Applying for a reconsideration of Comcare’s decision to decline liability for your claim from Turnbull Hill Lawyers
The reality is that Comcare will not accept every claim that is made under the Comcare Scheme… and sometimes its decision to decline liability is the wrong decision, and not supported by the weight of evidence.
If you are on the receiving end of such a decision, you do have rights to have the decision reconsidered, and, if necessary, to appeal to an independent forum… the Administrative Appeals Tribunal.
This article will take you through the usual steps in the reconsideration and appeal process, noting there are strict time limits which must be complied with.
What decisions typically can and are reviewed?
Typical decisions that are reviewed by Comcare are:
decisions denying a claim for compensation
decisions to stop a payment of compensation
decisions to decrease the amount of weekly payments of compensation
Applying for a reconsideration of a Comcare determination
An application for reconsideration of a determination usually will need to be made within 30 days of receiving the determination.
Most determinations provide a good summary of the evidence available and the decision maker’s assessment of the evidence. Generally, once we read the determination and the evidence relied upon in coming to the determination, we are able to assess reasonably quickly whether there is an arguable alternative determination, such that reconsideration ought be applied for.
In that regard, there is no lodgement fee attached to lodging an application for reconsideration, but you will have to pay your own legal costs if you engage us to assist you with reviewing the decision and, if applicable, drafting your application for reconsideration and advising you on any fresh evidence that ought to be procured in support of your application.
In relation to procuring fresh evidence, usually this is in the form of either statements of evidence or additional reports from your doctors or medico-legal experts (specialist doctors), and if that fresh evidence is unlikely to be available within the 30 days in which to apply for a reconsideration, then we will also request that Comcare extend the time in which you have to lodge your application for reconsideration so as to allow sufficient time for the additional evidence to be obtained and lodged with the application, and therefore available for Comcare’s Reconsideration Team to have regard for. Our experience is that genuine requests for an extension of time so as to obtain fresh evidence will be granted.
Your application for reconsideration should involve a critique of the evidence, identifying deficiencies in the decision maker’s reasoning and then, by specific reference, identifying all of the evidence in support of your application.
What happens once you request reconsideration?
Typically, the process is as follows. Comcare will:
allocate the reconsideration to an independent Review Officer;
acknowledge the request for reconsideration to all parties;
provide an opportunity for your employer to comment on the application, including any new evidence;
assess any new evidence in line with the Safety Rehabilitation & Compensation Act (SRA Act); and
issue a decision in writing… which is known as a “reviewable decision”.
You should expect that the reviewable decision will be provided within 60 days of the date that Comcare receives the reconsideration request.
If you do not accept the outcome of the reconsideration, you can appeal
Similarly to the original decision, the reviewable decision is likely to also provide a good summary of the evidence available and the reviewable decision maker’s assessment of that evidence. Generally, once we read the reviewable decision, we are able to assess reasonably quickly whether there is any merit to you appealing the decision.
If you choose to appeal the reviewable decision then it is done by way of application for a merits review (“Application for review”) in the Administrative Appeals Tribunal (AAT).
An Application for review must be lodged with the AAT within 60 days from the day the reviewable decision is received.
Once we lodge your Application for review, the Respondent (or their lawyers) have 28 days in which to provide all documents relevant to the decisions being appealed. These documents are known as the “T-Documents”.
Once the T-Documents have been provided the appeal will be set down for a “Conference” will usually takes place by way of telephone conference. There may be a number of conferences, their purpose being to allow the AAT to better understand the issues to be argued in the appeal and whether there is any outstanding evidence being sought, with the view of listing the appeal for a mediation (or similar alternate dispute resolution conference “ADRC”) when all the evidence is available.
If the mediation or ADRC fails to bring the parties to a resolution, then the appeal will be listed for hearing.
Typically, it takes about 12 months from lodging an Application for review to it being heard.
If your appeal to the AAT is successful, usually you would receive an order in your favour that the other party pay a portion of your legal costs.