We receive a lot of questions re Comcare, particularly on how decisions can be disputed. Many Comcare decisions can be disputed, such as rejection of the claim, decisions to cease your benefits or a decision not to pay for certain medical treatment and/or pay you lump sum compensation for your permanent impairment, and even unreasonable decisions re your RTW.
If you work for of one of the organisations covered by Comcare such as a post office, bank, public service etc. and you suffer an injury or illness at work, you can claim compensation under the Comcare legislation (the Safety Rehabilitation & Compensation Act 1988 (Cth)).
As is the case with all other workcover schemes, when you lodge a claim for a work related injury or illness, generally speaking your case manager will undertake a detailed investigation before responding to your claim, or before approving your claim and/or certain benefits (i.e. medical treatment, weekly pay etc). This “investigation” can include things like obtaining your medical records from your treaters to see whether you do suffer from a work injury and not from an underlying or pre-existing injury; discussing and interviewing your boss and even your work colleagues about the circumstances of your injury/illness; and – of course – sending you to an “independent” medical examination with an IME hand picked by your workcover insurer, be it Allianz or Comcare. If that’s not enough video surveillance is also often undertaken.
Unfortunately, once a work injury claim is lodged, the Comcare law does not really provide any time limitations to respond to the workcover claim. Generally speaking you can expect to hear from Comcare (or your employer) within about one month. If you feel that there are unreasonable delays we strongly urge you to seek decent advice from an experienced personal injury lawyer to find out the reasons for the delay(s) and, if possible, in order to speed up Comcare’s decision making process.
It’s important that you are aware that you have appeal rights – in other words you are entitled to dispute for example a claim rejection.
In the first instance, you (the injured worker) can request a ‘reconsideration’ of the Comcare decision re your claim, but note that you must make this request within 30 days of the decision. Should you choose to make such a review request, you definitely should seek legal advice because these requests can often involve a very complex interpretation of of the law as well as the facts surrounding the injury.
Unfortunately, it is quite common that Comcare will not change it’s mind following a consideration. If you are still unhappy following Comcare’s reconsideration process, you can dispute the matter through the Administrative Appeals Tribunal (AAT). Because of the complexity of this process, we urge you never to attempt to appeal a Comcare decision at the AAT on your own! Rather, ask your lawyer to dispute the matter at the AAT. Of note is that appeals to the AAT have to be made within 60 days of the reconsideration, which is also known as the ‘reviewable decision’.
Apart from a rejection of your Comcare claim, you can also dispute other adversarial decisions such as decisions to cease your benefits if your claim has previously been accepted, or a decision not to pay for certain medical treatment or pay you lump sum compensation for your permanent impairment. In addition, unreasonable decisions about a Return to Work plan or your rehabilitation program can also become the subject of a review or dispute.
The case managers managing your Comcare claim can and do make
deliberate “mistakes” regarding your legal entitlements, so you should never simply accept their findings.
The Comcare system is extremely complicated, and the law is constantly changing with new litigation being disputed all the time!
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