Riggs, Naomi --- "Disputing a Comcare decision: Review and appeal steps" [2020] PrecedentAULA 33; (2020) 158 Precedent 40

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DISPUTING A COMCARE DECISION

REVIEW AND APPEAL STEPS

By Naomi Riggs

As is the case with many state-based workers’ compensation systems, the Comcare compensation system provides a no-fault process for injured workers to access compensation for their medical expenses, weekly payments and a small lump sum impairment benefit. At present, the Comcare jurisdiction covers 196 employers and 410,634 employees,^[1] with the scheme covering federal government employees as well as companies who chose to become licensees under the system.

The scheme can be difficult to navigate, especially for an injured worker seeking to challenge a Comcare decision. This article seeks to outline the steps to be taken in order to appeal a decision made by Comcare and the key issues concerning the appeal processes in Comcare: namely delay; the inability of appeal courts to determine matters on their merits; and costs.

INTERNAL REQUEST FOR RECONSIDERATION

Between 1 July 2018 through to 30 June 2019 (the 2018–2019 reporting period), 2,374 injured workers disputed a determination made by Comcare and made a request for a reconsideration of that determination.^[2] In order to dispute a decision made by Comcare, an injured worker must first make a ‘request for a reconsideration of a decision’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). A worker has 30 days from when the decision first came to their attention to request a reconsideration.^[3]

Following the request for reconsideration, an internal review of the determination is undertaken by Comcare/the insurer and then a reviewable decision is produced.^[4] An injured worker is not able to file proceedings in the Administrative Appeals Tribunal (the AAT) without a reviewable decision. Once a worker receives a reviewable decision, they have 60 days to file proceedings in the AAT.^[5] In the 2018–2019 reporting period, 84 per cent of all reconsideration requests affirmed the decision made by Comcare.^[6]

APPLICATION FOR REVIEW BY THE AAT

When filing proceedings in the AAT, the applicant must set out briefly the reasons as to why the decision is being disputed.^[7] The respondent then prepares a court book (the T documents) which is filed and served on the applicant, and the matter is set down for directions, then a conference, and finally a hearing.

At the hearing, witnesses can give evidence by telephone. As at 29 February 2020, the median time it was taking for applications to be finalised was 52 weeks.^[8] Experience suggests that judgments are generally taking between four to six months to be delivered. Importantly, pursuant to s67 of the SRC Act, if the applicant is successful in their application, the AAT can order that the applicant’s costs be paid by the responsible authority. The AAT must give reasons for its decision which detail the material findings of fact and the evidence underpinning those findings.^[9] If the reasons are delivered orally, either party can, within 28 days, request that the AAT provide written reasons.^[10]

Between 1 July 2019 and 31 March 2020, 907 applications were made to the AAT seeking to overturn a reviewable decision. Of those applications, 36 per cent resulted in the disputed decision being set aside.^[11]

APPEAL TO THE FEDERAL COURT

A decision of the AAT made under the SRC Act can only be appealed on a question of law and the appeal must be made to the Federal Court of Australia.^[12] In order for an appeal to be successful, the Federal Court must find that the AAT made an error of law and that this error contributed to the decision being appealed. The appeal must be instituted within 28 days of the subject decision being given to the claimant.^[13] If the AAT decision was delivered by a member, the appeal will be heard by a single judge of the Federal Court. If the decision was delivered by a deputy president or a judge, it must be heard by the Full Court of the Federal Court if the Chief Justice of the Federal Court considers it appropriate.^[14] The Federal Court may affirm or set aside the decision of the AAT. If the decision of the AAT is set aside, the matter must be remitted and heard by a reconstituted tribunal, either with or without the admission of further evidence, depending on the orders of the Federal Court.^[15]

The Federal Court’s inability to determine the merits of an appeal and substitute its own decision in place of the Tribunal’s original ruling is resulting in significant delays to injured workers. In general, a decision disputed by a worker and successfully appealed to the Federal Court will take approximately three years to result in any income/benefit being received by the injured worker. By the time the injured worker receives that income/benefit they will have made two dispute applications and undergone three hearings. The respondent is only required to pay reasonable costs on a standard basis and accordingly, the legal costs payable by the injured worker will always be significant. The limitation on the Federal Court’s powers on appeal is stated by the Courts to reflect ‘a distribution of function which is critical to the correct operation of the administrative review process’.^[16] It is however not the dominant approach taken by workers’ compensation jurisdictions, where the Court exercising appellant jurisdiction can also determine the merits of the case and substitute its decision for the decision being appealed.^[17]

RECENT APPEAL CASES

Karabolovska v Comcare^[18]

Ms Karabolovska was employed by the ATO. In February 2014 she made a telephone call to a taxpayer who threatened to commit suicide. Ms Karabolovska was subsequently diagnosed with a psychological injury, which included features of self-harm. A Comcare claim was made. Comcare accepted the claim, with the accepted injury described as ‘aggravation of major depressive disorder, recurrent episode’. In August 2017, Comcare terminated Ms Karabolovska’s medical benefits and incapacity payments on the basis that her employment no longer contributed to the injury and her symptoms were a result of her accepted pre-existing condition. Ms Karabolovska disputed the termination, and made a second claim for vision impairment arising from the psychiatric condition, which was also rejected.

