Applying for a reconsideration of Comcare's decision to decline liability

for your claim

April, 2016By Gavin Hanrahan

Litigation and Business Law Partner

Legal DisclaimerThis presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon any

of the information contained within this seminar

without seeking the advice of a qualified solicitor who

specialises in the particular area of expertise and

jurisdiction that you require.

IntroductionThe 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.

IntroductionIf 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.

IntroductionThis 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 determinationAn application for reconsideration of a determination usually will need to be made within 30 days of receiving the determination.

Applying for a reconsideration of a Comcare determinationMost determinations provide a good summary of the evidence available and the decision maker's assessment of that evidence.

Applying for a reconsideration of a Comcare determinationGenerally, 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.

Applying for a reconsideration of a Comcare determinationIn 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 be procured in support of your application.

Applying for a reconsideration of a Comcare determinationIn 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)…

Applying for a reconsideration of a Comcare determination… 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.

Applying for a reconsideration of a Comcare determinationOur experience is that genuine requests for an extension of time so as to obtain fresh evidence will be granted.

Applying for a reconsideration of a Comcare determinationYour 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;

Continued…

What happens once you request reconsideration? assess any new evidence in line with the 

Safety Rehabilitation & Compensation Act (SRA Act);

and, issue a decision in writing, which decision 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 appealSimilarly to the original decision, the reviewable decision is likely also to 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 do not accept the outcome of the reconsideration, you can appealIf 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).

If you do not accept the outcome of the reconsideration, you can appealAn Application for review must be lodged with the AAT within 60 days from the day the reviewable decision is received.

If you do not accept the outcome of the reconsideration, you can appealOnce 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

If you do not accept the outcome of the reconsideration, you can appealOnce the T-Documents have been provided the appeal will be set down for a "Conference" will usually takes place by way of telephone conference.

If you do not accept the outcome of the reconsideration, you can appealThere 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 you do not accept the outcome of the reconsideration, you can appealIf 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.

Turnbull Hill Lawyers – Contact UsIf you have any further questions about Comcare claims, or applying for a reconsideration, please do not hesitate to call:

Gavin Hanrahan on: 1800 994 279 or email him

He will endeavour to respond to your enquiry within 24 hours (on a business day).