc) and should:

• contain factual and objective information (rather than conjecture, hearsay, or emotive opinion) and related dates and include, where appropriate, records containing information (eg. witness statements which may contain opinions, views, etc) relevant to the claim and the circumstances or context of the claim;
• assist Comcare in reaching a decision on 'the balance of probabilities' by, for example, confirming the facts as stated by the claimant;
• provide supporting documentation to assist Comcare in reaching a decision on the applicability of any exclusionary clauses - for example, a copy of the employer’s Certified Agreement performance management provisions in the case of claims relating to reasonable disciplinary action; details of relevant facts relating to ‘benefits in connection with employment’ or the failure to obtain those benefits, and so on;
• recognise that Natural Justice principles, Privacy guidelines and Freedom of Information legislation may be applicable;
• confirm whether or not the employee has been informed that the Statement has been provided to Comcare (all parties may be able to access any evidence submitted by the other);
• address any or all aspects of the claimant’s statement including, for example, confirming or refuting that certain events did/didn’t occur as claimed, and could include:
  
• • any history of the employee reporting similar symptoms or conditions, including a non-work related injury
  • whether or not the employee was at their normal workplace at the time when the claimed injury/illness arose/occurred and if not, an indication of where they were at the time - for example, working from home
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  • whether or not the person was at work or on a work related activity at the time the claimed injury/illness arose or on a journey to or from work (e.g. travelling interstate for a training course)
  • where the employee was on a journey between home and a place of work, any relevant details relating to the location where the accident occurred (e.g. whether the employer "had control" over the area where the accident occurred)
  • where the employee was on an ordinary recess away from the place of work, whether the activity being undertaken by the employee was at the request or direction of the employer, or associated with employment (for e.g. advice on the level of employer support for any sporting activities that may be identified in the claim as the cause of injury)
  • advice, especially in the case of a disease, if there were other people from the same workplace who were similarly affected
  • details of the nature of the claimant's position including main tasks performed, equipment used and the frequency of use, supervision and support provided, etc. 
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For complex claims, a statement of facts from the employer addressing these issues not only assists Comcare in its decision making, but also enables a better understanding by the employer of the issues considered in determining claims.

If the employer opinion/comments are adverse, Comcare will provide the employee with an opportunity to respond, prior to making a determination.

Determining Liability

A statement of facts can aid Comcare’s capacity to assess liability for a claim. In making a determination, Comcare will consider:

• Compliance (see below)
• Medical relationship (see below)
• Employment relationship (see below)
• Exclusionary provisions. (see below)

Compliance

The SRC Act requires that claims for compensation comply with certain conditions. The main requirements are that the claim:

• is made by an 'employee' as defined in the Act (section 5)
• substantially complies with the approved form (section 54)
• is accompanied by a medical certificate (section 54).

Most decisions on employment status are straight-forward, but it may assist if a statement of facts confirms the employee’s employment status.

Medical relationship

Comcare must consider whether the claimed condition is related to the stated employment cause and decide if there is a compensable condition being claimed. Information that assists Comcare in determining whether the claimed condition is consistent with the stated employment cause is useful.

Employment relationship

Sections 4, 5A, 6 and 7 of the SRC Act, require that compensation can only be paid for injuries that arise out of or in the course of employment, or are contributed to by employment to a significant degree. It is not necessary for an injured employee to show that there was a special, unusual or wrongful factor that contributed to their condition. Nor must they establish that their employer breached any duty of care. Again it is sufficient that employment contributed to any injury or significantly to the development of a condition.

Exclusionary provisions

The legislation provides that in some situations, injured employees are excluded from compensation.

For claims with a date of injury on or after 13 April 2007

Compensation is not payable to injured employees if the injuries are:

• the result of reasonable administrative action taken in a reasonable manner by the employer (section 5A(1), 5A(2)).  This will include:
• • a reasonable appraisal of the employee's performance,
  • a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment,
  • a reasonable suspension action in respect of the employee's employment,
  • a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment,
  • anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
• injuries that are caused by serious and wilful misconduct of the employee (s14(3));
• a disease where an employee has, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease (s7(7));
• travel exclusions - to and from place of residence and usual place of work 6(1C); and
• injuries that are sustained where an employee voluntarily and unreasonably submits to abnormal risk (s6(3)).

For claims with a date of injury before 13 April 2007 (references to pre-amendment provisions) 

• the result of reasonable disciplinary action (section 4(1));
• the result of failure to obtain a promotion, transfer or benefit (section 4(1));
• intentionally self-inflicted (section 14(2));
• caused by that employee's serious and wilful misconduct (section 14(3));
• the result of that employee making a false representation, connected with their employment, that they did not suffer from a disease (section 7(7));
• travel exclusions - increased risk of injury (s6(2)); and
• voluntarily and unreasonably submits to abnormal risk (s6(3)).

It is important to note that Comcare is not required to make a judgement about the outcome of any disciplinary action. Comcare must assess the reasonableness of disciplinary action on a case by case basis.

Additional Information

On its website, Comcare publishes a range of materials for employers on management of employees with injuries. The guides:

• Psychological Injury claims: How Comcare determines initial liability for claims with a date of injury before 13 April 2007; and
• Psychological Injury claims: How Comcare determines initial liability for claims with a date of injury on or after 13 April 2007.

provide an overview on how Comcare determines claims for psychological injury and is worth considering when submitting a Statement of Facts for such claims.

Further information is available at: www.comcare.gov.au; via e-mail to claims.help@comcare.gov.au; or you can ring our General Inquiry Line: 1300 366 979.