Frequently asked questions about The Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015

For: 

FAQ List

On this page:

Can you give me a broad overview of the changes to the Comcare scheme?

The Government’s reforms of the Comcare scheme aim to get injured employees back to full health and back to work, and to provide extra support for those who really need it. Changes will ensure employers only pay where the workplace has contributed to an injury and introduce efficiencies to make the scheme affordable and sustainable in the long term.

For employees a number of changes are being made to the provision of medical treatment, rehabilitation, household and attendant care and how benefits are calculated. Some of the key changes are:

  • Only evidence-based medical treatment provided by qualified professionals will be paid for, ensuring employees will have better health outcomes.
  • Some medical treatment will now be paid for without a claim being lodged, enabling injured employees to obtain medical treatment in the critical early stages of an injury or illness.
  • There will be enhanced incentives and obligations for employers to provide alternative work or reduced hours in addition to increased rehabilitation and employment options.
  • For catastrophically injured employees, household and attendant care will be uncapped and provided for as long as needed. Other employees will receive up to three years of capped household and attendant care.
  • Treatment outcomes will be improved through the new requirement for qualified carers to provide attendant care services.
  • The compensation payment system will be better structured to offer ongoing financial incentives to those injured employees who choose to work in some capacity.
  • Income replacement payments will be calculated in a new way to improve the accuracy and speed of calculations.

The Comcare scheme is a good scheme and several critical features will not change, including:

  • Injured employees will receive support (income replacement, medical treatment and rehabilitation) for as long as they need it.
  • In addition, lump sum permanent impairment payments will continue to be available to eligible employees.
  • As well as providing these benefits, employers will continue to have an obligation to provide suitable employment to injured employees.
  • Appeal rights will continue to be available to injured employees who disagree with a decision that affects them.
  • An employee’s dependents will continue to receive compensation where the employee’s death is the direct result of a work-related injury or illness.

The Comcare scheme will remain a ‘no fault’ scheme – an injured employee will not need to prove negligence on the part of their employer.

Why is the Government making these changes?

The Comcare scheme is a good scheme but it has become outdated and no longer meets the needs of workers, their employers or community expectations. Since its introduction 27 years ago, there have been significant changes in workplaces and working conditions, health care and rehabilitation best practice and technology, as well as individual and social behaviour and expectations. The Safety, Rehabilitation and Compensation Act 1988 has not kept up with these changes and is in need of a proper overhaul.

When introduced, the scheme’s focus was on compensating injured workers and does not recognise the benefits of assisting workers to recover and return to work. Consequently, there is not enough support and incentive for workers to return to work.

The Government’s changes to the Act will:

  • improve return to work outcomes for injured workers;
  • improve focus on early intervention and health outcomes of injured workers;
  • ensure the loopholes in the current legislation are closed; and
  • improve administration of the scheme.

The amendments support injured workers to return to work when they are able to. This is because work is generally good for health and wellbeing and research has found that long-term work absence, work disability and unemployment have a negative impact on health and wellbeing.  Further, studies have shown that an early return to work, or continuing to work, is beneficial for health and wellbeing as it promotes recovery and rehabilitation, leads to better health and financial outcomes and reduces the risk of long-term incapacity.

Other amendments include:

  • greater differentiation between work and non-work injuries;
  • changing eligibility requirements for some conditions, including psychological conditions;
  • introducing access to up to $5,000 in medical expenses without a claim; and
  • changing the way income replacement benefits are calculated and paid.

Importantly, the proposed measures support better return to work outcomes and enable the Comcare scheme to continue to provide income payments until pension age and lifetime medical and rehabilitation expenses. A scheme that supports injured workers until retirement age needs to use every dollar wisely – otherwise the scheme becomes unaffordable.  Rather than reduce the timeframe for support, the Government has chosen to target the spending more carefully.

How will the changes affect income replacement payments?

This Bill will change income replacement payments in several ways. It will change the way income replacement payments are calculated to improve the accuracy and speed of the calculations. Income replacement payments will now continue to the age pension qualifying date rather than cutting off when the employee turns 65. In addition, employees who access their superannuation will no longer have their income replacement benefits reduced by five per cent.

