Challenging a Comcare decision

Challenging a Comcare decision

A “no” from Comcare does not have to be final. You have the right to challenge a decision when it is wrong. If you wish to challenge a decision, this is the process to follow:

1. Reconsideration

The Safety, Rehabilitation and Compensation Act allows for workers to request a reconsideration of Comcare’s determination. A reconsideration is a review of the decision by a different Comcare delegate. It is not a re-investigation of the claim. This request must be given to Comcare within 30 days after the day on which you received the determination.* The request must be in writing and must set out the reasons for the request.

It is important that reasons for the application are accurately specified, as this can become particularly significant if the matter progresses. For this reason it is advisable to obtain legal advice early.

The outcome of the reconsideration will be in writing and is called a ‘reviewable decision’. Comcare may vary, affirm or revoke the original decision.

2. Merits Review

If you are unhappy with the reviewable decision you can apply to the Administrative Appeals Tribunal (AAT) for a ‘merits review’.

The AAT must take a fresh look at the decision, including considering any new information, and decide if it should remain or be changed. The AAT is a Commonwealth tribunal which operates much like a Court.

An application to the AAT must be made within 60 days of receiving the reviewable decision,* must be in writing, and must contain a statement of the reasons for the application.

Case study

In Emery v Comcare [2017] AATA 2281 the Tribunal held that because Mr. Emery did not provide reasons as to why he was applying for a review of Comcare’s decision, he had not made a valid application. This meant that technically he had not formally lodged an application within the 60-day timeframe.

Although the AAT is empowered to extend the 60-day limitation, Senior Member Tavoularis found no acceptable explanation for the delay, Mr. Emery had little prospect of success and Comcare was entitled to the certainty that Mr. Emery’s claim could no longer be made against it.

It was resolved that Mr. Emery’s application for an extension of time was refused and so the decision of Comcare could not be reviewed.

What this means for injured Victorians

The case of Emery demonstrates the importance of obtaining legal advice early. If Comcare has rejected your claim for compensation contact one of our lawyers on (03) 9321 9988 today.

 *Extensions of time can be granted in special circumstances. If you are outside either of these time frames you must obtain legal advice as soon as possible.

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