The two disputes were heard by the AAT on 28 May 2019; the hearing ran over four days, and judgment was delivered on 3 June 2019. The AAT affirmed the two Comcare decisions and an appeal was made to the Federal Court. The basis of the appeal was that the AAT failed to give adequate reasons which, if established, constituted an error of law under s43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).

The substantive issue on appeal was the AAT’s decision in relation to Ms Karabolovska’s psychological injury. Justice Perry heard the matter on appeal, and noted that in respect of medical material, the AAT had failed to analyse the differences in medical opinion or detail why it preferred one doctor’s views over another. Further, a conclusion was made that the evidence of the applicant and her husband was unreliable, but no reasons were given as to why. In upholding the appeal, Perry J held that:

‘these reasons fall well short of the standard required by law. The Tribunal has not sought at this point in its reasons or earlier to engage in any meaningful way with the competing medical evidence and has essentially stated its conclusions and expressed its reasons at the level of vague generalities’.^[19]

He continued:

‘It follows that the reasons of the Tribunal fail to disclose the actual path of reasoning by which it arrived at its conclusions and lack sufficient detail to enable the Court on judicial review to determine whether the conclusion is affected by any error of law.’^[20]

Comcare v Wiggins^[21]

Ms Wiggins was employed by the Australian Federal Police. In March 2014, she made a claim for a psychiatric injury which she said had occurred as a result of bullying. Comcare accepted that Ms Wiggins had an injury, but determined that it was suffered as a result of reasonable administrative action taken in a reasonable manner (which renders an injury non-compensable under the SRC Act^[22]). Therefore, Comcare rejected Ms Wiggins’ claim.

Ms Wiggins appealed Comcare’s decision and the matter was heard by the AAT in April 2016, and continued in August 2016. The only issue in dispute was whether Ms Wiggins’ condition was as a result of reasonable administrative action taken in a reasonable manner. In May 2017 the AAT determined that Ms Wiggins had suffered an injury described as chronic adjustment disorder with depressed and anxious mood with features of traumatisation, which was significantly contributed to by her employment and not as a result of reasonable administrative action taken in a reasonable manner. Comcare’s decision was overturned.

Comcare appealed on the basis that the AAT failed to exercise its jurisdiction in respect of the construction and application of ss5A and 5B of the SRC Act. In September 2019, Comcare’s appeal was dismissed and Ms Wiggins’ entitlement to compensation confirmed.

It took more than five years for Ms Wiggins’ claim to be accepted. Sadly, the alarming reality of the current system is that this sort of delay is not uncommon.

Singleton v Comcare^[23]

Mr Singleton was employed by the Australian Federal Police. In September 2013 he suffered an injury to his right shoulder, and a Comcare claim was made and accepted for an ‘unspecified injury to shoulder upper arm (right)’. He then made a claim for permanent impairment in respect of the right shoulder injury, which was assessed at 10 per cent, and compensation was paid. Mr Singleton subsequently developed Chronic Pain Syndrome (CPS) and a further Comcare claim was made and accepted in respect of the CPS. In 2017, Mr Singleton made a further impairment claim for Chronic Regional Pain Syndrome (CRPS). Comcare denied liability for the claim on the basis that it had accepted liability for CPS and not CRPS and further it disagreed that there was CRPS. Mr Singleton appealed that decision and the AAT affirmed Comcare’s decision. The AAT held that the CPS was not a separate injury from the right shoulder injury.

An appeal was then made to the Federal Court on the grounds that the AAT:

• misconstrued the definition of injury; and

• had made an error of law by failing to consider the alternate case that the CRPS gave rise to further impairment.

In dismissing the appeal, Abraham J stated:

‘the issue is whether it has been established, on the evidence, that in this case it (CPS) is a separate injury within the meaning of the SRC Act ... the tribunal concluded that the CPS was not a separate or discrete “resultant effect”. The tribunal did not misunderstand its statutory task, and instead, made a number of factual findings on the way to reaching this ultimate conclusion. No error is established’.^[24]

In respect of the second ground of appeal, Abraham J referred to the following oft-cited passage in Comcare v Lofts:^[25]

‘What the Court is required to identify is the reviewable decision that was made by Comcare under s62 of the SRC Act. That identification will delineate the jurisdiction of the tribunal ...’^[26]

Accordingly, it was held that the alternate claim was not considered in the reviewable decision and the AAT did not have jurisdiction to determine the claim.