The Bill introduces tapering to the amount of weekly compensation payments to which an injured employee is entitled to by establishing new ‘step-down provisions’. The step-downs are:

  • Weeks 1 – 13: 100 per cent of the employee’s average weekly remuneration.
  • Weeks 14 – 26: 90 per cent of the employee’s average weekly remuneration.
  • Weeks 27 – 52: 80 per cent employee’s average weekly remuneration.
  • Weeks 53 onwards: 70 per cent employee’s average weekly remuneration.

Employees’ income replacement at each of these step-downs may also be reduced if the employee has a deemed ability to earn that they are not utilising.

Employees on the final two step-downs who have a partial return to work may receive a combination of income replacement and salary from their employer up to 90 per cent of their average weekly remuneration.

The Bill will also change the way income replacement is calculated to improve the accuracy and speed of calculations.

Calculations will now consider ‘average weekly remuneration’ which includes fringe benefits, reportable superannuation contributions, bonuses and commissions. Overtime pay and some allowances will also be included in average weekly remuneration but only for the first 104 weeks of compensation payments. The Bill also provides for greater flexibility when determining the period from which the calculations will be made to fairly represent an employee’s pre-injury remuneration.

This modernised calculation better reflects the varied employment and contract conditions, pay and bonus structures of employees.

What do ‘deemed rejection’ and ‘deemed affirmation’ mean?

Under current provisions, there are no time limits for how long a decision-maker can take to assess and decide a claim’s outcome. This can cause delays for injured workers with a compensation claim under consideration. To remedy this, the Bill introduces timeframes to reduce the time taken to consider a claim and make a determination of liability for payment of workers’ compensation.

The Bill also introduces timeframes to reduce the time taken to decide a request for reconsideration of an earlier determination.

Under the proposed changes, the Bill requires a determining authority to:

  • determine liability for an injury that isn’t a disease or designated injury within 30 days of receiving a claim;
  • determine liability for a disease, a designated injury or an aggravation of a designated injury, within 70 days of receiving a claim; and
  • decide a request for reconsideration of an earlier determination within 60 days.

If the determining authority has not determined the claim within the time allowed, the determining authority is taken to have made a determination that compensation is not payable in accordance with the SRC Act. This is known as a ‘deemed rejection’.

If the determining authority has not decided the request for reconsideration within the time allowed, the determining authority is taken to have made a decision affirming the determination. This is known as a ‘deemed affirmation’.

Where a decision is made within timeframes

  1. Injured employee makes a claim for workers' compensation
  2. The determining authority has 30 or 70 days to determine its liability under section 14
  3. If the employee is dissatisfied with the determination, he or she has 30 days to request a reconsideration of the determination
  4. If a reconsideration is requested, the determining authority has 60 days to decide a request for reconsideration
  5. If the employee is dissatisfied with the reviewable decision, he or she has 60 days to appeal the decision to the Administrative Appeals Tribunal

Where a deemed decision is made

  1. Injured employee makes a claim for workers' compensation
  2. The determining authority fails to determine its liability within 30 or 70 days (deemed rejection)
  3. The employee has 30 days to request a reconsideration of the deemed determination
  4. The determining authority fails to decide the request for reconsideration within 60 days (deemed affirmation)
  5. The employee has 60 days to appeal the deemed reviewable decision to the Administrative Appeals Tribunal.

What does reasonable management action mean?

'Reasonable management action' and ‘reasonable administrative action’ are terms used to describe a range of management actions that are considered reasonable for an employer to take without these actions giving rise to claims for compensation. Since 1988, different parties have interpreted these terms in ways that were not originally intended. The changes seek to clarify the range of employer actions that, where reasonably taken, should not give rise to compensation claims. 

The definition of ‘reasonable management action’ is consistent with the bullying provisions in the Fair Work Act 2009 and will include:

  • performance reviews;
  • counselling;
  • suspending employment;
  • disciplinary activities;
  • anything done in relation to an employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit;
  • organisational or corporate restructures; and
  • directions given for an operational purpose.

This means that compensation will no longer be payable for a psychological injury attributed to any of the listed management actions. However, the requirement remains that this action must be reasonable to undertake in the circumstances and it must be undertaken in a reasonable manner.

Will I still be covered if I have a heart attack or stroke at work?

