A work related injury is defined under the Safety, Rehabilitation and Compensation Act 1988 (Cth) s 6 and has the same broad definition as the State legislation. If a work related injury or illness has kept an employee away from work for twenty-eight days or more, the employee will be referred to a case manager to assist in the rehabilitation process. There is also a specific compensation scheme for Asbestos related claims.

A case manager from the employer will consult with the employee, and also the employee's employer, manager, doctor, union representative and anyone else appropriate in order to help the employee to return to work as soon as possible [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 36]. If possible the employee will return to her or his former position and if that is not possible, to a modified or different job. An approved rehabilitation provider may also be contacted to assist [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 34].

Formal Review

If an employee disagrees with a case manager's decision, it is possible to appeal by asking Comcare for a Formal Review [Safety, Rehabilitation and Compensation Act 1988 (Cth) s 38]. If still dissatisfied, an appeal can be lodged at the Administrative Appeals Tribunal (AAT).

Review by the Administrative Appeals Tribunal

A person wanting to apply for a review by the AAT must do so within 60 days after being given notice of the Comcare decision. An application to extend the time to lodge an application can be made to the Tribunal, however it is not a guarantee that an extension of time will be granted. There is no application fee to apply for a review of a Comcare decision. An application for review can be made online, by email, post or fax. There is no requirement to be legally represented at the AAT, however the other party may be represented. Another professional person may represent a party, or even a family member or friend. If a party does appoint a representative, the AAT must be provided with their details. For more information on appearing in the AAT, please visit the Assistance in the AAT webpage.

If the matter proceeds to a hearing, the Tribunal may affirm, vary, or set aside the decision, or send back the decision to a Comcare review officer to make a new decision.

For information on the jurisdiction of the AAT, see Complaints against government.

The AAT has also produced a useful Guide to the Workers' Compensation Jurisdiction [link opens in a new window] for information on the procedures the Administrative Appeals Tribunal (AAT) will usually adopt in managing applications for the review of Comcare decisions.

Legal Costs

The power of the AAT to award costs in an AAT Comcare matter is set out in section 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). In certain circumstances, the AAT may order that a party to a proceeding pay the costs incurred by another party. The legislation states that if the AAT sets aside a reviewable decision, and remits the case back to the decision-maker for re- determination, the AAT must order the decision-maker to pay the costs a worker has incurred (although certain exceptions apply, for example where certain processes have not been followed by a worker). For further information on costs in the AAT, please see the Costs chapter in the Guide to the Workers' Compensation Jurisdiction.

Appealing from a decision of the AAT

The Administrative Appeals Tribunal Act 1975 (Cth) provides that a party to a proceeding before the AAT may appeal to the Federal Court of Australia on a question of law from any decision of the AAT in that proceeding.

Specialised legal advice will be needed if an applicant is considering a Federal Court appeal from the AAT, as significant legal costs may apply. A party who loses an appeal from a decision of the AAT will usually be ordered to pay the other party's legal costs.

Please visit the Federal Court of Australia Appealing from a Decision of the AAT website for further information [link opens in a new window].