THE COSTS DISINCENTIVE

Mr Singleton’s case is an important reminder to practitioners to carefully manage the review and reconsideration processes, as those processes govern the jurisdiction of the AAT. In the case of Mr Singleton, he now faces the prospect of a costs order being enforced against him by Comcare. Unlike other workers’ compensation jurisdictions which state that unsuccessful litigants will not be pursued for costs in the absence of fraud, Comcare does not have such a policy. Comcare is governed by the Legal Services Directions 2017 and those directions specifically state that Comcare is not prevented from enforcing costs orders or seeking to recover its costs.^[27] There is no other policy statement restricting its recovery of costs.

The federal government’s guidance note to Commonwealth entities on the recovery of costs is as follows:

‘A range of factors are to be taken into account in deciding whether to do either of these things [seek costs and enforce costs order]. Factors that would tend to support seeking or enforcing costs include:

• that the other party caused unnecessary expense and delay in the proceedings

• that there is an apparent need to deter vexatious litigation in the future

• that the debtor is apparently able to pay, and

• that the anticipated expense in recovering costs does not outweigh the recoverable or potentially recoverable costs.’^[28]

It is understood that Comcare does in fact enforce costs orders against unsuccessful litigants and this is a significant concern. The financial viability of Comcare cannot be prioritised above the right of injured workers to access justice. The statistics for the 2019–2020 reporting period show that the AAT overturns a statistically significant proportion of Comcare decisions (in that year, 36 per cent), yet the risk of incurring a significant legal bill may well act to deter many injured workers from challenging decisions. The statistics on the success rates for appeals to the Federal Court are not available, however, our experience suggests that a much larger percentage of these appeals are successful.

The reality is that injured workers must be advised that if they are unsuccessful and they have financial assets, they are at risk of a costs order being enforced against them.

CONCLUSION

The SRC Act provides several avenues for a worker to challenge a decision under the Comcare system. However, lengthy delays in the operation of the system currently mean that workers could have to wait years before an incorrect decision is overturned. Further, the significant risk of a costs order being made against a worker if their claim is unsuccessful is a considerable disincentive for an injured worker, particularly one who is already facing financial hardship, to pursue review and appeal avenues. In the event that a worker does elect to dispute the decision through formal channels, it is imperative that the entirety of the review and appeals process is handled diligently and meticulously to ensure the worker has the best prospects of success and the lowest risk of financial disaster.

Naomi Riggs is a Principal solicitor at Rubicon Compensation Lawyers and Accredited Specialist in personal injury law. Rubicon Compensation Lawyers practises in all areas of personal injury and employment law. Its main office is in Melbourne and it has visiting offices in Frankston (Vic) and Hobart (Tas). PHONE [phone] EMAIL [e-mail].

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^[1] Australian Government, Comcare, Regulator performance framework key performance indicators 2016–17, 3.

^[2] Australian Government, Comcare and Safety, Rehabilitation and Compensation Commission annual reports 2018–19 (Comcare and SRCC annual reports), 23.

^[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act), s62.

^[4] Ibid.

^[5] Ibid, s64.

^[6] Comcare and SRCC annual reports, above note 2, 23.

^[7] The easiest way to do this is to fill in a request form which can be accessed at <https://www.aat.gov.au/AAT/media/AAT/Files/Forms/Application-for-Review-of-Decision-Individual.pdf>.

^[8] See <https://www.aat.gov.au/AAT/media/AAT/Files/Statistics/AAT-Whole-of-Tribunal-Statistics-2019-20.pdf>.

^[9] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), ss43(2) and 43(2B).

^[10] Ibid, s43(2A).

^[11] Comcare and SRCC annual reports, above note 2, 194.

^[12] AAT Act, s44(1).

^[13] Ibid, s44(2A)(a).

^[14] Ibid, s44(3).

^[15] Ibid, s44(5).

^[16] Repatriation Commission v Owens (1996) 70 ALJR 904 at 904.

^[17] Western Australia, Victoria, South Australia, Tasmania, Queensland.

^[18] [2019] FCA 2153.

^[19] Ibid, [89].

^[20] Ibid, [95].

^[21] [2019] FCA 1465.

^[22] SRC Act, s5A(1).

^[23] [2019] FCA 2104.

^[24] Ibid, [45]–[48].

^[25] [2013] FCA 1197.

^[26] Ibid, [57].

^[27] Legal Services Directions 2017 (Cth), App B, note 5.

^[28] Office of Legal Services Coordination (Cth), Recovery of costs, Guidance Note 4, reissued June 2018.