Dealing with an Adverse Comcare/EML Decision

The most important thing if you receive an adverse decision from Comcare is that you do not panic, and you act promptly if you intend to challenge the decision(s).

We recommend that you obtain competent legal advice from a lawyer who practices in the area because the Safety Rehabilitation and Compensation Act 1988 is an extremely complex area of law.

It is important that you do not seek legal advice from your treating practitioners because their job is to treat you and not to act as your advocate. Further, we have seen many cases where well-meaning treating practitioners in an attempt to help their patients state that the compensation process and decisions that Comcare makes are injuring the claimant further. This is not helpful because the Act specifically states that an injury caused by the compensation process or rehabilitation is not compensable.

It is important that you do not make assumptions about the correct strategy to adopt, arguments to be made and evidence to be sought.

If your injury is an aggravation of an underlying injury, or your injury requires you to make arguments that go to whether the reasonable administrative action exception applies, these are particularly complex areas of law and we strongly suggest you seek legal assistance.

In order to provide your lawyer with the best possible chance to build your case, they will need all documents that were in front of Comcare/EML at the time of the decision.

Even before you seek legal advice, we recommend that you request your case file from Comcare/EML if you do not have all of the documents yourself so that you can hand these to any lawyer from whom you seek advice. A competent lawyer will be unable to provide you with comprehensive legal advice unless they have the relevant documents. Seeking documents early will prevent delay.

If the decision that you received was what is called a primary decision (the first decision that Comcare/EML has made on this particular issue) you will have 30 days from receipt to seek reconsideration. If you have already sought reconsideration and received a negative decision, you have 60 days from receipt to lodge a request for review with the Tribunal.