An employee who has a heart attack or stroke at work will only be eligible for workers’ compensation if their employment significantly contributed to the heart attack or stroke. If medical and related evidence establishes that the heart attack or stroke is caused by underlying or degenerative diseases with no significant degree of contribution from the workplace, workers’ compensation will not be payable. 

The purpose of this amendment is to clearly distinguish between work and non-work related injuries so that only injuries and incidents caused by an employee’s employment are compensable.

Will my medical expenses still be covered?

The Government’s reforms to the Comcare scheme aim to improve the health and return to work outcomes of injured employees and ensure better care and service provision.

As part of these changes, medical treatment must be provided by legally qualified health practitioners and must be evidence-based. The Government is also introducing changes that will cap compensable medical treatment costs. This will allow Comcare to prescribe maximum amounts that are payable for medical treatment under the SRC Act.

Medical expenses will still be covered where they:

  • are provided by qualified health practitioners accredited and registered under the National Registration and Accreditation scheme;
  • comply with objective standards including the Clinical Framework; and
  • fall within Comcare’s medical service rates.

Do I have to get medical treatment I don’t agree with?

The Government’s reforms to the Comcare scheme aim to improve the health and return to work outcomes of injured employees and ensure better care and service provision. As part of these changes employees are obligated to follow reasonable medical advice. An employee who receives reasonable medical treatment advice from a legally qualified health professional will be obligated to follow that advice except when surgery and/ or prescription drugs are recommended.

An employee may reasonably refuse to undergo surgery, or to use prescription medication without breaching their obligations under the Comcare scheme.  An employee may choose one treatment in preference to another where medical opinion differs.

Will I need to change doctors?

The reforms to the Comcare scheme require that medical treatment be provided by legally qualified health practitioners. As long as your doctor is legally qualified in Australia you will not be required to change doctors.

Under the amendments, for medical treatment to be compensable, it must meet objective standards, such as those in the Clinical Framework, and must be provided by health practitioners who are accredited and registered under the ‘National Registration and Accreditation Scheme.’

The amendments allow Comcare to set cost schedules for legal fees, medical treatment and medical reports to reflect market rates and value for money. Relevant authorities will not be liable to pay charges for medical treatment and reports in excess of these costs schedules.

I get massages and acupuncture to help me with my injury. Will these still be covered?

The Government’s reforms to the Comcare scheme aim to improve the health and return to work outcomes of injured employees and ensure better care and service provision.

As part of these changes, medical treatment must be provided by legally qualified health practitioners and must be evidenced-based.

In order to be compensable, medical treatment must meet objective standards, such as those in the Clinical Framework, and must be provided by health practitioners who are accredited and registered under the ‘National Registration and Accreditation Scheme.’

This means that massage and acupuncture will only be compensable if provided by a qualified health practitioner such as a physiotherapist or acupuncturist and is part of a treatment plan to return the injured employee to good health.

Massage and acupuncture provided by non-qualified health practitioners will not be compensable.

My attendant carer is a family member. Can they still look after me?

Families can continue to care for an injured family member but they may no longer be able to be compensated for that work.

The Government has introduced a requirement that attendant care services can only be provided by accredited, registered or approved providers. Where a family member has completed the relevant training and accreditation, they will be able to be compensated for the attendant care they provide.

However, exceptions do apply. A relevant authority may approve an individual who is not an accredited, registered or approved provider, to be compensated for providing attendant care in special circumstances. When determining whether an individual can be compensated, the relevant authority must consider the nature of the employee’s injury, how necessary the attendant care services are for the employee to undertake or continue employment, the extent to which a relative of the employee might reasonably be expected to provide attendant care services and the extent to which medical and nursing care already received by the employee provides for their personal care.

These new requirements will give injured employees the best possible chance to be rehabilitated and to return to work, as well as to learn how to manage any residual impairment.

Comcare will make available guidelines for the accreditation, registration and approval of providers of attendant care services.

What does mutual obligation mean?

Mutual obligation requires that the employer and the injured employee fulfil their responsibilities under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). It is intended to maximise the likelihood of the injured employee getting better and returning to work. The table below lists the responsibilities of each party.

An employee must, subject to having a reasonable excuse:

  • Seek and accept offers of suitable employment and actively engage in that employment
  • Provide required documentation or information (including medical certificates) within the specified period
  • Follow reasonable medical treatment advice provided by a legally qualified medical practitioner or dentist
  • Fulfil their responsibilities under a workplace rehabilitation plan
  • Undergo a work readiness assessment as required
  • Undergo a medical examination as required
  • Undergo an assessment of need for household services or attendant care services as required.

An employer must:

  • Take all reasonably practicable steps to ensure the rehabilitation of the employee including the provision of rehabilitation services
  • Take all reasonably practicable steps to comply with the employee’s workplace rehabilitation plan
  • Provide the employee with suitable employment or assist the employee to find suitable employment, and then take all reasonably practicable steps to maintain the employee in suitable employment.

A relevant authority, on behalf of an employer, must:

  • Pay workers’ compensation, including income replacement
  • Provide early access to medical treatment from formal notification of the injury, where a request has been made by the employee
  • Pay an injured employee’s ongoing medical treatment expenses
  • Pay compensation for household and attendant care services
  • Comply with reasonable requests from a relevant authority if the relevant authority pursues a common law claim against a third party who may have been liable for the employee’s injury.

In addition, employers in the Comcare scheme must comply with their obligations under the Work Health and Safety Act 2011. Failure to comply with work health and safety obligations can result in a range of regulatory responses for the organisation and individuals. In some cases, individuals may be subject to criminal prosecution and face substantial fines or gaol sentences.

Both parties face consequences if they do not meet their obligations under the SRC Act. Non-compliant employers can incur higher premiums or licence costs, additional regulatory oversight and intervention by Comcare. For Government departments, the issues may be referred to their Minister for review and action. A private corporation with a licence under the Comcare scheme that fails to comply with its workers’ compensation obligations under the SRC Act may have its licence downgraded and a repeat offender may have its licence revoked. An injured employee who fails, without reasonable excuse, to meet his or her obligations of mutuality will be subject to the sanctions or cancellation regimes.

More information on the sanctions and cancellation regimes can be found in the FAQ ‘In what circumstances will compensation payments be suspended or cancelled?’.

Will I have to go back to work before I am ready?

An injured employee will not be forced to return to work before they are able to do so. Return to work is based on medical evidence and advice and is planned in consultation with the employee and their supervisor.

Where an injured employee is deemed as ready to return to work, they will return to ‘suitable employment.’ Suitable employment is any employment for which the employee is suited, taking into account:

  • the employee’s age, experience, training, language and other skills;
  • the employee’s suitability for rehabilitation or vocational retraining; and
  • if the employee would have to change their place of residence for suitable employment that is available at a different location and whether it is reasonable to expect the employee to change their place of residence.

This means that on returning to work, an employee may perform alternative or modified duties that meet the employee’s capacity, skills, experience and takes into account any medical limitations.

To assist in a safe and quick return to work, injured employees may be required to undergo a work readiness assessment which will assess their capacity to undertake suitable employment. If an employee is assessed as having capacity to work they are required to accept offers of suitable employment up to that capacity. An employee who does not accept an offer of suitable employment will have their income replacement suspended until the offer of suitable employment is accepted.

What if my employer doesn’t have suitable work for me?

Employers will be required to assist employees to find suitable employment where it is not available within their organisation.  To assist this process, as part of an employee’s workplace rehabilitation plan, they may also be required to seek alternative suitable employment. If suitable employment is found with other employers, the injured employee will still be required to accept offers of suitable employment.

What happens to an employer if they do not offer suitable duties to an injured employee?

Employers who fail to take all reasonably practicable steps to provide an injured employee with suitable employment, or to assist an injured employee to find such employment, will face significant repercussions. For public service agencies and authorities, this may be reflected in premium increases and greater regulatory oversight by Comcare. For licensees, this may result in increased claim costs, downgrading of the tier status of their licence (resulting in increased costs and greater regulatory oversight by Comcare) and, potentially, licence revocation.

The amendments also encourage better return-to-work outcomes through improved incentives and rewards for employers. They provide greater flexibility and assistance to employers and employees engaged in the return-to-work process and offer a range of measures that broaden an employer's scope and responsibility to provide injured employees with suitable employment or assist them to find suitable employment.

These measures include:

  • the introduction of work readiness assessments to enable better assessment of an injured employee’s capacity to work;
  • increased job-seeking responsibilities for injured employees who have a capacity to work;
  • the expansion of suitable employment beyond the current employer;
  • removal of the requirement for an employee to be or have been participating in a rehabilitation program before they can be placed in suitable employment; and
  • the creation of a job placement framework to assist employees in their search for work, including offering employment incentives to new employers.

What obligations will employers have?

The amendments are designed to reinforce the concept of mutual obligation, that is, it is the duty of the employee to actively engage in their own recovery and return to work and the duty of the employer to:

  • provide early access to medical treatment, before a claim has been accepted;
  • take all reasonably practicable steps to ensure the rehabilitation of an employee;
  • comply with an employee’s workplace rehabilitation plan;
  • provide an employee with suitable employment or assist them to find suitable employment; and
  • maintain the employee in suitable employment.

This is in addition to the employer’s obligation to provide a safe workplace under the Work Health and Safety Act 2011.

What obligations will employees have?

The amendments introduce the concept of mutual obligation, that is, it is the duty of the employer to provide workers’ compensation for an injured employee and it is the duty of the employee to:

  • follow reasonable medical advice including undertaking reasonable medical treatment;
  • provide any required documentation (including medical certificates) within the specified period;
  • see a mental health practitioner within 12 weeks of becoming incapacitated if a claim is for incapacity  caused by a psychological or psychiatric condition;
  • fulfil their responsibilities under a rehabilitation plan;
  • undergo a work capacity assessment as required;
  • undergo an assessment of need for household and attendant care services as required; and
  • seek and accept offers of suitable employment and actively engage in that employment.

In what circumstances will compensation payments be suspended or cancelled?

Compensation payments will be suspended when an employee has left Australia for more than six weeks for personal reasons. For more information about compensation payments and their suspension while an employee is outside of Australia please refer to the FAQ, ‘Can I still receive compensation payments while I am overseas?’

Compensation payments will also be suspended for psychological injury claimants who refuse or fail to undergo an examination by a mental health practitioner and provide a medical certificate, by that practitioner, to the relevant authority within 12 weeks of making the claim.

Claims managers will be better empowered to manage claims through use of the suspension and cancellation regimes where injured employees fail, without reasonable excuse, to carry out their responsibilities under the obligations of mutuality to:

  • seek and accept offers of suitable employment and actively engage in that employment;
  • provide required documentation or information (including medical certificates) within the specified period;
  • follow reasonable medical treatment advice provided by a legally qualified medical practitioner or dentist;
  • fulfil their responsibilities under a workplace rehabilitation plan;
  • undergo a work readiness assessment as required;
  • undergo a medical examination as required;
  • undergo an assessment of need for household services or attendant care services as required;
  • comply with reasonable requests from a relevant authority if the relevant authority pursues a common law claim against a third party who may have been liable for the employee’s injury.

Consequences for non-compliance will be applied in three stages, escalating from suspension of certain benefits and appeal rights at stage one to cancellation of all benefits and appeal rights at stage three. Each determination concerning an employee at each stage of the sanctions and cancellation regimes will be reviewable.

Level 1 of the Sanctions Regime

If an employee breaches one of their obligations, for the first time, the relevant authority must determine that the employee is subject to the level 1 sanctions regime.

In the case of a breach concerning a suitable employment obligation, the employee’s weekly incapacity payments will be reduced by the amount that the employee is able to earn in suitable employment.

For any other breach, the employee’s right to compensation (except for medical treatment) will be suspended until the employee or dependent complies with the relevant obligation. Compensation will not be payable for the period of the suspension. In most cases, the right to institute or continue any proceedings under the Safety, Rehabilitation and Compensation Act 1988 will also be suspended until the breach is remedied.

Level 2 of the Sanctions Regime

If an employee, who has already entered level one of the sanctions regime, breaches one of their obligations for a second time in relation to the same injury, or fails to remedy the first breach within the period determined by the relevant authority, the relevant authority must determine that the employee is subject to the level 2 sanctions regime.

In the case of a breach concerning a suitable employment obligation, the employee’s weekly incapacity payments will be reduced by the amount that the employee is able to earn in suitable employment.

In the case of any other breach, the employee’s right to compensation (except medical treatment) will be suspended until the employee or dependent complies with the relevant obligation. Compensation will not be payable for the period of the suspension. In most cases, the right to institute or continue any proceedings under the Safety, Rehabilitation and Compensation Act 1988 will also be suspended until the breach is remedied.

Cancellation Regime

If an employee, who is in level 2 of the sanctions regime, further breaches their obligations under the Act, the relevant authority must determine that the employee is subject to the cancellation regime.

Where this occurs, the employee’s right to rehabilitation and compensation for all current and future injuries caused by the same incident or state of affairs will be cancelled. However, the cancellation of an employee’s right to compensation and rehabilitation will not affect the right of the employee’s dependants to claim compensation if the employee subsequently dies as a result of an injury in respect of which compensation has been cancelled.

The employee’s rights to institute or continue any proceedings in relation to compensation (other than proceedings in relation to the sanctions regime) in respect of all current and future associated injuries are permanently cancelled.

What changes are being made to lump sum provisions?

In addition to income replacement, medical treatment and rehabilitation support, some injured workers are eligible for a lump sum payment for permanent impairment.

The Government’s reforms to the Comcare scheme aim to provide more support to those injured employees who need it the most. Key changes to permanent impairment provisions include:

  • impairments arising from the same incident can be combined so more employees will be able to meet the permanent impairment threshold;
  • more seriously impaired employees will be receiving higher amounts of compensation for permanent impairment than they currently receive as the maximum payable amount is increased;
  • less seriously injured employees will receive lower amounts of compensation for permanent impairment than what they would receive under existing provisions;
  • permanent impairment lump sums will no longer be claimable for secondary psychiatric conditions; and
  • relevant authorities will be able to take pre-existing conditions into account when measuring and compensating for the level of permanent impairment.

Can I still receive compensation payments while I am overseas?

An employee who is away from Australia for reasons other than work can continue to receive compensation payments for up to six weeks. This period can be extended by written approval from the person who manages the claim. An extension may be provided where the relevant authority is satisfied that the employee is unable to return to Australia within six weeks and that there are special circumstances that warrant an approved extension.

After six weeks, if an extension has not been approved, the compensation payments will be suspended until the employee returns to Australia. Compensation payments are suspended because long absences from Australia preclude participation in a workplace rehabilitation plan and prevent any effective assessment of the employee’s continuing incapacity for work, the amount the employee is able to earn in suitable employment and the efficacy of medical treatment.

If an employee is overseas for reasons related to their work, the employee can continue to receive compensation payments for the duration of their trip.

I currently have a workers’ compensation claim being processed. Will these changes affect my claim?

Yes. Both new and current claims may be affected by the Government’s changes to the workers’ compensation scheme. The changes will take effect progressively, over a 12 month period after the legislation has been passed.

If a claim has already been submitted, Comcare will continue to apply their existing policies and procedures in relation to determining claims for compensation.

Some of the changes, if and when passed, may affect existing compensation claims. If this is the case, Comcare will contact you, after the legislation has been passed by Parliament, regarding any changes, which affect your specific compensation entitlements.  Whether the amendments will affect your claim cannot be advised before this time.

Yes. In 2014 the Government commenced its workers’ compensation reforms. The changes made by the Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 are the second part of the Government’s workers’ compensation reform package.

The first part of the reforms package, the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 was introduced into Parliament in March 2014. The 2014 Bill’s changes are primarily focused on self-insurance within the Comcare scheme. The Bill also includes changes to workers’ compensation coverage and eligibility for employees on recess breaks and who are injured while engaging in serious and wilful misconduct. 

Under the changes, an employee will no longer be covered for injuries that occur during recess breaks away from the workplace. For example, injuries sustained by an employee while shopping, at a restaurant or playing sport away from the workplace during a lunch break will not be covered by workers’ compensation.

Employees will continue to be covered under workers’ compensation for injuries sustained during ordinary recess breaks at their workplace. Injuries sustained by an employee who is away from the workplace but still conducting activities associated with employment or at the request or direction of their employer will still be covered.

Currently, workers’ compensation is not payable to employees where an injury is caused by their own serious and wilful misconduct unless the injury results in death or serious and permanent impairment. The amendments remove this exception so that there will be no compensation for any employee injury or death if the injury was caused by the employee’s own serious and wilful misconduct.